Bat Man

The essence is sufficent to speculate and legally write an opinion as a legal fact

2008-09-24T01:14:00.000-07:00

Charlie: Um, no, can you repeat it because I can't believe my fucking ears.

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COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, Judges Elder, Frank, Humphreys, Clements, Kelsey, McClanahan,

Haley, Petty and Beales

Argued at Richmond, Virginia

APRIL NICOLE CORSARO

MEMORANDUM OPINION

Record No. 1269-05-2

JUDGE RANDOLPH A. BEALES

NOVEMBER 6, 2007

COMMONWEALTH OF VIRGINIA

UPON REHEARING EN BANC

FROM THE CIRCUIT COURT OF MADISON COUNTY

Herman A. Whisenant, Jr., Judge Designate

Kevin E. Smith (Smith & Greene, P.L.L.C., on brief), for appellant.

Alice T. Armstrong, Assistant Attorney General (Robert F.

McDonnell, Attorney General, on brief), for appellee.

A jury convicted April Nicole Corsaro (appellant) of possession of cocaine and conspiracy

to distribute the same. Appellant asserts the trial court erred 1) in violating her constitutional right

to confront witnesses and 2) in denying her motion to strike the evidence on the conspiracy charge.

Agreeing with appellant on her second assignment of error, a divided panel of this Court reversed

appellant’s conviction for conspiracy to distribute cocaine. Corsaro v. Commonwealth, No.

1269-05-2 (Va. Ct. App. Nov. 14, 2006). Upon granting the Commonwealth’s petition for a

rehearing en banc, we stayed the mandate of the panel decision. After consideration from the full

Court and for the reasons that follow, we affirm appellant’s conviction.

Pursuant to Code § 17.1-413, this opinion is not designated for publication.

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ACKGROUND

“Applying well-established principles of appellate review, we must consider the evidence

and all reasonable inferences fairly deducible therefrom in the light most favorable to the

Commonwealth, the prevailing party below.” Walker v. Commonwealth, 272 Va. 511, 513, 636

S.E.2d 476, 477 (2006). “That principle requires us to discard the evidence of the accused in

conflict with that of the Commonwealth and to regard as true all the credible evidence favorable

to the Commonwealth and all fair inferences that may be drawn therefrom.” Guda v.

Commonwealth, 42 Va. App. 453, 455, 592 S.E.2d 748, 749 (2004).

On April 14, 2004, Investigator Garry W. Harvey, a lieutenant with the Madison County

Sheriff’s Office and member of the Blue Ridge Narcotics Task Force, received a tip from a

confidential informant about an impending drug transaction. Based on this information, officers

from the task force proceeded to a 7-Eleven store off Route 29 in Madison County and awaited

the arrival of a maroon Chevy Blazer, purportedly driven by a white female named April.

Fauquier County Detective Timothy Chilton, a task force member, testified that he was familiar

with both this woman, April Corsaro, and this particular maroon Blazer, since “[t]he individual

that owned the vehicle had actually cooperated with the task force before on numerous

occasions.”

At approximately 10:00 p.m., a maroon Chevy Blazer arrived in the parking lot of the

7-Eleven. Officers surrounded the vehicle and detained the driver, whom Harvey and Chilton

identified at trial as appellant. According to Harvey, appellant “made a voluntary statement at

that point. She said, I’ll do anything. I don’t have it on me, but I’ll take you to get it.” Harvey

advised her to remain quiet and administered the Miranda warnings.

Thereafter, according to Officer Harvey, appellant “advised [Harvey] that she had come

out to deliver two hundred dollars ($200) worth of cocaine to a guy named Allen. She said --

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stated that she didn’t have the cocaine on her but she was going to pick up this Allen guy and

take him to a guy by the name of J-Rock in Culpeper.” Harvey testified that, through his

“connection with the [narcotics] task force,” he knew of a Jason Washington in Culpeper County

who used the name “J-Rock.” Harvey also recounted that officers found a beer can with ashes

inside the Blazer and that appellant “advised [him] that she had smoked crack out of that can

prior to arriving to 7-Eleven.” A certificate of analysis introduced at trial confirmed the

substance in the can was crack cocaine.

At trial, appellant interposed an objection during Harvey’s testimony “to information he

simply received from another individual.” Appellant further argued that, “unless that

individual’s here to testify, I would object to the hearsay evidence.” The trial court noted that

the testimony would not be considered for its truth, but it would be admitted to show how

Harvey proceeded.

At the close of the Commonwealth’s case, appellant moved to strike the evidence on the

conspiracy charge, arguing that there was “absolutely no evidence, whatsoever, that she met

with, talked to, agreed with anybody about anything as far as any kind of drug transaction . . .

other than a confession.” The trial court denied the motion, stating

there is sufficient corroboration that has been shown by the mere

fact that, not only did she arrive in the vehicle at the time, the

location, as was going to be indicated, but she had drugs in the car

at that particular time, and she also stated that the drugs were there

and she’s used the drugs -- smoked the drugs from the can prior to

coming there.

