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Carol Devan,a/k/a Joann Brown,a/k/a Tracy BrownvCW ( 2001 )


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  •                        COURT OF APPEALS OF VIRGINIA
    Present:    Judges Bray, Bumgardner and Senior Judge Hodges
    CAROL DEVAN, A/K/A JOANN BROWN,
    A/K/A TRACY BROWN
    MEMORANDUM OPINION * BY
    v.   Record No. 0878-00-2                  JUDGE WILLIAM H. HODGES
    APRIL 3, 2001
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
    Oliver A. Pollard, Jr., Judge
    (Corine E.G. Bailey; Law Office of Paul C.
    Bland, on brief), for appellant. Appellant
    submitting on brief.
    (Mark L. Earley, Attorney General; Susan M.
    Harris, Assistant Attorney General, on
    brief), for appellee. Appellee submitting on
    brief.
    Appellant was convicted of conspiracy to commit forgery, and
    attempted grand larceny and forgery as a principal in the second
    degree.    On appeal, she contends that the evidence was
    insufficient to support the convictions.    Appellant argues that
    the evidence failed to prove that she knew the check was
    counterfeit or that the name on the check was forged.      Appellant
    also argues that the evidence failed to prove that she was aware
    that a codefendant would attempt to cash a counterfeit check.     We
    disagree and affirm the convictions.
    * Pursuant to Code § 17.1-413, this opinion is not
    designated for publication.
    BACKGROUND
    "On appeal, 'we review the evidence in the light most
    favorable to the Commonwealth, granting to it all reasonable
    inferences fairly deducible therefrom.'"     Archer v.
    Commonwealth, 
    26 Va. App. 1
    , 11, 
    492 S.E.2d 826
    , 831 (1997)
    (citation omitted).
    So viewed, the evidence proved that Officer Elkins was
    conducting surveillance at a hotel and saw a car leave and drive
    to a bank.   The female driver, later identified as Jan White, went
    inside the bank, and the male passenger, later identified as
    Sherman Robinson, stood outside the vehicle.    Robinson looked
    inside the bank a few times and walked around the car.    Appellant,
    a passenger, never left the car.   The bank teller testified that
    on presentation of the check, she noticed that the address on the
    check was the same address that was on a previous counterfeit
    check.   White became nervous and left the bank without any money.
    According to Elkins, White "took off quickly" and drove "in an
    erratic manner, and very quickly to the point of almost being
    reckless."   Elkins watched the car and eventually stopped the car.
    Appellant told Elkins that the car belonged to her uncle, but
    it was under her control.   Elkins noticed a bulge in appellant's
    waistband in the front of her shorts.     Elkins testified that the
    bulge "wasn't like a weapon shape" and its shape was similar to a
    square or octagon.
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    Because of a medical condition, appellant was handcuffed
    with her hands in front of her body.      Robinson was handcuffed
    with his hands behind his body, and both were placed in Officer
    Simpson's marked police vehicle.    Simpson testified that he had
    searched his vehicle before his shift and there was no
    contraband or trash in the car.    Simpson also testified that no
    one had been in the back seat of the vehicle during his shift.
    After appellant and Robinson got out of Simpson's vehicle,
    Officer Young saw ten checks, torn in pieces, on the seat and
    floor near where appellant had been seated.     Five checks were
    made out to Kim Westbrook, and five checks were made out to
    Robinson.    The check White attempted to cash was made out to Kim
    Westbrook.    Appellant told Detective Young that they were out of
    money and decided to write one more check.     Appellant explained
    that "they were all going to split the money."     Appellant also
    gave two false names to the authorities.
    ANALYSIS
    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).   "'[W]hether a person does in fact aid or abet another
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    in the commission of a crime is a question which may be
    determined by circumstances as well as by direct evidence.'"
    Pugliese v. Commonwealth, 
    16 Va. App. 82
    , 93, 
    428 S.E.2d 16
    , 25
    (1993) (citation omitted).
    "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)
    (citation omitted).    Proof of an explicit agreement is not
    required, and the Commonwealth may, and frequently must, rely on
    circumstantial evidence to establish the conspiracy.   Stevens v.
    Commonwealth, 
    14 Va. App. 238
    , 241, 
    415 S.E.2d 881
    , 883 (1992).
    The crime is "committed when the agreement to commit the offense
    is complete . . . ."    Johnson v. Commonwealth, 
    8 Va. App. 34
    , 38,
    
    377 S.E.2d 636
    , 638 (1989).
    The evidence established that appellant entered into a
    conspiracy to commit forgery and was a principal in the second
    degree to attempted larceny and forgery.    Appellant told Young
    that she and her codefendants needed money for gas and food.
    Appellant also told Young that "they were all going to split the
    money."   Appellant and her codefendants drove to the bank in
    appellant's car and the car left the bank at a high rate of speed.
    An officer saw a bulge in front of appellant's shorts, which did
    not appear to be a weapon, and placed her in the police vehicle
    with her hands cuffed in front of her.   The police vehicle was
    clean and did not contain any torn paper.   When appellant left the
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    police vehicle, pieces of ten counterfeit checks were found on the
    seat and floor near where she had been sitting.    The payee on five
    of the checks was the same payee on the check that White had
    attempted to cash.   Robinson was also in the police vehicle, but
    his hands had been cuffed behind him.   Appellant was searched
    incident to her arrest, and nothing was found.    The Commonwealth's
    evidence was competent, was not inherently incredible, and was
    sufficient to prove beyond a reasonable doubt that appellant was
    guilty of the charged offenses.
    Affirmed.
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