Greeley Milburn Ball, Jr. v. CW ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Senior Judge Cole
Argued by teleconference
GREELEY MILBURN BALL, JR.
MEMORANDUM OPINION * BY
v. Record No. 1538-96-3 JUDGE SAM W. COLEMAN III
JANUARY 27, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
Charles H. Smith, Jr., Judge
Peter Curcio (Bressler, Curcio & Stout, on
brief), for appellant.
Ruth Ann Morken, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Greeley Milburn Ball, Jr. was convicted by a jury of
robbery, conspiracy to commit robbery, and use of a firearm in
the commission of robbery. On appeal, he contends that: (1) the
evidence was insufficient to support the convictions, and (2) the
trial court erred by imposing a sentence that was grossly
disproportionate to that of a codefendant. We hold that the
evidence was sufficient to convict appellant of the offenses and
that Rule 5A:12 bars our consideration of appellant's
disproportionate sentencing claim. Accordingly, we affirm the
convictions.
I. SUFFICIENCY OF THE EVIDENCE
When the sufficiency of the evidence is challenged on
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
appeal, we view the evidence "in the light most favorable to the
Commonwealth and give it all reasonable inferences fairly
deducible therefrom." Higginbotham v. Commonwealth, 216 Va. 349,
352, 218 S.E.2d 534, 537 (1975). The jury's verdict will not be
disturbed unless it is "plainly wrong or without evidence to
support it." Beavers v. Commonwealth, 245 Va. 268, 282, 427
S.E.2d 411, 421 (1993).
Viewed accordingly, the evidence is sufficient to prove
beyond a reasonable doubt that appellant conspired with Joseph
Hobbs to commit robbery, that he aided and abetted Hobbs in the
robbery, and that, by acting in concert with Hobbs, he is guilty
of using a firearm in committing robbery. The evidence proved
that appellant rapidly drove Joseph Hobbs in Hobbs' station wagon
across the parking lot of the B & W Tobacco Store. Rather than
parking in one of B & W's designated parking places in front of
the store, appellant parked behind the store out of open view.
Hobbs exited the car, went in the B & W store and robbed the
store clerk at gunpoint while appellant remained in the car.
When Hobbs returned, appellant sped out of the parking lot
and drove with Hobbs to the home of Hobbs' daughter, Marlena.
Marlena testified that she observed appellant and Hobbs divide a
large pile of money while listening to a police scanner after
they came to her home. Hobbs left Marlena's house for about
twenty minutes during which time appellant made no attempt to
leave or place a phone call. Marlena then drove appellant and
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Hobbs to appellant's trailer. During the drive, appellant told
Hobbs to ride in the back seat because reports on the police
scanner stated that some witnesses had identified Hobbs but had
not seen appellant. Appellant also discussed how he and Hobbs
could alter their appearance in order to avoid detection.
Several weeks after the robbery, appellant surrendered to
Washington County Police Investigator Bobby Arnold. In a written
statement to Investigator Arnold, appellant admitted that he
drove Hobbs to and from the tobacco store. He claimed, however,
that he was unaware that Hobbs intended to rob the clerk at the
store. He said that Hobbs coerced him at gunpoint into assisting
with the robbery. He further stated that he was forced to
accompany Hobbs to South Carolina where he was able to escape
several days later.
A. Robbery
The evidence is sufficient to sustain appellant's conviction
for robbery as a principal in the second degree. "A principal in
the second degree is one who is not only present at a crime's
commission, but one who also commits some overt act, such as
inciting, encouraging, advising, or assisting in the commission
of the crime or shares the perpetrator's criminal intent."
Moehring v. Commonwealth, 223 Va. 564, 567, 290 S.E.2d 891, 892
(1982). A principal in the second degree "may be indicted, tried
and convicted, and punished in all respects as if a principal in
the first degree." Code § 18.2-18. "In order for a person to be
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a principal in the second degree to a felony, the individual must
'know or have reason to know of the principal's criminal
intention and must intend to encourage, incite, or aid the
principal's commission of the crime.'" Jones v. Commonwealth,
15 Va. App. 384, 387, 424 S.E.2d 563, 565 (1992) (quoting McGhee
v. Commonwealth, 221 Va. 422, 427, 270 S.E.2d 729, 732 (1980)).
