COURT OF APPEALS OF VIRGINIA
Present: Judges Alston, McCullough and Senior Judge Clements
UNPUBLISHED
Argued at Chesapeake, Virginia
DEON CHRISTOPHER COBB
MEMORANDUM OPINION* BY
v. Record No. 1526-12-1 JUDGE JEAN HARRISON CLEMENTS
OCTOBER 22, 2013
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Marjorie A. Taylor Arrington, Judge
Afshin Farashahi (Afshin Farashahi, P.C., on briefs), for appellant.
Susan Baumgartner, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
In a jury trial, Deon Christopher Cobb (appellant) was found guilty of murder, attempted
robbery, conspiracy to commit robbery, and two counts of using a firearm in the commission of a
felony. On appeal, appellant argues the trial court erred in admitting into evidence records of text
messages sent to and received by a particular cellular telephone number. He contends the records
were inadmissible hearsay and violated the best evidence rule. Appellant also contends the
evidence was insufficient to support his convictions. We find no error and affirm the trial court’s
decision and appellant’s convictions.
As the parties are fully conversant with the record in this case, and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this
appeal.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
FACTS
“‘When the sufficiency of the evidence is challenged on appeal, we determine whether the
evidence, viewed in the light most favorable to the prevailing party, the Commonwealth, and the
reasonable inferences fairly deducible from that evidence support each and every element of the
charged offense.’” Slade v. Commonwealth, 43 Va. App. 61, 69, 596 S.E.2d 90, 94 (2004) (quoting
Haskins v. Commonwealth, 31 Va. App. 145, 149-50, 521 S.E.2d 777, 779 (1999)).
At about 9:30 p.m. on September 14, 2010, Richard Emerle was in a room at the Budget
Lodge Motel in Chesapeake with Conell Darden and another individual. After receiving a
telephone call, Darden advised that he was expecting someone named “Cobb” to arrive at the door
of the motel room. Emerle was seated beside the door. Emerle answered a knock at the door and
admitted appellant, whom Emerle did not know. Appellant and Darden had a brief conversation.
As appellant prepared to leave, Emerle got up to open the door for him. Appellant said, “That’s
okay. I got it.” When appellant turned the door handle, thus unlocking the door, the door was
pushed open from the outside. Two gunmen appeared.
One of the gunmen entered the room and demanded money. Initially, Darden said he did
not have any money. When the gunman persisted in his demand, Darden pointed at a dresser
drawer and said it was inside. As the gunman turned toward the dresser Darden tried to tackle him.
The gun fired, striking Darden in the chest. The gunman and the other armed individual fled from
the scene.
The police arrived at the motel room at 9:37 p.m. in response to 911 calls placed by Emerle
and appellant. Darden was transported to the hospital for emergency medical treatment, but he died
from the gunshot wound he had suffered to his chest.
When the police arrived, appellant was still in the vicinity of the motel room where Darden
was shot. During his investigation at the scene, Detective James Thomas examined the cellular
-2-
telephone that belonged to appellant. At 10:58 p.m. on September 14, 2010, appellant’s phone
received a text message stating, “[W]ipe that draw off 4 me.” Presumably, the “draw” referred to in
the message was the dresser drawer where Darden indicated the cash was stored. The message was
sent from a device assigned the number 419-0926. As Exhibit 23, the Commonwealth introduced a
photograph of appellant’s telephone displaying that message.
Video taken by a surveillance camera at the motel showed appellant interacting with two
men outside the room where the shooting occurred. When appellant reached the door of the room,
he raised his arm. Then, he knocked on the door and was admitted inside.
When initially questioned by the police, appellant said that Tony Tucker had dropped him
off at the motel alone and that he was surprised when the gunmen appeared at the door of the motel
room.1 However, after being confronted by the surveillance video and the presence of the text
message about the “draw” on his phone, appellant admitted that Anthony Saunders was the shooter.
Appellant claimed that he had not been in contact with Saunders recently.
The device assigned the number 419-0926 was a cellular telephone registered to Saunders’
thirteen-year-old son. Saunders often used that phone to communicate by text message with his
girlfriend, Shannon Walker, and others.
Records of Verizon Wireless telephone company, the service provider for 419-0926,
demonstrated that on September 13, 2010, there were eight calls between appellant’s phone and
419-0926. There were thirteen calls between the two phone numbers on September 14, 2010, and
one call on September 15, 2010.
