PRESENT: Hassell, C.J., Keenan, Koontz, Kinser, Lemons,
Agee, ∗ and Goodwyn, JJ.
RASHAD TYRIE MCMORRIS
v. Record No. 072247 OPINION BY
JUSTICE S. BERNARD GOODWYN
COMMONWEALTH OF VIRGINIA September 12, 2008
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether the Court of
Appeals erred in affirming the conviction of Rashad Tyrie
McMorris (“McMorris”) of robbery as a principal in the
second degree.
McMorris was charged, in the Circuit Court for the City
of Hampton, with one count of robbery in violation of Code
§ 18.2-58. McMorris pled not guilty to the charge. After a
bench trial, McMorris was found guilty and sentenced to
serve a term of 20 years in prison, with 11 years suspended.
McMorris appealed his conviction to the Court of Appeals;
the Court of Appeals denied his petition for appeal. This
Court granted his appeal.
FACTS
On September 22, 2006, Darrin Ottey (“Ottey”) rode the
bus to a friend’s apartment in Hampton. He exited the bus
∗
Justice Agee participated in the hearing and decision
of this case prior to his retirement from the Court on June
30, 2008.
and immediately noticed a group of approximately fifteen
young men gathered in between buildings across the street.
As Ottey walked past the group of young men, including
McMorris, one of them said, “[T]hat’s the guy from Zooms.”
The comment referred to an altercation the night before
when Ottey was working with a female employee at Zooms, a
convenience store. Three young men, including McMorris,
banged on the locked door of Zooms, causing a disturbance.
The female employee attempted to call the police, but Ottey
told her “don’t worry about it.” The three men left, and
Ottey did not see them again until the next day.
As Ottey was walking towards his friend’s apartment,
some of the young men followed Ottey, asking him why he
called the police. Ottey attempted to ignore them and
knocked on his friend’s front door. His friend did not
answer the door, so Ottey attempted to leave the apartment
complex. Thereafter, one of the young men hit Ottey; four
others joined in the attack, McMorris being the last to do
so.
As this group was attacking Ottey, his wallet,
containing identification cards and two dollars, and his
cellular telephone, worth $300, fell to the ground. Because
he was being attacked, Ottey was unable to retrieve his
telephone. He saw one of the young men involved in the
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attack, other than McMorris, “grab[] the phone, look[] at it
and [run] towards the crowd where the other boys were at.”
Ottey did not see what happened to his wallet, but it was
not on the ground when the fight ended.
Ottey testified that no one demanded that he “hand
over” his telephone or wallet, and that no one attempted to
“go through” his pockets during the fight. McMorris did not
take Ottey’s property nor did McMorris leave the scene with
the person who took Ottey’s property.
The trial court found McMorris guilty of robbery as a
principal in the second degree. See Code § 18.2-18. The
trial court stated, “While [McMorris and others] were
attacking Mr. Ottey, another one of the assailants was
taking his property. This was all contemporaneous.
Therefore[,] the robbery statute applies.” In refusing
McMorris’ petition for appeal, the Court of Appeals
concluded that the evidence established that McMorris shared
the criminal intent of those who did steal Ottey’s telephone
and other items. McMorris v. Commonwealth, Record No. 0630-
07-1, slip op. at 2-3 (Aug. 17, 2007).
ANALYSIS
On appeal, the facts are viewed in the light most
favorable to the prevailing party at trial. Porter v.
Commonwealth, 276 Va. 203, 215-16, 661 S.E.2d 415, 419
3
(2008); Juniper v. Commonwealth, 271 Va. 362, 376, 626
S.E.2d 383, 393 (2006). However, this Court will reverse a
judgment of the trial court that is plainly wrong or without
evidence to support it. Jay v. Commonwealth, 275 Va. 510,
524, 659 S.E.2d 311, 319 (2008); Viney v. Commonwealth, 269
Va. 296, 299, 609 S.E.2d 26, 28 (2005).
