Drug Conspiracy Despite Acquittal of Possession: Circumstantial Agreement and a Co-Conspirator’s Overt Act

1. Introduction

The central question in this appeal was whether circumstantial evidence sufficiently established a drug-distribution conspiracy when the jury acquitted the defendant of the underlying possession-with-intent-to-deliver charge. The court held that it did. It reasoned that the jury could infer an agreement from corroborating circumstances and testimony it disbelieved, while a co-conspirator’s possession of the fentanyl could supply the required overt act.

The decision also addresses vehicle searches based on marijuana odor, admission of a previously excluded conviction after a defendant “opens the door,” sentencing discretion, jury-selection objections, speculative third-party culpability evidence, and preservation of appellate arguments.

The decision’s form matters. The court issued a memorandum decision under Rule 21, finding no substantial question of law or prejudicial error. It principally applied existing doctrines rather than announcing a new syllabus-point rule. Its distinctive significance lies in applying those doctrines to sustain this conspiracy conviction—a result Justice Wooton considered unsupported by proof beyond a reasonable doubt.

2. Background and Procedural History

Police stopped a vehicle driven by Lyndia Opitz, with Jamil Adrian Cabral in the passenger seat, after an officer had previously observed that its registration was expired. Officers discovered that Opitz’s license was suspended and that she had an outstanding warrant. Both officers smelled marijuana coming from the vehicle, and Opitz acknowledged that she and Cabral had smoked marijuana there earlier that day.

After Cabral exited the vehicle, an officer discovered marijuana and approximately $2,000 on his person. A subsequent vehicle search revealed empty bags associated with marijuana distribution and six grams of fentanyl, divided among three foil packets, between the driver’s seat and the center console. An officer testified that the fentanyl quantity was inconsistent with ordinary personal use and that Cabral appeared unusually nervous.

Cabral denied knowing about the fentanyl or agreeing to distribute it. He explained that the money was savings retrieved from storage for an apartment down payment. Opitz, who had pleaded guilty under the general conspiracy statute, denied having seen Cabral with the fentanyl packets.

The jury acquitted Cabral of possessing fentanyl with intent to deliver but convicted him of conspiracy and simple possession of marijuana. The circuit court imposed sixteen years for the second-offense conspiracy conviction and ninety days for marijuana possession, to run consecutively. It denied a judgment of acquittal and alternative sentencing. Cabral appealed the conspiracy conviction and sentence; he did not challenge the marijuana conviction.

3. Summary of the Opinion

Justice Wooton agreed with the resolution of the other issues but would have reversed the conspiracy conviction and remanded for resentencing.

4. Analysis of the Court’s Legal Reasoning

A. Conspiracy required both an agreement and an overt act

The governing provision was the 2017 version of West Virginia Code § 60A-4-414(a). For this prosecution, the State had to establish:

1. A willful agreement between Cabral and Opitz to possess a controlled substance with intent to deliver; and
2. An act by at least one conspirator to advance that agreement.

These are separate requirements. Evidence suggesting drug distribution does not automatically establish an agreement between particular people. Conversely, an agreement need not culminate in a completed sale: conspiracy punishes the criminal combination once the required further act occurs.

B. The majority assessed the evidence collectively and deferred to the jury

The court reviewed the denial of acquittal de novo, but it evaluated evidentiary sufficiency in the light most favorable to the prosecution. That distinction is important: independent review of the legal question does not authorize an appellate court to choose which witnesses to believe.

The majority relied on Cabral’s presence with Opitz and the drugs, his unusual nervousness, and his possession of approximately $2,000 whose source police could not independently establish. Cabral did offer an explanation for the money; the dispute concerned whether the jury had to accept it. The court concluded that it did not.

The majority also treated testimony the jury considered false as affirmative evidence of guilt when accompanied by corroborating evidence. Its reasoning therefore went beyond simply allowing the jury to reject Cabral’s denials: it permitted those rejected denials to contribute positively to the inference of conspiracy.