The Commonwealth also introduced, as Exhibit 21, text messaging detail records of Verizon
Wireless relating to 419-0926. Monica Harper, the records custodian for Verizon Wireless, testified
regarding text messages sent from 419-0926 on September 14 through September 15, 2010.
1
Tucker testified that he did not give Cobb a ride to the motel that night.
-3-
Messages conveyed that the user of 419-0926 was planning to obtain some money and was trying to
recruit someone to do a “sting” with him. There were messages from the evening before the
shooting that the user of 419-0926 was at “deon’s” home. After the shooting of Darden occurred,
the user of 419-0926 sent text messages to Walker expressing desperation and affection, and also
that he was about to throw away his phone and go into hiding. On the day after the shooting, the
user of 419-0926 sent text messages to Walker stating that no one could identify him and that
“nobody knew me but Deon.” He further instructed someone to call “Deon’s phone” to see who
answered. The user of 419-0926 later indicated in a text message that the police had “Deon’s”
phone and that “Deon” might have talked to the police.
Saunders was not arrested until about six months after Darden’s killing. Detective Thomas
testified at a pretrial motions hearing that the police did not recover Saunders’ telephone. In a
separate trial, Saunders was convicted of the murder of Darden, attempted robbery, conspiracy, and
two counts of using a firearm in the commission of a felony.
PROCEDURAL HISTORY
Appellant filed a pretrial motion in limine to exclude evidence of cell phone text messages
received by or recorded on his telephone, as well as any documentary evidence relating to such text
messages. In his motion, appellant contended the evidence was inadmissible hearsay and was
barred by the best evidence rule. At a hearing upon his motion, conducted on August 16, 2011,
Detective Thomas testified regarding the contents of two text messages he retrieved from
appellant’s phone and photographed, one of which was the message regarding the “draw.” Initially,
appellant argued that “the two text messages that Detective Thomas testified about are the specific
items of evidence that we’re asking the Court to exclude.” He argued the messages were hearsay
and did not fall within the exception to the hearsay rule regarding statements made by
co-conspirators. The Commonwealth countered that the text messages were admissible under either
-4-
the co-conspirator or declaration against penal interest exception to the hearsay rule. The prosecutor
then said she was unsure of whether, at trial, she would try to introduce appellant’s telephone
displaying the messages or the photographs of the messages displayed on the telephone. Defense
counsel then refocused her argument, stating, “I don’t have any problem with the pictures being
used in lieu of the cell phone. It was only the other records independently obtained from the phone
company that we would have objected to.” The trial court asked, “So you’re not objecting to the
photographs?” Defense counsel said she was not. At a subsequent hearing, the trial court overruled
the motion in limine, citing the declaration against penal interest exception to the hearsay rule.
At trial, the Commonwealth sought to introduce Exhibit 21, the Verizon Wireless records of
text messages made and received by 419-0926 on September 14 and 15, 2010. Harper testified that
Exhibit 21 was an accurate copy of the company’s records reflecting those messages. Appellant
objected to Exhibit 21, stating that the issue addressed at the pretrial hearing was the admissibility of
the “two specific text messages,” and “not the remainder of the text messages that the
Commonwealth is intending here to offer again today.” Appellant argued the Commonwealth had
not laid an adequate foundation through Harper for admission of the documents as business records.
He further contended the records were not admissible under either the co-conspirator statement or
declaration against penal interest exception to the hearsay rule and that the best evidence rule barred
admission of the records. The trial court agreed that the Commonwealth had not established an
adequate foundation through Harper, but that that could be remedied since Harper was still available
as a witness. The trial court recessed for the day and had the parties brief the issues raised regarding
the admissibility of Exhibit 21.
The following day, after allowing the parties further opportunity for argument, the trial court
stated that it would permit the Commonwealth to lay a foundation for introduction of the records
through Harper. The Commonwealth requested a ruling regarding whether a prima facie case of
-5-
conspiracy had been established at that juncture. The trial court ruled the evidence already
introduced established a prima facie case of conspiracy. The trial court then stated,
With regard to the best evidence ruling, I wonder, . . . back when
that rule was established, you know, we had carbon paper or before
that, and we’ve had the invention of computers, and a text message
seems to me originates from a radio wave, an electronic wave.
