Antione Marquis Wicker,s/k/a Antoine Wicker v. CW

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Lemons and Senior Judge Cole
Argued at Richmond, Virginia
ANTIONE MARQUIS WICKER, S/K/A
ANTOINE M. WICKER
MEMORANDUM OPINION * BY
v. Record No. 2607-97-2 JUDGE LARRY G. ELDER
DECEMBER 22, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY
Thomas V. Warren, Judge
Phyllis L. Bean for appellant.
John H. McLees, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Antoine M. Wicker (appellant) appeals from his six bench
trial convictions for "[a]bduction by prisoners" in violation of
Code § 18.2-48.1. On appeal, he contends the evidence was
insufficient to support his convictions under any theory. We
disagree and affirm the convictions.
When considering the sufficiency of the evidence on appeal
in a criminal case, this Court views the evidence in the light
most favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. See Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). On
review, this Court does not substitute its own judgment for that
of the trier of fact. See Cable v. Commonwealth, 243 Va. 236,
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
239, 415 S.E.2d 218, 220 (1992). The trial court's judgment will
not be set aside unless it appears that the judgment is plainly
wrong or without supporting evidence. See Martin v.
Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
Under Code § 18.2-48.1, "[a]ny prisoner in a state, local or
community correctional facility . . . who abducts or takes any
person hostage shall be guilty of a Class 3 felony." An
abduction violating that code section occurs when a prisoner, "by
force, intimidation or deception, and without legal justification
or excuse, seizes, takes, transports, detains or secretes the
person of another, with the intent to deprive such other person
of his personal liberty." Code § 18.2-47.
A.
PRINCIPAL IN THE SECOND DEGREE
Appellant contends that the evidence was insufficient to
prove that he personally committed abduction and that his
conviction, therefore, must be premised on the theory that he was
a principal in the second degree or an accessory. A principal in
the second degree is one who was present at the scene and shared
the criminal intent of the actual perpetrator or committed some
act in furtherance of the offense. See Allard v. Commonwealth,
24 Va. App. 57, 62, 480 S.E.2d 139, 141 (1997). A principal in
the second degree may be "punished . . . as if a principal in the
first degree." Code § 18.2-18.
Appellant contends that the evidence also failed to prove he
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was a principal in the second degree. We disagree. We
acknowledge that "'[m]ere presence when a crime is committed is
. . . not sufficient to render one guilty as an aider or
abettor.'" Foster v. Commonwealth, 179 Va. 96, 99, 18 S.E.2d
314, 316 (1942) (quoting Brown v. Commonwealth, 130 Va. 733, 736,
107 S.E. 809, 810 (1921)). However, "'[e]very 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 . . . .'" Id. at 99, 18
S.E.2d at 315-16 (quoting Brown, 130 Va. at 736, 107 S.E. at
810). One who is "a watcher around the corner" is an aider and
abettor. Id. at 99, 18 S.E.2d at 315. In addition, the aider
and abettor is criminally responsible for all acts committed in
furtherance of "'the common [criminal] purpose'" as long as they
are "'incidental probable consequences of the execution of that
[purpose],'" regardless of whether the acts are "'part of the
original design.'" Rollston v. Commonwealth, 11 Va. App. 535,
542, 399 S.E.2d 823, 827 (1991) (quoting Brown, 130 Va. at 738,
107 S.E. at 811) (other citation omitted).
"The status of the accused may be established both by
circumstantial evidence and by direct evidence." Foster, 179 Va.
at 99, 18 S.E.2d at 316.
"Notwithstanding these rules as to the
nonliability of a passive spectator, . . .
proof that a person is present at the
commission of a crime without disapproving or
opposing it, is evidence from which, in
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connection with other circumstances, it is
competent for the [fact finder] to infer that
he assented thereto, lent to it his
countenance and approval, and was thereby
aiding and abetting the same."
Id. at 100, 18 S.E.2d at 316 (citation omitted).
Here, viewed in the light most favorable to the
Commonwealth, the evidence established, at a minimum, that
appellant was a principal in the second degree to the six
abductions. He came twice to the breezeway with the inmates more
directly involved in the incident, remained present while the
inmates subdued Correctional Officers Maurice Fowlkes and Wayland
Goode, stood within three feet of Fowlkes as he lay restrained on
the ground, and assisted in "dealing with Officer Goode."
