COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Lemons
Argued at Norfolk, Virginia
MARKEITH ALAN TURNER
MEMORANDUM OPINION * BY
v. Record No. 2090-97-1 JUDGE LARRY G. ELDER
SEPTEMBER 22, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
John D. Konstantinou (McKenna & Konstantinou,
on brief), for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Markeith Alan Turner (appellant) was convicted of robbing
James Lisciandri and Stephen Muller. On appeal, he contends the
evidence was insufficient to sustain his convictions. For the
reasons that follow, we affirm.
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).
The weight which should be given to evidence
and whether the testimony of a witness is
credible are questions which the fact finder
must decide. However, whether a criminal
conviction is supported by evidence
sufficient to prove guilt beyond a reasonable
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
doubt is not a question of fact but one of
law.
Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598,
601-02 (1986).
We hold that the evidence, when viewed in the light most
favorable to the Commonwealth, was sufficient to prove that
appellant was guilty of the robbery of Lisciandri.
"Robbery . . . is defined as the 'taking, with intent to steal,
of the personal property of another, from his person or in his
presence, against his will, by violence or intimidation.'" Jones
v. Commonwealth, 26 Va. App. 736, 738, 496 S.E.2d 668, 669 (1998)
(quoting Harris v. Commonwealth, 3 Va. App. 519, 521, 351 S.E.2d
356, 356 (1986)). The evidence proved beyond a reasonable doubt
that appellant took Lisciandri's wallet from his person with
intent to steal and against Lisciandri's will. On July 9, 1996,
a group of male teenagers, which included appellant, approached
Lisciandri and Muller as they were walking through a field
adjacent to a church on their way home. The group split into
two, and about four members surrounded each victim. One person
asked Lisciandri if he had "any loot." Lisciandri responded by
displaying his whole wallet. Lisciandri later testified that he
displayed his wallet because he was "afraid not to." The person
who asked for "any loot" then "grabbed" the wallet from
Lisciandri's hand.
The evidence proved that appellant was the member of the
group who spoke to Lisciandri and grabbed the wallet from his
- 2 -
hand. In his statement to the police after his arrest, appellant
stated that he asked one of the victims "for a dollar" and that
the victim responded by giving appellant his "his whole wallet."
The testimony of Lisciandri and Muller indicates that Lisciandri
was the only one of the two victims to relinquish his wallet to
the group at this stage of the confrontation. Lisciandri
testified that, following the initial request for money, he
showed his wallet to the group and "the guy that asked [him] for
it" grabbed the wallet from him. Muller testified that he
responded to the initial request for money by giving a member of
the group a twenty-dollar bill and that he did not lose
possession of his wallet until he was knocked to the ground later
in the confrontation.
The evidence also proved that appellant accomplished the
theft of the wallet from Lisciandri's person by "intimidation."
In order to constitute robbery, the act of intimidation must
precede or be concomitant with the taking. See Harris, 3 Va.
App. at 521, 351 S.E.2d at 356. "'Intimidation results when
words or conduct of the accused exercise such dominion and
control over the victim as to overcome the victim's mind and
overbear the victim's will, placing the victim in fear of bodily
harm.'" Jones, 26 Va. App. at 740, 496 S.E.2d at 670 (quoting
Bivins v. Commonwealth, 19 Va. App. 750, 753, 454 S.E.2d 741, 742
(1995)). The evidence proved that appellant and several other
male teenagers ran up to the two victims from a store across the
- 3 -
street in a maneuver that appellant described as an "ambush."
Appellant then acted with the other members of the group to
isolate Lisciandri from his companion by surrounding him.
Appellant then asked Lisciandri if he had any "loot." Lisciandri
testified that he displayed his wallet because he was "scared."
From these circumstances, the trial court could infer beyond a
reasonable doubt that Lisciandri actually surrendered his
property to appellant because of his fear of bodily harm induced
by appellant's intimidating words and conduct. Cf. Harris, 3 Va.
App. at 521, 351 S.E.2d at 357.
We also hold that the evidence proved beyond a reasonable
doubt that appellant was criminally responsible for the robbery
of Muller.
If there is concert of action with the
resulting crime one of its incidental
probable consequences, then whether such
crime was originally contemplated or not, all
who participate in any way in bringing it
about are equally answerable and bound by the
acts of every other person connected with the
consummation of such resulting crime.
Rollston v. Commonwealth, 11 Va. App. 535, 541-42, 399 S.E.2d
823, 827 (1991) (citation omitted). Concert of action is defined
as "'[a]ction that has been planned, arranged, adjusted, agreed
on and settled between parties acting together pursuant to some
design or scheme.'" Id. at 542, 399 S.E.2d at 827 (citation
omitted).
The evidence proved that ninety dollars was taken from
- 4 -
Muller's presence against his will by an act of violence. Muller
lost possession of his wallet, which contained ninety dollars, 1
as he was knocked to the ground by members of the group. After
he was beaten, he found his wallet and discovered that the ninety
dollars was missing.
The evidence also supports the conclusion that appellant
acted in concert with the members of the group who robbed Muller.
Appellant told Detective Williams that all members of the group,
himself included, ran toward the victims in an "ambush." Marti
Jones, a member of the group, testified that when the group of
teenagers saw Lisciandri and Muller, someone said "let's go get
them." The group split into two and confronted both Lisciandri
and Muller separately. The record proved that the beatings of
the two victims commenced within seconds of each other.
Lisciandri testified that the group "seemed like they were
together." Muller testified that, after he was beaten, all of
the members of the group who had confronted both him and
Lisciandri left the scene of the robberies "together." From this
evidence, the trial court could conclude beyond a reasonable
doubt that appellant both joined and participated in the group's
1
Muller testified that, when he was initially confronted by
the group, his wallet contained $110 dollars. When a member of
the group asked him for money, he responded by removing a
twenty-dollar bill from his wallet and giving it to one of the
teenagers. He only gave them twenty dollars "because [he] didn't
want to give them more." Thus, it is reasonable to infer that,
at the time the group knocked Muller to the ground, his wallet
contained ninety dollars.
- 5 -
plot to accost the victims en masse and that Muller's robbery was
an incidental probable consequence of the group's plan. Cf.
Spradlin v. Commonwealth, 195 Va. 523, 528-29, 79 S.E.2d 443, 446
(1954).
For the foregoing reasons, we affirm the convictions.
Affirmed.
- 6 -