Charles Lee Dunn v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: April 1, 1997
• Docket: 1231962
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Elder and Fitzpatrick Argued at Richmond, Virginia

CHARLES LEE DUNN MEMORANDUM OPINION * BY v. Record No. 1231-96-2 JUDGE JOHANNA L. FITZPATRICK APRIL 1, 1997 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY John F. Daffron, Jr., Judge (Carl C. Muzi, on brief), for appellant. Appellant submitting on brief.

Steven A. Witmer, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Charles Lee Dunn (appellant) was convicted in a bench trial

of being an accessory after the fact to two counts of grand

larceny. The sole issue raised on appeal is whether the evidence

was sufficient to convict. Finding no error, we affirm.

The evidence at trial established that on two separate

occasions, September 4, 1995 and September 7, 1995, appellant was

a passenger in a car when two grand larcenies occurred.

Appellant contends that he did not know that the others planned

to break into cars, and did not participate in the thefts of

stereo equipment and CDs. He admitted that, after the first

theft on September 4th, he voluntarily went with the others when

they sold the equipment and he received a small piece of crack

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. cocaine from the proceeds. Regarding the September 7, 1995

offense, appellant testified that he took no active part in the

theft and was taken home immediately thereafter.

The Commonwealth's evidence included testimony from the

investigating officer, Detective Ramsey, that appellant told him

that he knew the purpose of going to the location of the first

offense was "[t]o take equipment belonging to Mr. Roberts. It

was known there was equipment in his car." As to the September

7, 1995 offense, Ramsey testified that appellant stated as

follows: [T]he three of them went to a location near Mr. Jackson's house. Mr. Dunn waited in the car, and Mr. Walker and Mr. Kraegers approached Mr. Jackson's vehicle. They entered the vehicle through an unlocked door and took stereo equipment from the vehicle, brought it back to the car. [Appellant] states that they put the speaker box in the trunk, put the amp and a CD player in the car, and he says, I think they got some CD's. That equipment was also taken to the city and traded for crack cocaine which they all used, and that property has not been recovered.

Ramsey stated that appellant admitted to participating and taking

the property to the city in exchange for crack cocaine.

"On appeal, we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom." Martin v. Commonwealth,

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). "'[T]he finding

of the judge, upon the credibility of the witnesses and the

weight to be given their evidence, stands on the same footing as

2 the verdict of a jury, and unless that finding is plainly wrong,

or without evidence to support it, it cannot be disturbed.'"

Speight v. Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98

(1987) (quoting Lane v. Lane, 184 Va. 603, 611, 35 S.E.2d 744,

752 (1945)).

In order to convict as an accessory after the fact, the

felony must be completed, appellant must know that the felon is

guilty and he must receive, relieve, comfort, or assist him. Manley v. Commonwealth, 222 Va. 642, 644-45, 283 S.E.2d 207, 208

(1981). Mere presence and consent will not suffice to make one

an accomplice. It must be shown that the alleged accomplice

intended to encourage or help the person committing the crime to

commit it. Pugliese v. Commonwealth, 16 Va. App. 82, 93, 428

S.E.2d 16, 24-25 (1993). Whether a person aids or abets another

in the commission of a crime is a question which may be

determined by circumstantial as well as direct evidence.

Harrison v. Commonwealth, 210 Va. 168, 171-72, 169 S.E.2d 461,

464 (1969).

While appellant contends that the evidence failed to

establish that he did anything other than ride in a car with

friends, the trial court was not required to accept his

explanation. Appellant admitted to Ramsey that he knew that the

others intended to steal on both occasions; he smoked crack

cocaine purchased with the money received from disposing of the

goods; and he went out with the codefendants three days after the

3 first larceny occurred. See Foster v. Commonwealth, 179 Va. 96,

100, 18 S.E.2d 314, 316 (1942) (presence during the commission of

a crime in connection with other circumstances showing an intent

to aid and abet supports a determination that criminal intent

existed). Under the facts of this case, the Commonwealth's

evidence was sufficient to prove beyond a reasonable doubt that

appellant was an accessory after the fact to the two grand

larcenies. For the foregoing reasons, we affirm the convictions.

Affirmed.