Appellant "got back from Goode and stood against the wall . . .
with a shank in his hand" while institutional officer "Robbin"
was in the area, and appellant ultimately fled the breezeway area
with the other inmates when a group of correctional officers
arrived on the scene. Appellant arrived at the medical
department with Sherman and another inmate and was present when
Sherman grabbed Officer Otis Reese and began to threaten him.
Appellant remained in the classroom with inmates Sherman and
Thorpe, standing guard over the two restrained correctional
officers and two nurses, for more than six hours. Finally,
Warden Robinson indicated that he negotiated with inmate Thorpe,
whom he could hear consulting "with the other two individuals" in
the treatment area--appellant and Sherman. Therefore, the
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circumstantial and direct evidence, viewed in totality, was
sufficient to prove that appellant was at least a principal in
the second degree. See Cirios v. Commonwealth, 7 Va. App. 292,
298-99, 373 S.E.2d 164, 167 (1988) (holding that while no single
piece of evidence, standing alone, tied the accused directly to
the crime, the totality of the evidence supported jury's finding
that accused was accessory before the fact).
B.
SUFFICIENCY OF EVIDENCE TO PROVE SIX COUNTS OF ABDUCTION
Appellant contends the evidence was insufficient to prove
(1) that he abducted any of the six people and (2) that anyone
abducted Nurses Grinstead and Jackson because they did not
testify. Again, we reject these contentions.
As discussed above, that appellant may not personally have
abducted the correctional officers or nurses is not dispositive
of his guilt for these offenses. The evidence proved, first,
that one or more of the inmates abducted each of the six victims
and, second, as discussed above, that appellant aided and abetted
the abductions. Inmates Sherman, Thorpe and Domio used force to
subdue and restrain Officers Maurice Fowlkes and Goode while
appellant was present with a weapon, assisting, and attempting to
remain out of the sight of another institutional employee. This
evidence proved that Officers Maurice Fowlkes and Goode were
abducted and that appellant was a principal in the second degree
to the abductions.
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Inmate Sherman used force to seize, transport and detain
Officer Reese. He used a knife, threatening to cut Reese's
throat, to force Reese to accompany him to release an inmate from
the medical building. Inmates Sherman and Thorpe used force to
seize and transport Officer Charles Fowlkes to the school area.
In the school area, they used intimidation to detain Fowlkes,
Officer Reese, and Nurses Grinstead and Jackson by ordering them
to lie on the floor in the hallway, and they continued the
abduction by taking all four to a classroom where they handcuffed
Fowlkes, tied Reese with wire, and ordered the nurses to sit in
the room with the two guards, where the four remained all night.
Appellant aided and abetted the abductions, for he was present
when Sherman approached and grabbed Officer Reese, and he
remained in the classroom in which Charles Fowlkes, Reese, and
the nurses were detained for the duration of the detention,
consulting with inmate Thorpe as he negotiated with Warden
Robinson. This evidence proved that Officers Charles Fowlkes and
Reese and Nurses Grinstead and Jackson were abducted and that
appellant was a principal in the second degree to these
abductions, too.
That Nurses Grinstead and Jackson did not testify that the
inmates deprived them of their "personal liberty" against their
will is not dispositive. Any element of a crime may be proved by
circumstantial evidence as long as it excludes all reasonable
hypotheses of innocence flowing from the other evidence in the
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record. See Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d
864, 876 (1983); Hamilton v. Commonwealth, 16 Va. App. 751, 755,
433 S.E.2d 27, 29 (1993); see also Lafon v. Commonwealth, 17 Va.
App. 411, 438 S.E.2d 279 (1993) (in reviewing abduction
conviction, holding circumstantial evidence sufficient to show
victim did not voluntarily accompany defendant to place where her
body was found). Whether a hypothesis of innocence is reasonable
is a question of fact. See Cantrell v. Commonwealth, 7 Va. App.
269, 290, 373 S.E.2d 328, 339 (1988).
As set out above, the evidence proved that armed inmates
forced the nurses to lie on the floor in the hallway, took them
to a classroom, and ordered them to remain in the room under the
watch of several of the inmates for the duration of the night.
The only reasonable hypothesis flowing from the evidence in the
record is that the nurses were deprived of their personal liberty
against their will. In denying appellant's motions to strike and
convicting him on all six counts of abduction, the trial court
rejected appellant's contention that the evidence permitted the
inference that the nurses were not held against their will, and
this finding of fact was not plainly wrong.
For these reasons, we affirm appellant's convictions.
Affirmed.
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