NALYSIS

In her first question presented, appellant contends “the trial court violated [her]

Constitutional right to confront witnesses against her in allowing prosecution witnesses to testify

about information that was provided to them by a confidential informant who was not present and

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did not testify at the trial . . . .” Appellant, though, only offered a general hearsay objection to

testimony concerning the confidential informant. That testimony was admitted for the limited

purpose of describing the progression of events and the police officers’ subsequent actions.

Appellant at no point during her trial alleged a violation of the Confrontation Clause.

Pursuant to Rule 5A:18, ‘“The Court of Appeals will not consider an argument on appeal which

was not presented to the trial court.’” Peake v. Commonwealth, 46 Va. App. 35, 42-43, 614

S.E.2d 672, 676 (2005) (quoting Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d

484, 488 (1998)).

For that reason, our consideration of this issue is procedurally barred.

II.

Appellant framed her second question presented as follows: “Whether the trial court

erred in denying [her] motion to strike the Commonwealth’s evidence as to the conspiracy

charge when it ruled that Appellant’s confession was corroborated by the hearsay evidence of the

confidential informant.” At oral argument, appellant conceded that her statement to police

constituted a full confession to the crime of conspiracy to distribute cocaine, and, consequently,

only slight corroborative evidence was necessary to establish that confession’s veracity. See

Powell v. Commonwealth, 267 Va. 107, 145, 590 S.E.2d 537, 560 (2004) (“Although the

While Rule 5A:18 allows exceptions “for good cause shown” or “to attain the ends of

justice,” appellant does not ask this Court to invoke either of those exceptions here. “In order to

avail oneself of the exception, a defendant must affirmatively show that a miscarriage of justice

has occurred, not that a miscarriage might have occurred.” Redman v. Commonwealth, 25

Va. App. 215, 221, 487 S.E.2d 269, 272 (1997). “We will not consider, sua sponte, a

‘miscarriage of justice’ argument under Rule 5A:18.” Edwards v. Commonwealth, 41 Va. App.

752, 761, 589 S.E.2d 444, 448 (2003) (en banc).

Appellant argues that the words “unless that individual’s here to testify” adequately

preserved the Confrontation Clause issue. We reject that argument as the objection was

presented as a simple hearsay objection and further note that appellant never sought a ruling

from the trial court on a Confrontation Clause issue, as required by Rule 5A:18. See Singleton v.

Commonwealth, 19 Va. App. 728, 735, 453 S.E.2d 921, 926 (1995) (noting that Rule 5A:18

applies to “even a constitutional question”).

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Commonwealth may not establish an essential element of a crime by the uncorroborated

confession of the accused alone, ‘only slight corroborative evidence’ is necessary to show the

veracity of the confession.” (quoting Williams v. Commonwealth, 234 Va. 168, 175, 360 S.E.2d

361, 366 (1987))). Following this concession, appellant urged us to hold that the record contains

absolutely no evidence that could corroborate her confession.

Appellant, in her question presented on this issue, challenges only the trial court’s

reliance upon hearsay evidence that described information supplied by the confidential

informant. We agree with appellant that the trial court improperly considered this evidence, which

was admitted not for its truth, but instead to show the progression of events. However, appellant

failed, in her questions presented, to challenge the trial court’s alternate holding on the

corroboration issue, namely that appellant “had drugs in the car at that particular time, and she

also stated that the drugs were there and she’s used the drugs -- smoked the drugs from the can

prior to coming there.” In other words, appellant did not allege in her questions presented to this

Court that the trial court erred in finding that the physical evidence seized from appellant’s

vehicle provided the slight evidence necessary to corroborate the veracity of her full confession,

nor did she dispute that either Officer Harvey’s prior knowledge of “J-Rock” as Jason

Washington of Culpeper County or Officer Chilton’s familiarity with her and the vehicle she was

driving could supply the slight corroboration needed.

We hold that “appellant’s ‘failure to address one of the [trial court’s alternate] holdings

results in a waiver of any claim of error with respect to the court’s decision on that issue.’”

Johnson v. Commonwealth, 45 Va. App. 113, 116, 609 S.E.2d 58, 60 (2005) (quoting United

States v. Hatchett, 245 F.3d 625, 644-45 (7th Cir. 2001)). See also Rule 5A:12(c) (“Only

questions presented in the petition for appeal will be noticed by the Court of Appeals.”). “That

said, we still must satisfy ourselves that the alternative holding is indeed one that (when properly

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applied to the facts of a given case) would legally constitute a freestanding basis in support of the

trial court’s decision.” Id. Given that only slight evidence is needed to establish the veracity of

appellant’s full confession, we find that the trial court’s alternate holding could independently

satisfy that legal standard. Consequently, we find appellant’s failure to assign error to the trial

court’s alternate holding in her question presented, or even to include a general allegation that

the record does not contain the slight evidence necessary to corroborate her confession, is

dispositive of this issue.

IV.

For the foregoing reasons, appellant’s conviction is affirmed.

Affirmed.

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VIRGINIA:

In the Court of Appeals of Virginia on

Tuesday

the

13th

day of

February, 2007.

