Darrel Hicks, s/k/a Darrell Alsaah Hicks v. CW

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
DARREL HICKS, S/K/A
DARRELL ALSAAH HICKS
MEMORANDUM OPINION * BY
v. Record No. 3139-96-1 JUDGE RICHARD S. BRAY
FEBRUARY 17, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Thomas S. Shadrick, Judge
Andrea C. Long (Charles C. Cosby, Jr.; Boone,
Beale, Carpenter & Cosby, on brief), for
appellant.
Steven A. Witmer, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Darrell Hicks (defendant) and codefendant Randy Cummings
were convicted in a joint jury trial for the robbery and
abduction of Timothy Price. Defendant complains that the trial
court erroneously refused accessory-after-the-fact to robbery and
petit larceny instructions and, further, that the evidence was
insufficient to support the convictions. Finding no error, we
affirm the judgments of the trial court.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
Timothy Price, a "route driver" for Old Dominion Tobacco
Company, arrived for work on the morning of January 14, 1993, and
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
loaded his delivery truck with sundry merchandise valued in
excess of $9,000. As he started the engine, a man opened the
truck door and confronted Price with a gun. Although a
"bandanna" covered the intruder's face, Price recognized
codefendant Cummings, a former employee of Old Dominion Tobacco
Company, "right off." Cummings ordered Price to the floor of the
truck, drove the vehicle to a vacant lot and "frisked" Price,
taking his glasses and wallet, which contained approximately $38.
Cummings then "put tape around [Price's] eyes," handcuffed his
wrists and ordered him inside the truck, commanding, "Do what I
say!".
Cummings drove the truck to another location, again stopped,
and called, "Hey T" or "D." Price then detected the presence of
a second person as "they" locked him in the rear of the truck and
proceeded to yet another destination. En route, Price freed
himself from the handcuffs, removed the tape from his eyes, and
began "banging on the truck door." Cummings immediately ordered,
"cut that out." Shortly thereafter, "they opened the back of the
truck just a little[,] . . . pointed a gun" at Price and once
more handcuffed and taped him "around [the] eyes and mouth."
Price was then transferred to a car, where the driver repeatedly
warned, "do as I say," and "don't move and you won't get hurt."
Price immediately identified defendant, also a former employee of
Old Dominion Tobacco Company, by the sound of his voice.
When Price was eventually released on the "outskirts" of
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Franklin, defendant removed the handcuffs. Price pulled the tape
from his eyes and observed the "silhouette" of a white Volvo
speeding away. Price recalled that defendant had shown Price his
white Volvo "a couple of times" at work. At trial, Price
expressed "zero doubts" that defendant and Cummings were the
perpetrators.
Both Cummings and defendant denied involvement in the
offenses. Defendant testified that he was employed by Old
Dominion Tobacco Company until August, 1992, admitted an
acquaintance with both Price and Cummings but denied showing
Price his Volvo automobile. He claimed to be in his Richmond
home, asleep, on the morning of the crimes. Defendant's cousin
testified that defendant's Volvo was inoperable during January,
1993, but conceded that the car would "crank up."
Proffered Jury Instructions
The principles governing our review of a
trial court's decision refusing a jury
instruction are well-settled. "If any
credible evidence in the record supports a
proffered instruction on a lesser included
offense, failure to give the instruction is
reversible error." "Such an instruction,
however, must be supported by more than a
mere scintilla of evidence."
Brandau v. Commonwealth, 16 Va. App. 408, 411, 430 S.E.2d 563,
564 (1993) (citations omitted). "'[T]he weight of the credible
evidence that will amount to more than a mere scintilla . . . is
a matter to be resolved on a case-by-case basis' by assessing the
evidence in 'support of a proposition' against the 'other
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credible evidence that negates' it." Winston v. Commonwealth, 16
Va. App. 901, 905, 434 S.E.2d 4, 6 (1993) (quoting Brandau, 16
Va. App. at 411-12, 430 S.E.2d at 565). "[T]he appropriate
standard of review requires that we view the evidence with
respect to the refused instruction in the light most favorable to
[defendant]." Brandau, 16 Va. App. at 411, 430 S.E.2d at 564-65(citation omitted).
Here, defendant contends that the trial court erroneously
refused instructions on accessory-after-the-fact to robbery and
petit larceny. However, defendant testified at trial that he was
elsewhere during the offenses and was innocent of the crimes.
Manifestly, such evidence suggested no involvement as an
accessory-after-the-fact, and nothing in the record otherwise
justified such instruction. Similarly, the uncontradicted
evidence fixed the value of the stolen property well in excess of
$200, offering no support for a petit larceny instruction.
Sufficiency of the Evidence
"Where the sufficiency of the evidence is challenged after
conviction, it is our duty to consider it in the light most
favorable to the Commonwealth and give it all reasonable
inferences fairly deducible therefrom. We should affirm the
judgment unless it appears from the evidence that the judgment is
plainly wrong or without evidence to support it." Higginbotham
v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
"The credibility of a witness, the weight accorded the testimony,
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and the inferences to be drawn from proven facts are matters
solely for the fact finder's determination." Spivey v.
Commonwealth, 23 Va. App. 715, 724, 479 S.E.2d 543, 548 (1997).
The instant record discloses that defendant and Cummings had
once worked with Price at Old Dominion Tobacco Company. Price
was familiar with defendant's physical appearance, voice
characteristics and white Volvo car. He identified both
defendant and Cummings with certainty and observed a white Volvo
leaving the scene of his release. The jury was convinced by
Price's identifications and other evidence linking defendant and
Cummings to the offenses, while disbelieving their protestations
of innocence. The resulting verdicts were, therefore, well
supported by the evidence and will not be disturbed on appeal.
Accordingly, we affirm the convictions.
Affirmed.
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