Charles Lee Dunn v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Fitzpatrick
Argued at Richmond, Virginia
CHARLES LEE DUNN
MEMORANDUM OPINION * BY
v. Record No. 1231-96-2 JUDGE JOHANNA L. FITZPATRICK
APRIL 1, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
John F. Daffron, Jr., Judge
(Carl C. Muzi, on brief), for appellant.
Appellant submitting on brief.
Steven A. Witmer, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Charles Lee Dunn (appellant) was convicted in a bench trial
of being an accessory after the fact to two counts of grand
larceny. The sole issue raised on appeal is whether the evidence
was sufficient to convict. Finding no error, we affirm.
The evidence at trial established that on two separate
occasions, September 4, 1995 and September 7, 1995, appellant was
a passenger in a car when two grand larcenies occurred.
Appellant contends that he did not know that the others planned
to break into cars, and did not participate in the thefts of
stereo equipment and CDs. He admitted that, after the first
theft on September 4th, he voluntarily went with the others when
they sold the equipment and he received a small piece of crack
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
cocaine from the proceeds. Regarding the September 7, 1995
offense, appellant testified that he took no active part in the
theft and was taken home immediately thereafter.
The Commonwealth's evidence included testimony from the
investigating officer, Detective Ramsey, that appellant told him
that he knew the purpose of going to the location of the first
offense was "[t]o take equipment belonging to Mr. Roberts. It
was known there was equipment in his car." As to the September
7, 1995 offense, Ramsey testified that appellant stated as
follows:
[T]he three of them went to a location near
Mr. Jackson's house. Mr. Dunn waited in the
car, and Mr. Walker and Mr. Kraegers
approached Mr. Jackson's vehicle. They
entered the vehicle through an unlocked door
and took stereo equipment from the vehicle,
brought it back to the car. [Appellant]
states that they put the speaker box in the
trunk, put the amp and a CD player in the
car, and he says, I think they got some CD's.
That equipment was also taken to the city
and traded for crack cocaine which they all
used, and that property has not been
recovered.
Ramsey stated that appellant admitted to participating and taking
the property to the city in exchange for crack cocaine.
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). "'[T]he finding
of the judge, upon the credibility of the witnesses and the
weight to be given their evidence, stands on the same footing as
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the verdict of a jury, and unless that finding is plainly wrong,
or without evidence to support it, it cannot be disturbed.'"
Speight v. Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98
(1987) (quoting Lane v. Lane, 184 Va. 603, 611, 35 S.E.2d 744,
752 (1945)).
In order to convict as an accessory after the fact, the
felony must be completed, appellant must know that the felon is
guilty and he must receive, relieve, comfort, or assist him.
Manley v. Commonwealth, 222 Va. 642, 644-45, 283 S.E.2d 207, 208
(1981). Mere presence and consent will not suffice to make one
an accomplice. It must be shown that the alleged accomplice
intended to encourage or help the person committing the crime to
commit it. Pugliese v. Commonwealth, 16 Va. App. 82, 93, 428
S.E.2d 16, 24-25 (1993). Whether a person aids or abets another
in the commission of a crime is a question which may be
determined by circumstantial as well as direct evidence.
Harrison v. Commonwealth, 210 Va. 168, 171-72, 169 S.E.2d 461,
464 (1969).
While appellant contends that the evidence failed to
establish that he did anything other than ride in a car with
friends, the trial court was not required to accept his
explanation. Appellant admitted to Ramsey that he knew that the
others intended to steal on both occasions; he smoked crack
cocaine purchased with the money received from disposing of the
goods; and he went out with the codefendants three days after the
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first larceny occurred. See Foster v. Commonwealth, 179 Va. 96,
100, 18 S.E.2d 314, 316 (1942) (presence during the commission of
a crime in connection with other circumstances showing an intent
to aid and abet supports a determination that criminal intent
existed). Under the facts of this case, the Commonwealth's
evidence was sufficient to prove beyond a reasonable doubt that
appellant was an accessory after the fact to the two grand
larcenies.
For the foregoing reasons, we affirm the convictions.
Affirmed.
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