The Commonwealth has the burden of proving beyond a
reasonable doubt that the defendant is guilty of the charged
crime. See Baldwin v. Commonwealth, 274 Va. 276, 280, 645
S.E.2d 433, 435 (2007); Rogers v. Commonwealth, 242 Va. 307,
317, 410 S.E.2d 621, 627 (1991). “ ‘Suspicion of guilt,
however strong, or even the probability of guilt, is
insufficient to support a conviction.’ ” Rogers, 242 Va. at
317, 410 S.E.2d at 627 (quoting Cheng v. Commonwealth, 240
Va. 26, 42, 393 S.E.2d 599, 608 (1990)).
McMorris was found guilty of robbery as a principal in
the second degree. Robbery is “ ‘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.’ ” Pritchard v. Commonwealth, 225 Va. 559,
561, 303 S.E.2d 911, 912 (1983) (quoting Mason v.
Commonwealth, 200 Va. 253, 254, 105 S.E.2d 149, 150 (1958)).
To find a defendant guilty as a principal in the second
degree, the Commonwealth must establish that the defendant
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procured, encouraged, countenanced, or approved the criminal
act. Augustine v. Commonwealth, 226 Va. 120, 124, 306
S.E.2d 886, 888-89 (1983); Spradlin v. Commonwealth, 195 Va.
523, 526-27, 79 S.E.2d 443, 445 (1954); Brown v.
Commonwealth, 130 Va. 733, 736-37, 107 S.E. 809, 810-11
(1921).
Mere presence is not sufficient to convict a defendant
as a principal in the second degree. Augustine, 226 Va. at
124, 306 S.E.2d at 888; Brown, 130 Va. at 736, 107 S.E. at
810; Spradlin, 195 Va. at 527, 79 S.E.2d at 445. The
Commonwealth must prove that the defendant consented to the
felonious purpose and the defendant contributed to its
execution. Hall v. Commonwealth, 225 Va. 533, 537, 303
S.E.2d 903, 905 (1983); Jones v. Commonwealth, 208 Va. 370,
373, 157 S.E.2d 907, 909 (1967). It is essential that the
Commonwealth establish that the defendant shared in the
criminal intent of the principal who committed the crime.
Jones, 208 Va. at 373, 157 S.E.2d at 909.
It is a well-settled rule that a defendant is guilty as
a principal in the second degree if he is guilty of some
overt act done knowingly in furtherance of the commission of
the crime, or if he shared in the criminal intent of the
principal committing the crime. See Augustine, 226 Va. at
124, 306 S.E.2d at 889; Hall, 225 Va. at 537, 303 S.E.2d at
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905; Zirkle v. Commonwealth, 189 Va. 862, 876, 55 S.E.2d 24,
32 (1949); Code § 18.2-18. This rule cannot be interpreted
to mean that any overt act that is advantageous to the
principal’s criminal plan is sufficient; the defendant must
also share in the principal’s criminal intent. The overt
act must be “knowingly in furtherance of the commission of
the crime.” Therefore, lack of intent is usually a defense
to a conviction as a principal in the second degree. See
Jones, 208 Va. at 373-74, 157 S.E.2d at 909; Spradlin, 195
Va. at 528, 79 S.E.2d at 446. The one exception exists when
there was concert of action and the resulting crime, whether
such crime was originally contemplated or not, is a natural
and probable consequence of the intended wrongful act.
Spradlin, 195 Va. at 528, 79 S.E.2d at 445.
In this case, the trial court found McMorris guilty as
a principal in the second degree based on the fact that he
was attacking Ottey while someone else contemporaneously
stole his telephone and wallet. The Commonwealth presented
no evidence of a common plan to steal Ottey’s property.
Neither McMorris nor any of the other assailants demanded
Ottey’s money or attempted to “go through” his pockets.
McMorris did not leave the scene of the crime with the
principal actor, nor is there evidence he benefited from the
theft. In fact, no direct evidence was introduced showing
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that McMorris was aware that Ottey’s property had fallen on
the ground or that a co-assailant took it. McMorris could
not have procured, encouraged, countenanced, approved or
knowingly committed an overt act in furtherance of the
robbery without the knowledge that the crime was occurring.
The Commonwealth insists that such knowledge can be
inferred through the circumstantial evidence presented. In
particular, the Commonwealth argues that the trial court
could have properly concluded that McMorris observed the
robber steal the telephone based on McMorris’ proximity to
the victim and the robber.