April Nicole Corsaro,

Appellant,

against

Record No. 1269-05-2

Circuit Court Nos. CR4146 and CR4147

Commonwealth of Virginia,

Appellee.

Upon a Petition for Rehearing En Banc

Before the Full Court

On November 28, 2006 came the appellee, by the Attorney General of Virginia, and filed a

petition requesting that the Court set aside the judgment rendered herein on November 14, 2006, and

grant a rehearing en banc thereof.

On consideration whereof, the petition for rehearing en banc is granted, the mandate entered

herein on November 14, 2006 is stayed pending the decision of the Court en banc, and the appeal is

reinstated on the docket of this Court.

Notwithstanding the provisions of Rule 5A:35, the following briefing schedule hereby is

established: Appellant shall file an opening brief upon rehearing en banc within 21 days of the date of

entry of this order; appellee shall file an appellee’s brief upon rehearing en banc within 14 days of the

date on which the opening brief is filed; and appellant may file a reply brief upon rehearing en banc

within 14 days of the date on which the appellee’s brief is filed. The appellant shall attach as an

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addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the

Court in this matter. It is further ordered that the appellee shall file twelve additional copies of the

appendix previously filed in this case.

A Copy,

Teste:

Cynthia L. McCoy, Clerk

By:

Deputy Clerk

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COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Clements and Beales

Argued at Richmond, Virginia

APRIL NICOLE CORSARO

MEMORANDUM OPINION

Record No. 1269-05-2

JUDGE JAMES W. BENTON, JR.

NOVEMBER 14, 2006

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF MADISON COUNTY

Herman A. Whisenant, Jr., Judge Designate

Kevin E. Smith (Smith & Greene, P.L.L.C., on brief), for appellant.

Alice T. Armstrong, Assistant Attorney General (Robert F.

McDonnell, Attorney General, on brief), for appellee.

April Nicole Corsaro appeals her conviction for conspiracy to distribute a controlled

substance. She argues that the trial judge violated her constitutional right of confrontation,

impermissibly allowed the prosecutor to use evidence testimonially despite the trial judge’s

earlier ruling limiting it to a non-assertive purpose, and erred in denying her motion to strike the

Commonwealth’s evidence. We hold that the trial judge should have granted Corsaro’s motion

to strike due to insufficient evidence to corroborate her confession. Thus, we reverse the

conviction.

A grand jury indicted April Nicole Corsaro for possession of cocaine and conspiracy to

distribute cocaine. At trial, the prosecutor offered evidence to prove the police conducted

surveillance at a convenience store in response to information received from an informant.

Pursuant to Code § 17.1-413, this opinion is not designated for publication.

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Corsaro’s attorney objected on the basis of hearsay to the testimony regarding the informant’s

statements. When the prosecutor told the trial judge that the statements explained why the police

were at the convenience store, the trial judge allowed the evidence. A police officer then

testified the members of a narcotics task force went to a specific convenience store due to an

informant’s report that a woman named April would arrive in a red or maroon Chevy Blazer to

deliver cocaine valued at $200 to an individual.

When Corsaro arrived at the store in the maroon vehicle, the police drew their weapons

and detained Corsaro. Detective Harvey testified “[s]he said, I’ll do anything. I don’t have it on

me, but I’ll take you to get it.” After the detective advised Corsaro of her Miranda rights, she

made the following statement:

She advised me that she had come out to deliver two hundred

dollars ($200) worth of cocaine to a guy named Allen. She said

. . . she didn’t have the cocaine on her but she was going to pick up

this Allen guy and take him to a guy by the name of J-Rock in

Culpeper, who we know a J-Rock to be a guy by the name of Jason

Washington and he lived in Culpeper County.

The detective explained that he knew of Washington through the narcotics task force.

In the vehicle, police found a beer can that had been fashioned into a smoking device.

The can had cocaine residue. Corsaro admitted that she had used it to smoke cocaine prior to her

arrival at the store.

At the conclusion of the Commonwealth’s evidence, Corsaro moved to strike the

evidence on the conspiracy charge. The trial judge denied the motion, citing as “sufficient

corroboration . . . that . . . she arrive[d] in the vehicle at the time, at the location, as was going to

be indicated, . . . she had drugs in the car at that particular time, and she also stated that the drugs

were there and she’s used the drugs . . . prior to coming there.”

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At the conclusion of the evidence, the jury convicted Corsaro of possession of a

controlled substance and conspiracy to distribute a controlled substance. Corsaro’s petition for

appeal was granted only with regard to the conspiracy conviction.

II.

Corsaro argues no evidence in the record corroborated her confession and, therefore, the

trial judge erred in not granting her motion to strike. The Commonwealth responds that five

different pieces of evidence corroborate the existence of an agreement between Corsaro and

Jason Washington to distribute cocaine: Corsaro’s presence as foretold by the informant, her

confession, her possession of a cocaine-smoking device, a police officer’s familiarity with

Washington’s name, and a police officer’s familiarity with the vehicle that Corsaro drove.

