COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Overton Argued at Richmond, Virginia
KELLY YVETTE TIMBERS MEMORANDUM OPINION * BY v. Record No. 2249-97-2 JUDGE ROSEMARIE ANNUNZIATA AUGUST 18, 1998 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF MADISON COUNTY Lloyd C. Sullenberger, Judge Diana H. Wheeler for appellant.
Marla Graff Decker, Assistant Attorney General (Mark L. Earley, Attorney General; Richard B. Campbell, Assistant Attorney General, on brief), for appellee.
Kelly Yvette Timbers (appellant) challenges the sufficiency
of the evidence in support of her conviction as a principal in
the second degree for distribution of cocaine in violation of
Code § 18.2-248. We hold that the evidence is sufficient to
support her conviction, and affirm.
Appellant rented apartment 109 at Poplar Ridge Apartments.
Sean Campbell, known as "Shy," lived in the apartment with
appellant, and paid the rent and fees for damage to the
apartment. Appellant was not employed, and Campbell earned money
by selling crack cocaine.
Appellant accompanied Campbell on trips to New York,
Washington, D.C., and Maryland to obtain cocaine. Campbell kept
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. a supply of powder and crack cocaine buried in a jar in the
woods. Only Charles Hall and Campbell knew the location of the
cocaine in the woods. Hall told an officer that Campbell kept
the cocaine in the woods to prevent appellant from using it.
Campbell "cooked" the powder cocaine into crack cocaine, a small
amount at a time, both in appellant's apartment and other
apartments, and kept only a small supply on his person.
Appellant assisted Campbell with "cooking" the cocaine. On one
occasion, appellant was present while Campbell "cooked" the
cocaine, but did not assist. Hall and Sylvia Brock stood outside the apartment complex
and fielded requests for cocaine. After receiving a request,
Hall or Brock would go to Campbell in apartment 109, or one of
several other apartments, to obtain cocaine. Appellant was
sometimes present when Campbell transferred cocaine to Hall or
Brock.
Campbell also sold cocaine directly from appellant's
apartment and other apartments. Appellant was present at least
some of the time Campbell sold the cocaine directly out of her
apartment.
On August 28, 1996, police responded to a report of domestic
violence by Campbell against appellant. While one officer talked
to appellant, another officer followed, questioned, and
apprehended Hall. The police seized a jar containing powder
cocaine which Hall had placed behind the apartment building.
-2- Hall initially claimed that the cocaine belonged to him, but
later admitted that he worked for Campbell, and that the cocaine
belonged to Campbell. The jar was the same jar Campbell used to
store his cocaine. The street value of the cocaine in the jar
was thirteen to fourteen thousand dollars in crack cocaine form.
The Commonwealth charged appellant with the manufacture,
sale, or distribution of cocaine. At trial, after the
Commonwealth rested, appellant moved to strike the Commonwealth's
evidence on the basis that no evidence showed that she was
directly involved in criminal activity. In response, the
Commonwealth argued that appellant acted as a principal in the
second degree because she facilitated Campbell's sale of cocaine.
The court denied the motion to strike. The court, sitting
without a jury, found that appellant "aided and abetted
Campbell's distribution and to some extent manufacturing of
cocaine," and found her guilty as a principal in the second
degree. The court sentenced appellant to five years
incarceration, with three years and one month suspended. Appellant argues that the trial court erred in finding her
guilty as a principal in the second degree of the manufacture and
distribution of cocaine. On appeal, we review the evidence "'in
the light most favorable to the Commonwealth and accord to the
evidence all reasonable inferences fairly deducible therefrom.'"
Phoung v. Commonwealth, 15 Va. App. 457, 460, 424 S.E.2d 712,
714 (1992) (quoting Traverso v. Commonwealth, 6 Va. App. 172,
-3- 176, 366 S.E.2d 719, 721 (1988)). "The judgment of the trial
court is presumed correct, and we are required to affirm that
judgment unless it is plainly wrong or without evidence to
support it." McGill v. Commonwealth, 24 Va. App. 728, 732, 485
S.E.2d 173, 175 (1997) (citation omitted) (citing, inter alia,
Code § 8.01-680).
