COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Fitzpatrick and Annunziata
Argued at Richmond, Virginia
VICTOR FRANCIS, S/K/A
VICTOR LYNN FRANCIS
MEMORANDUM OPINION * BY
v. Record No. 0860-96-2 JUDGE LARRY G. ELDER
SEPTEMBER 16, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
Charles L. McCormick, III, Judge
Robert H. Morrison (Bennett & Morrison,
P.L.C., on brief), for appellant.
Richard B. Smith, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Victor Lynn Francis (appellant) appeals his conviction of
selling cocaine as a principal in the second degree. He contends
that the evidence was insufficient to prove that he acted as a
principal in the second degree to the sale of cocaine between
Timothy Crews and Mr. and Mrs. Conald Fisher. He argues that the
Commonwealth's evidence merely shows that he was present at the
scene of the transaction between Crews and the Fishers and that
no evidence established that he knew a drug sale would take place
prior to its occurrence. For the reasons that follow, we affirm.
A person who participates in the commission of a felony as a
principal in the second degree "may be indicted, tried, convicted
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
and punished in all respects" as if he or she were the actual
perpetrator of the crime. See Code § 18.2-18. In order to prove
that an accused is criminally liable as a principal in the second
degree, the Commonwealth must prove (1) 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), and (2) that the accused acted as a principal in the
second degree.
Appellant concedes that the evidence proved that Crews sold
cocaine to the Fishers. Thus, the issue in this case is whether
the evidence was sufficient to prove that appellant aided and
abetted Crews as a principal in the second degree.
"A principal in the second degree is one who is not only
present at a crime's commission, but one who also commits some
overt act, such as inciting, encouraging, advising, or assisting
in the commission of the crime or shares the perpetrator's
criminal intent." Moehring v. Commonwealth, 223 Va. 564, 567,
290 S.E.2d 891, 892 (1982). "In order for a person to be a
principal in the second degree to a felony, the individual must
'know or have reason to know of the principal's criminal
intention and must intend to encourage, incite, or aid the
principal's commission of the crime.'" Jones v. Commonwealth, 15
Va. App. 384, 387, 424 S.E.2d 563, 565 (1992) (quoting McGhee v.
Commonwealth, 221 Va. 422, 427, 270 S.E.2d 729, 732 (1980)).
"[M]ere presence and consent are not sufficient to constitute one
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[a principal in the second degree]. 'There must be something
done or said by [the accused] showing (a) his consent to the
felonious purpose and (b) his contribution to its execution."
Jones v. Commonwealth, 208 Va. 370, 373, 157 S.E.2d 907, 909
(1967).
When considering the sufficiency of the
evidence on appeal of a criminal conviction,
we must view all the evidence in the light
most favorable to the Commonwealth and accord
to the evidence all reasonable inferences
fairly deducible therefrom. The jury's
verdict will not be disturbed on appeal
unless it is plainly wrong or without
evidence to support it.
Brooks v. Commonwealth, 15 Va. App. 407, 414, 424 S.E.2d 566, 571
(1992) (citing Traverso v. Commonwealth, 6 Va. App. 172, 176, 366
S.E.2d 719, 721 (1988)).
We hold that the evidence was sufficient to support the
jury's conclusion that appellant acted as a principal in the
second degree to Crews' sale of cocaine to the Fishers.
The record indicates that appellant both assisted Crews in the
transaction and shared his criminal intent to sell cocaine.
Crews was at appellant's house on June 9 when he called Mrs.
Fisher offering to sell her and Mr. Fisher cocaine. Mrs. Fisher
called Crews back a short while later, and the two arranged the
details of the transaction. At the conclusion of this second
phone call, Crews said that "they" would meet the Fishers at a
designated place near Childrey Creek. The record established
that, a short while later, appellant drove Crews to meet the
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Fishers. When appellant and Crews arrived at the scene of the
transaction, appellant pulled his car next to the Fishers, who
were sitting in their car. Crews then tossed a plastic bag of
cocaine from his location in the passenger seat, across the front
of appellant, and into the Fishers' car. In return, Mr. Fisher
threw $80 in folded bills into appellant's car, which landed in
Crews' lap. A few minutes later, appellant told Mr. Fisher, "You
got that shit. You ain't gonna do nothin' tomorrow." Appellant
then drove Crews away from the scene.
Contrary to appellant's assertion, the record indicates that
he was much more than a passive observer of the cocaine sale. He
drove appellant to and from the scene of the transaction. In
addition, the evidence that Crews arranged the sale using
appellant's home telephone and stated that "they" would meet the
Fishers to complete the sale, and the short interval of time
between the arrangement and execution of the transaction supports
the inference that appellant knew of Crews' intention when he
drove Crews to meet the Fishers.
Because we cannot say that the jury's verdict was either
plainly wrong or unsupported by the evidence, we affirm the
conviction.
Affirmed.
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