MEMORANDUM OPINION* v. Record No. 0960-05-1 PER CURIAM FEBRUARY 14, 2006 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH Dean W. Sword, Jr., Judge

(T. George Underwood, on brief), for appellant. Appellant submitting on brief.

(Judith Williams Jagdmann, Attorney General; Alice T. Armstrong, Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.

Torrence L. Banks, appellant, was convicted of possession of heroin with the intent to distribute and conspiracy.^[1] On appeal, appellant challenges the sufficiency of the evidence to support his convictions. For the reasons set forth below, we affirm the convictions.

FACTS

“On appeal, ‘we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth, 26 Va. App. ^[1], 11, 492 S.E.2d 826, 831 (1997) (citation omitted).

On August 13, 2003, Detective Glenn Smith and other officers of the Portsmouth Police

Department were involved in a “drug spotting” operation in the 100 block of Howard Street in * Pursuant to Code § 17.1-413, this opinion is not designated for publication.

A woman in a pink nightgown appeared in the area at 7:26 a.m. She gave money to appellant, who went to the spot near the tree. When appellant returned, he wiped an off-white substance from his palm into the hand of the woman wearing the nightgown. She walked away and entered one of the nearby homes.

At 7:35 a.m., Curtis Harris and another man approached appellant and Frazier, who were

standing together beside the blue vehicle. All four men walked together in the direction of the area near the tree. Appellant remained with Harris and the other man while Frazier obtained

something from the vicinity of the tree. Appellant took money from Harris. Frazier returned and handed Harris an off-white substance Smith believed to be cocaine.

By radio, Smith alerted other officers to Harris and his companion. Frazier walked a short distance away and appeared to observe Harris and his companion having contact with police officers. Frazier returned to the blue car and spoke in appellant’s direction.

At 7:40 a.m., Wade Boone approached appellant at the blue car. Boone was holding what appeared to be rolled up currency. Appellant pointed in the direction of the large tree.

Frazier went to the tree. Smith heard appellant ask Boone “how many.” Boone gave appellant the money in his hand. Frazier returned and placed several capsules containing an off-white substance in Boone’s hand.

The police confronted, pursued, and arrested Boone shortly after he had walked out of Smith’s sight. During the pursuit, Officer John Burton observed Boone throw to the ground five capsules containing a white substance. Police recovered the capsules, and laboratory analysis indicated they contained a total of .435 grams of heroin.

Officer T.N. Thursby arrested appellant in the 100 block of Howard Street. In appellant’s

possession were $77 in currency and a cellular telephone. The police also arrested Frazier. The police found in Frazier’s pockets marijuana, a cellular telephone, and $231 in currency.

POSSESSION WITH THE INTENT TO DISTRIBUTE

Appellant contends the evidence was insufficient to prove that he possessed heroin with the intent to distribute it. “‘Because direct proof of intent [to distribute drugs] is often

impossible, it must be shown by circumstantial evidence.’ Such evidence may include the quantity of drugs and cash possessed and whether appellant used drugs.” Welshman v. Commonwealth, 28 Va. App. 20, 37, 502 S.E.2d 122, 130 (1998) (en banc) (citation omitted).

“While possession of a small quantity of a controlled substance creates an inference that the drug is held for personal use, when considered in conjunction with other circumstances, the small quantity possessed may support a finding of an intent to distribute.” Early v. Commonwealth, 10

Va. App. 219, 222, 391 S.E.2d 340, 341 (1990).

In just over an hour, Smith observed appellant, Frazier, and another woman engage in six transactions involving money with individuals who appeared on Howard Street. In each

occurrence, either appellant or Frazier obtained a substance from a location near a tree and delivered the substance to the purchaser.

One of the transactions involved Boone, whom the police later arrested. During the transaction, Boone gave money to appellant. Appellant asked Boone “how many.” Frazier returned from the tree and handed Boone capsules containing a white substance. The police confronted Boone immediately after he left the area. Boone threw away five capsules containing heroin.

Considering the facts and circumstances in the light most favorable to the Commonwealth, the evidence was sufficient to prove beyond a reasonable doubt that appellant possessed heroin with the intent to distribute it. Therefore, the trial court did not err in denying appellant’s motion to strike and finding him guilty of the drug offense.

CONSPIRACY

Appellant contends the evidence was insufficient to sustain his conviction of conspiracy

because the Commonwealth did not prove the existence of an agreement between appellant and Frazier. “Conspiracy is defined as ‘an agreement between two or more persons by some concerted action to commit an offense.’” Feigley v. Commonwealth, 16 Va. App. 717, 722, 432

S.E.2d 520, 524 (1993) (citation omitted). However, proof of an explicit agreement is not required, and the Commonwealth may, and frequently must, rely on circumstantial evidence to

establish the conspiracy. See Stevens v. Commonwealth, 14 Va. App. 238, 241, 415 S.E.2d 881, 883 (1992). Indeed, “‘[t]he existence of an unlawful and inherently covert agreement can be inferred from the overt conduct of the parties.’” Floyd v. Commonwealth, 219 Va. 575, 581, 249

S.E.2d 171, 174 (1978) (quoting United States v. Harris, 433 F.2d 333, 335 (4th Cir. 1970)).

The Commonwealth’s evidence proved that appellant and Frazier acted in tandem to distribute drugs on the morning of August 13, 2003. Especially with regard to the transactions involving Harris and Boone, appellant and Frazier each played a role in the distribution

process - - appellant received the money and Frazier retrieved the drugs from the area near the tree. After the transactions, appellant and Frazier remained together near the parked blue vehicle.

These circumstances were sufficient to establish beyond a reasonable doubt an inherently covert agreement between appellant and Frazier to distribute drugs. Thus, the evidence was sufficient to support appellant’s conviction of conspiracy.

CONCLUSION

For the foregoing reasons, we affirm appellant’s convictions.

Affirmed.