Antonio Eugene Davis v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
ANTONIO EUGENE DAVIS
MEMORANDUM OPINION *
v. Record No. 2244-96-1 BY JUDGE JOSEPH E. BAKER
SEPTEMBER 30, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
James M. Lumpkin, Judge Designate
David H. Moyer (Bashara & Hubbard, on brief),
for appellant.
Kimberley A. Whittle, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Antonio Eugene Davis (appellant) appeals from his jury trial
convictions for second degree murder, attempted robbery, and
conspiracy to commit robbery, that were approved by the Circuit
Court of the City of Norfolk (trial court). Appellant asserts
that the evidence is insufficient to support the convictions.
Finding no error, we affirm the judgment.
Upon familiar principles, we review the evidence in the
light most favorable to the Commonwealth, granting to it all
inferences fairly deducible therefrom. See Martin v.
Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
Viewed accordingly, the record discloses that on July 16, 1993,
appellant, Reynaurd Lewis, and an unidentified third man picked
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
up Anthony Williams by automobile. Knowing that Timothy
Hutchinson 1 (the victim) had some money, they drove to his
apartment to "get paid," a street term that means taking money by
force, if necessary. Upon arrival at the victim's apartment,
Williams was the first to approach the victim's door. Williams
testified that he knew appellant and Lewis were planning to take
the victim's money because "[t]hat's what they were saying."
Appellant and Lewis followed Williams, and when the victim
opened the door, Williams was "shoved" into the apartment by one
of them. Appellant and Lewis were behind Williams when he was
"shoved." Inside, Lewis demanded to know where the money was and
began to argue with the victim. The two men exchanged gunshots.
Williams hid in a corner near the kitchen, but after the
shootings, he saw the victim crawling on the floor. Lewis had
left the scene.
Cheryl Hutchinson, the victim's wife, arrived home at her
apartment between 12:30 and 1:00 p.m. to find her husband lying
on their living room floor in a pool of blood. Two handguns were
near the victim's semi-conscious body. The rescue squad took him
from the scene, but he died of his wounds at Norfolk General
Hospital.
Homicide detectives found a 9 millimeter handgun, a .380
handgun, a number of shell casings, and spent bullets at the
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Hutchinson was the victim of the murder, attempted robbery,
and conspiracy to commit robbery.
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apartment. Forensics examiner John Ward determined the victim
had been shot multiple times and at least once at close range.
Ward also determined that of the sixteen 9 millimeter shell
casings all had been fired from the same weapon; however, that
weapon was neither of the handguns recovered at the scene. Two 9
millimeter bullets were determined to have been fired from the
same gun as the shells. Ward examined the .380 shell casings but
could not determine whether they had been fired from the .380
weapon found at the scene.
Detective Shaun Squyres responded to a police dispatcher
report that a gunshot victim had arrived for treatment at Norfolk
General Hospital. Squyres believed that the gunshot victim may
have been involved in the homicide at the Hutchinson apartment.
Squyres interviewed the gunshot victim, Reynaurd Lewis, at the
hospital and subsequently took him to police headquarters for
further questioning. Appellant arrived at the hospital to talk
to Lewis just as Squyres was escorting Lewis out the back door.
Within a few days of the shooting, Squyres interviewed
Williams. Williams admitted that the group had driven to the
victim's apartment planning to rob him. Although Williams
testified at appellant's preliminary hearing that the group had
approached the victim to sell him a gun, at trial Williams
testified that he had made that statement only because of threats
against him and his family.
Appellant asserts that the Commonwealth failed to prove that
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he was a party to a conspiracy to rob the victim and that the
evidence is insufficient to support his convictions for second
degree murder and attempted robbery.
"A conspiracy is 'an agreement between two or more persons
by some concerted action to commit an offense.'" Brown v.
Commonwealth, 3 Va. App. 101, 107, 348 S.E.2d 408, 411 (1986)
(citations omitted); see also Feigley v. Commonwealth, 16 Va.
App. 717, 722, 432 S.E.2d 520, 524 (1993); Amato v. Commonwealth,
3 Va. App. 544, 551, 352 S.E.2d 4, 8 (1987). "Conspiracy
requires '(1) an agreement between two or more persons, which
constitutes the act; and (2) an intent to thereby achieve a
certain objective which, under the common law definition, is the
doing of either an unlawful act or a lawful act by unlawful
means.'" Fortune v. Commonwealth, 12 Va. App. 643, 647, 406
S.E.2d 47, 48 (1991) (quoting W. LaFave & A. Scott, Criminal Law
§ 461 (1972)). "The agreement is the essence of the conspiracy
offense," Zuniga v. Commonwealth, 7 Va. App. 523, 527-28, 375
S.E.2d 381, 384 (1988), and the "conspiracy is committed when the
agreement to commit the offense is complete regardless whether
any overt act in furtherance of commission of the substantive
offense is initiated." Ramsey v. Commonwealth, 2 Va. App. 265,
270, 343 S.E.2d 465, 469 (1986). The conspiracy does not end
"until the spoils are divided and the co-conspirators have 'gone
their separate ways.'" Stumpf v. Commonwealth, 8 Va. App. 200,
206, 379 S.E.2d 480, 484 (1989) (quoting Berger v. Commonwealth,
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217 Va. 332, 335, 228 S.E.2d 559, 561 (1976)). "[T]he
participants may be found guilty of conspiracy even though the
planned crime was not fully consummated." Amato, 3 Va. App. at
553, 352 S.E.2d at 9.
[T]he fact of a conspiracy, like any other
fact, may be established by circumstantial
evidence. . . . [B]ecause of the very nature
of conspiracy, "it often may be established
only by indirect and circumstantial
evidence." Moreover, a formal agreement need
not be shown; a conspiracy "can be inferred
from the overt conduct of the parties."
Stultz v. Commonwealth, 6 Va. App. 439, 442-43, 369 S.E.2d 215,
217 (1988) (quoting Floyd v. Commonwealth, 219 Va. 575, 580, 581,
249 S.E.2d 171, 174 (1978) (citation omitted)).
Important to our finding is the legal principle that "[e]ach
member of a conspiracy is responsible for the acts of the others
in furtherance of the conspiracy, and all conspirators, even
those without knowledge of the particular act, may be tried where
any of those acts are performed." Henry v. Commonwealth, 2 Va.
App. 194, 198, 342 S.E.2d 655, 657 (1986). Here, the direct and
circumstantial evidence discloses that, pursuant to a plan and
agreement, appellant and Lewis drove to the victim's apartment to
forcibly take the victim's money. The record clearly shows that
the victim's death occurred as a result of the act of one of the
participants of the conspiracy while an attempt was being made to
carry out the robbery upon which appellant and Lewis had agreed.
The fact that appellant was not conclusively shown to have fired
the shot that killed the victim does not, under these
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circumstances, exonerate him from the charges for which he stands
convicted.
Upon the facts shown, we hold that the trial court did not
err when it refused to strike the evidence and dismiss the
murder, attempted robbery, and conspiracy charges.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
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