This was not a holding that disbelief alone proves guilt. The majority expressly required corroboration. The controversial question was whether the corroborating circumstances meaningfully connected Cabral to an agreement to distribute fentanyl, rather than merely to marijuana possession or an anxious encounter with police.

C. A co-conspirator’s possession could supply the overt act

Once an agreement was established, the majority treated the overt-act requirement as modest. The six grams of fentanyl, its packaging, and testimony concerning customary user quantities supported an inference of possession for distribution rather than personal consumption.

Cabral’s acquittal of possessing the fentanyl did not, in the majority’s view, eliminate the overt act. The statute does not require every conspirator to act personally. The jury could instead have found that Opitz possessed the fentanyl in her vehicle and that her possession advanced the agreement.

This reasoning distinguishes personal commission of the substantive offense from participation in a conspiracy. Nonetheless, the State still had to prove an agreement and an act attributable to a member of that agreement. The identity of the actor could vary; the need for proof could not.

D. The dissent challenged the inferential links, not the basic statutory framework

Justice Wooton agreed that a conspirator other than the defendant may perform the overt act. His disagreement concerned whether the record established either element here.

• Shared presence: He viewed being in the same car as uninformative absent evidence of an illicit purpose. He emphasized the unrebutted account that the trip concerned Cabral’s storage facility.
• Nervousness: He identified explanations unrelated to fentanyl distribution: apprehension during a police encounter and awareness that Cabral possessed marijuana. He also considered the circumstances of an African-American man being questioned after his companion’s arrest.
• Cash: Although suspicious, the money did not, in his view, establish an agreement to distribute fentanyl. The officers’ initial suspicion concerned marijuana distribution.
• Possession by Opitz: He objected that the prosecution had emphasized Cabral’s constructive possession, while the majority relied on a different inference involving Opitz. He also noted that the record did not establish whether her conspiracy plea included an admission of possession.

The dissent further questioned reliance on a Supreme Court plurality opinion and an older federal appellate decision to support the use of disbelieved testimony as affirmative proof. Its central warning was that weak corroboration should not become sufficient merely because a defendant denies guilt.

The disagreement thus exposes a recurring boundary in sufficiency review: appellate courts must respect reasonable jury inferences without allowing several ambiguous circumstances to substitute for proof of each element beyond a reasonable doubt.

E. The automobile exception resolved the suppression issue narrowly

The majority held that marijuana odor supplied probable cause to search the vehicle. Because the automobile exception requires ready mobility and probable cause, the officers did not need to establish an additional emergency before searching.

Cabral argued at oral argument that medical-marijuana legalization warranted reconsideration of the odor rule. The court declined to address that contention because it had not appeared in his appellate brief. Accordingly, the opinion does not decide whether medical-marijuana legalization changes the probable-cause significance of marijuana odor.

The court’s suppression analysis concerned the vehicle search. It should not be expanded into a separate holding approving every aspect of the preceding pat-down.

F. Evidentiary rulings turned on context and adequate foundation

The circuit court initially excluded Cabral’s prior drug conviction. It later permitted the State to raise it after Cabral described the stress of going through “a case that I’ve never been through before.” The majority accepted the circuit court’s conclusion that this testimony created a misleading impression about his prior experience with criminal proceedings.

The ruling is contextual, not a general license to introduce prior convictions whenever a defendant testifies. Its rationale was that Cabral’s own testimony opened a subject the court had previously closed.

The court also upheld exclusion of Opitz’s suggested belief that her ex-husband could have placed the fentanyl in her car. Evidence that he used drugs or behaved irrationally did not directly connect him to placing these drugs in this vehicle. The ruling distinguished a supported alternative-perpetrator theory from conjecture.

G. Preservation and standards of review determined several remaining claims

Cabral’s challenge to police testimony about suspected marijuana distribution failed because he did not adequately apply the four-part plain-error test. The court did not undertake a fully developed merits determination that such testimony is always admissible.