The evidence proves that appellant drove Hobbs' car and
parked it behind the B & W Tobacco Store where the car and its
occupants would be obscured from public view. As soon as Hobbs
returned to the car, the appellant sped away. The manner in
which appellant drove the car and where he parked it warrant the
inference that he was aware of Hobbs' intention to rob the clerk
at the store and that he did so to facilitate an escape after the
robbery.
After the robbery, Hobbs and appellant divided the stolen
money. Appellant discussed how they could disguise themselves to
avoid detection. Furthermore, they fled to South Carolina.
Although appellant claims that Hobbs forced him to participate
against his will and forced him to flee to South Carolina, the
jury could disregard this claim, particularly in view of the fact
that appellant made no attempt to escape or to call the police
when Hobbs had left him alone at Marlena's house.
On these facts, the jury could have reasonably concluded
that appellant drove the getaway car and thereby acted as a
principal in the second degree to assist Hobbs in the robbery.
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The jury was free to disbelieve any or all of appellant's
statement to Investigator Arnold, including the claim that he was
unaware that Hobbs intended to rob the store clerk and that Hobbs
coerced him into assisting with the robbery. See Pugilese v.
Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24 (1993)
("[T]he fact finder is not required to believe all aspects of a
defendant's statement or testimony; the . . . jury may reject
that which it finds implausible, but accept other parts which it
finds to be believable."). Thus, the evidence is sufficient to
sustain appellant's conviction for robbery.
B. Conspiracy to Commit Robbery
"Conspiracy is defined as 'an agreement between two or more
persons by some concerted action to commit an offense.'" Feigley
v. Commonwealth, 16 Va. App. 717, 722, 432 S.E.2d 520, 524 (1993)
(quoting Wright v. Commonwealth, 224 Va. 502, 505, 297 S.E.2d
711, 713 (1992)). Proof of the existence of an agreement is an
essential element to establish the crime of conspiracy. See
Fortune v. Commonwealth, 12 Va. App. 643, 647, 406 S.E.2d 47, 48
(1991); see also Zuniga v. Commonwealth, 7 Va. App. 523, 527, 375
S.E.2d 381, 384 (1988) ("In order to establish the existence of a
conspiracy, as opposed to mere aiding and abetting, the
Commonwealth must prove the additional element of preconcert and
connivance not necessarily inherent in the mere joint activity
common to aiding and abetting.") (citation omitted). Thus, the
Commonwealth must prove beyond a reasonable doubt that an
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agreement to rob existed. See Floyd v. Commonwealth, 219 Va.
575, 580, 249 S.E.2d 171, 174 (1978). However, proof of an
explicit agreement is not required, and the Commonwealth may, and
frequently must, rely on circumstantial evidence to establish the
conspiracy. See Stevens v. Commonwealth, 14 Va. App. 238, 241,
415 S.E.2d 881, 883 (1992).
Viewing the evidence in the light most favorable to the
Commonwealth, the facts prove that appellant and Hobbs
participated in a planned and calculated series of acts in which
appellant delivered Hobbs to the scene of the crime, facilitated
an expedient "getaway" after Hobbs committed the robbery, and
devised a plan for them to flee Virginia without detection.
Appellant's coordinated participation supports the finding that
he and Hobbs were working in concert pursuant to an earlier plan
or agreement to rob the store. The fact that they divided the
proceeds from the robbery further suggests that they agreed to
rob the store and to share the proceeds. From these facts, the
jury could have reasonably concluded that appellant and Hobbs
conspired to rob the store, share the proceeds, and flee the
jurisdiction. Thus, the evidence is sufficient to support the
conviction for conspiracy to commit robbery.
