Greeley Milburn Ball, Jr. v. CW

• Court: Court of Appeals of Virginia
• Decided: January 27, 1998
• Docket: 1538963
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Elder and Senior Judge Cole Argued by teleconference

GREELEY MILBURN BALL, JR. MEMORANDUM OPINION * BY v. Record No. 1538-96-3 JUDGE SAM W. COLEMAN III JANUARY 27, 1998 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF WASHINGTON COUNTY Charles H. Smith, Jr., Judge Peter Curcio (Bressler, Curcio & Stout, on brief), for appellant.

Ruth Ann Morken, Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.

Greeley Milburn Ball, Jr. was convicted by a jury of

robbery, conspiracy to commit robbery, and use of a firearm in

the commission of robbery. On appeal, he contends that: (1) the

evidence was insufficient to support the convictions, and (2) the

trial court erred by imposing a sentence that was grossly

disproportionate to that of a codefendant. We hold that the

evidence was sufficient to convict appellant of the offenses and

that Rule 5A:12 bars our consideration of appellant's

disproportionate sentencing claim. Accordingly, we affirm the

convictions.

I. SUFFICIENCY OF THE EVIDENCE When the sufficiency of the evidence is challenged on

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. appeal, we view the evidence "in the light most favorable to the

Commonwealth and give it all reasonable inferences fairly

deducible therefrom." Higginbotham v. Commonwealth, 216 Va. 349,

352, 218 S.E.2d 534, 537 (1975). The jury's verdict will not be

disturbed unless it is "plainly wrong or without evidence to

support it." Beavers v. Commonwealth, 245 Va. 268, 282, 427

S.E.2d 411, 421 (1993).

Viewed accordingly, the evidence is sufficient to prove

beyond a reasonable doubt that appellant conspired with Joseph

Hobbs to commit robbery, that he aided and abetted Hobbs in the

robbery, and that, by acting in concert with Hobbs, he is guilty

of using a firearm in committing robbery. The evidence proved

that appellant rapidly drove Joseph Hobbs in Hobbs' station wagon

across the parking lot of the B & W Tobacco Store. Rather than

parking in one of B & W's designated parking places in front of

the store, appellant parked behind the store out of open view.

Hobbs exited the car, went in the B & W store and robbed the

store clerk at gunpoint while appellant remained in the car. When Hobbs returned, appellant sped out of the parking lot

and drove with Hobbs to the home of Hobbs' daughter, Marlena.

Marlena testified that she observed appellant and Hobbs divide a

large pile of money while listening to a police scanner after

they came to her home. Hobbs left Marlena's house for about

twenty minutes during which time appellant made no attempt to

leave or place a phone call. Marlena then drove appellant and

- 2 - Hobbs to appellant's trailer. During the drive, appellant told

Hobbs to ride in the back seat because reports on the police

scanner stated that some witnesses had identified Hobbs but had

not seen appellant. Appellant also discussed how he and Hobbs

could alter their appearance in order to avoid detection.

Several weeks after the robbery, appellant surrendered to

Washington County Police Investigator Bobby Arnold. In a written

statement to Investigator Arnold, appellant admitted that he

drove Hobbs to and from the tobacco store. He claimed, however,

that he was unaware that Hobbs intended to rob the clerk at the

store. He said that Hobbs coerced him at gunpoint into assisting

with the robbery. He further stated that he was forced to

accompany Hobbs to South Carolina where he was able to escape

several days later.

A. Robbery

The evidence is sufficient to sustain appellant's conviction

for robbery 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). A principal in the second degree "may be indicted, tried

and convicted, and punished in all respects as if a principal in

the first degree." Code § 18.2-18. "In order for a person to be

- 3 - 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)).

The evidence proves that appellant drove Hobbs' car and

parked it behind the B & W Tobacco Store where the car and its

occupants would be obscured from public view. As soon as Hobbs

returned to the car, the appellant sped away. The manner in

which appellant drove the car and where he parked it warrant the

inference that he was aware of Hobbs' intention to rob the clerk

at the store and that he did so to facilitate an escape after the

robbery. After the robbery, Hobbs and appellant divided the stolen

money. Appellant discussed how they could disguise themselves to

avoid detection. Furthermore, they fled to South Carolina.

Although appellant claims that Hobbs forced him to participate

against his will and forced him to flee to South Carolina, the

jury could disregard this claim, particularly in view of the fact

that appellant made no attempt to escape or to call the police

when Hobbs had left him alone at Marlena's house.

On these facts, the jury could have reasonably concluded

that appellant drove the getaway car and thereby acted as a

principal in the second degree to assist Hobbs in the robbery.

- 4 - The jury was free to disbelieve any or all of appellant's

statement to Investigator Arnold, including the claim that he was

unaware that Hobbs intended to rob the store clerk and that Hobbs

coerced him into assisting with the robbery. See Pugilese v.

Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24 (1993)

("[T]he fact finder is not required to believe all aspects of a

defendant's statement or testimony; the . . . jury may reject

that which it finds implausible, but accept other parts which it

finds to be believable."). Thus, the evidence is sufficient to

sustain appellant's conviction for robbery. B. Conspiracy to Commit Robbery

"Conspiracy is defined as 'an agreement between two or more

persons by some concerted action to commit an offense.'" Feigley

v. Commonwealth, 16 Va. App. 717, 722, 432 S.E.2d 520, 524 (1993)

(quoting Wright v. Commonwealth, 224 Va. 502, 505, 297 S.E.2d

711, 713 (1992)). Proof of the existence of an agreement is an

essential element to establish the crime of conspiracy. See Fortune v. Commonwealth, 12 Va. App. 643, 647, 406 S.E.2d 47, 48

(1991); see also Zuniga v. Commonwealth, 7 Va. App. 523, 527, 375

S.E.2d 381, 384 (1988) ("In order to establish the existence of a

conspiracy, as opposed to mere aiding and abetting, the

Commonwealth must prove the additional element of preconcert and

connivance not necessarily inherent in the mere joint activity

common to aiding and abetting.") (citation omitted). Thus, the

Commonwealth must prove beyond a reasonable doubt that an

- 5 - agreement to rob existed. See Floyd v. Commonwealth, 219 Va.

