COURT OF APPEALS OF VIRGINIA
Present: Judges Russell, Chafin and Senior Judge Clements Argued at Richmond, Virginia UNPUBLISHED
DUSTIN SCOTT JONES MEMORANDUM OPINION* BY v. Record No. 1764-16-2 JUDGE JEAN HARRISON CLEMENTS OCTOBER 2, 2018 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG Dennis M. Martin, Sr., Judge
Aaron M. Vandenbrook, Assistant Public Defender I (Shaun R. Huband, Deputy Public Defender, on brief), for appellant.
Craig W. Stallard, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Appellant was convicted in a bench trial of conspiracy to commit robbery, attempted
robbery, and use of a firearm in the commission of attempted robbery. He argues on appeal that
the evidence did not prove attempted robbery because the evidence did not establish that he
performed an overt act in furtherance of the intended robbery. He also contends that the
evidence is insufficient to sustain his conviction for use of a firearm. We agree, and reverse and
dismiss both convictions.1
BACKGROUND
At about 5:45 a.m. on October 6, 2015, Petersburg Police Officers Binford and Seabridge
saw a white Mercedes drive into the parking lot of a housing complex that they were observing.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Although appellant included the circuit court case number for his conspiracy conviction in his notice of appeal, he has not in fact contested that conviction. They were in an unmarked pickup truck, but wearing full uniform. A man exited the car and
walked across the street. Two other men, who were later identified as appellant and Phillip
Boyce, got out of the car a few minutes later and “adjust[ed]” their clothing for four or five
minutes before starting to cross the street in the same direction that the first man had gone. The
officers followed the men to an alley between two residences. They saw appellant and Boyce at
the corner behind one of the houses, but not near the door. When the men saw the officers, they
started to walk down the alley toward the street. The officers exited their truck and announced
their presence. Boyce stopped walking, but appellant fled. Seabridge saw appellant run in and
out of a fenced parking lot before returning to the Mercedes and driving away.
Another officer apprehended appellant a short time later. Seabridge then searched the
Mercedes, recovering a ski mask. He located another ski mask in a street that appellant had
travelled before he was stopped. Several hours later, in response to a telephone call, Seabridge
searched the fenced-in area where he had seen appellant running and found a sawed-off shotgun
under a bush inside the gate.
After he was arrested, appellant gave Detective Ewers conflicting statements about the
incident, but eventually admitted that he and Boyce were there to “make sure Trip didn’t get
hurt.” According to appellant, Trip had intended to rob a known drug dealer, A.S. No evidence
was presented at trial regarding where A.S. lived.
The trial court determined that appellant’s statement to the police that he accompanied
Trip to protect him during the planned robbery made appellant “part of the robbery.” The court
said that if appellant had said nothing, the evidence would be insufficient to convict him.
ANALYSIS
When reviewing a challenge to the sufficiency of the evidence, this Court considers the
evidence in the light most favorable to the Commonwealth, the prevailing party below, and
-2- reverses the judgment of the trial court only when its decision is plainly wrong or without
evidence to support it. See Farhoumand v. Commonwealth, 288 Va. 338, 351, 764 S.E.2d 95,
102 (2014).
An attempted crime “is composed of two elements, the intent to commit the crime and the
doing of some direct act toward its consummation, but falling short of the accomplishment of the
ultimate design.” Rogers v. Commonwealth, 55 Va. App. 20, 24-25, 683 S.E.2d 311, 312-13
(2009) (quoting Johnson v. Commonwealth, 209 Va. 291, 293, 163 S.E.2d 570, 573 (1968)).
Here, because appellant has not challenged the sufficiency of the evidence to prove intent to
commit robbery, we are concerned only with whether the evidence proved an overt or direct act.
If the intent to commit a crime is clearly established, “slight acts done in furtherance of this
design will constitute an attempt.” Tharrington v. Commonwealth, 2 Va. App. 491, 494, 346
S.E.2d 337, 339 (1986) (quoting State v. Bell, 316 S.E.2d 611, 616 (N.C. 1984)). Whether
conduct is an overt act is determined by the specific facts of each case. See Jay v.
Commonwealth, 275 Va. 510, 525, 659 S.E.2d 311, 320 (2008). The act must be more than
mere preparation, but it need not be the last act necessary to accomplish the crime. See id. at
526, 659 S.E.2d at 320. However, the act must be a “step in a direct movement towards the
commission of the offence after the preparations are made.” Rogers, 55 Va. App. at 25, 683
S.E.2d at 314 (quoting Hicks v. Commonwealth, 86 Va. 223, 227, 9 S.E. 1024, 1025 (1889)).
