COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Malveaux and Senior Judge Frank UNPUBLISHED
Argued at Newport News, Virginia
JAHSEN HEARD MEMORANDUM OPINION* BY v. Record No. 1576-16-1 JUDGE MARY BENNETT MALVEAUX JANUARY 23, 2018 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Christopher W. Hutton, Judge
Charles E. Haden for appellant.
J. Christian Obenshain, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Jahsen Heard (“appellant”) appeals his convictions for attempted carjacking, in violation
of Code §§ 18.2-58.1 and -26, conspiracy to commit carjacking, in violation of Code
§§ 18.2-58.1 and -22, and robbery, in violation of Code § 18.2-58.1 He argues that the trial court
erred in denying his motion to strike and motion to set aside the verdict because the evidence
was insufficient to prove the elements of the offenses beyond a reasonable doubt.2 For the
reasons that follow, we affirm the judgment of the trial court.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 The indictment for attempted carjacking alleges that appellant “unlawfully and feloniously did attempt to carjack . . . in violation of [Code] §[§] 18.2-58.1 / 18.2-22.” The indictment should have stated that the attempt was made in violation of Code §§ 18.2-58.1 and -26. An objection based upon such a defect in an indictment must be made by motion before pleading and at least seven days before trial. Rule 3A:9; see also Stamper v. Commonwealth, 228 Va. 707, 713, 324 S.E.2d 682, 686 (1985). We note that appellant made no such objection. 2 Appellant’s petition for appeal included two additional assignments of error. Due to procedural deficiencies in appellant’s petition, this Court did not review those assigned errors. Heard v. Commonwealth, 68 Va. App. 109, 803 S.E.2d 772 (2017). I. BACKGROUND
“In accordance with familiar principles of appellate review, the facts [are] stated in the
light most favorable to the Commonwealth, the prevailing party at trial.” Scott v.
Commonwealth, 292 Va. 380, 381, 789 S.E.2d 608, 608 (2016).
Around 6:00 a.m. on November 29, 2015, Roy Keddy was preparing to leave the
Embassy Suites Hotel in Hampton and drive to his home in Connecticut. Keddy had just
returned from a gas station, and as he drove slowly past the front of the hotel, a young man
walked up to his car and asked for change. Keddy noticed two other young men nearby, “off on
the side.” After denying the man’s request, Keddy drove around to the side of the hotel and
parked. A minute or two later, as he prepared to program his GPS unit, Keddy looked up and
saw the three men approaching his car. Keddy looked down, “and then the next thing I knew . . .
the car door was opened and one [of the men] was standing right there in the car door.”
The man standing in Keddy’s door, who was wearing a white shirt, told him to get out of
the car. When Keddy refused, he repeated his demand before grabbing Keddy by the wrist and
trying to pull him from the car. Because Keddy was wearing his seatbelt, the man was
unsuccessful. He also struggled with Keddy over the car keys. Keddy noticed that someone else
had gotten into the back seat of his car. Although Keddy did not actually see the person, he
“assumed that somebody was there” because he felt the seat move.
As the man standing in the car door grabbed a strap dangling from Keddy’s keychain,
Keddy glanced to the side and was struck in the face. He blacked out momentarily, and when he
regained consciousness his keys were gone. Keddy began sounding the horn, and the three men
ran away from the car.
Keddy continued sounding the horn for another minute or so. When no one responded to
help him, he got out of his car, locked it, and went into the hotel lobby. There, he asked
-2- someone to call 911. Before his encounter with the three men, Keddy’s cell phone had been in
the cup holder in the center console of his car. When he returned to his car from the hotel lobby,
the phone was gone.
Officer Eugene Calloway of the Hampton Police Department investigated the reported
offenses. The morning of the incident he reviewed the hotel’s security camera footage, which
showed three individuals walking past the hotel in the direction of Keddy’s car.
