COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Elder
Argued at Salem, Virginia
JOSEPH WILLIAM LAMONT DAVIS
MEMORANDUM OPINION * BY
v. Record No. 1959-95-3 JUDGE LARRY G. ELDER
OCTOBER 1, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
Wade Allen Bowie (Richard P. Cunningham &
Associates, P.C., on briefs), for appellant.
Margaret Ann B. Walker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Joseph William Lamont Davis (appellant) appeals his
conviction for malicious wounding, in violation of Code
§ 18.2-51, and use of a firearm in the commission of malicious
wounding, in violation of Code § 18.2-53.1. Appellant contends
that the Commonwealth failed to present sufficient evidence to
support the convictions. We disagree and affirm appellant's
convictions.
I.
FACTS
On February 20, 1995, Troy Roberson and a group of people
gathered outside Roberson's residence in Lynchburg. A car
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
carrying appellant, Darrell Morgan, and Damien Saunders pulled up
in front of a neighbor's house. The three men exited the car,
approached Roberson, and demanded that he return some car rims
that appellant believed that Roberson possessed. Appellant
became angry when Roberson denied having knowledge of the rims.
Appellant and Morgan each pulled out a gun and placed them
against Roberson's head, while Saunders took forty dollars from
Roberson's pants pocket.
Roberson then began to run toward his residence. As
Roberson ran, he looked back at appellant and Morgan and saw
appellant "shooting at [him]." Roberson testified that he saw
appellant fire the first gunshot, which missed him and hit his
house. Appellant conceded that the evidence proved that he fired
the first gunshot. Roberson did not look back to see who fired
the additional six gunshots. Roberson testified that he
believed, but was not sure, that the second shot fired was the
one that hit him in his arm. A witness testified that he saw
shots fired from the vicinity of where appellant and Morgan were
standing, but he could not say whether either, or both, of the
men fired shots at Roberson.
Police found six bullet holes in Roberson's residence.
Appellant gave a statement after his arrest denying his presence
when the shooting occurred. Evidence also showed that appellant
sent Roberson several letters denying involvement in the shooting
and offering Roberson $2,000 to "drop it."
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Appellant and Morgan were tried at a bench trial on July 10,
1995. The trial court struck the evidence against Morgan, but
found appellant guilty of the charged offenses. Appellant now
appeals to this Court.
II.
SUFFICIENCY OF THE EVIDENCE
When the sufficiency of the evidence is challenged on
appeal, we must construe the evidence in the light most favorable
to the Commonwealth, granting to it all reasonable inferences
fairly deducible therefrom. Higginbotham v. Commonwealth, 216
Va. 349, 352, 218 S.E.2d 534, 537 (1975). Even where evidence is
entirely circumstantial, the inferences drawn from the
circumstantial evidence are within the province of the fact
finder and not the appellate court so long as the inferences are
reasonable and justified. O'Brien v. Commonwealth, 4 Va. App.
261, 263-64, 356 S.E.2d 449, 450 (1987). "[C]ircumstantial
evidence alone is sufficient to sustain a conviction." Johnson
v. Commonwealth, 2 Va. App. 598, 604-05, 347 S.E.2d 163, 167
(1986). However, "all necessary circumstances proved must be
consistent with guilt and inconsistent with innocence and exclude
every reasonable hypothesis of innocence." Moran v.
Commonwealth, 4 Va. App. 310, 314, 357 S.E.2d 551, 553 (1987).
Viewing the evidence in the light most favorable to the
Commonwealth, we hold that the Commonwealth presented sufficient
evidence to convict appellant of the charged crimes. Appellant
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admits that he fired the first gunshot which missed Roberson but
hit Roberson's house. The trial court reasonably inferred from
the credible evidence that the remaining six gunshots originated
from the guns fired by appellant and/or Morgan. The one gunshot
wounding Roberson therefore originated from either appellant's
gun or Morgan's gun. Assuming that the gunshot which wounded
Roberson originated from Morgan's gun, appellant would be
responsible as a principal in the second degree, under the
"concert of action" theory.
Concert of action has been defined as "action that has been
planned, arranged, adjusted, agreed on and settled between the
parties acting together pursuant to some design or scheme."
Berkeley v. Commonwealth, 19 Va. App. 279, 283, 451 S.E.2d 41, 43
(1994). "All participants in such planned enterprises may be
held accountable for incidental crimes committed by another
participant during the enterprise even though not originally or
specifically designed." Id. 1 In this case, Morgan and appellant
1
In Carter v. Commonwealth, 232 Va. 122, 126-27, 348
S.E.2d 265, 268 (1986), the Supreme Court of Virginia stated:
All those who assemble themselves together
with an intent to commit a wrongful act, the
execution whereof makes probable, in the
nature of things, a crime not specifically
designed, but incidental to that which was
the object of the confederacy, are
responsible for such incidental crime.
Hence, it is not necessary that the crime
should be a part of the original design; it
is enough if it be one of the incidental
probable consequences of the execution of
that design, and should appear at the moment
to one of the participants to be expedient
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acted together in demanding that Roberson return the rims and in
holding guns to his head while Saunders took money from
Roberson's pocket in place of the rims. The evidence supported
the reasonable inference that when Roberson fled toward his
residence, Morgan and appellant pointed their weapons at him in a
joint and concerted effort to stop him from fleeing or to
retaliate. Assuming that appellant did not fire the wounding
shot, appellant was nonetheless criminally responsible for
Morgan's acts, as a principal in the second degree, under the
concert of action theory. 2 Riddick v. Commonwealth, 226 Va. 244,
248, 308 S.E.2d 117, 119 (1983)(holding that "even if
[defendant's cohort] killed the victim, defendant was criminally
responsible for the acts of the gunman . . . as a principal in
the second degree"). See also Washington v. Commonwealth, 216
Va. 185, 191, 217 S.E.2d 815, 821-22 (1975)(holding that where
for the common purpose.
See also Ascher v. Commonwealth, 12 Va. App. 1105, 1128, 408
S.E.2d 906, 920 (1991), cert. denied, 506 U.S. 865 (1992);
Rollston v. Commonwealth, 11 Va. App. 535, 541-42, 399 S.E.2d
823, 827 (1991).
2
We recognize that "[b]efore a person may be convicted as
a principal in the second degree, the Commonwealth bears the
burden of proving that a principal in the first degree committed
the underlying substantive offense." Fleming v. Commonwealth, 13
Va. App. 349, 353, 412 S.E.2d 180, 182 (1991). Appellant argues
that because the trial court struck all charges against Morgan,
the trial court could not have held appellant liable as a
principal in the second degree. Under the facts of this case, we
disagree. If appellant did not fire the wounding shot, as he
maintains, then the credible evidence proves only one other
theory: that Morgan, as the principal in the first degree, fired
the wounding shot.
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the defendant acted in concert with his cohort in killing a
prison guard, the Commonwealth did not have to establish which of
the two men fired the fatal shots).
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For these reasons, we affirm appellant's convictions.
Affirmed.
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