The following principle is well settled in Virginia:

The material fact in every criminal prosecution is the corpus

delicti. Proof of the charge, in criminal causes, involves the proof

of two distinct propositions; first, that the act itself was done; and

secondly, that it was done by the person charged.

Smith v. Commonwealth, 62 Va. (21 Gratt.) 809, 813 (1871); see also Maughs v. City of

Charlottesville, 181 Va. 117, 120, 23 S.E.2d 784, 786 (1943) (reversing a conviction where the

evidence did not prove the corpus delicti). It is equally “‘settled in this State that the corpus

delicti cannot be established by the extra judicial confession of an accused uncorroborated by

other evidence.’” Phillips v. Commonwealth, 202 Va. 207, 211, 116 S.E.2d 282, 285 (1960)

(quoting Wheeler v. Commonwealth, 192 Va. 665, 669, 66 S.E.2d 605, 607 (1951)). To obtain a

conviction upon the accused’s extrajudicial confession, the evidence “must corroborate the

elements of the corpus delicti.” Roach v. Commonwealth, 251 Va. 324, 344, 468 S.E.2d 98, 110

(1996), overruled in part on other grounds by Morrisette v. Warden of the Sussex I State Prison,

270 Va. 188, 613 S.E.2d 551 (2005). Indeed, as the Supreme Court has noted, “‘[t]he confession

must be corroborated in a material and substantial manner by evidence aliunde of the corpus

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delicti.’” Phillips, 202 Va. at 211, 116 S.E.2d at 284 (citation omitted). In other words, there

must be evidence from a source other than the confession that the crime was a real event and not

merely the product of the accused’s imagination or fantasy.

This appeal concerns Corsaro’s conviction for “conspir[ing] . . . with one or more other

persons to manufacture, sell, give or distribute a controlled substance . . . in violation of [Code §]

18.2-248.” The definition of “‘[c]onspiracy is an agreement between two or more persons by

some concerted action to commit an offense.’” Falden v. Commonwealth, 167 Va. 542, 544, 189

S.E. 326, 327 (1937). To establish a conspiracy to distribute a controlled substance, the

“Commonwealth ha[s] to prove beyond a reasonable doubt that an agreement existed . . . to

distribute drugs.” Reed v. Commonwealth, 213 Va. 593, 594, 194 S.E.2d 746, 747 (1973). The

existence of an agreement to distribute a controlled substance is the essence of the offense. See

Fortune v. Commonwealth, 12 Va. App. 643, 647, 406 S.E.2d 47, 48 (1991) (reversing the

conspiracy conviction when the other parties to the alleged agreement never intended to actually

distribute drugs).

Opposing Corsaro’s motion to strike, the prosecutor suggested that Corsaro’s arrival at

the location in Madison County where an informant told the officers she would be corroborated

her confession. The prosecutor argued Corsaro arrived where the officers “expected her to be”

and at the time the officers “had expected.” On appeal, the Commonwealth again argues that

“the jury could reasonably infer from [Corsaro’s] presence at the appointed time and place that

Corsaro had agreed . . . to facilitate or participate in the sale of crack cocaine.” The trial judge

ruled, however, the evidence from the police officers regarding the informant’s statements was

admissible only for a limited purpose. Indeed, the trial judge permitted the evidence after the

prosecutor indicated it was offered only to “stat[e] what [the officers] were doing, why they were

there, and what they were looking for.” The trial judge later reiterated that the evidence was

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admitted “not for the truth of what it is but for the reason [the detective] did what he did at that

time.” See Fuller v. Commonwealth, 201 Va. 724, 729, 113 S.E.2d 667, 670 (1960) (holding

that evidence that is otherwise hearsay may be admitted for the limited purpose of explaining the

conduct of police officers); Speller v. Commonwealth, 2 Va. App. 437, 446, 345 S.E.2d 542, 548

(1986) (noting that a limitation to proof of a fact and not the truth of an assertion renders

evidence non-hearsay). In view of this limitation, any consideration of the truth of the matters

asserted by the informant to corroborate Corsaro’s confession would be an impermissible use of

the evidence as testimonial evidence. See Donahue v. Commonwealth, 225 Va. 145, 151-52,

300 S.E.2d 768, 771-72 (1983) (noting that the limitation on the use of hearsay evidence was

improperly disregarded).

Second, the Commonwealth asserts that statements in Corsaro’s confession corroborate

her confession. Noting that Corsaro spontaneously said, “I’ll do anything. I don’t have it on me

but I’ll take you to get it,” and that the “confession contained an explanation for her presence . . .

at that location,” the Commonwealth argues the jury could infer that Corsaro “knew why the

police stopped her” and could further infer that Corsaro “had agreed . . . to facilitate or

participate in the sale of . . . cocaine.” Simply put, this argument runs counter to the Supreme

Court’s holding that the confession must be corroborated from another source. Phillips, 202 Va.

at 211, 116 S.E.2d at 284. Corsaro’s confession is not evidence aliunde, evidence from another

source. The notion that the Commonwealth can use the confession itself to corroborate the

confession defies both logic and this state’s well-settled principles.