Officer O’Ruedas Marales of the Hampton Police Department was driving near an
apartment complex a mile from the hotel that morning. There, he saw three juvenile males who
matched a description of suspects in an attempted carjacking and robbery. Marales turned on his
emergency lights, and when he did so, all three individuals began running away—one on his
own, and the others together. Marales chased and caught the suspect who ran away alone. That
suspect was later identified as Tykare Payne. When Marales handcuffed Payne, a cell phone fell
out of his sweatshirt pocket. Keddy later identified the phone as the one that was taken from his
car.
When Calloway learned that suspects were fleeing from Marales, he and other officers
established a perimeter around the area where they thought the suspects would go. Calloway
saw two males, who matched the suspects’ descriptions, running away from the direction of the
hotel and toward a wooded area. Calloway chased and caught one of the suspects, who was later
identified as Zyan Johnson. While returning to his patrol car, Calloway searched an area behind
some townhomes. Behind each was a patio surrounded by a picket fence with a gate, and one of
the gates was slightly ajar. When Calloway looked inside the partially open gate, he saw
someone crouched on a patio. That individual was later identified as appellant. Appellant was
wearing a black shirt, and a dark-colored hoodie was stuffed under a nearby chair.
-3- Detective Steven Carpenter of the Hampton Police Department interviewed appellant
after his arrest. After Carpenter advised appellant of his Miranda rights, appellant agreed to
speak with him and told him he was “out at the Embassy Suites running cars.” Appellant
explained to Carpenter that “running cars” meant “[j]ust taking items out of . . . cars.” Appellant
was indicted for attempted carjacking, conspiracy to carjack, and robbery.
At trial, after the Commonwealth presented its evidence, appellant moved to strike the
evidence on all three charges. The trial court denied the motion.
Johnson, who had entered Alford pleas to identical charges,3 testified in appellant’s
defense. He stated that he was at the Embassy Suites on November 29, 2015, with appellant and
Payne. According to Johnson, the three men were there to visit a friend who was staying at the
hotel. When they saw a man sitting by himself in a car, Johnson decided to take the man’s car.
Johnson testified that he did not discuss this plan with his companions. He stated that he walked
over, opened the car door, and tried to take the keys from Keddy while appellant and Payne
stood in front of the car. Johnson admitted that he punched Keddy and ran when Keddy began
sounding his horn. He noted that his companions also ran from the car. Johnson denied that
anyone besides the man was ever in the car. On cross-examination, Johnson stated that he had
lied to Detective Carpenter when he told them he was “running cars,” in order to “cover up for
what really happened.”
The jury convicted appellant on all charges. Appellant moved the court to set aside the
verdict. The trial court reserved judgment and invited the parties to file written motions prior to
3 A defendant who enters an Alford plea asserts his innocence but admits there is sufficient evidence to convict him of the offense. See North Carolina v. Alford, 400 U.S. 25, 37-38 (1970). “An ‘Alford plea is a variation of a guilty plea,’” and “has ‘the same preclusive effect as a guilty plea’ for purposes of appeal.” Cobbins v. Commonwealth, 53 Va. App. 28, 36, 668 S.E.2d 816, 820 (2008) (first quoting United States v. Morrow, 914 F.2d 608, 611 (4th Cir. 1990); then quoting Perry v. Commonwealth, 33 Va. App. 410, 412, 533 S.E.2d 651, 652 (2000)). -4- sentencing. Counsel for appellant’s co-defendant, Tykare Payne, filed an “Amended Motion to
Set Aside Verdict as to the Charge of Robbery.” Following a hearing, the trial court denied the
motion to set aside.4 This appeal followed.
II. ANALYSIS
When considering a challenge to the sufficiency of evidence on appeal, “we review the
evidence in the light most favorable to the Commonwealth,” the prevailing party at trial,
“granting to it all reasonable inferences fairly deducible therefrom.” Sierra v. Commonwealth,
59 Va. App. 770, 774, 722 S.E.2d 656, 657 (2012) (quoting Archer v. Commonwealth, 26
Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)). The Court “discard[s] the evidence of the accused
in conflict with that of the Commonwealth.” Johnson v. Commonwealth, 53 Va. App. 79, 99,
669 S.E.2d 368, 378 (2008) (quoting Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d
755, 759 (1980)). Further, “circumstantial evidence may be more compelling and persuasive
than direct evidence, and when convincing, it is entitled to as much weight as direct evidence.”
