Arthur Lydell McDonald v. Commonwealth ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Overton ∗
Argued at Norfolk, Virginia
ARTHUR LYDELL McDONALD
MEMORANDUM OPINION ∗∗ BY
v. Record No. 3001-97-1 JUDGE NELSON T. OVERTON
FEBRUARY 16, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Verbena M. Askew, Judge
Bryan L. Saunders for appellant.
Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellant.
Arthur Lydell McDonald (defendant) appeals his conviction
for bank robbery, in violation of Code § 18.2-58. He contends
that the evidence was insufficient to support the conviction.
Because we hold that the evidence was sufficient, we affirm.
When the sufficiency of the evidence is challenged on
appeal, we review the evidence in the light most favorable to the
Commonwealth and grant to it all reasonable inferences fairly
deducible therefrom. See Higginbotham v. Commonwealth, 216 Va.
349, 352, 218 S.E.2d 534, 537 (1975). We may not disturb the
conviction unless it is plainly wrong or unsupported by the
∗
Judge Overton participated in the hearing and decision of
this case prior to the effective date of his retirement on
January 31, 1999 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401, recodifying Code
§ 17-116.01:1.
∗∗Pursuantto Code § 17.1-413, recodifying Code § 17-
116.010, this opinion in not designated for publication.
evidence. See Traverso v. Commonwealth, 6 Va. App. 172, 176, 366
S.E.2d 719, 721 (1988). Viewed in this light, we cannot say that
defendant's robbery conviction was erroneous.
Defendant presented his identification card and deposit slip
at a bank teller's window. Written upon the slip were the words
"I have a gun, don't panic, don't make me use it, act casual."
The teller gave him some money and a dye pack before he exited
the bank, leaving his slip and card behind. Both items bore his
fingerprints. A bank surveillance camera recorded the robbery.
Defendant was apprehended near the bank shortly after the
robbery. While he claimed he had not robbed the bank, he was
aware the bank had been robbed and knew that the color of the dye
in the dye pack was red.
The trial court had before it all the evidence, including
the bank camera's pictures of defendant. The trial court
implicitly found that defendant was the man recorded by the
camera and this, combined with the other evidence, proved his
guilt. Because this finding is supported by the evidence, we
shall not disturb it on appeal.
We hold that the evidence was sufficient to support
defendant's conviction. Therefore, the conviction is affirmed.
Affirmed.
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Benton, J., concurring.
I do not agree that the evidence proved Arthur Lydell
McDonald was the man who actually robbed the bank teller. At
trial, the teller testified that shortly after the robbery, the
police took her outside the bank to view McDonald and another
man. At that time, she could not identify either McDonald or the
other man as the person who robbed her. During the teller's
testimony, the Commonwealth entered into evidence photographs
taken by the bank's surveillance camera while the robbery was
occurring. Although the teller identified the person in the
photographs as the person who robbed her, she did not identify
McDonald as the person in the photographs. Furthermore, the
teller conceded that she did not know whether McDonald, who was
present in the courtroom when she testified, was the person who
robbed her.
The Commonwealth's evidence establishes that: (1) the
robber was wearing "dark clothes," (2) McDonald's fingerprints
were on both the withdrawal form and the identification card left
by the robber, (3) the identification card was McDonald's, (4)
the teller gave the robber money containing a dye pack, (5) the
dye pack exploded across the street from the bank, leaving red
dye on the sidewalk, (6) shortly after the robbery, McDonald was
found by the police hiding under a bridge a quarter of a mile
from the bank, (7) McDonald was wearing "white clothing covered
in mud," (8) no red dye was on McDonald or his clothing, and (9)
McDonald made several statements to the arresting officers which
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indicated McDonald knew that a bank had been robbed and that a
dye pack had discharged red ink.
This evidence does not prove beyond a reasonable doubt that
McDonald was the person who actually robbed the teller. In fact,
some of the evidence tends to disprove that hypothesis. Minutes
after the robbery, the teller viewed McDonald and could not
identify him as the robber. When he was detained immediately
after the robbery, McDonald was wearing clothes of a different
color than the clothes the robber wore. Although the dye pack
exploded, no dye was found on McDonald or his clothes. The
withdrawal slip that contained McDonald's fingerprints contained
other prints that the police were unable to test. In addition,
no evidence proved that McDonald's fingerprints were recovered
from the money wrapper that the robber discarded within the bank.
I believe these factors raise a reasonable doubt whether McDonald
was the actual robber.
The lack of evidence linking McDonald directly to the person
in the photographs likely explains why the Commonwealth's
attorney did not argue before the trial judge that McDonald was
the person in the photograph. Rather, the Commonwealth's
attorney argued that "[a]s far as this case is concerned, . . .
it comes down to the evidence as to the credibility of . . .
McDonald." The trial judge found that McDonald's testimony of
events was not credible.
Giving an elaborate explanation of his activities the day of
the robbery, McDonald testified that he took several valium and
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later met men known to him as Black and Black's cousin, Earl.
During conversation with them, McDonald showed Earl how to make a
bank withdrawal using the bank's withdrawal form that McDonald
had earlier obtained. McDonald wrote on the form and gave Earl
another withdrawal form. According to McDonald, Earl obtained
McDonald's identification and offered to drive McDonald to a
hospital for treatment. As McDonald slept in the car, Earl
awakened McDonald, said he robbed the teller, and forced McDonald
and Black to leave the car. McDonald said he fled to a marsh
after he learned of the robbery and was arrested by the police.
Although the trial judge expressly rejected McDonald's
"creative . . . accounting of what took place," he was not
required to reject the incriminating circumstances flowing from
that testimony. See Rollston v. Commonwealth, 11 Va. App. 535,
547, 399 S.E.2d 823, 830 (1991) (noting that the trier of fact
"is not required to accept in toto an accused's statement, but
may rely on it in whole, in part, or reject it completely").
What the evidence does establish, and the reason why I concur
with the decision to affirm, is McDonald's guilt as a principal
in the second degree. The trial judge could have found that
McDonald was aware of the robbery and had participated in the
planning and execution of the robbery. If so, then it was proper
for him to convict and punish McDonald as though he actually
committed the offense. See Code § 18.2-18.
To convict McDonald as a principal in the second degree, the
evidence "must prove [that McDonald] was present at the scene and
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'"share[d] the criminal intent of the party who actually
committed the [crime] or [was] guilty of some overt act in
furtherance thereof."'" Allard v. Commonwealth, 24 Va. App. 57,
62, 480 S.E.2d 139, 141 (1997) (citation omitted). McDonald's
testimony proved that he knew the robber, that he wrote parts of
the withdrawal form for the robber, and that he was present near
the bank when the robbery occurred. McDonald was arrested a
quarter of a mile from the bank immediately following the
robbery. His fingerprints were on the identification card and
the withdrawal form. He knew that the robbery had occurred and
that a dye pack had exploded. He was hiding to avoid detection
and gave a statement that did not acknowledge that he knew the
robber.
I believe that this direct and circumstantial evidence
proved beyond a reasonable doubt that McDonald was a principal in
the second degree to the robbery. Therefore, I would also affirm
the conviction.
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