COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Bray
Argued at Norfolk, Virginia
CALVIN ALONZO McGILL
OPINION
v. Record No. 0376-96-1 BY JUDGE JOSEPH E. BAKER
MAY 20, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
John C. Morrison, Jr., Judge
Robert L. Bohannon (Bohannon, Bohannon &
Hancock, P.C., on brief), for appellant.
Margaret Ann B. Walker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Calvin Alonzo McGill (appellant) contends that because he
did not personally wear a mask while participating in several
robberies, he was erroneously convicted pursuant to three
separate indictments that charged he violated the provisions of
Code § 18.2-422. In relevant part, that code section provides:
It shall be unlawful for any person over
sixteen years of age while wearing any mask,
hood or other device whereby a substantial
portion of the face is hidden or covered so
as to conceal the identity of the wearer, to
be or appear in any public place, or upon any
private property in this Commonwealth without
first having obtained from the owner or
tenant thereof consent to do so in writing.
The indictments asserted that appellant "did unlawfully wear a
mask or hood, in a public place." 1 In a bench trial by the
1
Although appellant never personally wore a mask in the
robberies and attempted robbery, Code § 18.2-18 states that "every
principal in the second degree . . . may be indicted . . . as if a
principal in the first degree."
Circuit Court of the City of Norfolk (trial court), appellant was
convicted of four counts of robbery, one count of attempted
robbery, five counts of use of a firearm in commission of those
felonies, 2 and three counts of violation of Code § 18.2-422
during three of the robberies committed or attempted in a public
place.
Upon familiar principles, we view the evidence in the light
most favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
Viewed accordingly, the record discloses that prior to committing
the offenses involved in this appeal, appellant and a
codefendant, Samuel Williams, known by his nickname as "Flip"
(Flip), conspired to commit the robberies described herein. As
the plan was being formulated, Flip told appellant that he wanted
to use a mask while committing the crimes. Appellant owned a ski
mask and a pistol. They went to appellant's house and procured
the mask and the gun which appellant provided for Flip.
Appellant also had procured an automobile owned by his girlfriend
that was used to carry out the robbery plans made by appellant
and Flip.
Upon being arrested, appellant confessed to his part in the
2
Appellant's petition for appeal was denied with respect to his
convictions of four counts of robbery, one count of attempted
robbery, and five counts of use of a firearm. Therefore, these
convictions are not before this Court.
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robberies and the attempted robbery and incriminated Flip as his
co-conspirator. In several signed written statements, appellant
told how he and Flip intended to commit the robberies. In one
statement, he admitted that he drove Flip to the 3600 block of
Pleasant Avenue in the Ocean View section of Norfolk at 11:20
p.m. on November 5, 1994. Appellant drove up to Julie Monahan,
who was returning to her car after having delivered a pizza.
Flip exited the car, pulled the ski mask over his face,
brandished the gun, and robbed Monahan. At trial, Monahan
corroborated the time, place, and manner of the crime. She also
stated that the robber wore a ski mask. Appellant and Flip
divided the money obtained in the robbery.
In another confession, appellant admitted that at 10:20 a.m.
on November 6, 1994, he drove Flip to the public parking lot of a
shopping mall to a point where Beverly Turner was placing
groceries in her car. Flip exited the car, pulled the mask over
his face, brandished the gun, and demanded money from Turner, who
had none. Flip returned to the car in which he and appellant
fled the scene. At trial, Turner corroborated the time, place,
manner of the attempted crime, and that the robber wore a mask as
he approached her and demanded that she give him her money.
Appellant further admitted that on that same day, after the
unsuccessful attempt to rob Turner, he drove Flip up to Pam
Hurley, who was returning to her car in the public parking lot of
a grocery store. Flip again exited the car, pulled the ski mask
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over his face, brandished the gun, and demanded that Hurley give
him her purse. When Hurley complied, Flip returned to the car
and appellant drove him from the crime scene. Appellant and Flip
divided the money taken from the purse. At trial, Hurley
testified that the robber had worn a mask in public, brandished a
gun while demanding her purse, and drove off in the vehicle from
which he had exited. Hurley gave investigating police officers
the license number and description of the vehicle in which Flip
had arrived and departed. From this information, the police were
able to locate appellant and Flip.