"In the case of a felony, every principal in the second
degree may be indicted, tried, convicted and punished as if a
principal in the first degree." Allard v. Commonwealth, 24 Va.
App. 57, 62, 480 S.E.2d 139, 141 (1997) (citing Code § 18.2-18).
"To hold an accused accountable as a principal in the second
degree, the Commonwealth must show that the accused was present,
aiding and abetting, and intended his or her words, gestures,
signals, or actions to in some way encourage, advise, urge, or
. . . help the person committing the crime to commit it."
McGill, 24 Va. App. at 733, 485 S.E.2d at 175 (citing Ramsey v.
Commonwealth, 2 Va. App. 265, 269, 343 S.E.2d 465, 468 (1986)).
Mere presence during the commission of a crime is not
sufficient to render a person guilty as a principal in the second
degree. Pugliese v. Commonwealth, 16 Va. App. 82, 93, 428 S.E.2d
16, 25 (1993) (quoting Foster v. Commonwealth, 179 Va. 96, 99, 18
S.E.2d 314, 316 (1942)). However, "'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 [trier of fact] to infer
-4- that he assented thereto, lent to it his countenance and
approval, and was thereby aiding and abetting the same.'" Id. at
93-94, 428 S.E.2d at 25 (quoting Foster, 179 Va. at 100, 18
S.E.2d at 316).
The record is clear that Campbell, while living in
appellant's apartment, manufactured and distributed crack
cocaine. The evidence supports appellant's conviction as a
principal in the second degree in both the manufacture and
distribution of cocaine. With respect to the manufacture of cocaine, the record shows
that appellant accompanied Campbell on trips to purchase cocaine.
Appellant provided Campbell with the use of her apartment to
"cook" cocaine, and was present when Campbell "cooked" the powder
cocaine into crack cocaine. Appellant also directly assisted
Campbell with "cooking" the cocaine.
With respect to distribution of cocaine, the record shows
that appellant knowingly allowed Campbell to use her apartment as
a distribution center for cocaine. Appellant was present in her
apartment when Campbell transferred cocaine to Hall and Brock to
pass along to customers. Appellant was also present when
Campbell sold cocaine directly to customers in appellant's
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COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Overton Argued at Richmond, Virginia
KELLY YVETTE TIMBERS MEMORANDUM OPINION * BY v. Record No. 2249-97-2 JUDGE ROSEMARIE ANNUNZIATA AUGUST 18, 1998 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF MADISON COUNTY Lloyd C. Sullenberger, Judge Diana H. Wheeler for appellant.
Marla Graff Decker, Assistant Attorney General (Mark L. Earley, Attorney General; Richard B. Campbell, Assistant Attorney General, on brief), for appellee.
Kelly Yvette Timbers (appellant) challenges the sufficiency
of the evidence in support of her conviction as a principal in
the second degree for distribution of cocaine in violation of
Code § 18.2-248. We hold that the evidence is sufficient to
support her conviction, and affirm.
Appellant rented apartment 109 at Poplar Ridge Apartments.
Sean Campbell, known as "Shy," lived in the apartment with
appellant, and paid the rent and fees for damage to the
apartment. Appellant was not employed, and Campbell earned money
by selling crack cocaine.
Appellant accompanied Campbell on trips to New York,
Washington, D.C., and Maryland to obtain cocaine. Campbell kept
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. a supply of powder and crack cocaine buried in a jar in the
woods. Only Charles Hall and Campbell knew the location of the
cocaine in the woods. Hall told an officer that Campbell kept
the cocaine in the woods to prevent appellant from using it.
Campbell "cooked" the powder cocaine into crack cocaine, a small
amount at a time, both in appellant's apartment and other
apartments, and kept only a small supply on his person.