Booker v. Commonwealth, 61 Va. App. 323, 335-36, 734 S.E.2d 729, 735 (2012) (quoting
Bridgeman v. Commonwealth, 3 Va. App. 523, 526, 351 S.E.2d 598, 600 (1986)).
In conducting our inquiry, “the relevant question is, after reviewing the evidence in the
light most favorable to the [Commonwealth], whether any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” Sullivan v. Commonwealth, 280
Va. 672, 676, 701 S.E.2d 61, 63 (2010). “This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the
4 Although appellant was a named party to the motion, his counsel did not sign the motion. Rule 1:4(c) requires that “[c]ounsel . . . who files a pleading shall sign it . . . .” Further, the motion argued only that the “evidence is insufficient to prove a charge of robbery against Tykaree [sic] Payne.” For these reasons, we will not consider whether the trial court erred in denying appellant’s motion to set aside his convictions for robbery, attempted carjacking, and conspiracy to commit carjacking, and confine our inquiry to the trial court’s denial of appellant’s motion to strike. -5- evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Kelly v.
Commonwealth, 41 Va. App. 250, 257-58, 584 S.E.2d 444, 447 (2003) (en banc) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We do not “substitute our judgment for that of
the trier of fact,” Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002),
and “will reverse only where the trial court’s decision is ‘plainly wrong or without evidence to
support it,’” Calloway v. Commonwealth, 62 Va. App. 253, 261, 746 S.E.2d 72, 76 (2013)
(quoting Seaton v. Commonwealth, 42 Va. App. 739, 746, 595 S.E.2d 9, 12 (2004)).
Appellant assigns a single error, in three parts. We address each part in turn.
A. Appellant’s Participation in the Offenses
Appellant argues that the trial court erred in denying his motion to strike, as the evidence
failed to prove beyond a reasonable doubt that he committed or otherwise aided or abetted
attempted carjacking, robbery, or conspiracy to commit carjacking.
“Carjacking” is defined, in relevant part, as
the intentional seizure or seizure of control of a motor vehicle of another with intent to permanently or temporarily deprive another in possession or control of the vehicle of that possession or control by means of . . . striking or beating, or by other violence to the person, or by assault or otherwise putting a person in fear of serious bodily harm . . . .
Code § 18.2-58.1(B). Thus, conviction for carjacking requires proof beyond a reasonable doubt
that “the victim was in possession or control of a motor vehicle,” the defendant “intentionally
seized, or seized control of, the vehicle, either temporarily or permanently,” and the defendant
“so deprived the victim of possession or control of the vehicle by means of one or more of the
specifically prohibited acts” listed in the statute, including striking, beating, or other acts of
violence. Hilton v. Commonwealth, 293 Va. 293, 299, 797 S.E.2d 781, 784 (2017). Under the
plain language of Code § 18.2-58.1, “a perpetrator can commit carjacking without actually
seizing the victim’s vehicle, i.e., taking possession of it.” Id. That is, “a perpetrator can violate -6- the statute by . . . seizing control of the victim’s vehicle, i.e., ‘exercis[ing] power’ over it.” Id.
(quoting Black’s Law Dictionary 403 (10th ed. 2014)). “[P]ossession of the means to exercise
dominion or control over an item gives the possessor dominion or control over the item itself,”
and thus “possession of [a] vehicle’s keys place[s] [a defendant] in possession or control of the
vehicle.” Bell v. Commonwealth, 21 Va. App. 693, 698-99, 467 S.E.2d 289, 291-92 (1996). See
also Hilton, 293 Va. at 301, 797 S.E.2d at 785 (holding that after taking the victim’s keys at
gunpoint the appellant was in control of the victim’s vehicle). “[T]he Commonwealth must
prove an act of violence against the victim that precedes or is concomitant with the taking of the
vehicle from the possession or control of the victim.” Bell, 21 Va. App. at 702, 467 S.E.2d at
293.