We agree with appellant that his case is controlled by Hopson v. Commonwealth, 15
Va. App. 749, 427 S.E.2d 221 (1993), and Jordan v. Commonwealth, 15 Va. App. 759, 427
S.E.2d 231 (1993). Those cases involved co-defendants whose convictions for attempted
robbery were reversed on appeal. The two men were observed outside a store “behaving
suspiciously.” Hopson, 15 Va. App. at 752, 427 S.E.2d at 223. Hopson was seen wearing a
mask at one point, and Jordan had a gun in his pocket and had surveyed the store. Id. But they
-3- did not attempt to enter the store, and they made no “move toward realizing the ultimate purpose
of robbery.” Id. We held that the evidence was “consistent only with scouting the store,” but did
not demonstrate an overt act to support attempted robbery. Id.
Similarly, here, the evidence did not prove that appellant had begun the actual robbery or
that its execution was otherwise imminent. The evidence established that Officers Binford and
Seabridge saw a man get out of a car that had been driven into a parking lot and then walk across
the street. A few minutes later, they saw appellant and Boyce get out of the car, adjust their
clothing and put on hooded sweatshirts, and then walk down an alley between two buildings in
the same direction as the first man had gone. However, there was no evidence presented that the
planned robbery was imminent or that the intended victim lived in the area of the alley, or was
expected to be there at that time. Thus, the evidence showed only some possible preparation for
the intended crime, rather than any overt act. “The [attempted] crime must be ‘in such progress
that it will be consummated unless interrupted by circumstances independent of the will of the
attempter, and the act must not be equivocal in nature.’” Bloom v. Commonwealth, 34 Va. App.
364, 371, 542 S.E.2d 18, 21 (quoting Lewis v. Commonwealth, 15 Va. App. 337, 340, 423
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COURT OF APPEALS OF VIRGINIA
Present: Judges Russell, Chafin and Senior Judge Clements Argued at Richmond, Virginia UNPUBLISHED
DUSTIN SCOTT JONES MEMORANDUM OPINION* BY v. Record No. 1764-16-2 JUDGE JEAN HARRISON CLEMENTS OCTOBER 2, 2018 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG Dennis M. Martin, Sr., Judge
Aaron M. Vandenbrook, Assistant Public Defender I (Shaun R. Huband, Deputy Public Defender, on brief), for appellant.
Craig W. Stallard, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Appellant was convicted in a bench trial of conspiracy to commit robbery, attempted
robbery, and use of a firearm in the commission of attempted robbery. He argues on appeal that
the evidence did not prove attempted robbery because the evidence did not establish that he
performed an overt act in furtherance of the intended robbery. He also contends that the
evidence is insufficient to sustain his conviction for use of a firearm. We agree, and reverse and
dismiss both convictions.1
BACKGROUND
At about 5:45 a.m. on October 6, 2015, Petersburg Police Officers Binford and Seabridge
saw a white Mercedes drive into the parking lot of a housing complex that they were observing.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Although appellant included the circuit court case number for his conspiracy conviction in his notice of appeal, he has not in fact contested that conviction. They were in an unmarked pickup truck, but wearing full uniform. A man exited the car and
walked across the street. Two other men, who were later identified as appellant and Phillip
Boyce, got out of the car a few minutes later and “adjust[ed]” their clothing for four or five
minutes before starting to cross the street in the same direction that the first man had gone. The
officers followed the men to an alley between two residences. They saw appellant and Boyce at
the corner behind one of the houses, but not near the door. When the men saw the officers, they
started to walk down the alley toward the street. The officers exited their truck and announced
their presence. Boyce stopped walking, but appellant fled. Seabridge saw appellant run in and
out of a fenced parking lot before returning to the Mercedes and driving away.
Another officer apprehended appellant a short time later. Seabridge then searched the
Mercedes, recovering a ski mask. He located another ski mask in a street that appellant had
travelled before he was stopped. Several hours later, in response to a telephone call, Seabridge
searched the fenced-in area where he had seen appellant running and found a sawed-off shotgun
under a bush inside the gate.
After he was arrested, appellant gave Detective Ewers conflicting statements about the
incident, but eventually admitted that he and Boyce were there to “make sure Trip didn’t get
hurt.” According to appellant, Trip had intended to rob a known drug dealer, A.S. No evidence
was presented at trial regarding where A.S. lived.
The trial court determined that appellant’s statement to the police that he accompanied
Trip to protect him during the planned robbery made appellant “part of the robbery.” The court
said that if appellant had said nothing, the evidence would be insufficient to convict him.
ANALYSIS
When reviewing a challenge to the sufficiency of the evidence, this Court considers the
evidence in the light most favorable to the Commonwealth, the prevailing party below, and
-2- reverses the judgment of the trial court only when its decision is plainly wrong or without
evidence to support it. See Farhoumand v. Commonwealth, 288 Va. 338, 351, 764 S.E.2d 95,
102 (2014).
An attempted crime “is composed of two elements, the intent to commit the crime and the
doing of some direct act toward its consummation, but falling short of the accomplishment of the
ultimate design.” Rogers v. Commonwealth, 55 Va. App. 20, 24-25, 683 S.E.2d 311, 312-13
(2009) (quoting Johnson v. Commonwealth, 209 Va. 291, 293, 163 S.E.2d 570, 573 (1968)).
