COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Bumgardner
Argued at Richmond, Virginia
MELVIN WAYNE BLANKENSHIP, JR.
MEMORANDUM OPINION * BY
v. Record No. 1112-99-3 JUDGE LARRY G. ELDER
APRIL 25, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
Randy V. Cargill (Philip B. Baker; Magee,
Foster, Goldstein & Sayers, P.C.; Sanzone &
Baker, P.C., on brief), for appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Melvin Wayne Blankenship, Jr. (appellant) was convicted in
a jury trial for robbery, three counts of abduction and three
related counts of use of a firearm. The Commonwealth's theory
of the case was that appellant was a principal in the second
degree to these offenses, which were committed by appellant's
brother, his codefendant at trial. The indictments on which
appellant was tried alleged that he committed the offenses
"together with [his brother,] Brian Keith Blankenship." On
appeal, appellant contends the evidence necessarily was
insufficient to sustain his conviction because the jury, by
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
acquitting Brian Blankenship, found the evidence insufficient to
prove commission of the offenses by the principal and, in any
event, because the evidence established merely that appellant
was present near the crime scene without proving he aided and
abetted the principal in the commission of the crimes. In
addition, he contends the acquittal of the principal resulted in
a fatal variance between the indictments and the proof where the
indictments alleged that appellant committed the crimes
"together with [his brother]." We assume without deciding that
appellant properly preserved these issues for appeal. We hold
the evidence was sufficient to establish that appellant's
brother was the principal, despite his acquittal, such that no
fatal variance existed between the indictments and the proof.
Because the jury had the power to render inconsistent verdicts,
we affirm appellant's convictions.
On appellate review, we examine the evidence in the light
most favorable to the Commonwealth, and we may not disturb the
jury's verdict unless it is plainly wrong or without evidence to
support it. See Traverso v. Commonwealth, 6 Va. App. 172, 176,
366 S.E.2d 719, 721 (1988). On issues of witness credibility,
we defer to the conclusions of "the fact finder[,] who has the
opportunity of seeing and hearing the witnesses." Schneider v.
Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736-37 (1985).
Any element of an offense may be proved by circumstantial
evidence. See Coleman v. Commonwealth, 226 Va. 31, 53, 307
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S.E.2d 864, 876 (1983). "Circumstantial evidence is as
competent and is entitled to as much weight as direct evidence,
provided it is sufficiently convincing to exclude every
reasonable hypothesis except that of guilt." Id. Intent may,
and usually must, be proven by circumstantial evidence, see
Servis v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165
(1988), such as a person's conduct and statements, see Long v.
Commonwealth, 8 Va. App. 194, 198, 379 S.E.2d 473, 476 (1989).
The Commonwealth's theory of the case was that appellant
was a principal in the second degree. A principal in the second
degree is one who is "present, aiding and abetting, and
intend[s] his or her words, gestures, signals, or actions to
. . . encourage, advise, urge, or in some way help the person
committing the crime to commit it." McGill v. Commonwealth, 24
Va. App. 728, 733, 485 S.E.2d 173, 175 (1997). "[M]ere presence
and consent are not sufficient to constitute one an aider and
abettor in the commission of a crime." Jones v. Commonwealth,
208 Va. 370, 373, 157 S.E.2d 907, 909 (1967). To be a principal
in the second degree, one must "share the criminal intent of the
. . . party who committed the offense." Id. Finally, a
principal in the second degree is liable for the same punishment
as the person who commits the crime. See Code § 18.2-18. At
appellant's trial, the jury was instructed in keeping with these
principles.
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Appellant contends the jury's acquittal of his brother
Brian Blankenship necessarily established the evidence was
insufficient to prove him guilty as a principal in the second
degree. We disagree for two reasons. 1
First, although the Commonwealth must prove a principal in
the first degree committed the underlying offense, see Sult v.
Commonwealth, 221 Va. 915, 918, 275 S.E.2d 608, 609 (1981),
"conviction of [the] principal in the first degree is not a
condition precedent" to convicting the accessory, Dusenbery v.
Commonwealth, 220 Va. 770, 771-72, 263 S.E.2d 392, 393 (1980).
Here, the evidence was sufficient to support a finding by the
jury that Brian Blankenship committed the charged offenses as a
principal in the first degree. Appellant told Jonathan Smith
that he and his brother robbed the Winn Dixie store on
Timberlake. Appellant reported that his brother held a bandana
to his face, carried a pellet gun, and ordered the three
occupants of the store into the cooler. The manager of the Winn
Dixie store, Tate Easter, testified to these same events,
including the description of the bandana. He also said the
robber displayed a handgun and ordered him and the other two
employees into the cooler. Easter said the robber looked like
appellant's brother but that he could not positively identify
him. The clothing appellant's brother was wearing that day and
1
As set out above, we assume without deciding that
appellant properly preserved this issue for appeal.