How do you get the original of that, when you get the writing,
doesn’t that come from -- isn’t that just memorializing what the
wave is? Interesting questions. I’m sure at some point in the
future we’ll get some better case law on this. Technology now is
moving extremely quickly. I guess the law needs to catch up with
it. I do think the Commonwealth needs to have some further
questions of the custodian, so I will allow that.
The Commonwealth recalled Harper to the witness stand. In response to questioning by
the prosecutor, Harper testified that the records contained in Exhibit 21 were kept in the normal
course of business, were relied upon by Verizon Wireless in the transaction of business, and
were created instantaneously with the text messages themselves. Exhibit 21 then was introduced
without any objection other than those appellant previously had raised.
Subsequently, when the Commonwealth sought to introduce Exhibit 23, appellant stated he
had “no objection other than the objections previously made at the pretrial motions in August.”
ANALYSIS
I. Admission of Verizon Wireless Text Message Records
Appellant contends the trial court committed reversible error by admitting Exhibit 21 into
evidence because the records were inadmissible hearsay and barred by the best evidence rule. 2
2
Appellant’s argument on best evidence grounds does not encompass an objection to
Exhibit 23, the photograph of the text message as found by the police on appellant’s phone,
“[W]ipe that draw off 4 me.” Appellant states in his brief that a proper way to establish the
content of text messages is “through photographs of those messages on that phone,” precisely
what Exhibit 23 is. Moreover, appellant conceded at oral argument in this Court that he had no
valid objection to Exhibit 23 based upon the best evidence rule.
Although appellant argues on appeal that the text message in Exhibit 23 was inadmissible
hearsay, appellant did not raise this objection when the evidence was introduced at trial. Instead,
appellant relied upon the argument raised at the August 2011 pretrial hearing. Although he made
-6-
“The admissibility of evidence is within the broad discretion of the trial court, and a ruling will not
be disturbed on appeal in the absence of an abuse of discretion.” Blain v. Commonwealth, 7
Va. App. 10, 16-17, 371 S.E.2d 838, 842 (1988).
A. Best Evidence Rule
Appellant argues the trial court erred in rejecting his contention that the best evidence rule
barred admission of Exhibit 21. 3
Appellant’s trial occurred prior to the adoption of the Virginia Rules of Evidence, which
became effective on July 1, 2012. Therefore, the admissibility of evidence in this case was
governed by the common law rules of evidence. See Brown v. Commonwealth, 54 Va. App. 107,
113, 676 S.E.2d 326, 329 (2009).
In Virginia, the best evidence rule provides that “where the
contents of a writing are desired to be proved, the writing [the
primary evidence] itself must be produced or its absence
sufficiently accounted for before other evidence of its contents can
be admitted.” Randolph v. Commonwealth, 145 Va. 883, 889, 134
S.E. 544, 546 (1926); Butts v. Commonwealth, 145 Va. 800, 816,
133 S.E. 764, 769 (1926). Thus, if the purpose is to prove the truth
statements to the contrary at trial during argument regarding the admissibility of Exhibit 21, at
the pretrial hearing appellant said he was challenging the admissibility only of “records
independently obtained from the phone company,” not the admissibility of photographs Thomas
took of text messages on appellant’s telephone. Thus the record does not reflect that appellant
preserved a hearsay objection to Exhibit 23 because he did not, at the time the evidence was
offered, raise or renew a hearsay objection to that same evidence. See Rule 5A:18; Marlowe v.
Commonwealth, 2 Va. App. 619, 621, 347 S.E.2d 167, 168 (1986) (“To be timely, an objection
must be made when the occasion arises -- at the time the evidence is offered or the statement
made.”). Accordingly, we do not consider such a contention on appeal.
We need not consider independently the admissibility of Exhibit 7, which consisted of
two pages of records of text messages pertaining to 419-0926. Exhibit 7 was merely an excerpt
of, and was contained completely within, Exhibit 21.
3
We note that the trial court made no specific rulings regarding application of the various
aspects of the best evidence rule. Nonetheless, the trial court’s decision to admit Exhibit 21 over
appellant’s objection on the basis of the best evidence rule permits us to consider the issue on
appeal. But see Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 489 (1998) (it
is incumbent upon appellant to obtain a ruling from the trial court or “there is no ruling for us to
review on appeal”).
-7-
of the contents of a writing, the primary evidence must be
produced, if available.
