COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Lemons
Argued at Norfolk, Virginia
MARKEITH ALAN TURNER
MEMORANDUM OPINION * BY
v. Record No. 2117-97-1 JUDGE LARRY G. ELDER
OCTOBER 6, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
Jeffrey C. Rountree for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Markeith Alan Turner (appellant) appeals his convictions of
robbery and use of a firearm during the commission of robbery.
He contends the evidence was insufficient to sustain his
convictions. For the reasons that follow, we affirm.
I.
The evidence, viewed in the light most favorable to the
Commonwealth, proved that, around 1:30 a.m. on July 11, 1996,
appellant, Karlin Johnson, and Floyd Jones were sitting on the
curb of a shopping center. At about this time, the victim was
walking through the shopping center to some nearby apartments.
As the victim approached, Johnson announced to appellant and
Jones that he was "about to stick it." In a statement made later
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
to the police, appellant stated he knew Johnson was going to rob
the victim. Johnson then pulled out what appeared to be a
firearm, pointed it at the victim's head, and ordered the victim
to lie face down on the ground. Appellant later stated that he,
Johnson, and Jones "gathered around [the victim]" and "were
standing right there by the man" as Johnson forced the victim to
the ground with his gun. The victim testified that, as he lay on
the ground, he felt a person other than Johnson pat him down and
saw someone take his backpack. The victim could not identify any
of his assailants and did not see whether appellant was the
person who removed the change and cigarettes from his pockets or
took his backpack. However, the victim did testify that all
three of his assailants were talking to each other during the
robbery and that they all walked away "together" after it was
completed. When appellant spoke to Detective Williams on July
22, he had knowledge of the specific items of property stolen
from the victim.
II.
When considering the sufficiency of the evidence on appeal
in a criminal case, this Court views the evidence in the light
most favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. See Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). On
review, this Court does not substitute its own judgment for that
of the trier of fact. See Cable v. Commonwealth, 243 Va. 236,
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239, 415 S.E.2d 218, 220 (1992). The trial court's judgment will
not be set aside unless it appears that the judgment is plainly
wrong or without supporting evidence. See Martin v.
Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
"A conviction for robbery requires proof beyond a reasonable
doubt that the defendant alone, or acting in concert with others,
took property from the victim by force, threats, or violence, and
that the intent to steal co-existed with the act of force."
Pugliese v. Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24
(1993). One who aids and abets a robbery is "liable as a
principal." Pierce v. Commonwealth, 205 Va. 528, 534, 138 S.E.2d
28, 32 (1964). While mere presence at the scene of a crime or
knowledge that a crime is going to be committed does not
constitute aiding and abetting,
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.
Pugliese, 16 Va. App. at 93-94, 428 S.E.2d at 25.
We hold that the evidence, when viewed in the light most
favorable to the Commonwealth, was sufficient to prove that
appellant aided and abetted the robbery of the victim. Although
Johnson was apparently the only individual to physically threaten
the victim and it is unclear whether appellant actually took any
of the victim's property, the record indicates that appellant was
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more than an innocent bystander.
Appellant encouraged and assisted Johnson and Jones by
remaining at the scene after realizing Johnson was going to rob
the victim and by adding his physical presence to the
confrontation. Credible evidence in the record indicates
Johnson, Jones, and appellant rose from the curb where they were
sitting, gathered around the victim and "[stood] right there next
to" him while the robbery was committed. This act assisted
Johnson and Jones by increasing the number of persons by which
the victim was outnumbered, thus boosting the intimidating nature
of the confrontation. The victim's testimony that "all three of
them were walking together" as they left the scene of the robbery
supports the conclusion that appellant contributed his physical
presence and approval throughout the duration of the robbery.
The fact that appellant acted in this manner after learning of
Johnson's intent to rob the victim supports the conclusion that
appellant shared this intent.
In his statement to Detective Williams, appellant
acknowledged that he, along with his two companions, gathered
around the victim and that he was aware of the contents of the
stolen backpack. Furthermore, the trial court could infer from
the portions of appellant's testimony that conflicted with the
other evidence presented, including his own statement to
Detective Williams, that appellant was lying to conceal his
guilt. See Carter v. Commonwealth, 223 Va. 528, 532, 290 S.E.2d
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865, 867 (1982). Because the evidence proved that appellant, at
a minimum, aided and abetted Johnson and Jones during the
commission of the robbery, the trial court correctly concluded he
was liable for the crime as if he were the principal perpetrator.
Cf. Pierce, 205 Va. at 534, 138 S.E.2d at 32 (affirming
conviction of robbery when evidence proved defendant was an aider
and abettor).
We also hold that the evidence was sufficient to support
appellant's conviction of using a firearm in the commission of
robbery. By aiding and abetting Johnson, who used the gun during
the robbery, appellant "effectively 'used' [the firearm Johnson
was using] and was thereby subject to the terms of Code
§ 18.2-53.1." Cortner v. Commonwealth, 222 Va. 557, 563, 281
S.E.2d 908, 911 (1981).
For the foregoing reasons, we affirm the convictions.
Affirmed.
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Benton, J., dissenting.
The robbery victim testified that as he approached the three
young men, one of them pointed a gun at him and told him to get
on the ground. The victim knew that a person other than the
robber searched him; however, he could not account for the
presence or conduct of the third person. He testified as
follows:
Q And I believe from the preliminary
hearing, you said you didn't know where the
third person was during this time; is that
correct?
