Douglas S. Simmons v. Commonwealth ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Annunziata
Argued at Salem, Virginia
DOUGLAS S. SIMMONS
MEMORANDUM OPINION * BY
v. Record No. 1624-97-3 JUDGE SAM W. COLEMAN III
JULY 14, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF STAUNTON
Rudolph Bumgardner, III, Judge
Kevin M. Schork (Epperly, Follis &
Schork, P.C., on brief), for appellant.
Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Douglas S. Simmons (appellant) was convicted in a bench
trial for malicious wounding. The sole issue on appeal is
whether the evidence is sufficient to prove that appellant was a
principal in the second degree to the malicious wounding.
Finding the evidence sufficient, we affirm the conviction.
A principal in the second degree is a person
who is present, aiding and abetting, by
helping some way in the commission of the
crime. Presence or consent alone is not
sufficient to constitute aiding and abetting.
It must be shown that the defendant intended
his words, gestures, signals or actions to in
some way encourage, advise, or urge, or in
some way help the person committing the crime
to commit it.
Ramsey v. Commonwealth, 2 Va. App. 265, 269, 343 S.E.2d 465, 468
(1986).
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
[T]o prove that the defendant was an aider
and abettor, "the evidence must show that
[the defendant] was not only present but that
[the defendant] procured, encouraged,
countenanced, or approved commission of the
crime. In other words, [the defendant] must
share the criminal intent of the party who
actually committed the [crime] or be guilty
of some overt act in furtherance thereof."
Rollston v. Commonwealth, 11 Va. App. 535, 540, 399 S.E.2d 823,
826 (1991) (quoting Augustine v. Commonwealth, 226 Va. 120, 124,
306 S.E.2d 886, 888-89 (1983)) (other citations omitted). A
principal in the second degree may be tried and convicted in all
respects as if a principal in the first degree. Code § 18.2-18.
Upon familiar principles of appellate review, we will not
reverse the judgment of the trial court, sitting as the finder of
fact in a bench trial, unless it is plainly wrong or without
evidence to support it. See Martin v. Commonwealth, 4 Va. App.
438, 443, 358 S.E.2d 415, 418 (1987). When the sufficiency of
the evidence is challenged on appeal, we must determine whether
the evidence, viewed in the light most favorable to the
Commonwealth, and the reasonable inferences fairly deducible from
that evidence support each and every element of the charged
offense. See Moore v. Commonwealth, 254 Va. 184, 186, 491 S.E.2d
739, 740 (1997); Derr v. Commonwealth, 242 Va. 413, 424, 410
S.E.2d 662, 668 (1991).
Viewed accordingly, the evidence is sufficient to prove that
appellant aided and abetted a malicious wounding. The record
indicates that Troy Blair (victim), Steve Williams, and others
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drove to a service station in Staunton. While the victim
purchased a soda in the service station store, Williams began to
argue with another group of men that included appellant and Ryan
Wilson. The victim testified that "they all jumped" Williams and
began punching him. Williams managed to escape the group's
attack and ran toward the store. As the victim exited the store,
Wilson struck him in the head with a glass bottle, knocking him
unconscious. A bystander testified that appellant and another
man kicked the victim several times while he lay unconscious on
the ground. Immediately thereafter, appellant and his companions
fled the scene. Police later discovered them hiding in a nearby
snow bank. The victim remained unconscious for two days.
Based on this evidence, the jury could have reasonably
concluded that appellant, by acting in concert with Wilson and
others to attack Williams and the victim, assisted, countenanced,
and approved Wilson's malicious wounding of the victim. See
Pugliese v. Commonwealth, 16 Va. App. 82, 93, 428 S.E.2d 16, 24
(1993) ("Every person who is present at the commission of a
[crime], encouraging or inciting the same by words, gestures,
looks, or signs, or who in any way, or by any means, countenances
or approves the same is, in law, assumed to be an aider and
abettor, and is liable as principal." (citation omitted)). The
evidence proves that appellant, acting in concert with Wilson and
others, assaulted Steve Williams, and after Williams escaped,
they turned and assaulted Troy Blair. The fact that one of the
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confederates may have escalated the fray beyond what the
appellant may have expected does not relieve him of his
complicity in the criminal enterprise.
All those who assemble themselves together
with [an intent to commit a wrongful act],
the execution whereof make probable, in the
nature of things, a crime not specifically
designed, but incidental to that which was
the object of the confederacy, are
responsible for such incidental crime. . . .
Hence, it is not necessary that the crime
should be a part of the original design; it
is enough if it be one of the incidental
probable consequences of the execution of
that design, and should appear at the moment
to one of the participants to be expedient
for the common purpose.
Rollston, 11 Va. App. at 542, 399 S.E.2d at 827 (citation
omitted). Accordingly, the evidence is sufficient to prove that
appellant acted as a principal in the second degree to the
malicious wounding, and we affirm the conviction.
Affirmed.
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