Bradshaw v. Commonwealth, 16 Va. App. 374, 379, 429 S.E.2d 881, 884 (1993). The best
evidence rule applies only to writings. See Midkiff v. Commonwealth, 280 Va. 216, 219, 694
S.E.2d 576, 577 (2010) (finding best evidence rule did not bar introduction of photographs and
video recordings copied from the hard drive of defendant’s computer); Brown, 54 Va. App. at 120,
676 S.E.2d at 332 (best evidence rule did not bar testimony regarding the contents of a surveillance
camera videotape).
Appellant claims that the display of text messages on the actual cellular device assigned the
number 419-0926 was the writing which the Commonwealth sought to prove at trial and that in the
unexplained absence of the device or photographs of the text messages displayed, secondary
evidence was inadmissible to prove the content of text messages sent or received by the device. A
writing has been defined by the General Assembly as “any representation of words, letters, symbols,
numbers, or figures, whether (i) printed or inscribed on a tangible medium or (ii) stored in an
electronic or other medium and retrievable in a perceivable form and whether an electronic
signature . . . is or is not affixed.” Code § 1-257.
No Virginia appellate court has yet determined whether a text message is a “writing” for
purposes of the best evidence rule. However, other courts, applying their own rules of evidence,
have found that “a text message is a writing because it consists of letters, words, or numbers set
down by mechanical or electronic recording, or other form of data compilation.” State v. Espiritu,
176 P.3d 885, 892 (Haw. 2008). See also Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 577
(D. Md. 2007). We assume without deciding that a text message qualifies as a “writing.”
Nonetheless, under the best evidence rule, where the admitted evidence qualifies as an
original of the writing in question “application of the best evidence rule is unnecessary.” Winston v.
Commonwealth, 16 Va. App. 901, 904, 434 S.E.2d 4, 5 (1993). Courts have applied the concept of
-8-
“duplicate originals” to mechanically reproduced copies. See, e.g., Burton v. F. A. Seifert & Co.,
108 Va. 338, 352-53, 61 S.E. 933, 939 (1908) (applying the duplicate original principle to
“letter-press copies”); Chesapeake & O. R. Co. v. F. W. Stock & Sons, 104 Va. 97, 101, 51 S.E.
161, 162 (1905) (recognizing that a “carbon copy” may be regarded as a “duplicate original”).
Under this view, “[m]any of the documents that we commonly refer to as ‘copies’ are in fact
‘duplicate originals,’ and are treated as ‘originals’ for purposes of the best evidence rule.” Charles
E. Friend & Kent Sinclair, The Law of Evidence in Virginia 18-4[a], at 1195 (7th ed. 2012).
Neither this Court nor the Supreme Court of Virginia has decided whether the printed record
of an exchange of text messages is an original or duplicate original of the messages. Nonetheless,
we have observed that “[t]he potentially limitless application of computer technology to evidentiary
questions will continually require legal adaptation.” Penny v. Commonwealth, 6 Va. App. 494,
499, 370 S.E.2d 314, 317 (1988).
In Adams v. State, 117 P.3d 1210, 1219 (Wyo. 2005) (quoting Wyoming Rules of
Evidence 1001(3)), the Wyoming Supreme Court ruled admissible as an original or duplicate
original a computer printout of instant messages between the defendant and a police officer,
noting that state’s rules of evidence defined an original as “including any computer printout or
other readable output of data stored in a computer or similar device, which is ‘shown to reflect
the data accurately.’” Similarly, in Laughner v. State, 769 N.E.2d 1147, 1159 (Ind. Ct. App. 2002),
the Indiana Court of Appeals applied that state’s rules of evidence and found that a printout of
messages sent between two computers was an original for purposes of the best evidence rule. See
also Lorraine, 241 F.R.D. at 577-78 (applying the Federal Rules of Evidence).
We conclude that, under the law applicable at the time of appellant’s trial, the Verizon
Wireless records of the text messages were originals or duplicate originals for purposes of the best
evidence rule. Harper testified that the text messages were recorded instantaneously by the
-9-
company at the time they were created. Thus, the printout of the company’s records of the text
messages was an original writing, just as mechanically reproduced or photocopied documents are
considered originals. Therefore, the trial court did not err in finding that the best evidence rule did
not bar the introduction of Exhibit 21.
B. Hearsay
Appellant also contends the Verizon Wireless records of the text messages were
inadmissible hearsay. Hearsay is “‘testimony in court, or written evidence, of a statement made
out of court, the statement being offered as an assertion to show the truth of matters asserted
therein, and thus resting for its value upon the credibility of the out of court asserter.’”
