John Henry Hayes v. Commonwealt of Virginia ( 2009 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Beales and Senior Judge Coleman
Argued at Chesapeake, Virginia
JOHN HENRY HAYES
MEMORANDUM OPINION * BY
v. Record No. 2953-07-1 JUDGE ROBERT J. HUMPHREYS
MARCH 24, 2009
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
A. Bonwill Shockley, Judge
Afshin Farashahi for appellant.
Karen Misbach, Assistant Attorney General II (Robert F.
McDonnell, Attorney General, on brief), for appellee.
John Henry Hayes (“Hayes”) appeals his convictions for robbery, in violation of
Code § 18.2-58, and the use of a firearm in the commission of a felony, in violation of
Code § 18.2-53.1. Hayes was convicted of both crimes as a principal in the second degree. On
appeal, he argues that the Commonwealth’s evidence was only sufficient to convict him as an
accessory after the fact. For the following reasons, we disagree and affirm his convictions.
I. ANALYSIS
When considering a challenge that the evidence presented at trial is insufficient, we
“presume the judgment of the trial court to be correct” and reverse only if the trial court’s
decision is “plainly wrong or without evidence to support it.” Davis v. Commonwealth, 39
Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002). We do not “substitute our judgment for that of
the trier of fact.” Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002).
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
“Instead, the relevant question is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). “This familiar
standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts.” Id.
The trial court convicted Hayes as a principal in the second degree for the robbery and
use of a firearm by Horton. A principal in the second degree “is one who is present, actually or
constructively, assisting the perpetrator in the commission of the crime.” Jones v.
Commonwealth, 208 Va. 370, 372, 157 S.E.2d 907, 909 (1967). “In order to make a person a
principal in the second degree actual participation in the commission of the crime is not
necessary. The test is whether or not he was encouraging, inciting, or in some manner offering
aid in the commission of the crime.” Id. at 372-73, 157 S.E.2d at 909. “[M]ere presence and
consent are not sufficient to constitute one an aider and abettor in the commission of a crime.
There must be something done or said by him showing (a) his consent to the felonious purpose
and (b) his contribution to its execution.” Id. at 373, 157 S.E.2d at 909. As the “getaway”
driver, Hayes clearly contributed to the execution of the robbery. See, e.g., Whitbeck v.
Commonwealth, 210 Va. 324, 327, 170 S.E.2d 776, 778 (1969) (affirming a conviction for
burglary as principal in the second degree where the accused waited in getaway car); Dickerson
v. Commonwealth, 36 Va. App. 8, 15, 548 S.E.2d 230, 233 (2001) (affirming a conviction for
robbery as principal in the second degree where the accused waited in the getaway car).
Hayes argues that the Commonwealth failed to prove that he consented to the robbery.
He claims that, although he drove Horton to and from the robbery, he did not know that Horton
intended to rob Mitchell, the victim. We disagree. Hayes’ actions belie the notion that he was
-2-
merely an innocent bystander who knew nothing of Horton’s intent to rob Mitchell. Hayes had
spent the afternoon with Horton. He had held Horton’s gun. Hayes drove Horton to the parking
lot where Mitchell was standing, and Hayes stopped the car “directly” in front of Mitchell. 1
Hayes remained in the car, in the driver’s seat, and watched Horton get out of the car while
carrying a gun. From that evidence, a fact finder could reasonably conclude that Hayes knew
what Horton intended to do and assisted him by driving him directly in front of Mitchell and
waiting in the driver’s seat until Horton returned.
Hayes claims that the Supreme Court’s decision in Jones mandates a different result.
However, we believe that Jones is distinguishable from this case. In Jones, Jones and another
man walked up onto the porch of a house. Jones, 208 Va. at 372, 157 S.E.2d at 908. The other
man knocked on the door. Id. When the owner of the house answered the door, the man
assaulted her. Id. A police officer waiting just inside the house stepped in and subdued the
assailant as Jones fled the scene. Id. The Supreme Court held that evidence was insufficient to
convict Jones as a principal in the second degree because there was no evidence that he shared
the other man’s criminal intent. 2 Id. at 374, 157 S.E.2d at 910.
In this case, there is evidence that Hayes shared Horton’s criminal intent. Unlike Jones,
Hayes was not merely present. Hayes drove Horton to the scene of the crime. Hayes knew that
Horton had a gun. Hayes parked directly in front of Mitchell, who was standing between two
cars. Hayes saw Horton get out of the car with a gun and waited in the driver’s seat with the
1
Hayes told Detective Tucker that he had stopped the car “a few cars down” from where
Mitchell was standing. However, Mitchell contradicted that statement when he testified that
Hayes stopped the car “directly” in front of him. Under our standard of review, we must assume
that the trial court resolved that conflict in the evidence in favor of the Commonwealth,
concluding that Hayes was lying to conceal his guilt.
2
The absence of evidence regarding Jones’ intent was not the only reason that the
Supreme Court reversed his conviction. The Court also held that Jones did not commit an overt
act aiding or encouraging the perpetrator in the felony. Jones, 208 Va. at 374, 157 S.E.2d at 910.
-3-
passenger door open. Hayes then further demonstrated his complicity in the robbery by driving
Horton away. Unlike Jones, Hayes did more than merely accompany the perpetrator to the scene
of the crime.
II. CONCLUSION
For the foregoing reasons, we hold that the evidence was sufficient to convict Hayes as a
principal in the second degree. We, therefore, affirm the decision of the trial court.
Affirmed.
-4-