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A conspiracy may be proved wholly by circumstantial evidence, and may be inferred from a development and collocation of circumstances. Moreover, as a general proposition, circumstantial evidence may be sufficient to support a guilty verdict even though it does not exclude every reasonable hypothesis consistent with innocence.
On November 3, 2005, Sean Cristopher Osborne entered the Walgreens building and went to the pharmacy section and asked for assistance. He said he had a sever earache and asked Keri Sword to show him over-the-counter medication for it. But as soon as Sword exited a secured door which separates the pharmacy counter from the rest of the store, Osborne stopped her and told her that he needed OxyContin for his grandmother who could not afford that medication after losing her insurance. Osborne then moved his hands inside the front pouch pocket of his sweatshirt, pulling his right hand back just far enough to show Sword that he had a knife. Sword could see the brown handle of the knife, as well as a portion of its silver blade, which she estimated was two to three inches thick at the base. In Sword's words, she was "[a]bsolutely terrified" when she saw the knife. Thereafter, Sword advised Osborne that she "would get whatever he wanted from the pharmacy," and Osborne indicated that he wanted 20-milligram tablets of OxyContin, as well as Valium tablets. Sword then handed Osborne the drugs that he had demanded--numbering 224 OxyContin 20-milligram tablets and 407 Valium-equivalent tablets--which had a total replacement value of $ 629. Osborne then left the store and went back to his residence, where he lived with Brian David McCrae and his girlfriend Michelle Sisto. Sisto confronted Osborne about the drugs, but Osborne physically assaulted her. She fled the house and called the police. When officers came to follow up on Sisto's allegations of domestic assault, as well as to investigate Osborne and McCrae in connection with the Walgreens robbery. Osborne answered the door and was immediately arrested for domestic assault. Officers then saw McCrae disappearing into the bedroom area of the house, and ordered him to the entryway. One officer spotted a bulge in the left pocket of McCrae's pants, and performed a patdown search of McCrae for weapons. Upon patting the bulge in McCrae's pants pocket, the officer identified it as a bag of pills, rather than as a weapon. The bag was removed from McCrae's pocket, and the ninety-nine pills contained therein were determined to be OxyContin 20-milligram tablets. A second bag of pills (containing twenty-one OxyContin 20-milligram tablets) was subsequently recovered from the pocket of a shirt found in the dining room. McCrae acknowledged to officers that the shirt belonged to him. Other items recovered from the house included latex gloves, three knives, and pill bottles for OxyContin 20-milligram tablets identical to those stolen from the Walgreens pharmacy.
Osborne and McCrae were indicted by a grand jury in the Western District of Virginia indicted Osborne and McCrae on three counts: (1) conspiracy to rob a pharmacy, in contravention of 18 U.S.C. § 2118(d) (the "conspiracy offense"); (2) armed robbery of a pharmacy, in violation of 18 U.S.C. § 2118(a) and (c)(1) (the "robbery offense"); and (3) possession with intent to distribute OxyContin, in contravention of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (the "drug offense"). Osborne pleaded guilty to the robbery and drug offenses. That same day, a two-day jury trial began for Osborne (on the conspiracy offense only) and McCrae (on all three offenses) and thereafter they were found guilty on all their respective counts.
Did the jury err in convicting Osborne of the conspiracy offense?
Osborne contended on appeal -- as he did in the district court -- that there was insufficient evidence on which a reasonable jury could find that he and McCrae entered into an agreement to rob the Walgreens pharmacy. In rejecting Osborne's motion for judgment of acquittal, the district court observed that a reasonable jury was entitled to find Osborne guilty of the conspiracy offense based on the following evidence: Osborne and McCrae were together immediately before and immediately after the robbery; shortly before the robbery, during the drive through Bristol toward the Walgreens pharmacy, Sean Jr. overheard McCrae "saying something about jumping the counter," and Osborne responding "'Okay, okay,'"; upon returning home just after the robbery, McCrae responded to Sisto's inquiries about where he and Osborne had been by stating, "'It's not good, and I'm not telling you anything else,'"; and, later that night, police officers recovered ninety-nine stolen OxyContin 20-milligram tablets from the pocket of the pants McCrae was wearing, and another twenty-one such tablets from the pocket of a shirt in the dining room that McCrae admitted was his shirt. Additionally, the evidence reflected that Osborne made preparations for the robbery in McCrae's presence--including exiting Interstate 81 some seven miles short of home, disguising himself during the drive (just before McCrae made the "jumping the counter" comment) by tightening the hood of his sweatshirt around his face, and obscuring his van from view of the Walgreens pharmacy by parking it on a nearby street behind a group of trees. Notably, Osborne's preparations for the robbery were so recognizable as such that fourteen-year-old Sean Jr. deduced what his father was about to do. And, Osborne confirmed to his son that he was preparing to commit the robbery, thus negating any notion that the robbery was not planned prior to the time that Osborne entered the Walgreens building. Viewed in the light most favorable to the Government, the foregoing evidence -- including what reasonably can be construed as McCrae's advice to Osborne (in the course of his obvious preparations for the robbery) to "jump the counter" of the pharmacy -- plainly permitted the conclusion that Osborne and McCrae entered into an agreement to commit the robbery. Indeed, the evidence permitted a finding that McCrae did not (like Sean Jr.) innocently find himself at the scene of an imminent crime. That is, the fact that Osborne and McCrae returned home together immediately after the robbery indicates that McCrae stood by knowing the robbery was underway and was prepared to flee with Osborne posthaste. McCrae's response to Sisto's inquiries about where he and Osborne had been -- that "[i]t's not good" -- could fairly be interpreted as a reference to the robbery. And, the fact that McCrae shared in the fruits of the robbery, i.e., the fact that he came into possession that night of 120 of the stolen OxyContin 20-milligram tablets, showed that McCrae was rewarded for taking a role in the robbery's commission.
Osborne urged the court to deem this evidence insufficient to prove he conspired with McCrae to rob the Walgreens pharmacy, essentially asserting that it is circumstantial, subject to alternative interpretations, and contradicted by other evidence suggesting that Osborne acted alone. For example, Osborne pointed out that the "jumping the counter" comment overheard by Sean Jr. was simply a "snippet of conversation" without any context, and that the comment may have been "an attempt to dissuade [Osborne from committing the robbery], McCrae thinking [Osborne] was blowing hot air, or something different altogether." Osborne emphasized the fact that McCrae was not seen inside the Walgreens building, and that, in Osborne's statements to the pharmacy employees and Sisto that night, he never referred to committing the robbery with McCrae or anyone else. Osborne also suggested that, rather than receiving the OxyContin 20-milligram tablets from him as the fruits of a prior agreement to rob the Walgreens pharmacy, McCrae just as likely stole the pills from him, bought them from him, or received them from him in exchange for a post-robbery promise to keep quiet about his conduct that night. Properly considered in its totality, the evidence in this case -- though circumstantial and susceptible to alternative interpretations -- certainly was adequate and sufficient to support the jury's conclusion that Osborne and McCrae entered into an agreement to rob the Walgreens pharmacy.