Stevenson v. Commonwealth, 218 Va. 462, 465, 237 S.E.2d 779, 781 (1977) (quoting
McCormick on Evidence § 246, at 584 (2d ed. 1972)). In order for hearsay to be admissible, it
must “come within one of the many established exceptions to the general prohibition against
admitting hearsay.” Hanson v. Commonwealth, 14 Va. App. 173, 187, 416 S.E.2d 14, 22 (1992).
“‘[T]he party seeking to rely upon an exception to the hearsay rule has the burden of establishing
admissibility.’” Braxton v. Commonwealth, 26 Va. App. 176, 183-84, 493 S.E.2d 688, 691
(1997) (quoting Neal v. Commonwealth, 15 Va. App. 416, 420-21, 425 S.E.2d 521, 524 (1992)).
Initially, we note that not all the text messages contained in Exhibit 21 were admitted for
the truth of the matters asserted therein. Many of the messages in the records were those sent to
or from 419-0926 with innocuous communication that had nothing to do with the conspiracy or
commission of the crimes. The messages unrelated to these matters were not offered to prove
the truth of their assertions, and did not constitute hearsay.
Appellant argues on appeal that the text message records were not admissible under the
hearsay exception relating to statements by co-conspirators. The Commonwealth responds that
- 10 -
the records qualified for admission under hearsay exceptions pertaining to statements by
co-conspirators, declarations against penal interests, or present sense impressions.
The record does not reflect that the trial court ruled Exhibit 21 admissible based upon any
of the exceptions advanced by the parties on appeal. Rather, the trial court agreed with
appellant’s initial argument that the Commonwealth had not laid sufficient foundation for the
records’ admission under the business record exception to the hearsay rule, but permitted the
Commonwealth to question Harper further to establish a proper foundation. Although the trial
court had the parties brief the applicability of the hearsay exceptions asserted, the court did not
rely on any of them in ruling Exhibit 21 admissible.
“Under the modern Shopbook Rule, . . . a recognized exception to the hearsay rule,
verified regular entries may be admitted in evidence without requiring proof from the original
observers or record keepers.” Ford Motor Co. v. Phelps, 239 Va. 272, 275, 389 S.E.2d 454, 457
(1990). “‘Admission of such evidence is conditioned . . . on proof that the document comes from
the proper custodian and that it is a record kept in the ordinary course of business made
contemporaneously with the event by persons having the duty to keep a true record.’” Sparks v.
Commonwealth, 24 Va. App. 279, 282, 482 S.E.2d 69, 70-71 (1997) (quoting “Automatic”
Sprinkler Corp. v. Coley & Peterson, Inc., 219 Va. 781, 793, 250 S.E.2d 765, 773 (1979)). “‘[I]n
Virginia today, personal knowledge of the entrant, or of the entrant’s informant, is no longer an
absolute prerequisite to the admissibility of business records, provided that the “circumstantial
guarantees of trustworthiness” – regularity of preparation and reliance upon the records by those
for whom they are prepared – are present.’” Cooper v. Commonwealth, 54 Va. App. 558, 568,
680 S.E.2d 361, 366 (2009) (quoting Charles E. Friend, The Law of Evidence in Virginia
§ 18-15, at 775 (6th ed. 2003)).
- 11 -
In McDowell v. Commonwealth, 273 Va. 431, 641 S.E.2d 507 (2007), the trial court
admitted at the defendant’s grand larceny trial a report prepared by an undercover detective
employed by the store following a shoplifting incident. The report was based upon a
merchandise inventory which indicated what items were missing, as well as the price of the
stolen items. The Supreme Court ruled there “was a ‘regularity of . . . preparation’ of [the report]
upon which [the store] relied ‘in the transaction of business,’ thus guaranteeing ‘the
trustworthiness or reliability’ of the [r]eport[.]” Id. at 436, 641 S.E.2d at 509 (quoting
“Automatic” Sprinkler Corp., 219 Va. at 793, 250 S.E.2d at 773). Thus, the report qualified for
admission under the business record exception to the hearsay rule. See id. at 436, 641 S.E.2d at
510.