His challenge to the racial composition of the jury pool similarly failed for lack of citations showing when and how the issue was raised below. The court therefore did not decide whether the jury-selection process violated any fair-cross-section requirement.

As to the potential juror who suggested that the same people repeatedly commit crimes, the circuit court removed that juror for cause. The appellate court deferred to the trial judge’s firsthand assessment of the effect on the remaining panel. It also treated the eventual acquittal on one charge as evidence against pervasive bias. That acquittal supported the court’s conclusion; a mixed verdict should not be understood as universally conclusive proof of impartiality.

H. Sentencing remained within statutory and discretionary boundaries

The conspiracy statute authorized a determinate sentence of two to ten years, and the repeat-drug-offense provision authorized doubling the penalty. The sixteen-year sentence therefore fell within the enhanced statutory maximum.

Applying its existing approach, the court declined proportionality analysis because this was neither a sentence without a fixed statutory maximum nor a life-recidivist sentence. This is best understood as an application of the court’s stated review framework, not a broad pronouncement that every sentence within a statutory range is immune from every constitutional challenge.

The denial of alternative sentencing rested on Cabral’s three prior felony convictions in different states, the seriousness of the offense, and his flight to Ohio rather than appearance at the original sentencing. The majority found no palpable abuse of discretion.

5. Precedents Cited and Their Influence

The authorities perform different roles: West Virginia decisions provide the governing state-law framework; United States Supreme Court decisions supply relevant constitutional principles and federal conspiracy analysis; other federal and state decisions provide persuasive support. The plurality status of the particular reasoning cited from Wright v. West is especially important.

A. Sufficiency review and the elements of conspiracy

State v. Thompson and State v. Salmons

These decisions establish de novo review of a denied judgment of acquittal and explain that the governing inquiry is the same as review of the sufficiency of a guilty verdict. State v. Salmons also supports proving an agreement without an explicit or formal undertaking.

State v. Guthrie

This is the principal sufficiency authority: the question is whether any rational factfinder, viewing the evidence favorably to the prosecution, could find every element beyond a reasonable doubt. Its prohibition on appellate credibility reassessment was central to the majority’s refusal to credit Cabral’s denials over the verdict.

State v. Stone and State v. Zuccaro

These cases emphasize the heavy burden borne by a defendant challenging evidentiary sufficiency. They reinforce appellate restraint, but do not replace the requirement that the evidence rationally establish each element.

Iannelli v. United States and Direct Sales Co. v. United States

These authorities explain that conspiracy centers on an agreement and that the agreement need not be explicit or formally expressed. They supported the court’s reliance on circumstantial rather than direct evidence of coordination.

State v. Less

This decision supplies several foundational propositions: an agreement may be inferred from conduct and circumstances; the overt act demonstrates that the conspiracy is operating; and an act by one member can satisfy the requirement for all. Both the majority and dissent accepted its framework while disagreeing about whether the evidence met it.

Wright v. West and United States v. Brown

The majority invoked these decisions to allow testimony regarded as false to contribute affirmative evidence of guilt when corroboration exists. The cited passage in Wright v. West comes from a plurality opinion; United States v. Brown is an Eleventh Circuit decision. Justice Wooton questioned their factual fit and the breadth of the inference drawn from them.

State v. Serr

This North Dakota decision directly supports treating possession of a controlled substance as an overt act in a conspiracy to deliver it. It was particularly important because the majority identified possession, rather than a separate transaction or communication, as the act advancing the agreement. The dissent objected to extending this approach on the present record.

State v. Hubbard

This New Mexico decision supports inferring an intent to distribute from quantity, packaging, and surrounding circumstances. It strengthened the distribution inference, although it did not itself resolve whether Cabral and Opitz had agreed to distribute fentanyl.

State v. Hall

The court relied on its general rule against appellate review of inconsistent verdicts. This provided an additional answer to the argument that acquittal of possession necessarily invalidated the conspiracy conviction.

