COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Annunziata
Argued at Richmond, Virginia
GREGORY WAYNE TONEY
MEMORANDUM OPINION * BY
v. Record No. 1024-01-2 JUDGE LARRY G. ELDER
APRIL 30, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge
Kelly A. Hobbs (George H. Dygert &
Associates, on brief), for appellant.
Richard B. Smith, Senior Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Gregory Wayne Toney (appellant) appeals from his bench
trial convictions for grand larceny in violation of Code
§ 18.2-95 and statutory burglary in violation of Code § 18.2-91.
On appeal, he contends the evidence was insufficient to prove
more than his mere presence at the scene of the break-in. We
hold that evidence of appellant's presence at the scene, coupled
with the fact that he remained at the scene, fled with the
actual perpetrators and shared in the fruits of the crime, was
sufficient to prove his guilt of the charged offenses as a
principal in the second degree. Therefore, we affirm.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I.
BACKGROUND
At around 2:00 a.m. on September 17, 2000, Tiffany
Moneymaker, appellant, appellant's brother William Toney
(Toney), and Alfred Greer met near Moneymaker's residence and
walked along a nature trail to the Hilltop Convenience Store and
Jim Wood's Barber Shop. Moneymaker went into the restroom, and
when she came out, the three males were standing at the
barbershop door. Toney was trying to open the door with "his
license or something."
When Toney was unsuccessful in opening the door with his
license, he "busted" the door open with a log. Moneymaker then
saw Toney and Greer enter the barbershop. Appellant was
standing next to the door at that time, but she did not see
appellant go in and did not know whether he did so. Moneymaker
was "going to leave" and began walking away. About a minute
after Toney and Greer entered the barbershop, Moneymaker saw
them exit. Greer had several pairs of clippers in his hand.
Toney, Greer and appellant then ran across the parking lot
to the fence at the edge of the woods where Moneymaker was
walking. The foursome then walked through the woods to Sachem
Village. While they were in the woods, Moneymaker heard Toney
counting six pair of clippers. He set the clippers next to a
tree.
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In a nearby parking lot, Greer kicked in the window of a
small car and took a cellular telephone while appellant and
Toney waited in the woods. Greer came back into the woods and
"was talking about going to break into something else." While
appellant and Moneymaker waited in the woods near the clippers,
Greer and Toney then broke the window of a van and took a large
saw, which Greer and Toney carried into the woods. The foursome
then left the woods, with Toney carrying the saw and Greer
carrying the clippers. Toney dropped the saw off at his
grandmother's, appellant left, and Toney, Greer and Moneymaker
went to the home of someone named Sandy. Moneymaker never saw
appellant carrying any of the stolen items. On the day after
the theft, Greer gave appellant three pairs of the stolen
clippers.
Detective Scott Kuykendall interviewed appellant. After
first denying any involvement, appellant told Kuykendall that
"Greer was trying to sell him some clippers and later gave him
[a pair], and then [appellant] later admitted that he was
present when [Greer] and [Toney] broke into Wood['s] Barber
Shop, and [Greer] took the clippers while [appellant] and
[Moneymaker] watched from the woods." Appellant said he stayed
in the woods with Moneymaker while Greer and Toney went through
the woods and he denied seeing them carrying anything.
The Commonwealth's evidence also established that, on two
occasions, appellant admitted to Jim Wood, the owner of the
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burglarized barbershop, that "he had some of the clippers and he
would give them back to Mr. Wood[]." Wood testified that he
knew appellant prior to the break-in and that sometime after the
break-in, appellant telephoned him. During that conversation,
appellant said he had some of the clippers and Greer had some of
the clippers, and appellant indicated a desire to return the
clippers to Wood.
II.
ANALYSIS
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
granting to the evidence all reasonable inferences fairly
deducible therefrom. Martin v. Commonwealth, 4 Va. App. 438,
443, 358 S.E.2d 415, 418 (1987). The fact finder is not
required to believe all aspects of a witness' testimony; it may
accept some parts as believable and reject other parts as
implausible. Pugliese v. Commonwealth, 16 Va. App. 82, 92, 428
S.E.2d 16, 24 (1993). Further, any element of a crime may be
proved by circumstantial evidence, see, e.g., Servis v.
Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165 (1988),
provided the evidence as a whole "is sufficiently convincing to
exclude every reasonable hypothesis except that of guilt,"
Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876
(1983).
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Appellant was convicted for grand larceny and statutory
burglary. "Larceny is the wrongful taking of goods of another
without the owner's consent and with the intention to
permanently deprive the owner of possession of the goods."