575, 580, 249 S.E.2d 171, 174 (1978). However, proof of an

explicit agreement is not required, and the Commonwealth may, and

frequently must, rely on circumstantial evidence to establish the

conspiracy. See Stevens v. Commonwealth, 14 Va. App. 238, 241,

415 S.E.2d 881, 883 (1992).

Viewing the evidence in the light most favorable to the

Commonwealth, the facts prove that appellant and Hobbs

participated in a planned and calculated series of acts in which

appellant delivered Hobbs to the scene of the crime, facilitated

an expedient "getaway" after Hobbs committed the robbery, and

devised a plan for them to flee Virginia without detection.

Appellant's coordinated participation supports the finding that

he and Hobbs were working in concert pursuant to an earlier plan

or agreement to rob the store. The fact that they divided the

proceeds from the robbery further suggests that they agreed to

rob the store and to share the proceeds. From these facts, the

jury could have reasonably concluded that appellant and Hobbs

conspired to rob the store, share the proceeds, and flee the

jurisdiction. Thus, the evidence is sufficient to support the

conviction for conspiracy to commit robbery. C. Use of a Firearm in the Commission of Robbery

The evidence is sufficient to sustain appellant's conviction

for use of a firearm in the commission of robbery as a principal

in the second degree. Code § 18.2-53.1 makes it unlawful for any

- 6 - person to use a firearm in the commission of a robbery. Under

the principle of vicarious responsibility, one who did not

actually possess a firearm during the commission of a robbery may

nonetheless be convicted under the statute as a principal in the

second degree where he acted in concert with and shared the

common purpose of an armed codefendant. See Carter v.

Commonwealth, 232 Va. 122, 125-26, 348 S.E.2d 265, 267 (1986)

(upholding conviction for use of firearm during robbery as

principal in second degree where unarmed defendant accompanied by

armed codefendant entered and robbed pharmacy); Cortner v. Commonwealth, 222 Va. 557, 563, 281 S.E.2d 908, 911-12 (1981)

(unarmed defendant and three others robbed victim after armed

codefendant shot victim; Court held defendant vicariously

responsible as principal in second degree because defendant

shared common purpose of armed assailant to rob victim); Blake v.

Commonwealth, 15 Va. App. 706, 709, 427 S.E.2d 219, 221 (1993)

(upholding conviction of unarmed defendant where codefendant

jammed a gun in victim's ribs during robbery; Court held

defendant vicariously responsible for use of firearm during

robbery because codefendant "possessed and used the gun in

furtherance of their joint resolve to commit robbery").

Appellant attempts to distinguish his case from Carter and

Cortner. He argues that he may not be held vicariously

responsible for using the firearm when he was not physically

present when the clerk was robbed. We find his argument

- 7 - unpersuasive. As noted, the evidence sufficiently proved that

appellant conspired with Hobbs to rob the tobacco store and aided

and abetted in committing the robbery. By aiding and abetting in

the commission of a crime, a principal in the second degree is

equally accountable for the acts of his confederate. Thus, the

evidence proves that Hobbs possessed and used a firearm in

furtherance of appellant's and Hobbs' common purpose to rob the

tobacco store. Because appellant and Hobbs shared the common

intent to rob the store, they shared the common intent to commit all of the elements of robbery, including the use of such force as would be expedient for the accomplishment of their purpose. An incidental probable consequence of such a shared intent was the use of a weapon, including a firearm if one should be at hand. In such circumstances, the law is well settled in Virginia that each co-actor is responsible for the acts of the others, and may not interpose his personal lack of intent as a defense.

Carter, 232 Va. at 126, 348 S.E.2d at 267-68. Thus, the evidence

is sufficient to support appellant's conviction for use of a

firearm in the commission of robbery. II. DISPROPORTIONATE SENTENCES - RULE 5A:12(c)

Appellant next contends that the trial court erred by

imposing the jury's sentence which is grossly disproportionate to

the sentence that Hobbs received as the principal in a separate

trial for the same offenses. Appellant asks us to vacate or

reduce his sentences. Appellant concedes that he did not raise

this sentencing issue before the trial court or in his petition

- 8 - for appeal. He argues that Rule 5A:18 controls and he requests

that we address the disparity in sentencing under the "ends of

justice" exception to Rule 5A:18.

Appellant's contention is without merit. Although Rule

5A:12(c) does state that "[t]he provisions of Rule 5A:18 shall

apply to limit those questions which [this Court] will rule upon

on appeal," it also states that "[o]nly questions presented in

the petition for appeal will be noticed by the Court of Appeals."

Rule 5A:12(c) (emphasis added). Rule 5A:12(c) does not contain

an ends of justice exception. Accordingly, we may not consider

appellant's disproportionate sentencing claim because it was not

raised in the petition for appeal and was not a question for

which we granted review. See Cruz v. Commonwealth, 12 Va. App.

664, 664 n.1, 406 S.E.2d 406, 407 n.1 (1991).

For the foregoing reasons, we affirm the convictions.

Affirmed.

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