The Commonwealth can, and most often must, present
circumstantial evidence to prove that a defendant aided or
abetted in the commission of a crime. See Augustine, 226
Va. at 123, 306 S.E.2d at 888; Spradlin, 195 Va. at 527, 79
S.E.2d at 445. However, when the Commonwealth relies on
circumstantial evidence, all circumstances proved must be
consistent with guilt and inconsistent with innocence and
exclude all reasonable conclusions inconsistent with guilt.
Rogers, 242 Va. at 317, 410 S.E.2d at 627; Augustine, 226
Va. at 123, 306 S.E.2d at 888.
Here, there was no evidence showing the relative
vantage point of McMorris to the property when it fell and
was taken. McMorris’ proximity may have created a suspicion
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that McMorris observed the property fall to the ground.
However, to sustain a criminal conviction, the Commonwealth
is required to prove more than a suspicion of guilt or
probability of guilt. Rogers, 242 Va. at 317, 320, 410
S.E.2d at 627, 629.
Furthermore, because the evidence offered against
McMorris is wholly circumstantial, such evidence must
exclude all reasonable conclusions inconsistent with that of
guilt. See id. The circumstantial evidence presented is
insufficient to prove that McMorris had actual knowledge of
his co-assailants’ theft of Ottey’s property. Even though
McMorris was one of the five men involved in the attack and
he was near the proximate area where Ottey’s telephone fell
to the ground, the circumstances of McMorris’ conduct do not
exclude the reasonable conclusion that McMorris did not
observe Ottey’s property fall to the ground and that he did
not have knowledge of the principal’s intent to commit the
robbery. Therefore, the Commonwealth failed to prove beyond
a reasonable doubt that McMorris shared the criminal intent
of the principal to commit the robbery.
The Commonwealth also contends that McMorris’ concert
of action with Ottey’s other assailants is sufficient to
support a finding that McMorris is guilty of robbery as a
principal in the second degree. Lack of intent cannot be
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used as a defense when there was concert of action and the
resulting crime was a natural and probable consequence of
the intended wrongful act. Spradlin, 195 Va. at 528, 79
S.E.2d at 445. McMorris was among the five young men who
surrounded and attacked Ottey. The apparent reason for the
attack was an incident the previous night. McMorris had the
shared intent to wrongfully assault Ottey. The issue raised
is whether robbery is a natural and probable consequence of
an assault.
When someone harbors ill feelings toward another and
the situation escalates into a fight, there is no reasonable
probability that the aggressor will steal the victim’s
property. See Brown, 130 Va. at 737-38, 107 S.E. at 811.
We discussed similar facts in a hypothetical situation
described in Kemp v. Commonwealth, 80 Va. 443, 450-51 (1885)
(quoting 1 Joel P. Bishop, Commentaries on the Criminal Law
§ 634, at 384 (7th ed. 1882)):
“Even when persons are unlawfully together, and by
concurrent understanding are in the actual
perpetration of some crime, if one of them, of his
sole volition, and not in pursuance of the main
purpose, does a criminal thing in no way connected
with what was mutually contemplated, he only is
liable." "Thus, . . . if in England, poachers
join in an attack on the game-keeper, and leave
him senseless, – then, if one of them returns and
steals his money, this one alone can be convicted
of the robbery.”
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Robbery is not an incidental, probable consequence of an
assault; robbery requires a completely different type of
wrongdoing: stealing. Therefore, McMorris’ conviction for
robbery as a principal in the second degree cannot be
affirmed based on the robbery being a natural and probable
consequence of the concerted assault.
The evidence presented by the Commonwealth was
insufficient to prove that McMorris knowingly committed an
overt act in furtherance of the robbery, shared in the
criminal intent of the principal committing the robbery, or
that the robbery was a natural and probable consequence of
the wrongful assaults. Thus, the trial court erred in
finding McMorris guilty of robbery as a principal in the
second degree.
Accordingly, we will reverse the judgment of the Court
of Appeals affirming McMorris’ conviction of robbery as a
principal in the second degree, vacate McMorris’ conviction
of robbery, and dismiss the indictment against him.
Reversed, vacated, and dismissed.
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