Third, the Commonwealth posits the confession was corroborated by Corsaro’s

possession of a beer can, which had been improvised to use as a smoking device and contained

cocaine residue. The Commonwealth contends that this evidence supplies a basis upon which

the jury could draw the “inference that Corsaro agreed to participate in the drug sale in order to

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feed her own drug habit.” The principle is well established, however, that a jury cannot “grope

in the realm of speculation for an inference or inferences not supported by facts proved from

evidence presented.” Lugo v. Joy, 215 Va. 39, 42, 205 S.E.2d 658, 661 (1974). Corsaro’s

possession of a can fashioned into a smoking device only tended to establish that she was a user

of cocaine. This was the basis upon which the jury convicted her of possession of cocaine, but it

proved nothing about an agreement to distribute cocaine. The inference the Commonwealth

supports could only have arisen if the jury impermissibly engaged in speculation and conjecture.

Fourth, the Commonwealth relies upon Detective Harvey’s testimony that he learned of

Washington’s name through his connection with a narcotics task force. The Commonwealth

asserts that the “jury could reasonably infer from this testimony Corsaro had, in fact, agreed with

[Washington] to participate in the proposed sale of cocaine.” Yet, the detective testified only

that he knew “a J-Rock to be a guy by the name of Jason Washington and he lived in Culpepper

County” and that he knew Washington through his work on the narcotics task force. The

conclusion that the Commonwealth asserts required the jury to speculate that only one person

was known as “J-Rock” in Culpeper County. More importantly, the detective’s awareness of

Washington through the task force does not lead to the conclusion that Washington was involved

with the illegal distribution of drugs. His knowledge of Washington through the task force is just

as consistent with Washington being engaged in innocent conduct as with criminal activities.

See Phillips, 202 Va. at 212, 116 S.E.2d at 285 (holding that the truth of the confession is not

fortified by facts “just as consistent with non-commission of the offense as . . . with its

commission”). For instance, if Washington worked in the task force office as a custodian or

secretary, or if he delivered supplies or mail to the office, the detective would still know of him

through his connection with the narcotics task force. The detective’s testimony merely suggested

a myriad of possibilities, requiring the jury to engage in pure speculation. Inferences cannot be

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founded upon mere guesswork. Lugo, 215 Va. at 41-42, 205 S.E.2d at 661; see also Holland v.

Commonwealth, 190 Va. 32, 39-40, 55 S.E.2d 437, 440-41 (1949) (reversing a conviction where

it was based on unwarranted presumptions of fact).

Fifth, the Commonwealth contends corroboration of the corpus delicti was provided by

Detective Chilton’s testimony that he was familiar with the vehicle Corsaro was driving because

the vehicle’s owner had “cooperated with the [narcotics] task force . . . on numerous times.” The

Commonwealth argues the jury could infer from this testimony “that the [vehicle] was being

used for an intended drug transaction.” This argument likewise supposes that the jury could

engage in speculation and conjecture about unproven allegations concerning the vehicle’s owner

and Corsaro’s use of the vehicle. Furthermore, any inference drawn from the cooperation of the

vehicle’s owner with the police could not suggest the existence of an agreement between Corsaro

and Washington to distribute cocaine. The best that could be said about this evidence as

corroboration of a conspiracy is that it was “just as consistent with non-commission of the

offense as it is with its commission.” Phillips, 202 Va. at 212, 116 S.E.2d at 285 (reversing

convictions where one defendant’s possession of the co-defendant’s car did not sufficiently

corroborate a sodomy confession).

In summary, to provide the requisite evidentiary corroboration of Corsaro’s confession,

the Commonwealth relies on the impermissible use of hearsay to prove the truth of the matter

asserted, and on speculation and conjecture. Simply put, the evidence corroborating the corpus

delicti was not sufficient to take the jury “‘out of the realm of mere conjecture, or speculation,

and into the realm of legitimate inference.’” Atrium Unit Owners Assoc. v. King, 266 Va. 288,

294, 585 S.E.2d 545, 548 (2003) (quoting Beale v. Jones, 210 Va. 519, 522, 171 S.E.2d 851, 853

(1970)). Thus, the evidence was not sufficient to sustain a conviction based upon Corsaro’s

extrajudicial confession. Dunn v. Commonwealth, 222 Va. 704, 705-06, 284 S.E.2d 792, 793

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(1981) (holding that a verdict “based only upon speculation and conjecture . . . cannot be

permitted to stand”). For these reasons, we hold that the Commonwealth’s evidence did not

corroborate the element of agreement of the corpus delicti. Thus, the trial judge erred in not

granting Corsaro’s motion to strike the evidence. Because this holding is dispositive, we do not

need to address the other questions Corsaro raises on appeal. Accordingly, we reverse the

conviction for conspiracy to distribute a controlled substance.

Reversed and dismissed.

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Beales, J., dissenting.

Because I disagree with the majority’s conclusion that the record does not contain the slight

corroborative evidence necessary to substantiate appellant’s full confession to the conspiracy to

distribute cocaine charge, I respectfully dissent.