State v. Bouie

Cited in the dissent, this decision confirms that the State must prove agreement and an overt act by a member of the conspiracy. Its use demonstrates that Justice Wooton disputed evidentiary sufficiency, not the rule permitting another conspirator to act.

The majority also cited Wayne R. LaFave’s Substantive Criminal Law for the proposition that, once an agreement is established, virtually any act may satisfy the overt-act requirement. That treatise is secondary authority, not a judicial precedent.

B. Vehicle searches and appellate presentation

Maryland v. Dyson and Pennsylvania v. Labron

These decisions establish that probable cause and a readily mobile vehicle suffice for the automobile exception; a separate exigency is unnecessary. They supplied the constitutional framework for sustaining the search.

State v. Moore and State v. Julius

The majority cited State v. Moore for a warrantless vehicle search when probable cause arises after a lawful stop. It expressly noted that State v. Julius overruled that decision on other grounds, preserving the relevance of the particular proposition invoked.

State v. Lacy

This decision requires suppression-review facts to be construed favorably to the State when it prevailed below. It shaped the court’s treatment of the officers’ testimony that they smelled marijuana.

State v. Chapman

This memorandum decision states that marijuana odor, without more, may establish probable cause to search a vehicle and baggage inside it. It was the direct state authority supporting the search here.

Argus Energy, LLC v. Marenko

This decision supports ordinarily declining arguments first raised at oral argument. It explains why the court did not reconsider the odor rule in light of medical-marijuana legalization.

C. Evidentiary discretion and opening the door

State v. Brendan W.

This decision supplies abuse-of-discretion review for evidentiary admission and exclusion. Under that deferential standard, the majority upheld the trial court’s contextual assessment of Cabral’s testimony.

United States v. Young and United States v. Blake

These authorities support admitting previously excluded evidence when the party who obtained exclusion subsequently opens the door. They justified allowing the State to correct the impression created by Cabral’s account of his prior experience.

D. Plain error and inadequate briefing

State v. Miller

This decision provides the four requirements: an error, that is plain, affecting substantial rights, and seriously affecting the fairness, integrity, or public reputation of judicial proceedings.

Lowery v. United States, United States v. Williamson, and State v. Vance (2022)

These authorities place the burden on the appellant to establish every plain-error requirement and emphasize the difficulty of doing so. They reinforced the inadequacy of merely reciting the standard.

State v. Fleming, United States v. Carthorne, and United States v. Dominguez Benitez

These decisions underscore that plain-error relief is exceptional and should be granted sparingly. They explain the court’s reluctance to disturb the verdict based on unobjected-to testimony.

State v. Marple

This decision emphasizes the clear or obvious nature of the error required for intervention without an objection. Cabral did not supply authority showing that permitting the testimony met that threshold.

State v. Vance (2026)

This separate memorandum decision supports declining to construct a plain-error argument for an appellant who has not developed one. It directly informed the rejection of Cabral’s unsupported challenge.

E. Sentencing and alternatives to incarceration

Ray v. Pszczolkowski and State v. Sandy

These memorandum decisions describe the court’s usual limitation of proportionality review to sentences lacking fixed statutory maxima or involving life-recidivist punishment. They supplied the basis for declining that review here.

State v. Duke and State v. Shafer

These decisions place probation within the circuit court’s discretion and require a palpable abuse of that discretion for reversal. They supported reliance on Cabral’s history and conduct.

State v. Zackoski

This decision explains that preferring probation to incarceration does not establish an abuse of discretion. It distinguished dissatisfaction with the result from a legally defective sentencing decision.

F. Jury-panel prejudice

State v. Lowery and State v. McKean

These decisions provide abuse-of-discretion review for denying a mistrial or dismissal of a jury pool. They made the precise label of Cabral’s motion less important than whether the trial court reasonably assessed prejudice.

State v. Lucky

This Louisiana decision emphasizes deference to the judge who personally observed the jurors and the challenged remark. It supported leaving the trial court’s assessment undisturbed.

United States v. Cantwell

This decision treats acquittals on some counts as additional evidence against alleged panel taint. The majority used Cabral’s substantive-offense acquittal similarly.

