Henderson v. Commonwealth

438 S.E.2d 292, 17 Va. App. 444, 10 Va. Law Rep. 640, 1993 Va. App. LEXIS 620
CourtCourt of Appeals of Virginia
DecidedDecember 7, 1993
DocketNo. 1050-92-4
StatusPublished
Cited by2 cases

This text of 438 S.E.2d 292 (Henderson v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Henderson v. Commonwealth, 438 S.E.2d 292, 17 Va. App. 444, 10 Va. Law Rep. 640, 1993 Va. App. LEXIS 620 (Va. Ct. App. 1993).

Opinion

[445]*445Opinion

FITZPATRICK, J.

Otis Troy Henderson (appellant) appeals from his conviction of use of a sawed-off shotgun in the attempted perpetration of murder in violation of Code § 18.2-300. On appeal, he argues that the trial court erred in failing to set aside the jury’s verdict as contrary to the law and the evidence. We disagree and affirm the conviction.

Appellant was convicted in a jury trial of attempted murder, possession or use of a sawed-off shotgun in the commission of a violent crime, and conspiracy to commit murder. Appellant appeals only his conviction for possession or use of a sawed-off shotgun.

BACKGROUND

On July 31, 1991, appellant instigated an altercation with Darnell Chapman (Darnell) in retaliation for Darnell’s striking Andrea Tipton (Andrea) during a domestic quarrel the preceding day. During the altercation, appellant was joined by Mark Addison (Addison), who held Darnell while appellant continued to strike him. As Darnell broke away from appellant and Addison, he heard Addison say, “Mike, tell Darnell I’m coming back to get him.” On the way back to his residence, Darnell approached Officer Mackey of the Dumfries Police Department and reported the incident.

After the altercation, appellant and Addison returned to appellant’s Nissan Maxima and, in the company of Andrea, Rochelle Davis, Rhonda Lopez and Brian Brown (Brown), they went to Potomac Mills Mall. At the mall, appellant and Addison went inside while the others waited in the parking lot. When they returned to the -vehicle a short time later, Addison was carrying a small bag containing shotgun shells. Thereafter, the group went to appellant’s home.

At appellant’s home, the group discussed returning to Williamstown, the area where the fight with Darnell occurred. Appellant, his brother (Lance Henderson), Addison and Brown began talking about shooting Darnell. One of the men suggested that Brown shoot Darnell because Brown did not have any prior convictions. Brown replied: “Yes, I’ll do it.” During this conversation, a sawed-off shotgun that appellant kept at his home was passed among the men.

Sometime after midnight and shortly after the discussion, the group left appellant’s home in two vehicles, appellant’s Nissan Maxima and [446]*446a Chevrolet Z24, for Williamstown. Before leaving, Addison placed the sawed-off shotgun under the hood of the Chevrolet. Appellant admitted at trial that he knew that the weapon was in the Chevrolet, that it was in fact a sawed-off shotgun and that possession of the weapon was illegal. Appellant, Addison, Rhonda Lopez and Rochelle Davis were in the Maxima. Lance Henderson, Andrea and Brown were in the Chevrolet. At trial, Andrea, a witness for the Commonwealth, testified that the purpose of the trip was to carry out the plan to shoot Darnell and that Brown was the intended trigger-man. Both vehicles were in tandem as the group travelled to Williamstown to locate Darnell. At some point when the vehicles reached the Williamstown area, the Chevrolet stopped, and the driver, Lance Henderson, “walked over to the front of the car, and lifted the hood, and then he got back in the car.”

The Maxima turned onto the street where Darnell lived and was immediately pulled over by the police. Officer Mackey, aware of the earlier threat made to Darnell, searched appellant, Addison and the inside of the Maxima for weapons. Finding no weapons, the officers released appellant and his companions, telling them to leave the area. The Chevrolet parked a few blocks away and was not searched.

Addison then drove the Maxima around the corner from Darnell’s house and parked. Appellant got out of the car, and “appeared to be cocking something.” Addison then got out of the car and the two men started running back towards Darnell’s house. As they approached Darnell’s street, appellant mistakenly yelled “Darnell” to Roland Chapman (Chapman), Darnell’s father. Chapman replied: “What?”1 Appellant and Addison then began to chase Chapman through a parking lot and field. While Chapman was being chased by the two men, he heard two gunshots fired at him. Chapman ran until he came upon Officer Mackey, who was sitting in his police cruiser. Chapman jumped into the police car, ducked down towards the floor boards and told Officer Mackey that “people were shooting at [him].”

Officer Mackey returned with Chapman to the road adjacent to the Chapman house, where he found appellant walking down one side of the road directly across from Brian Brown, who was walking down the other side. They were heading in the direction of the Chapman house. Both men were arrested. Addison was nowhere to be found.

[447]*447At the time of his arrest, Brown was wearing a trench coat, the pocket of which contained two shotgun shells. Appellant and Brown were transported from the scene at approximately 3:15 a.m. At 6:30 a.m., as the sun began to rise, the police recovered the loaded, doublebarrelled, sawed-off shotgun in some tall grass at the spot where Brown had been walking when he was stopped by Officer Mackey. Appellant admitted that he knew Brown had the shotgun and that he asked Brown to walk with him down the street.

SUFFICIENCY OF THE EVIDENCE

Appellant argues “that he neither possessed or used a sawed-off shotgun in the perpetration of the crime of attempted murder or any other crime of violence.” We must decide whether the evidence was sufficient for the jury to have found that a sawed-off shotgun was used in the attempted murder of Chapman, and whether the Commonwealth was required to prove actual or constructive possession of the sawed-off shotgun by appellant to support a conviction under Code § 18.2-300.

When considering the sufficiency of the evidence on appeal of a criminal conviction, we must view all the evidence in the light most favorable to the Commonwealth and accord to the evidence all reasonable inferences fairly deducible therefrom. The jury’s verdict will not be disturbed on appeal unless it is plainly wrong or without evidence to support it.

Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988) (citations omitted). “The jury was entitled to consider all the evidence in determining whether the Commonwealth had proved all the elements for each [offense] charge[d].” Carter v. Commonwealth, 16 Va. App. 118, 129, 428 S.E.2d 34, 43 (1993). Accordingly, the jury could properly consider the evidence of conspiracy to commit murder in determining whether a sawed-off shotgun was in fact used in the commission of the attempted murder of Chapman.

The evidence shows that appellant and others conspired to kill Darnell. Brown was chosen to shoot Darnell with the sawed-off shotgun because he was the only male present that “had no charges.” Appellant and his companions discussed all of the plans for the killing in appellant’s home. The sawed-off shotgun that was to be used to shoot Darnell was obtained from a room in appellant’s home and was taken to Williamstown. There is no evidence that any other weapon was discussed, available or used in the subsequent attempted murder [448]*448of Chapman.

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665 S.E.2d 254 (Court of Appeals of Virginia, 2008)
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Cite This Page — Counsel Stack

Bluebook (online)
438 S.E.2d 292, 17 Va. App. 444, 10 Va. Law Rep. 640, 1993 Va. App. LEXIS 620, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henderson-v-commonwealth-vactapp-1993.