Generally, “if the accused has fully confessed that he [or she] committed the crime, then

only slight corroboration of the confession is required to establish [the] corpus delicti beyond a

reasonable doubt.” Cherrix v. Commonwealth, 257 Va. 292, 305, 513 S.E.2d 642, 651 (1999)

(emphasis added). “The confession is itself competent evidence tending to prove the corpus

delicti, and all that is required of the Commonwealth in such a case is to present evidence of such

circumstances as will, when taken in connection with the confession, establish the corpus delicti

beyond a reasonable doubt.” Watkins v. Commonwealth, 238 Va. 341, 349, 385 S.E.2d 50, 54

(1989) (citation omitted). In other words, “‘the corpus delicti need not be established by

evidence independent of the confession, but may be established by both.’” Aldridge v.

Commonwealth, 44 Va. App. 618, 651, 606 S.E.2d 539, 555 (2004) (quoting Reid v.

Commonwealth, 206 Va. 464, 468, 144 S.E. 2d 310, 313 (1965)).

Moreover, and as the Virginia Supreme Court further explained in Powell v.

Commonwealth, 267 Va. 107, 145, 590 S.E.2d 537, 560 (2004), “[a]lthough the Commonwealth

may not establish an essential element of a crime by the uncorroborated confession of the

accused alone, ‘only slight corroborative evidence’ is necessary to show the veracity of the

Though not addressed by the majority, appellant also argues that “the trial court violated

[her] Constitutional right to confront witnesses against her in allowing prosecution witnesses to

testify about information that was provided to them by a confidential informant who was not present

at the trial . . . .” However, appellant did not offer an objection to the trial court that alleged any

violation of her Sixth Amendment right to confront witnesses against her. Instead, she offered a

general hearsay objection to testimony concerning the confidential informant. For that reason, I

would hold that this Court cannot address this issue, as appellant has failed to comply with

Rule 5A:18.

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confession.” (quoting Williams v. Commonwealth, 234 Va. 168, 175, 360 S.E.2d 361, 366

(1987), cert. denied, 484 U.S. 1020 (1988) (quoting Clozza v. Commonwealth, 228 Va. 124, 133,

321 S.E.2d 273, 279 (1984), cert. denied, 469 U.S. 1230 (1985))). Likewise, “if ‘this

corroborating evidence is consistent with a reasonable inference’ that the accused committed the

crime to which he has confessed, the Commonwealth need not establish through direct evidence

those elements of the crime that are proven by the confession.” Id. (quoting Jackson v.

Commonwealth, 255 Va. 625, 646, 499 S.E.2d 538, 551 (1998), cert. denied, 525 U.S. 1067

(1999)). As Powell suggests, “‘The purpose of the corroboration rule is to reduce the possibility

of punishing a person for a crime which was never, in fact, committed.’” Aldridge, 44 Va. App.

at 650, 606 S.E.2d at 555 (quoting Jefferson v. Commonwealth, 6 Va. App. 421, 424, 369 S.E.

2d 212, 214 (1988) (additional citation omitted)).

On brief, appellant suggests that this “slight corroborating evidence” must be testimonial.

However, as both cases from the Virginia Supreme Court and this Court make clear, “slight

corroborating evidence” is not limited to testimonial evidence. See Powell, 267 Va. at 145, 590

S.E.2d at 560 (“[T]he forensic evidence and direct testimony are consistent with and substantiate

[the defendant’s] version of ‘the rest of what happened’ in every respect.”); Winston v.

Commonwealth, 268 Va. 564, 613, 604 S.E.2d 21, 49 (2004) (“The circumstances of the crime

scene, the DNA evidence relating to the handgun, the attempt to hide the handgun with a friend,

and the testimony of Niesha all serve to corroborate Winston's confession . . . .”); Aldridge, 44

Va. App. at 650, 606 S.E.2d at 556 (“[C]ircumstantial evidence may be used to corroborate a full

confession.”).

As the majority notes, “In order to convict [appellant] of conspiring . . . to distribute a

controlled drug, the Commonwealth had to prove beyond a reasonable doubt that an agreement

existed between the [appellant and another] by some concerted action to distribute the drugs.”

Page 19

- 11 -

Johnson v. Commonwealth, 42 Va. App. 46, 57, 590 S.E.2d 75, 80 (2003). “Conspiracy requires

. . . (1) an agreement between two or more persons, which constitutes the act; and (2) an intent

thereby to achieve a certain objective[,] either an unlawful act or a lawful act by unlawful

means.” Hix v. Commonwealth, 270 Va. 335, 347, 619 S.E.2d 80, 87 (2005).

Here, several key facts exist, independent of the informant’s tip, which substantiate

appellant’s confession. First, the task force seized a can with crack cocaine residue from

appellant’s vehicle; appellant admitted that she used that can to smoke crack prior to her arrival.

The majority argues that this only proved that appellant was herself a user of cocaine. While

crack cocaine residue on the can does indeed prove appellant possessed and used cocaine, the

actual seizure of physical evidence with cocaine residue substantiates appellant’s confession to

using cocaine prior to her arrival. Stated another way, the presence of the can demonstrates not

only the truthfulness of appellant’s admission to using cocaine, but also the veracity of her entire

confession.