Here, because appellant has not challenged the sufficiency of the evidence to prove intent to
commit robbery, we are concerned only with whether the evidence proved an overt or direct act.
If the intent to commit a crime is clearly established, “slight acts done in furtherance of this
design will constitute an attempt.” Tharrington v. Commonwealth, 2 Va. App. 491, 494, 346
S.E.2d 337, 339 (1986) (quoting State v. Bell, 316 S.E.2d 611, 616 (N.C. 1984)). Whether
conduct is an overt act is determined by the specific facts of each case. See Jay v.
Commonwealth, 275 Va. 510, 525, 659 S.E.2d 311, 320 (2008). The act must be more than
mere preparation, but it need not be the last act necessary to accomplish the crime. See id. at
526, 659 S.E.2d at 320. However, the act must be a “step in a direct movement towards the
commission of the offence after the preparations are made.” Rogers, 55 Va. App. at 25, 683
S.E.2d at 314 (quoting Hicks v. Commonwealth, 86 Va. 223, 227, 9 S.E. 1024, 1025 (1889)).
We agree with appellant that his case is controlled by Hopson v. Commonwealth, 15
Va. App. 749, 427 S.E.2d 221 (1993), and Jordan v. Commonwealth, 15 Va. App. 759, 427
S.E.2d 231 (1993). Those cases involved co-defendants whose convictions for attempted
robbery were reversed on appeal. The two men were observed outside a store “behaving
suspiciously.” Hopson, 15 Va. App. at 752, 427 S.E.2d at 223. Hopson was seen wearing a
mask at one point, and Jordan had a gun in his pocket and had surveyed the store. Id. But they
-3- did not attempt to enter the store, and they made no “move toward realizing the ultimate purpose
of robbery.” Id. We held that the evidence was “consistent only with scouting the store,” but did
not demonstrate an overt act to support attempted robbery. Id.
Similarly, here, the evidence did not prove that appellant had begun the actual robbery or
that its execution was otherwise imminent. The evidence established that Officers Binford and
Seabridge saw a man get out of a car that had been driven into a parking lot and then walk across
the street. A few minutes later, they saw appellant and Boyce get out of the car, adjust their
clothing and put on hooded sweatshirts, and then walk down an alley between two buildings in
the same direction as the first man had gone. However, there was no evidence presented that the
planned robbery was imminent or that the intended victim lived in the area of the alley, or was
expected to be there at that time. Thus, the evidence showed only some possible preparation for
the intended crime, rather than any overt act. “The [attempted] crime must be ‘in such progress
that it will be consummated unless interrupted by circumstances independent of the will of the
attempter, and the act must not be equivocal in nature.’” Bloom v. Commonwealth, 34 Va. App.
364, 371, 542 S.E.2d 18, 21 (quoting Lewis v. Commonwealth, 15 Va. App. 337, 340, 423
S.E.2d 371, 373 (1992)), aff’d, 262 Va. 814, 554 S.E.2d 84 (2001).
The Commonwealth’s reliance on Rogers is misplaced because the facts in the case are
distinguishable from appellant’s case. In Rogers, the victim saw appellant and another man
standing outside his apartment building. A short time later, the victim’s doorbell rang, and when
he looked out the peephole in the front door, he saw appellant and the other man. The appellant
put a black bandana over his face. The victim told his wife to call the police. Looking out the
peephole again, the victim saw a third man who appeared to have a gun, and appellant had a
baseball bat in his hands. The men continued to ring the doorbell, but the victim did not open the
door. The three men fled in a car as the police arrived. This Court held that the evidence was
-4- sufficient to convict appellant of attempted robbery because the completion of the crime was
foiled by the appearance of the police. See 55 Va. App. at 29, 683 S.E.2d at 316.
In appellant’s case, the police intervened before the intended robbery occurred, but
evidence that appellant performed a direct act was lacking. As in Hopson and Jordan, the
evidence here did not establish the requisite overt act to prove attempted robbery.
Because we find the evidence insufficient to sustain appellant’s conviction for attempted
robbery, we also must find that the related conviction for use of a firearm fails. “Under the plain
language of Code § 18.2-53.1, there can be no conviction for use or attempted use of a firearm
when there has been no commission of one of the predicate offenses enumerated in the statute.”
Jay, 275 Va. at 527, 659 S.E.2d at 321. See Hopson, 15 Va. App. at 752-53, 427 S.E.2d at 223
(holding that defendant’s conviction for use of a firearm in the commission of attempted robbery
could not stand because it was “contingent upon proof of the underlying felony,” and such proof
was lacking).
For these reasons, we reverse and dismiss appellant’s convictions for attempted robbery
and use of a firearm in the commission of attempted robbery.
Reversed and dismissed.
-5-