Bright v. Commonwealth, 4 Va. App. 248, 251, 356 S.E.2d 443, 444
(1987). Statutory burglary requires proof of a breaking and
entering with the intent to commit larceny therein. Code
§ 18.2-91.
Here, the circumstantial and direct evidence proves
appellant was a principal in the second degree to both larceny
and breaking and entering. 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. 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.
"'Mere 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,
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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) (other citation omitted). One who is "a watcher around the
corner" is an aider and abettor. Id. at 99, 18 S.E.2d at 315.
Furthermore,
"proof that a person is present at the
commission of a crime without disapproving
or opposing it, is evidence from which, in
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) (emphasis
added).
We applied these principles in Pugliese, 16 Va. App. at 94,
428 S.E.2d at 25, to hold that "the facts and circumstances
leading up to and after the crimes were sufficient to prove [the
defendant's] participation" as a principal in the second degree
to the charged crimes of robbery and murder. In Pugliese, the
evidence established that the perpetrator told the defendant
prior to the crime "that he intended to 'hustle' [the victim]
out of his money" and that the defendant, instead of
discouraging the perpetrator or reporting him to the
authorities, accompanied the perpetrator to the scene. Id.
After the victim was shot, the defendant aided in removing
more than twelve hundred dollars from [the
victim's] van; . . . personally drove the
[victim's] van to a location where he and
the others removed [the victim's] valuables,
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of which [the defendant] received a share;
. . . personally helped [torch] the van[;]
. . . [and] used his share of the money from
the robbery/murder to purchase drugs. [The
defendant] did nothing to prevent [the
perpetrator] from robbing or murdering [the
victim]; he did not report the
robbery/murder after it occurred; and when
questioned about the crimes, he falsified
having any knowledge about them.
Id. Thus, we held, "the jury reasonably could have concluded
from the facts that [the defendant] knew beforehand of [the
perpetrator's] criminal intent and, because he assisted in
disposing of the van and received part of the proceeds of the
robbery/murder, that he shared [the perpetrator's] criminal
intention." Id. at 94-95, 428 S.E.2d at 25.
In appellant's case, no evidence established that Toney or
Greer formed the intent to commit a breaking and entering or
larceny before they arrived at Jim Wood's Barber Shop. However,
once the group arrived there, Toney's actions made clear his
intent, and appellant made no attempt to distance himself from
Toney's illegal acts. Toney tried to open the barbershop door
with "his license or something" and, when he was unsuccessful,
he "busted" the door open with a log. Appellant was present
while these unlawful acts occurred, he did not attempt to
dissuade Toney from breaking the law, and he made no effort to
leave the scene. The evidence also supported the inference that
appellant remained "next to the door" for at least a minute
while Toney and Greer went inside the barbershop, despite the
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fact that Moneymaker began to leave the scene. When Toney and
Greer exited the barbershop with several pairs of clippers and
ran across the parking lot to the woods, appellant ran with them
rather than away from them. While Toney and Greer stole
additional items out of a car and a van in a nearby parking lot,
appellant waited in the woods near where the stolen clippers lay
on the ground. Appellant then left the woods with Toney and
Greer and received three pair of the stolen clippers on the day
following the break-in and theft. Finally, when questioned by
police about the crimes, appellant at first denied any
involvement.
Thus, in appellant's case, as in Pugliese, the
circumstances surrounding the crimes, both before they began and
after they were completed, were sufficient to support a finding
that appellant shared the criminal intent of the actual
perpetrators, Toney and Greer. Although no evidence established
that appellant was aware of any intent Toney and Greer may have
had to commit the breaking and entering and larceny before the
group arrived at the barbershop that night, appellant had ample
time to distance himself from the offenses once the break-in
attempt began. Instead of doing so, however, he remained
directly "next to the door" as Toney and Greer entered and
remained with them as they committed several additional
offenses. Thus, as in Pugliese, the evidence was sufficient to
support appellant's conviction as a principal in the second
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degree for the breaking and entering and larceny offenses
committed by Toney and Greer. See also Whitbeck v.
Commonwealth, 210 Va. 324, 170 S.E.2d 776 (1969) (rejecting
defendant's claim that he was merely present in back seat of
get-away car while his two companions engaged in "a planned
crime swing through Virginia, burglarizing places of business as
they went").
For these reasons, we hold the evidence was sufficient to
support appellant's statutory burglary and grand larceny
convictions, and we affirm.
Affirmed.
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