Secondly, Inspector Harvey, through his work with the narcotics task force, knew of the

alleged supplier appellant named in her confession, Jason Washington of Culpeper County.

Harvey knew this individual used the street name, “J-Rock,” by which appellant had referred to

him. I respectfully submit that this information, the police’s independent knowledge of the

alleged drug supplier and his street name, supplies the minimal and slight evidence necessary to

corroborate the confession. Though the majority says that Inspector Harvey might have known

Washington (“J-Rock”) because he could have possibly “worked in the task force office as a

custodian or secretary, or if he delivered supplies or mail to the office,” it is highly unlikely that

Harvey was testifying about a custodian, secretary, or mail room attendant in the context of this

criminal trial. That being said, I would leave that consideration for the jury as the trier-of-fact

and sole judge of witness credibility in this matter.

Page 20

- 12 -

Finally, Detective Chilton was already familiar with appellant and the maroon Blazer,

because, as he testified, the owner of that “vehicle had actually cooperated with the task force

before on numerous occasions.” The majority maintains that this evidence would lead the jury to

“engage in speculation and conjecture about unproven allegations.” I would instead suggest that

Chilton’s knowledge of both appellant and the vehicle is consistent with a reasonable inference

that appellant was involved in the impending drug transaction described in her confession, as the

jury apparently found.

I respectfully submit that the record contains the slight evidence necessary to corroborate

appellant’s confession. Specifically, Inspector Harvey’s knowledge of the person appellant

alleged to be her supplier is “consistent with a reasonable inference” that appellant, as she

confessed, had entered into an agreement and intended to distribute cocaine, i.e., a conspiracy to

distribute. I would find that this and the totality of the other evidence, when taken in connection

with the confession, would enable a reasonable fact finder to conclude beyond a reasonable

doubt that appellant had entered into an agreement to distribute cocaine. I am, therefore,

confident that the purpose of the corroboration rule -- avoiding the risk of punishing a defendant

for a crime that he or she did not commit -- has been satisfied in this case. Thus, I must dissent.

Amendment of Article II, Section 24, providing for a way to recall city elected officials, wording for ballots, restrictions on the time to startshit

2008-06-08T06:10:00.000-07:00

Raymond is reciting Abbott and Costello's Who's on First Base skit]
Charlie: Ray, you're never gonna solve it. It's not a riddle because Who *is* on first base. That's a joke, Ray, it's comedy, but when you do it you're not funny. You're like the comedy of Abbott and Abbott.
John Mooney: Are you disappointed?
Charlie: Disappointed? Why should I be disappointed? I got rose bushes didn't I? I got a used car, didn't I? This other guy, what'd you call him?
John Mooney: The beneficiary.
Charlie: Yeah him, he got $3,000,000 but he didn't get the rose bushes. I got the rose bushes. I definitely got the rose bushes. Those are rose bushes!
John Mooney: Mr. Babbitt, there's no reason to...
Charlie: To what? To get upset? If there is a hell, sir, my father is in it and he is looking up right now and he is laughing his ass off. Sanford Babbitt, you wanna be that guy's son for five minutes? I mean did you hear that letter? Were you listening?
John Mooney: Yes I was. Were you?
Charlie: Um, no, can you repeat it because I can't believe my fucking ears.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Carmela B. Garcia, 62, Realtor

Kenedy County

Kenedy County

Wide school district

Canceled: Jerry Miller, 39, justice of the peace, will serve on the board.

Kenedy County

Water District

Canceled: Dave DeLaney, 49, vice president of ranching operations at King Ranch, and Jerry Miller, 39, justice of the peace, will serve.

Kleberg County

City of Kingsville

Mayor

(i) Sam R. Fugate, 52, attorney

Tomas R. Sanchez Jr., 63, officer of veteran's services

Commissioners, four seats

(i) Charlie Wilson, 50, marketing and promotions coordinator

(i) Arturo Pecos, 58, retired

Oscar R. Reyes, 46, funeral counselor

Marty A. Ontiveros, 50, teacher/student

(i) Al Garcia, 58, insurance agent

Jesse Rios, 51, retired

(i) Stanley Laskowski, 54, retired

Joseph Ruiz, 32, education adviser

Charter amendment

propositions

Proposition No. 1

Amendment of Article I, Section 2, providing that city boundaries include original boundaries and areas annexed by ordinance.

Proposition No. 2

Amendment of Article II, Section 23, providing for a way to propose and repeal ordinances of the City Commission.

Proposition No. 3

Amendment of Article II, Section 24, providing for a way to recall city elected officials, wording for ballots, restrictions on the time to start a recall, and the effect of a recall on the City Commission.

Proposition No. 4

Amendment of Article V, Section 3, providing that vacancies on the City Commission that are not due to recall be filled by appointment within 90 days.

Proposition No. 5

Amendment of Article V, Section 4, providing that qualifications for the City Commission include no Commission member be more than 90 days late in payments to local taxing authorities and no participation in voting or discussion on an item where there is a conflict of interest.

