COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Clements
Argued at Alexandria, Virginia
JENNIE MAE DICKERSON
OPINION BY
v. Record No. 0918-00-2 JUDGE ROSEMARIE ANNUNZIATA
JULY 3, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge
Helen E. Phillips (Higginbotham & Bowman,
P.L.C., on brief), for appellant.
John H. McLees, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
The appellant, Jennie Mae Dickerson, appeals her
convictions for entering a building in the nighttime with the
intent to commit robbery while armed with a deadly weapon, in
violation of Code § 18.2-90 and for robbery, in violation of
Code § 18.2-58. Dickerson contends: (1) the trial court erred
in denying her motion for a new trial when no verbatim recording
of the trial was produced as required by Code § 19.2-165; (2)
the trial court denied her, an indigent defendant, her rights to
equal protection and due process when it denied her motion for a
new trial based on the fact that a transcript of the trial could
not be produced; and (3) the trial court erred in denying her
motion to strike the evidence because such evidence was
insufficient to find her guilty of robbery and burglary. For
the following reasons, we affirm.
I.
BACKGROUND
On appeal, we view the evidence and all reasonable
inferences fairly deducible therefrom in the light most
favorable to the Commonwealth. Higginbotham v. Commonwealth,
216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). On the night of
September 21, 1998, Dickerson, Jason Stager and Cameron Whetsel
were drinking alcohol and smoking marijuana and crack cocaine at
Dickerson's home. When they ran out of cocaine, they began
discussing performing a robbery to obtain cash for purchasing
more cocaine. During the discussion, Dickerson suggested two
possible businesses that they could rob –- a gas station and a
Holiday Inn. They decided on the latter. Dickerson also
suggested that "putting your hand in your pocket in the shape of
a gun would make a good weapon."
All three got into Stager's car, a light blue station wagon
with a loud exhaust system, and drove to the Holiday Inn.
Stager drove, Dickerson sat in the front passenger seat, and
Whetsel rode in the back. When they arrived at the Holiday Inn,
Whetsel went in while Stager and Dickerson waited in the car.
Whetsel entered the hotel lobby through the front door and
walked to the front desk where Greg Salmon, the desk clerk, was
sitting. Whetsel showed Salmon a knife and demanded money.
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Salmon gave Whetsel an envelope containing checks and
approximately three hundred dollars in cash. Whetsel then
exited through the front door, returned to the car, and Stager
drove away.
Detective Kendell W. Robinson of the Albemarle County
Police Department arrested Dickerson on October 1, 1998. After
Robinson read Dickerson her Miranda rights and informed her that
he was investigating the robbery at the Holiday Inn, Dickerson
said, "You already know I was there. I'm just scared and I'm
sorry for acting like a bitch."
Greg Salmon testified at Dickerson's trial and identified
Whetsel as the man who robbed him on the night of September 21,
1998. Two hotel guests testified that on the night of the
robbery they saw a man run out of the Holiday Inn and get into a
light blue station wagon with a loud exhaust system. Both
witnesses testified there were two people sitting in the front
seat of the car, a man and a woman.
Pursuant to a plea agreement, Jason Stager testified
concerning Dickerson's role in the crime. In exchange for his
testimony, the Commonwealth agreed to nolle prosequi his
burglary charge. 1
1
Stager had already pled guilty to robbery of Greg Salmon
but had yet to be sentenced. No agreement was reached regarding
sentencing.
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After the Commonwealth rested its case-in-chief,
Dickerson's counsel moved to strike both indictments, claiming
the evidence was insufficient. The court denied both motions to
strike. Dickerson did not present any evidence, and her motions
to strike were renewed and denied. The court found Dickerson
guilty of both charges. This appeal followed.
II.
ANALYSIS
A.
Failure to Produce Transcript as Required by Code § 19.2-165
Code § 19.2-165 states, in relevant part: "In all felony
cases, the court or judge trying the case shall by order entered
of record provide for the recording verbatim of the evidence and
incidents of trial either by a court reporter or by mechanical
or electronic devices approved by the court."
Because of either an error on the part of the court
reporter or a mechanical failure of the recording equipment,
Dickerson's trial was not recorded and a verbatim transcript of
the trial could not be produced. Dickerson claims that because
the trial proceedings were not recorded, she is entitled to a
new trial. We disagree.
Rule 5A:8 permits a statement of facts to be utilized on
appeal in lieu of a transcript. See Houghtaling v.
Commonwealth, 209 Va. 309, 315, 163 S.E.2d 560, 564 (1968)
(where closing arguments were not recorded, Court held narrative
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statement was sufficient to determine issues on appeal and
"defendant was not prejudiced by the failure to record that
portion of the trial"); cf. Kyhl v. Kyhl, 32 Va. App. 53, 57,
526 S.E.2d 292, 294 (2000) (if "judge cannot in good faith
recall or accurately reconstruct the relevant proceedings," a
statement of the facts is insufficient and the case must be
remanded for a new trial). In this case, the court approved a
statement of facts that summarized the evidence and the trial
proceedings and both parties signed that statement of facts.