“An attempt . . . is an unfinished crime and 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.” Velez-Suarez v. Commonwealth, 64 Va. App. 269,
277-78, 767 S.E.2d 715, 719 (2015) (quoting Rogers v. Commonwealth, 55 Va. App. 20, 24-25,
683 S.E.2d 311, 313 (2009)). “Intent is the purpose formed in a person’s mind which may, and
often must, be inferred from the facts and circumstances . . . . The state of mind of an alleged
offender may be shown by his acts and conduct.” Burton v. Commonwealth, 281 Va. 622,
626-27, 708 S.E.2d 892, 894 (2011) (quoting Ridley v. Commonwealth, 219 Va. 834, 836, 252
S.E.2d 313, 314 (1979)). “[W]here the intent is clearly shown, ‘any slight act done in
furtherance of this intent will constitute an attempt.’” Ashford v. Commonwealth, 47 Va. App.
676, 682, 626 S.E.2d 464, 467 (2006) (quoting Siquina v. Commonwealth, 28 Va. App. 694,
701, 508 S.E.2d 350, 354 (1998)).
“Robbery is a common law crime in Virginia. It is defined as ‘the taking, with intent to
steal, of the personal property of another, from his person or in his presence, against his will, by
-7- violence or intimidation.’” Ali v. Commonwealth, 280 Va. 665, 668, 701 S.E.2d 64, 66 (2010)
(quoting Durham v. Commonwealth, 214 Va. 166, 168, 198 S.E.2d 603, 605-06 (1973)). The
phrase “of the personal property of another, from his person or in his presence” is “broadly
construed to include the taking of property from the custody . . . or . . . the constructive
possession of . . . another.” Price v. Commonwealth, 59 Va. App. 764, 767, 722 S.E.2d 653, 654
(2012) (alterations in original) (quoting Bunch v. Commonwealth, 225 Va. 423, 440, 304 S.E.2d
271, 281 (1983)). “The element of violence need only be slight. ‘[A]nything which calls out
resistance is sufficient.’” Ali, 280 Va. at 668, 701 S.E.2d at 66 (alteration in original) (quoting
Maxwell v. Commonwealth, 165 Va. 860, 864, 183 S.E.2d 452, 454 (1936)).
A conspiracy is “an agreement between two or more persons by some concerted action to
commit an offense.” Chambliss v. Commonwealth, 62 Va. App. 459, 466, 749 S.E.2d 212, 216
(2013) (quoting Wright v. Commonwealth, 224 Va. 502, 505, 297 S.E.2d 711, 713 (1982)).
“[T]he crime of conspiracy is complete when the parties agree to commit an offense; Virginia
does not require proof of an overt act in furtherance of the conspiracy.” Id. “[M]ost conspiracies
are ‘clandestine in nature,’” and “[i]t is a rare case where any ‘formal agreement among alleged
conspirators’ can be established.” Johnson v. Commonwealth, 58 Va. App. 625, 636, 712 S.E.2d
751, 756 (2011) (quoting James v. Commonwealth, 53 Va. App. 671, 678, 674 S.E.2d 571, 575
(2009)). Thus, “conspiracy law does not require proof of an ‘explicit agreement.’” Id. (quoting
Jones v. Commonwealth, 279 Va. 295, 301, 687 S.E.2d 738, 741 (2010)). “A conspiratorial
agreement ‘often may only be established by circumstantial and indirect evidence including the
overt actions of the parties.’” Id. at 636, 712 S.E.2d at 756-57.
Appellant challenges the sufficiency of the evidence to sustain his convictions,
contending that the Commonwealth failed to exclude his reasonable hypothesis of innocence that
appellant’s companions committed the offenses without his participation, aid, or assistance. He
-8- supports this argument with the following: (1) Keddy did not identify appellant as one of the
attempted carjackers and remembered only that the person who struggled with him was wearing
a white shirt, and appellant was wearing a black shirt when he was apprehended; (2) Keddy
described only two participants in the attempted carjacking—the individual who tried to pull him
out of his car and struggled with him for possession of his keys, and the person he noticed in his
back seat; (3) appellant’s admission to police that he was “running cars” simply placed him at the
scene of the crime, and did not establish that he participated in the attempted carjacking or
shared the criminal intent of the would-be carjackers; and (4) Johnson testified that he alone
acted against Keddy without any assistance or participation by appellant.