Proposition No. 6

Amendment of Article V, Section 8, providing that regular and special elections be held as provided by the laws of Texas.

Proposition No. 7

Amendment of Article V, Section 28, providing that the City Commission and certain city employees be bonded by the City.

Proposition No. 8

Amendment of Article V, Section 32, providing that the City Commission may appoint, suspend, and remove the City Manager by majority vote.

Ricardo Independent

School District

Trustee, Position 1

Rosanna G. Arevalo, 40, homemaker

(i) Carol Cannon, 45, teacher

Trustee, Position 2

(i) Gary Pamplin, 48, QA manager

Trustee, Position 3

(i) Carol Radford, 67, homemaker

Kingsville isd

Trustee Place 6

(i) Corando Garza, 56, retired

Trustee Place 7

(i) Juan Garza, 69, placement specialist for special programs at Texas A&M University-Kingsville

Bond Election

Issuance of an amount not to exceed $15 million in school building bonds and the levying of a tax in payment thereof.

Santa Gertrudis isd

Canceled: Incumbents Jill Williams, 41, attorney, and Bob Kinnan, 54, general manager of hospitality, King Ranch, will return.

Riviera isd

Three at-large seats

Sylvia Arguijo, 50, self-employed

Bertha Ramirez, 49, court clerk

(i) Sharon Ketcham, 52, secretary/accounts payable

Lisa West, school counselor, 39

(i) Ronnie Unterbrink, 59, farmer

Vanessa Leeson, secretary, 46, secretary

Mary Caballero, 35, administrative coordinator

(i) Wilson Martin, 75, self-employed

Live Oak County

City of George West

Canceled: Incumbent Elsie Garcia returns in Place 2. No one filed for Place 3 and the council has the right to appoint a member.

George West isd

Single-Member District No. 3

Tim Cobb, 50, pharmacist

John T. Walker, 56, Realtor

Single-Member District No. 6

Chuck Campbell, 47, Valero operator

(i) Cheri Dee Moore, 43, self employed

Rusty Williams, 46, self employed

2008-03-29T06:35:00.000-07:00

John Mooney: Are you disappointed?
Charlie: Disappointed? Why should I be disappointed? I got rose bushes didn't I? I got a used car, didn't I? This other guy, what'd you call him?
John Mooney: The beneficiary.
Charlie: Yeah him, he got $3,000,000 but he didn't get the rose bushes. I got the rose bushes. I definitely got the rose bushes. Those are rose bushes!
John Mooney: Mr. Babbitt, there's no reason to...
Charlie: To what? To get upset? If there is a hell, sir, my father is in it and he is looking up right now and he is laughing his ass off. Sanford Babbitt, you wanna be that guy's son for five minutes? I mean did you hear that letter? Were you listening?
John Mooney: Yes I was. Were you?
Charlie: Um, no, can you repeat it because I can't believe my fucking ears.

~~~~~~~~~~~~~~~~~~~~~~~~~
Charlie: Does Raymond know how much money he's inherited?
Dr. Bruner: No, he doesn't understand the concept of money.
Charlie: He doesn't understand the concept of money? He just inherited $3,000,000 and he doesn't understand the concept of money? Wow, good work, Dad. I'm getting fucking poetic here.
[Raymond is about to go back to Walbrook on a train. He and Charlie are saying goodbye]
Raymond: Very shiny train.
Charlie: Yeah, sure is.
Charlie: When I was a little kid and I got scared, the Rain Man would come and sing to me.
Susanna: Rain what?
Charlie: Oh you know, one of those imaginary childhood friends.
Susanna: What happened to him?
Charlie: Nothing, I just grew up.
Susanna: Not so much.
Charlie: I'm going to see you in 2 weeks now how many days is that before we'll be together?
Raymond: 14 days from today, today's Wednesday.
Charlie: Hours?
Raymond: 336 hours.
Charlie: Mystifying
Raymond: Course that's 20,160 minutes. 1,290,600, six hundred seconds.
Charlie: What's it going to be Ray? What's it going to be?
Raymond: This is a very dangerous highway.
Charlie: How am I going to get to LA?
Raymond: Course driving your car on this interstate is very dangerous.
Charlie: You want to get off the highway will that make you happy?
Raymond: Yeah.
Charlie: Yeah, well you gotta GET IN THE CAR SO THAT WE CAN GET OFF THE HIGHWAY!
Raymond: Course in 1986 46,400 male drivers were definitely involved in fatal accidents.
[first lines]
Charlie: [on telephone] Now it's five and a half weeks and I'm still sitting on four Lamborghinis that can't meet spot emissions standards. Now, how many times you wash out with EPA?
Lenny: [on a separate line] Uh, yes sir, they're finally, uh, clearing EPA; uh, just one or two more days.
Charlie: Three times? You're really on a roll here, my friend; four cars, three times each - that's zip for twelve. What are you, a... mechanic, or a NASA engineer? Now listen, now, I told you I've never dealt with these Lamborghinis before, and yet you assured me that you can deliver these cars within that time frame. Don't, don't tell me that, 'cause I - I'm not even listening.