C. Use of a Firearm in the Commission of Robbery
The evidence is sufficient to sustain appellant's conviction
for use of a firearm in the commission of robbery as a principal
in the second degree. Code § 18.2-53.1 makes it unlawful for any
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person to use a firearm in the commission of a robbery. Under
the principle of vicarious responsibility, one who did not
actually possess a firearm during the commission of a robbery may
nonetheless be convicted under the statute as a principal in the
second degree where he acted in concert with and shared the
common purpose of an armed codefendant. See Carter v.
Commonwealth, 232 Va. 122, 125-26, 348 S.E.2d 265, 267 (1986)
(upholding conviction for use of firearm during robbery as
principal in second degree where unarmed defendant accompanied by
armed codefendant entered and robbed pharmacy); Cortner v.
Commonwealth, 222 Va. 557, 563, 281 S.E.2d 908, 911-12 (1981)
(unarmed defendant and three others robbed victim after armed
codefendant shot victim; Court held defendant vicariously
responsible as principal in second degree because defendant
shared common purpose of armed assailant to rob victim); Blake v.
Commonwealth, 15 Va. App. 706, 709, 427 S.E.2d 219, 221 (1993)
(upholding conviction of unarmed defendant where codefendant
jammed a gun in victim's ribs during robbery; Court held
defendant vicariously responsible for use of firearm during
robbery because codefendant "possessed and used the gun in
furtherance of their joint resolve to commit robbery").
Appellant attempts to distinguish his case from Carter and
Cortner. He argues that he may not be held vicariously
responsible for using the firearm when he was not physically
present when the clerk was robbed. We find his argument
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unpersuasive. As noted, the evidence sufficiently proved that
appellant conspired with Hobbs to rob the tobacco store and aided
and abetted in committing the robbery. By aiding and abetting in
the commission of a crime, a principal in the second degree is
equally accountable for the acts of his confederate. Thus, the
evidence proves that Hobbs possessed and used a firearm in
furtherance of appellant's and Hobbs' common purpose to rob the
tobacco store. Because appellant and Hobbs shared the common
intent to rob the store,
they shared the common intent to commit all
of the elements of robbery, including the use
of such force as would be expedient for the
accomplishment of their purpose. An
incidental probable consequence of such a
shared intent was the use of a weapon,
including a firearm if one should be at hand.
In such circumstances, the law is well
settled in Virginia that each co-actor is
responsible for the acts of the others, and
may not interpose his personal lack of intent
as a defense.
Carter, 232 Va. at 126, 348 S.E.2d at 267-68. Thus, the evidence
is sufficient to support appellant's conviction for use of a
firearm in the commission of robbery.
II. DISPROPORTIONATE SENTENCES - RULE 5A:12(c)
Appellant next contends that the trial court erred by
imposing the jury's sentence which is grossly disproportionate to
the sentence that Hobbs received as the principal in a separate
trial for the same offenses. Appellant asks us to vacate or
reduce his sentences. Appellant concedes that he did not raise
this sentencing issue before the trial court or in his petition
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for appeal. He argues that Rule 5A:18 controls and he requests
that we address the disparity in sentencing under the "ends of
justice" exception to Rule 5A:18.
Appellant's contention is without merit. Although Rule
5A:12(c) does state that "[t]he provisions of Rule 5A:18 shall
apply to limit those questions which [this Court] will rule upon
on appeal," it also states that "[o]nly questions presented in
the petition for appeal will be noticed by the Court of Appeals."
Rule 5A:12(c) (emphasis added). Rule 5A:12(c) does not contain
an ends of justice exception. Accordingly, we may not consider
appellant's disproportionate sentencing claim because it was not
raised in the petition for appeal and was not a question for
which we granted review. See Cruz v. Commonwealth, 12 Va. App.
664, 664 n.1, 406 S.E.2d 406, 407 n.1 (1991).
For the foregoing reasons, we affirm the convictions.
Affirmed.
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