Gregory Wayne Toney v. Commonwealth of VA

• Court: Court of Appeals of Virginia
• Decided: April 30, 2002
• Docket: 1024012
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bray and Annunziata Argued at Richmond, Virginia

GREGORY WAYNE TONEY MEMORANDUM OPINION * BY v. Record No. 1024-01-2 JUDGE LARRY G. ELDER APRIL 30, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY Paul M. Peatross, Jr., Judge

Kelly A. Hobbs (George H. Dygert & Associates, on brief), for appellant.

Richard B. Smith, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Gregory Wayne Toney (appellant) appeals from his bench

trial convictions for grand larceny in violation of Code

§ 18.2-95 and statutory burglary in violation of Code § 18.2-91.

On appeal, he contends the evidence was insufficient to prove

more than his mere presence at the scene of the break-in. We

hold that evidence of appellant's presence at the scene, coupled

with the fact that he remained at the scene, fled with the

actual perpetrators and shared in the fruits of the crime, was

sufficient to prove his guilt of the charged offenses as a

principal in the second degree. Therefore, we affirm.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. I.

BACKGROUND

At around 2:00 a.m. on September 17, 2000, Tiffany

Moneymaker, appellant, appellant's brother William Toney

(Toney), and Alfred Greer met near Moneymaker's residence and

walked along a nature trail to the Hilltop Convenience Store and

Jim Wood's Barber Shop. Moneymaker went into the restroom, and

when she came out, the three males were standing at the

barbershop door. Toney was trying to open the door with "his

license or something."

When Toney was unsuccessful in opening the door with his

license, he "busted" the door open with a log. Moneymaker then

saw Toney and Greer enter the barbershop. Appellant was

standing next to the door at that time, but she did not see

appellant go in and did not know whether he did so. Moneymaker

was "going to leave" and began walking away. About a minute

after Toney and Greer entered the barbershop, Moneymaker saw

them exit. Greer had several pairs of clippers in his hand.

Toney, Greer and appellant then ran across the parking lot

to the fence at the edge of the woods where Moneymaker was

walking. The foursome then walked through the woods to Sachem

Village. While they were in the woods, Moneymaker heard Toney

counting six pair of clippers. He set the clippers next to a

tree.

- 2 - In a nearby parking lot, Greer kicked in the window of a

small car and took a cellular telephone while appellant and

Toney waited in the woods. Greer came back into the woods and

"was talking about going to break into something else." While

appellant and Moneymaker waited in the woods near the clippers,

Greer and Toney then broke the window of a van and took a large

saw, which Greer and Toney carried into the woods. The foursome

then left the woods, with Toney carrying the saw and Greer

carrying the clippers. Toney dropped the saw off at his

grandmother's, appellant left, and Toney, Greer and Moneymaker

went to the home of someone named Sandy. Moneymaker never saw

appellant carrying any of the stolen items. On the day after

the theft, Greer gave appellant three pairs of the stolen

clippers.

Detective Scott Kuykendall interviewed appellant. After

first denying any involvement, appellant told Kuykendall that

"Greer was trying to sell him some clippers and later gave him

[a pair], and then [appellant] later admitted that he was

present when [Greer] and [Toney] broke into Wood['s] Barber

Shop, and [Greer] took the clippers while [appellant] and

[Moneymaker] watched from the woods." Appellant said he stayed

in the woods with Moneymaker while Greer and Toney went through

the woods and he denied seeing them carrying anything.

The Commonwealth's evidence also established that, on two

occasions, appellant admitted to Jim Wood, the owner of the

- 3 - burglarized barbershop, that "he had some of the clippers and he

would give them back to Mr. Wood[]." Wood testified that he

knew appellant prior to the break-in and that sometime after the

break-in, appellant telephoned him. During that conversation,

appellant said he had some of the clippers and Greer had some of

the clippers, and appellant indicated a desire to return the

clippers to Wood.

II.

ANALYSIS

Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

granting to the evidence all reasonable inferences fairly

deducible therefrom. Martin v. Commonwealth, 4 Va. App. 438,

443, 358 S.E.2d 415, 418 (1987). The fact finder is not

required to believe all aspects of a witness' testimony; it may

accept some parts as believable and reject other parts as

implausible. Pugliese v. Commonwealth, 16 Va. App. 82, 92, 428

S.E.2d 16, 24 (1993). Further, any element of a crime may be

proved by circumstantial evidence, see, e.g., Servis v.

Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165 (1988),

provided the evidence as a whole "is sufficiently convincing to

exclude every reasonable hypothesis except that of guilt,"

Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876

(1983).

- 4 - Appellant was convicted for grand larceny and statutory

burglary. "Larceny is the wrongful taking of goods of another

without the owner's consent and with the intention to

permanently deprive the owner of possession of the goods."

Bright v. Commonwealth, 4 Va. App. 248, 251, 356 S.E.2d 443, 444

(1987). Statutory burglary requires proof of a breaking and

entering with the intent to commit larceny therein. Code

§ 18.2-91.