Appellant’s arguments are without merit. Appellant admitted that he was present at the
Embassy Suites Hotel on the morning of November 29, 2016, and Johnson’s testimony also
placed him at the scene. Both appellant and Johnson told police they were at the Embassy Suites
“running cars,” i.e., stealing items from vehicles. Keddy testified that three men approached his
car just before the attempted carjacking, and security camera images showed three men walking
past the hotel in the direction of Keddy’s car. One individual entered Keddy’s car, and a second
individual tried to remove Keddy’s keys and pull him out of his car. Keddy was then struck in
the face. Although the individuals fled when Keddy sounded his horn, by that point, violence
had been used against him in an effort to seize his keys and thus deprive him of possession or
control of his car. Keddy’s cell phone had been present in the center console of his car, but it
was missing when he returned to his car after seeking help, even though he locked his car when
he went for help immediately after the incident. Shortly thereafter, and only about a mile from
the hotel, Officer Marales saw three juvenile males walking together who matched the
description he received of the carjacking suspects. They fled when Marales approached them,
and when Marales apprehended one of the suspects, Payne, he was in possession of Keddy’s cell
-9- phone. The remaining two suspects were seen fleeing together, and when they were
apprehended, proved to be appellant and Johnson.
Viewing this evidence in its totality and in the light most favorable to the
Commonwealth, it was reasonable for the jury to infer that appellant and his companions
intended to seize control of Keddy’s car and to deprive him of his possession or control of it
through violence. It was also reasonable for the jury to conclude that appellant and his
companions committed acts in furtherance of that goal. Thus, it was reasonable for the jury to
find that appellant was guilty of attempted carjacking.
Similarly, a rational trier of fact could also have found appellant liable for the robbery of
Keddy’s cell phone. Both appellant and Johnson stated that they went to the Embassy Suites
Hotel to steal items from cars. The jury could reasonably infer from their presence there with
larcenous intent, together with the other facts and circumstances discussed above, that appellant
and his companions were responsible for the crime of robbery—i.e., that they took, with intent to
steal, Keddy’s cell phone from his car, in his presence and against his will by violence.
Since a rational trier of fact could have found the elements of attempted carjacking and
robbery beyond a reasonable doubt, the trial court did not err in denying appellant’s motion to
strike.
Appellant also contends that the evidence failed to prove beyond a reasonable doubt that
he conspired to commit carjacking. He argues, as above, that his admission to police that he was
“running cars” simply placed him at crime scene, and did not prove that he shared the criminal
intent of the attempted carjackers. Appellant again relies upon Johnson’s testimony that Johnson
acted alone in planning and attempting the carjacking.
We find appellant’s argument unpersuasive. The jury, as trier of fact, was free to
disregard Johnson’s testimony that his companions were unaware of his plan to carjack Keddy.
- 10 - See English v. Commonwealth, 43 Va. App. 370, 371, 598 S.E.2d 322, 323 (2004) (“The trier of
fact is not required to accept a [witness’] evidence in its entirety, but is free to believe or
disbelieve, in whole or in part, the testimony of any witness.” (citations omitted)); Whitt v.
Commonwealth, 61 Va. App. 637, 661, 739 S.E.2d 254, 266 (2013) (en banc) (“The credibility
of the witnesses and the weight accorded [their] evidence are matters solely for the fact finder
who has the opportunity to see and hear that evidence as it is presented.” (quoting Sandoval v.
Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995))).
Further, conspiracy does not require proof of an explicit, formal agreement, and may be
proved “by circumstantial and indirect evidence including the overt actions of the parties.”