Although at the trial level Dickerson objected to the use of a
statement of facts "as a remedy for the failure to record the
testimony at trial," she failed to object to the completeness or
accuracy of the statement of facts. On appeal, she does not
specify why the statement of facts in this case is inadequate.
Because we find the statement of facts provided in this case is
sufficient for our review of the evidence to determine its
sufficiency, we deny Dickerson's request for a new trial.
Carter v. Commonwealth, 209 Va. 317, 324-25, 163 S.E.2d 589, 595
(1968).
B.
Equal Protection and Due Process Rights
Dickerson contends that because she is an indigent, the
failure of the trial court to provide her with a transcript of
her trial constitutes a violation of her equal protection and
due process rights. We find no merit in her contention.
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The line of cases cited by Dickerson, beginning with Britt
v. North Carolina, 404 U.S. 226 (1971), provides that a state
"must, as a matter of equal protection, provide indigent
prisoners with the basic tools of an adequate defense or appeal,
when those tools are available for a price to other prisoners."
Id. at 227 (emphasis added); see Young v. Commonwealth, 218 Va.
885, 888, 241 S.E.2d 797, 798-99 (1978) (the Court held that
where the transcript of the preliminary hearing was not
available to any defendant, indigent or not, due to
malfunctioning of the recording equipment, there was no
violation of the defendant's right to equal protection). In
this case, the "tool" in question, the transcript, does not
exist and cannot be produced. Therefore, a transcript would not
be available to any defendant, indigent or not. Accordingly,
Britt and the Virginia cases addressing the same issue do not
apply. 2 We find the court did not violate Dickerson's equal
protection and due process rights by not providing her with a
transcript of her trial.
2
Where the principle does apply, the court may satisfy its
obligation by furnishing the defendant "with a free transcript,
or narrative of the evidence," Cabaniss v. Cunningham, 206 Va.
330, 335, 143 S.E.2d 911, 914 (1965) (emphasis added), provided
that in a given case, the narrative "would fulfill the same
functions as a transcript." Britt, 404 U.S. at 227.
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C.
Sufficiency of the Evidence
Dickerson's challenge to the sufficiency of the evidence
rests on her argument that Stager should have been disbelieved
because of his personal interest in currying favor with the
Commonwealth, and that the testimony of an accomplice, alone, is
insufficient to support a conviction. However, "[i]t is
well settled in Virginia that an accused may be convicted upon
the uncorroborated testimony of an accomplice." Johnson v.
Commonwealth, 224 Va. 525, 527, 298 S.E.2d 99, 101 (1982).
Furthermore, the credibility of Stager's testimony rested
exclusively within the province of the fact finder, and we will
not substitute our judgment for the court's determination with
regard to the credibility of witnesses. Id. at 528, 298 S.E.2d
at 101; Love v. Commonwealth, 18 Va. App. 84, 89, 441 S.E.2d
709, 713 (1994).
"A principle in the second degree is a person who is
present, aiding and abetting, by helping some way in the
commission of the crime." Ramsey v. Commonwealth, 2 Va. App.
265, 269, 343 S.E.2d 465, 468 (1986); see also Rollston v.
Commonwealth, 11 Va. App. 535, 539, 399 S.E.2d 823, 825 (1991).
"It must be shown that the defendant intended [her] words,
gestures, signals or actions to in some way encourage, advise,
or urge, or in some way help the person committing the crime to
commit it." Ramsey, 2 Va. App. at 269, 343 S.E.2d at 468; see
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also Rollston, 11 Va. App. at 539, 399 S.E.2d at 825. "A
principal in the second degree is equally accountable and is
subject to the same punishment as the actual perpetrator."
Ramsey, 2 Va. App. at 269, 343 S.E.2d at 468.
The evidence in this case establishes that Dickerson was a
party to the crime. She participated in its planning by
suggesting the place to be robbed and a possible way of
accomplishing the robbery. She accompanied the principal in the
first degree to the scene and waited there for him in the
"getaway car," providing assistance, encouragement, and moral
support.
Dickerson has failed to state any further grounds to
support her claim that the evidence is insufficient to sustain
her convictions. Accordingly, we find the evidence was
sufficient to find Dickerson guilty of the two charges and,
therefore, we affirm the convictions. Buchanan v. Buchanan, 14
Va. App. 53, 56, 415 S.E.2d 237, 239 (1992) ("Statements
unsupported by argument, authority, or citations to the record
do not merit appellate consideration.").
Affirmed.
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