Here, the circumstantial and direct evidence proves

appellant was a principal in the second degree to both larceny

and breaking and entering. A principal in the second degree is

one who was present at the scene and shared the criminal intent

of the actual perpetrator or committed some act in furtherance

of the offense. Allard v. Commonwealth, 24 Va. App. 57, 62, 480

S.E.2d 139, 141 (1997). A principal in the second degree may be

"punished . . . as if a principal in the first degree." Code

§ 18.2-18.

"'Mere presence when a crime is committed is . . . not

sufficient to render one guilty as an aider or abettor.'"

Foster v. Commonwealth, 179 Va. 96, 99, 18 S.E.2d 314, 316

(1942) (quoting Brown v. Commonwealth, 130 Va. 733, 736, 107

S.E. 809, 810 (1921)). However, "'"[e]very person who is

present at the commission of a [crime], encouraging or inciting

the same by words, gestures, looks or signs, or who in any way,

or by any means, countenances or approves the same is, in law,

- 5 - assumed to be an aider and abettor . . . ."'" Id. at 99, 18

S.E.2d at 315-16 (quoting Brown, 130 Va. at 736, 107 S.E. at

810) (other citation omitted). One who is "a watcher around the

corner" is an aider and abettor. Id. at 99, 18 S.E.2d at 315.

Furthermore,

"proof that a person is present at the commission of a crime without disapproving or opposing it, is evidence from which, in connection with other circumstances, it is competent for the [fact finder] to infer that he assented thereto, lent to it his countenance and approval, and was thereby aiding and abetting the same."

Id. at 100, 18 S.E.2d at 316 (citation omitted) (emphasis

added).

We applied these principles in Pugliese, 16 Va. App. at 94,

428 S.E.2d at 25, to hold that "the facts and circumstances

leading up to and after the crimes were sufficient to prove [the

defendant's] participation" as a principal in the second degree

to the charged crimes of robbery and murder. In Pugliese, the

evidence established that the perpetrator told the defendant

prior to the crime "that he intended to 'hustle' [the victim]

out of his money" and that the defendant, instead of

discouraging the perpetrator or reporting him to the

authorities, accompanied the perpetrator to the scene. Id.

After the victim was shot, the defendant aided in removing

more than twelve hundred dollars from [the victim's] van; . . . personally drove the [victim's] van to a location where he and the others removed [the victim's] valuables,

- 6 - of which [the defendant] received a share; . . . personally helped [torch] the van[;] . . . [and] used his share of the money from the robbery/murder to purchase drugs. [The defendant] did nothing to prevent [the perpetrator] from robbing or murdering [the victim]; he did not report the robbery/murder after it occurred; and when questioned about the crimes, he falsified having any knowledge about them.

Id. Thus, we held, "the jury reasonably could have concluded

from the facts that [the defendant] knew beforehand of [the

perpetrator's] criminal intent and, because he assisted in

disposing of the van and received part of the proceeds of the

robbery/murder, that he shared [the perpetrator's] criminal

intention." Id. at 94-95, 428 S.E.2d at 25.

In appellant's case, no evidence established that Toney or

Greer formed the intent to commit a breaking and entering or

larceny before they arrived at Jim Wood's Barber Shop. However,

once the group arrived there, Toney's actions made clear his

intent, and appellant made no attempt to distance himself from

Toney's illegal acts. Toney tried to open the barbershop door

with "his license or something" and, when he was unsuccessful,

he "busted" the door open with a log. Appellant was present

while these unlawful acts occurred, he did not attempt to

dissuade Toney from breaking the law, and he made no effort to

leave the scene. The evidence also supported the inference that

appellant remained "next to the door" for at least a minute

while Toney and Greer went inside the barbershop, despite the

- 7 - fact that Moneymaker began to leave the scene. When Toney and

Greer exited the barbershop with several pairs of clippers and

ran across the parking lot to the woods, appellant ran with them

rather than away from them. While Toney and Greer stole

additional items out of a car and a van in a nearby parking lot,

appellant waited in the woods near where the stolen clippers lay

on the ground. Appellant then left the woods with Toney and

Greer and received three pair of the stolen clippers on the day

following the break-in and theft. Finally, when questioned by

police about the crimes, appellant at first denied any

involvement.

Thus, in appellant's case, as in Pugliese, the

circumstances surrounding the crimes, both before they began and

after they were completed, were sufficient to support a finding

that appellant shared the criminal intent of the actual

perpetrators, Toney and Greer. Although no evidence established

that appellant was aware of any intent Toney and Greer may have

had to commit the breaking and entering and larceny before the

group arrived at the barbershop that night, appellant had ample

time to distance himself from the offenses once the break-in

attempt began. Instead of doing so, however, he remained

directly "next to the door" as Toney and Greer entered and

remained with them as they committed several additional

offenses. Thus, as in Pugliese, the evidence was sufficient to

support appellant's conviction as a principal in the second

- 8 - degree for the breaking and entering and larceny offenses

committed by Toney and Greer. See also Whitbeck v.

Commonwealth, 210 Va. 324, 170 S.E.2d 776 (1969) (rejecting

defendant's claim that he was merely present in back seat of

get-away car while his two companions engaged in "a planned

crime swing through Virginia, burglarizing places of business as

they went").

For these reasons, we hold the evidence was sufficient to

support appellant's statutory burglary and grand larceny

convictions, and we affirm.

Affirmed.

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