G. Third-party culpability and cumulative error

State v. Harman

This decision requires evidence directly linking another person to the offense, rather than merely showing motive, opportunity, or criminal tendencies. It controlled exclusion of the speculative suggestion concerning Opitz’s ex-husband.

State v. Smith

This decision recognizes that multiple errors, individually harmless, may collectively deny a fair trial. It supplied the cumulative-error doctrine Cabral invoked.

State v. Bailey

This decision explains that cumulative-error analysis does not apply when no errors have been found. Because the majority identified none, the cumulative claim failed.

6. Potential Impact

A. Conspiracy prosecutions may survive failure of the substantive charge

The decision reinforces that an acquittal of possession does not necessarily defeat a related conspiracy conviction. Prosecutors may rely on circumstantial agreement evidence and an act by another participant. Defense counsel must therefore address the agreement and overt-act elements independently rather than treating the substantive acquittal as dispositive.

B. The quality of corroboration will remain the principal controversy

The majority’s use of disbelieved testimony alongside nervousness, cash, and proximity may encourage similar sufficiency arguments. The dissent supplies an important limiting response: corroboration should connect the defendant to the charged agreement, not merely to suspicious circumstances or a different offense.

The decision does not shift the burden to defendants to prove lawful ownership of cash or explain nervousness. Those facts remain circumstances the prosecution must place within a persuasive, offense-specific evidentiary account.

C. Possession as an overt act requires careful sequencing

The majority’s approach can simplify proof of an overt act where a distribution agreement has been established. It should not erase the logically prior need to prove that agreement or the need to establish possession by an actual conspirator. Opitz’s general-conspiracy plea was not treated as a substitute for proving Cabral’s own participation.

D. Marijuana-search questions remain open

The court continued applying existing marijuana-odor authority, but left the medical-marijuana argument unresolved. A future case presenting that issue in a properly developed brief could require a more direct examination of the relationship between lawful marijuana possession and probable cause.

E. Appellate advocacy must be record-specific

The opinion repeatedly demonstrates the practical consequences of incomplete presentation: new oral-argument theories may not be considered, jury-selection claims need preservation citations, and plain-error claims require analysis of every element. These procedural shortcomings can prevent substantive questions from being reached.

7. Complex Concepts Simplified

Conspiracy

An agreement to commit a crime. Under the statute applied here, at least one participant also had to take a step advancing the plan.

Inchoate offense

An offense directed at criminal preparation or agreement, which may be complete even though the planned crime is not completed.

Overt act

A step showing that the agreed criminal plan is being put into operation. One conspirator’s act can satisfy the requirement for the others.

Constructive possession

Possession based on knowledge and control rather than physical custody. Mere proximity to drugs does not itself explain whether those requirements exist.

De novo review

Fresh review of a legal question. Here, it still required viewing the trial evidence favorably to the prosecution.

Opening the door

Introducing testimony that permits a response using evidence otherwise excluded, particularly to correct a misleading impression.

Plain error

A narrow route to relief for an unpreserved error that is obvious, affects substantial rights, and seriously undermines the proceeding’s fairness or integrity.

Automobile exception

A rule permitting a warrantless search of a readily mobile vehicle when officers have probable cause to believe it contains contraband or evidence.

Cumulative error

The combined unfairness caused by multiple actual errors, even when no single error independently requires reversal.

8. Conclusion

The court affirmed Cabral’s conviction and sentence by combining deferential sufficiency review, circumstantial proof of agreement, and the principle that one conspirator’s possession may supply the overt act for another. Its rejection of the remaining claims largely followed established evidentiary, sentencing, and preservation rules.

The enduring issue is the divide between permissible inference and speculation. The majority found the circumstances collectively sufficient; the dissent found no reliable bridge from those circumstances to a fentanyl-distribution agreement. That disagreement makes this memorandum decision particularly significant for future challenges to circumstantially proved drug conspiracies.