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his tanned appearance also matched Easter's description of the
robber. This evidence was sufficient to support a finding that
Brian Blankenship committed the charged offenses as a principal
in the first degree.
The fact that the jury did not, in fact, convict Brian
Blankenship does not render its conviction of appellant
erroneous. It is well established in Virginia law that
inconsistent verdicts rendered by a jury do not constitute
reversible error. See, e.g., Tyler v. Commonwealth, 21 Va. App.
702, 707-09, 467 S.E.2d 294, 296-97 (1996).
"'The most that can be said in such cases is
that the verdict shows that either in the
acquittal or the conviction the jury did not
speak their real conclusions, but that does
not show that they were not convinced of the
defendant's guilt [on the charge for which
they did convict]. We interpret the
acquittal as no more than their assumption
of a power which they had no right to
exercise, but to which they were disposed
through lenity.'" . . . [J]uries may reach
inconsistent verdicts through mistake,
compromise, or lenity, but in such instances
it is "unclear whose ox has been gored," the
government's or the [convicted] defendant's.
For this reason and the fact that the
government is precluded from appealing the
acquittal verdict, the Court concluded that
inconsistent verdicts should not provide the
basis for an appeal by the [convicted]
defendant.
Wolfe v. Commonwealth, 6 Va. App. 640, 647-48, 371 S.E.2d 314,
318 (1988) (quoting United States v. Powell, 469 U.S. 57, 63,
65, 66, 105 S. Ct. 471, 475, 477, 83 L. Ed. 2d 461 (1984)
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(quoting Dunn v. United States, 284 U.S. 390, 393, 52 S. Ct.
189, 190, 76 L. Ed. 2d 356 (1932))).
The issue of inconsistent verdicts implicates no
constitutional guarantee. See id. at 648, 371 S.E.2d at 318.
As long as the evidence supports both verdicts, they "will be
upheld, despite the apparent inconsistency." Pugliese v.
Commonwealth, 16 Va. App. 82, 96, 428 S.E.2d 16, 26 (1993). In
Virginia, these principles have heretofore been applied only to
inconsistent verdicts rendered against a single defendant. We
hold that they apply equally to inconsistent verdicts involving
more than one defendant. See Harris v. Rivera, 454 U.S. 339,
102 S. Ct. 460, 70 L. Ed. 2d 530 (1981) (in denying habeas
petition, holding that even inconsistent verdicts as against two
defendants in a nonjury criminal trial are constitutional but
noting that states may, if they so desire, set a higher standard
in direct appeals).
Finally, we hold the evidence was sufficient to prove
appellant actively aided and abetted his brother's commission of
the offenses, thereby supporting appellant's convictions as a
principal in the second degree. The evidence, viewed in the
light most favorable to the Commonwealth, included appellant's
admission to Jonathan Smith that he and his brother robbed the
Winn Dixie store, even though appellant remained outside the
store when his brother went inside. This statement permits the
inference that appellant shared his brother's criminal intent,
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even though he remained outside during the commission of the
offenses. See Jones, 208 Va. at 373, 157 S.E.2d at 909.
Other circumstantial evidence supported this finding.
Before the robbery, appellant was using drugs, owed back child
support and took money from his girlfriend without her
permission, establishing a motive for commission of the crimes.
Appellant, as a prior assistant manager of the Winn Dixie store,
knew the combination to the store's safe and the procedure for
opening the safe. Just prior to the robbery, money had been
found missing from the safe and other locations following
appellant's shifts. For this and other reasons, appellant was
moved to another position in the store which did not give him
access to the safe or other money sources in the ordinary course
of his work. After the robbery, appellant took Jonathan Smith
to a location in the woods where the stolen money was later
found hidden, and appellant was able to pay over $1,000 in debts
he owed to his girlfriend and Smith. These circumstances,
coupled with appellant's admission to Smith that he and his
brother had robbed the Winn Dixie, were sufficient to support
his convictions.
Finally, we hold that no fatal variance occurred between
the language in the indictments and the proof offered at trial.
As set out with our discussion of inconsistent jury verdicts
above, the evidence was sufficient to support the conviction of
Brian Blankenship as a principal in the first degree, even
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though he was not so convicted. Because the proof conformed to
the allegations in the indictment, we need not decide whether
any of the language therein constituted surplusage.
For these reasons, we hold that the evidence was sufficient
to support appellant's convictions for the charged offenses as a
principal in the second degree and that the jury's concomitant
decision to acquit appellant's brother did not render
appellant's convictions improper. Therefore, we affirm
appellant's convictions.
Affirmed.
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