In this case, Harper, the custodian of records for Verizon Wireless, testified that the
records contained in Exhibit 21 were accurate, that they were made in the regular course of
business, that they were relied upon by Verizon Wireless in the transaction of business, and that
they were made contemporaneously with the creation of the text messages themselves. Harper’s
testimony thus established the reliability of the Verizon Wireless records, and the trial court did
not err in admitting Exhibit 21 under the business records exception to the hearsay rule.
II. Sufficiency of the Evidence
Appellant contends the evidence was insufficient to prove that he participated in the
attempted robbery as a principal in the second degree or that he conspired with Saunders to commit
robbery. A principal in the second degree
may be indicted, tried, convicted and punished as if a principal in
the first degree. See Code § 18.2-18. To convict based on this
theory, the Commonwealth must prove the defendant was present
at the scene and “‘share[d] the criminal intent of the party who
actually committed the [crime] or [was] guilty of some overt act in
furtherance thereof.’” Rollston v. Commonwealth, 11 Va. App.
535, 540, 399 S.E.2d 823, 826 (1991) (quoting Augustine v.
Commonwealth, 226 Va. 120, 124, 306 S.E.2d 886, 888-89
- 12 -
(1983)). A defendant may be convicted as a principal in the
second degree if he or she is present, “‘keeping watch or guard at
some convenient distance.’” Id. at 539, 399 S.E.2d at 825 (quoting
Brown v. Commonwealth, 130 Va. 733, 736, 107 S.E. 809, 810
(1921)). “‘[P]roof 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, . . . the [fact finder] may
infer that he assented thereto . . . .’” Pugliese v. Commonwealth,
16 Va. App. 82, 93-94, 428 S.E.2d 16, 25 (1993) (quoting Foster v.
Commonwealth, 179 Va. 96, 99-100, 18 S.E.2d 314, 316 (1942)).
Allard v. Commonwealth, 24 Va. App. 57, 62-63, 480 S.E.2d 139, 141-42 (1997). Moreover,
“one who never held or possessed a firearm m[ay] nevertheless be convicted as a principal in the
second degree of the use of a firearm in the commission of a felony where he acted in concert
with the gunman.” Carter v. Commonwealth, 232 Va. 122, 125, 348 S.E.2d 265, 267 (1986).
A conspiracy is “‘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) (quoting Wright v. Commonwealth, 224 Va. 502, 505, 297 S.E.2d 711, 713 (1982)).
However, proof of an explicit agreement is not required, and the Commonwealth may, and
frequently must, rely on circumstantial evidence to establish the conspiracy. See Stevens v.
Commonwealth, 14 Va. App. 238, 241, 415 S.E.2d 881, 883 (1992). Indeed, “‘[t]he existence of
an unlawful and inherently covert agreement can be inferred from the overt conduct of the
parties.’” Floyd v. Commonwealth, 219 Va. 575, 581, 249 S.E.2d 171, 174 (1978) (quoting
United States v. Harris, 433 F.2d 333, 335 (4th Cir. 1970)).
The evidence proved that appellant was present and assisting when Saunders tried to rob
Darden and that appellant and Saunders were acting pursuant to a preconceived plan to commit
the crime. The Commonwealth’s evidence showed that appellant communicated by cell phone
with Saunders, who was using the phone with number 419-0926, numerous times on the day the
shooting occurred. Saunders indicated he was going to obtain some money and that he was
trying to get someone to help him. He also indicated that he was with appellant that day.
- 13 -
Surveillance video showed appellant interacting with two individuals outside the motel before he
gained admission to the room. When appellant opened the door as if to leave the room, the door
was pushed open and two armed men appeared. Appellant thereby assisted Saunders, whom
appellant identified as the shooter, in gaining entrance to the motel room. Saunders shot Darden
when Darden tried to tackle him. Later, Saunders told appellant by text message to “wipe the
draw” and thus remove potentially incriminating evidence that Saunders could have left behind
in the motel room. Saunders told Walker that no one in the motel room but appellant could
identify him, and speculated that appellant had cooperated with the police.
Considering all the facts and circumstances, the evidence proved beyond a reasonable
doubt that appellant entered into an agreement with Saunders to commit robbery, appellant was
present and assisting at the time of the attempted robbery, and Saunders shot Darden during the
robbery attempt. Thus, the evidence was sufficient to prove appellant guilty of the offenses.
CONCLUSION
For the foregoing reasons, we find the trial court did not err and affirm appellant’s
convictions.
Affirmed.
- 14 -