COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Bumgardner and Senior Judge Hodges
CAROL DEVAN, A/K/A JOANN BROWN,
A/K/A TRACY BROWN
MEMORANDUM OPINION * BY
v. Record No. 0878-00-2 JUDGE WILLIAM H. HODGES
APRIL 3, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
Oliver A. Pollard, Jr., Judge
(Corine E.G. Bailey; Law Office of Paul C.
Bland, on brief), for appellant. Appellant
submitting on brief.
(Mark L. Earley, Attorney General; Susan M.
Harris, Assistant Attorney General, on
brief), for appellee. Appellee submitting on
brief.
Appellant was convicted of conspiracy to commit forgery, and
attempted grand larceny and forgery as a principal in the second
degree. On appeal, she contends that the evidence was
insufficient to support the convictions. Appellant argues that
the evidence failed to prove that she knew the check was
counterfeit or that the name on the check was forged. Appellant
also argues that the evidence failed to prove that she was aware
that a codefendant would attempt to cash a counterfeit check. We
disagree and affirm the convictions.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
BACKGROUND
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)
(citation omitted).
So viewed, the evidence proved that Officer Elkins was
conducting surveillance at a hotel and saw a car leave and drive
to a bank. The female driver, later identified as Jan White, went
inside the bank, and the male passenger, later identified as
Sherman Robinson, stood outside the vehicle. Robinson looked
inside the bank a few times and walked around the car. Appellant,
a passenger, never left the car. The bank teller testified that
on presentation of the check, she noticed that the address on the
check was the same address that was on a previous counterfeit
check. White became nervous and left the bank without any money.
According to Elkins, White "took off quickly" and drove "in an
erratic manner, and very quickly to the point of almost being
reckless." Elkins watched the car and eventually stopped the car.
Appellant told Elkins that the car belonged to her uncle, but
it was under her control. Elkins noticed a bulge in appellant's
waistband in the front of her shorts. Elkins testified that the
bulge "wasn't like a weapon shape" and its shape was similar to a
square or octagon.
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Because of a medical condition, appellant was handcuffed
with her hands in front of her body. Robinson was handcuffed
with his hands behind his body, and both were placed in Officer
Simpson's marked police vehicle. Simpson testified that he had
searched his vehicle before his shift and there was no
contraband or trash in the car. Simpson also testified that no
one had been in the back seat of the vehicle during his shift.
After appellant and Robinson got out of Simpson's vehicle,
Officer Young saw ten checks, torn in pieces, on the seat and
floor near where appellant had been seated. Five checks were
made out to Kim Westbrook, and five checks were made out to
Robinson. The check White attempted to cash was made out to Kim
Westbrook. Appellant told Detective Young that they were out of
money and decided to write one more check. Appellant explained
that "they were all going to split the money." Appellant also
gave two false names to the authorities.
ANALYSIS
A principal in the second degree is a person
who is present, aiding and abetting, by
helping some way in the commission of the
crime. Presence or consent alone is not
sufficient to constitute aiding and
abetting. It must be shown that the
defendant intended his words, gestures,
signals or actions to in some way encourage,
advise, or 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). "'[W]hether a person does in fact aid or abet another
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in the commission of a crime is a question which may be
determined by circumstances as well as by direct evidence.'"
Pugliese v. Commonwealth, 16 Va. App. 82, 93, 428 S.E.2d 16, 25
(1993) (citation omitted).
"Conspiracy is defined as 'an agreement between two or more
persons by some concerted action to commit an offense.'" Feigley
v. Commonwealth, 16 Va. App. 717, 722, 432 S.E.2d 520, 524 (1993)
(citation omitted). Proof of an explicit agreement is not
required, and the Commonwealth may, and frequently must, rely on
circumstantial evidence to establish the conspiracy. Stevens v.
Commonwealth, 14 Va. App. 238, 241, 415 S.E.2d 881, 883 (1992).
The crime is "committed when the agreement to commit the offense
is complete . . . ." Johnson v. Commonwealth, 8 Va. App. 34, 38,
377 S.E.2d 636, 638 (1989).
The evidence established that appellant entered into a
conspiracy to commit forgery and was a principal in the second
degree to attempted larceny and forgery. Appellant told Young
that she and her codefendants needed money for gas and food.
Appellant also told Young that "they were all going to split the
money." Appellant and her codefendants drove to the bank in
appellant's car and the car left the bank at a high rate of speed.
An officer saw a bulge in front of appellant's shorts, which did
not appear to be a weapon, and placed her in the police vehicle
with her hands cuffed in front of her. The police vehicle was
clean and did not contain any torn paper. When appellant left the
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police vehicle, pieces of ten counterfeit checks were found on the
seat and floor near where she had been sitting. The payee on five
of the checks was the same payee on the check that White had
attempted to cash. Robinson was also in the police vehicle, but
his hands had been cuffed behind him. Appellant was searched
incident to her arrest, and nothing was found. The Commonwealth's
evidence was competent, was not inherently incredible, and was
sufficient to prove beyond a reasonable doubt that appellant was
guilty of the charged offenses.
Affirmed.
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Carol Devan,a/k/a Joann Brown,a/k/a Tracy BrownvCW
Combined Opinion