A I did not. All I saw was the feet in
front of me. All I knew, somebody was
searching me, but I did catch out of the
corner of my eye them taking my backpack and
I did hear somebody else moving towards me,
but at the preliminary hearing, I did not
know where this third person was and I still
do not know.
Q All right.
A But, anyway, somebody was patting me
down and I heard somebody else --
Q Somebody was patting you down and
somebody was grabbing your backpack. At
preliminary hearing, I asked you, "Do you
know whether or not that was the same
person?" You said, "No."
A I said, "No," because I do not know.
Q All right. So there is certainly a
possibility that there is a third individual
who you can't account for their whereabouts;
isn't that correct?
A Well, yes, because I could not see them.
This testimony is not inconsistent with the statement
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Markeith Alan Turner gave to the police shortly after his arrest.
[OFFICER]: Okay tell me what happened?
TURNER: Alright it was a dude walking by
from ah Burger King, soon as we got by the
video place, Karlin was like Floyd get up,
I'm about to stick it.
* * * * * * *
TURNER: And so as Floyd got up Karlin pulled
the gun out, said give me all your shit, I
was just standing there I was s[h]ocked and
while Floyd was going all in his pockets, so
I started walking off slowly, at a slowly
place and dude was still on the ground.
[OFFICER]: When did you search his pockets?
TURNER: No I didn't search his pockets.
[OFFICER]: Did you touch him at all?
TURNER: I did not touch him.
[OFFICER]: But you knew what was going to
happen?
TURNER: Yes I knew what was going to happen.
[OFFICER]: And when ah Karlin put the gun to
his head and made him lay down on the ground
all three of you'll were right there by the
man?
TURNER: Yes, sir.
[OFFICER]: Okay and after the robbery was
over with or every Karlin got the property
from the man you'll walked away but you were
kind of a little bit ahead of them?
TURNER: Yes, sir.
[OFFICER]: Okay and were you'll walking
fast, were you just casually walking or where
you running?
TURNER: They was walking I was speed
walking.
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* * * * * * *
[OFFICER]: Okay and [your] basic part in
this robbery was just being there when it
went down?
TURNER: Yes, sir.
At trial, Turner's testimony varied from this statement.
Turner testified that he began to walk away after Karlin
announced his intention to commit the robbery and reached for his
gun.
The guiding principles governing these facts are well
established.
It is, of course, well settled that mere
presence and consent are not sufficient to
constitute one an aider and abettor in the
commission of a crime. "There must be
something done or said by him showing (a) his
consent to the felonious purpose and (b) his
contribution to its execution. To make him
an aider or abettor, he must be shown to have
procured, encouraged, countenanced, or
approved the commission of the crime. * * *
To constitute one an aider and abettor, it
is essential that he share the criminal
intent of the principal or party who
committed the offense."
. . . "To constitute one an aider and
abettor, he must be guilty of some overt act,
or he must share the criminal intent of the
principal or party who commits the crime."
Jones v. Commonwealth, 208 Va. 370, 373, 157 S.E.2d 907, 909
(1967) (citations omitted). See also Hall v. Commonwealth, 225
Va. 533, 536, 303 S.E.2d 903, 904 (1983). The Commonwealth's
evidence falls short of these requirements. First, no evidence
proved any overt act by Turner which indicated his participation
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in the robbery. Second, no evidence proved that Turner shared
the criminal intent of the robbers.
Aside from the victim's testimony, the Commonwealth relies
upon the statement Turner made to the police following the
robbery. While it is the responsibility of the finder of fact to
weigh Turner's statements with other evidence provided at trial,
it is our role to determine whether as a matter of law the
evidence sufficiently proves Turner's guilt beyond a reasonable
doubt. See Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351
S.E.2d 598, 601-02 (1986). I believe it does not.
Turner's statement indicates that once Karlin spoke of the
robbery, Turner knew what the outcome would be. Turner walked
away because he did not want to associate himself with the crime.
Furthermore, Turner's knowledge of the items stolen is
insufficient circumstantial evidence to prove his guilt. The
burden lies with the Commonwealth to "exclude every reasonable
hypothesis of innocence." Williams v. Commonwealth, 14 Va. App.
666, 670, 418 S.E.2d 346, 348 (1992) (citation omitted). Nothing
in the evidence is inconsistent with Turner's testimony that he
did not know what was stolen until the next day when Karlin told
him. In light of Turner's detailed statement that he walked away
when the gun was drawn and the victim's inability to say that
Turner was a participant, sufficient doubt is raised whether
Turner participated in the robbery.
As the Supreme Court noted in Jones:
The evidence on behalf of the Commonwealth
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amounts to this: [the accused was] in
company with . . . the actual perpetrator of
the crimes, was present during the commission
of the offenses, and fled the scene in order
to escape arrest. While these related
circumstances create a strong suspicion that
[the accused] was an aider and abettor in the
commission of the offenses, they do not
support such a conclusion beyond a reasonable
doubt. . . . [M]ere presence at the
perpetration of a crime and flight from the
scene are not sufficient to prove particeps
criminis beyond a reasonable doubt.
208 Va. at 374, 157 S.E.2d at 910. Where, as in this case, there
is no showing except mere presence to connect the accused to the
robbery, the evidence only proves "highly suspicious
circumstances [that may] demonstrate an exceedingly strong
probability of guilt." Hall, 225 Va. at 536, 303 S.E.2d at 905.
Yet, the principle is well established that "suspicion even
though strong, is insufficient to sustain a criminal conviction."
Id. at 537, 303 S.E.2d at 905.
For these reasons, I would reverse the convictions.
Accordingly, I respectfully dissent.
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