## Facts

- Fred D. Lewis, a correctional officer at James River Correctional Center, was accused of attempting to deliver marijuana to an inmate, Kenneth W. Silvey.
- Silvey was serving a lengthy sentence and kept prohibited sums of cash in prison through illicit dealings with other inmates.
- Silvey testified Lewis proposed that Silvey could make money selling marijuana to other inmates; Silvey agreed to cooperate, partly after prison officials promised assistance, including parole help, if he helped them.
- On September 30, 1990, officials gave Silvey $150 treated with a fluorescent tracing substance to use in a controlled operation.
- Silvey testified he gave the $150 to Lewis at Lewis’s post, and Lewis put it in his pocket; Silvey then reported to officials that Lewis was to deliver marijuana that night.
- Around 8:00 p.m., officials stopped, arrested, and searched Lewis as he returned from break; they found the marked $150 and $71 of Lewis’s money in his pocket, and fluorescent substance was detected on Lewis’s hands, the money, and the pocket.
- A consent search of Lewis’s residence and vehicle found no marijuana or other contraband.
- Lewis denied arranging a drug delivery and testified he found the $150 in a desk drawer and intended to turn it over to a superior.
- The Commonwealth offered no evidence that Lewis possessed marijuana, had access to marijuana, arranged to obtain marijuana, or took any step toward acquiring marijuana on September 30 or earlier.

## Issues

1. Whether the evidence proved beyond a reasonable doubt that Lewis committed an attempt to deliver marijuana to a prisoner, rather than mere preparation or conduct consistent with a different scheme.

## Decision

- The Court of Appeals of Virginia reversed the conviction and dismissed the charge.
- The court held the evidence was legally insufficient to establish the overt-act element of attempt under Va. Code § 18.2-474.1.
- Accepting or possessing the marked money, without evidence of steps to obtain or deliver marijuana, did not constitute a direct act toward commission of the target offense.
- Because the Commonwealth failed to prove an essential element, dismissal (not remand) was required.

## Legal Principles

- Criminal attempt requires (1) specific intent to commit the target offense and (2) a direct, unequivocal overt act that goes beyond mere preparation and tends to effect the crime’s commission.
- An overt act must be sufficiently connected to the target crime such that, in the ordinary course of events, it would result in completion absent interruption.
- Conduct that is equivocal—reasonably consistent with innocence or with a different wrongdoing—does not satisfy the overt-act requirement for attempt.
- On sufficiency review, evidence is viewed in the light most favorable to the prosecution, but the conviction cannot stand if proof of an essential element is missing as a matter of law.

## Conclusion

The court set aside the conviction because the Commonwealth proved only that Lewis possessed marked money, not that he took any concrete, unambiguous step toward procuring or delivering marijuana to an inmate, and equivocal conduct cannot supply the overt act required for attempt.


Lewis v. Commonwealth, 15 Va. App. 337, 423 S.E.2d 371 (Va. Ct. App. 1992)