In his several confessions, appellant admitted that he sat
by in the getaway vehicle as the three crimes were carried out in
his plain view and near proximity but stated that he never wore a
mask as the crimes were being committed. The sole issue
presented by this appeal is whether the foregoing evidence,
viewed in the light most favorable to the Commonwealth, is
sufficient to support appellant's convictions for violation of
Code § 18.2-422. We find that it is sufficient and affirm the
judgment of the trial court.
The judgment of the trial court is presumed correct, Johnson
v. Commonwealth, 12 Va. 391, 396, 404 S.E.2d 384, 387 (1991), and
we are required to affirm that judgment unless it is plainly
wrong or without evidence to support it. Code § 8.01-680;
Higginbotham, 216 Va. at 352, 218 S.E.2d at 537.
The evidence shows a common plan and scheme to commit
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robberies. It is clear that the evidence supports appellant's
convictions for robbery, attempted robbery, and use of a firearm
in the commission of those crimes. In a long line of decisions
by the Supreme Court of Virginia and this Court, defendants have
been convicted of the principal crime when they were a part of a
conspiracy, yet did not personally commit the criminal act. 3
Moreover, in a number of cases, defendants have been found guilty
and punished as principal offenders when the evidence showed that
only their codefendants used a firearm in the commission of a
4
felony. In Cortner v. Commonwealth, 222 Va. 557, 281 S.E.2d 908
(1981), the Supreme Court affirmed a defendant's conviction for
use of a firearm in the commission of a felony when he at no time
possessed or used a gun. Whereas the statute, Code § 18.2-53.1,
prohibits "any person to use" a firearm while committing a crime,
and Cortner "never actually possessed the gun" used in the
robberies, Cortner "effectively 'used'" the gun in the hand of
the codefendant. On that basis, the Court affirmed his
conviction. Id. at 563, 281 S.E.2d at 911.
Appellant and Flip met and planned that the robberies would
be committed using the vehicle under appellant's control; that
3
See Riddick v. Commonwealth, 226 Va. 244, 308 S.E.2d 117
(1983); Washington v. Commonwealth, 216 Va. 185, 217 S.E.2d 815
(1975); Ward v. Commonwealth, 205 Va. 564, 138 S.E.2d 293 (1964).
4
See Carter v. Commonwealth, 232 Va. 122, 348 S.E.2d 265
(1986); Fleming v. Commonwealth, 13 Va. App. 349, 412 S.E.2d 180
(1991); Rollston v. Commonwealth, 11 Va. App. 535, 399 S.E.2d 823
(1991).
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appellant would drive Flip to and from the places where the
crimes would occur; that appellant would supply a mask and a gun
for Flip's use; and that appellant would drive Flip to the crime
scenes and stand by to make the getaway. While appellant
watched, Flip used the mask and the gun to further their plan;
the gun was as much in appellant's hand and the mask as much on
his face as if he personally possessed and used the items at the
time of the offenses.
Asserting that appellant was a principal in the second
degree in each of the felonies, the Commonwealth contends that
appellant's convictions are clearly supported by the evidence.
To hold an accused accountable as a principal in the second
degree, the Commonwealth must show that the accused was present,
aiding and abetting, and intended his or her words, gestures,
signals, or actions to in some way encourage, advise, 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). If the accused is shown to be a principal in the second
degree, the accused is subject to the same punishment as the
actual perpetrator. Briley v. Commonwealth, 221 Va. 563, 572-73,
273 S.E.2d 57, 62-63 (1980).
Here, the evidence clearly shows that appellant shared
Flip's criminal intent. In addition, appellant committed an
overt act in furtherance of their plans when he supplied the mask
so that Flip would not be identified and then, in a vehicle
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controlled by appellant, drove Flip to the places where the
crimes were committed. We hold that the evidence supports the
trial court's findings that appellant was guilty as a principal
in the second degree in the three counts of unlawfully wearing a
mask in violation of Code § 18.2-422. Clearly, appellant was a
principal in the second degree subject to the same punishment as
the person who wore the mask, held the gun, and committed the
robberies and attempted robbery.
Accordingly, for the foregoing reasons, we affirm the
judgment of the trial court.
Affirmed.
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