Johnson, 58 Va. App. at 636, 712 S.E.2d at 757 (quoting Jones, 279 Va. at 301, 687 S.E.2d at
741). “The fact that there is no evidence of an actual conversation” between the parties “is not
dispositive . . . [for] a conspiracy may be inferred by actions alone.” Charity v. Commonwealth,
49 Va. App. 581, 587, 643 S.E.2d 503, 505-06 (2007).
Here, the evidence showed that appellant and at least one of his companions, Zyan
Johnson, arrived at the hotel with criminal intent. Together with a third individual, they
approached Keddy in his car. One of the individuals entered Keddy’s car, another attempted to
take Keddy’s keys and remove him from the car, and someone struck Keddy in the face. As
noted above, these constituted acts in furtherance of carjacking through the use of violence to try
to seize control of the car and deprive Keddy of his possession or control of it. When Keddy
raised an alarm by sounding his horn, the three individuals fled together and they were seen
together a short time later, when they fled from police. See Thomas, 279 Va. at 168, 688 S.E.2d
at 240 (“When a suspected person attempts to . . . evade a threatened prosecution, it may be
argued that he does so from consciousness of guilt . . . it may become one of a series of
circumstances from which guilt may be inferred.” (quoting Turman v. Commonwealth, 276 Va.
- 11 - 558, 564, 667 S.E.2d 767, 770 (2008))). When appellant and Johnson then fled the approach of
Officer Marales, they initially fled together. Viewing this evidence in its totality and in the light
most favorable to the Commonwealth, a rational fact finder could have found that appellant
agreed with Johnson and Payne to carjack Keddy, as demonstrated by the overt actions of the
three in attempting that offense. See, e.g., Charity, 49 Va. App. at 587, 643 S.E.2d at 505-06
(finding sufficient evidence of conspiracy to commit an escape from a correctional facility
where, in the absence of proof of an actual conversation between two inmates, their agreement to
attempt an escape was “illustrated by their actions” when they “worked together” to carjack a
truck). Thus, the trial court did not err in denying appellant’s motion to strike the evidence of
conspiracy to commit carjacking.
B. Conspiracy: Agreement to Commit Robbery
Appellant argues that “with regard to the conspiracy, there was no proof that [appellant]
entered into an agreement to commit robbery beforehand and the robbery might have been
committed spontaneously.” Thus, the trial court erred in denying his motion to strike.
Appellant was charged with conspiracy to commit carjacking and was not charged with
conspiracy to commit robbery. To the extent that this portion of appellant’s assignment of error
seeks to address conspiracy to commit carjacking, since carjacking is a species of robbery, see
Pressley v. Commonwealth, 54 Va. App. 380, 385, 679 S.E.2d 551, 554 (2009), we rely on our
earlier analysis concluding that the evidence of conspiracy to commit carjacking was sufficient.
C. Robbery: Taking through the Use of Force, Threat, or Intimidation
With respect to his robbery conviction, appellant also argues that because Keddy was
unable to testify about exactly when or how his cell phone disappeared from his car, there was no
proof that the taking of the phone was accomplished through the use of force, threat, or
intimidation. Thus, the trial court erred in denying his motion to strike.
- 12 - This argument is unpersuasive. Here, the evidence supports the finding that Keddy’s cell
phone was in his presence immediately before the attempted carjacking. It also supports the
finding that he interposed himself between the carjacker or carjackers and his property that was
in the car, including his keys and cell phone, and resisted the efforts to overcome him, but was
subject to an assailant’s use of violent force. Further, the evidence demonstrates that no one else
could have accessed the interior of Keddy’s car in the interval between the attempted carjacking
and Keddy’s return to the car, because the car was locked. The evidence also shows that the
phone was no longer in the car when Keddy returned and that it was recovered shortly thereafter
from Payne. From this evidence, a rational trier of fact could have found that Keddy’s phone
was taken from his presence through the use of force, threat, or intimidation and that the
elements of robbery had been proven beyond a reasonable doubt.
III. CONCLUSION
For the foregoing reasons, we conclude the evidence was sufficient to support appellant’s
convictions for attempted carjacking, conspiracy to commit carjacking, and robbery and thus we
affirm the judgment of the trial court.
Affirmed.
- 13 -