Appellant assisted Campbell with "cooking" the cocaine. On one
occasion, appellant was present while Campbell "cooked" the
cocaine, but did not assist. Hall and Sylvia Brock stood outside the apartment complex
and fielded requests for cocaine. After receiving a request,
Hall or Brock would go to Campbell in apartment 109, or one of
several other apartments, to obtain cocaine. Appellant was
sometimes present when Campbell transferred cocaine to Hall or
Brock.
Campbell also sold cocaine directly from appellant's
apartment and other apartments. Appellant was present at least
some of the time Campbell sold the cocaine directly out of her
apartment.
On August 28, 1996, police responded to a report of domestic
violence by Campbell against appellant. While one officer talked
to appellant, another officer followed, questioned, and
apprehended Hall. The police seized a jar containing powder
cocaine which Hall had placed behind the apartment building.
-2- Hall initially claimed that the cocaine belonged to him, but
later admitted that he worked for Campbell, and that the cocaine
belonged to Campbell. The jar was the same jar Campbell used to
store his cocaine. The street value of the cocaine in the jar
was thirteen to fourteen thousand dollars in crack cocaine form.
The Commonwealth charged appellant with the manufacture,
sale, or distribution of cocaine. At trial, after the
Commonwealth rested, appellant moved to strike the Commonwealth's
evidence on the basis that no evidence showed that she was
directly involved in criminal activity. In response, the
Commonwealth argued that appellant acted as a principal in the
second degree because she facilitated Campbell's sale of cocaine.
The court denied the motion to strike. The court, sitting
without a jury, found that appellant "aided and abetted
Campbell's distribution and to some extent manufacturing of
cocaine," and found her guilty as a principal in the second
degree. The court sentenced appellant to five years
incarceration, with three years and one month suspended. Appellant argues that the trial court erred in finding her
guilty as a principal in the second degree of the manufacture and
distribution of cocaine. On appeal, we review the evidence "'in
the light most favorable to the Commonwealth and accord to the
evidence all reasonable inferences fairly deducible therefrom.'"
Phoung v. Commonwealth, 15 Va. App. 457, 460, 424 S.E.2d 712,
714 (1992) (quoting Traverso v. Commonwealth, 6 Va. App. 172,
-3- 176, 366 S.E.2d 719, 721 (1988)). "The judgment of the trial
court is presumed correct, and we are required to affirm that
judgment unless it is plainly wrong or without evidence to
support it." McGill v. Commonwealth, 24 Va. App. 728, 732, 485
S.E.2d 173, 175 (1997) (citation omitted) (citing, inter alia,
Code § 8.01-680).
"In the case of a felony, every principal in the second
degree may be indicted, tried, convicted and punished as if a
principal in the first degree." Allard v. Commonwealth, 24 Va.
App. 57, 62, 480 S.E.2d 139, 141 (1997) (citing Code § 18.2-18).
"To hold an accused accountable as a principal in the second
degree, the Commonwealth must show that the accused was present,
aiding and abetting, and intended his or her words, gestures,
signals, or actions to in some way encourage, advise, urge, or
. . . help the person committing the crime to commit it."
McGill, 24 Va. App. at 733, 485 S.E.2d at 175 (citing Ramsey v.
Commonwealth, 2 Va. App. 265, 269, 343 S.E.2d 465, 468 (1986)).
Mere presence during the commission of a crime is not
sufficient to render a person guilty as a principal in the second
degree. Pugliese v. Commonwealth, 16 Va. App. 82, 93, 428 S.E.2d
16, 25 (1993) (quoting Foster v. Commonwealth, 179 Va. 96, 99, 18
S.E.2d 314, 316 (1942)). However, "'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 [trier of fact] to infer
-4- that he assented thereto, lent to it his countenance and
approval, and was thereby aiding and abetting the same.'" Id. at
93-94, 428 S.E.2d at 25 (quoting Foster, 179 Va. at 100, 18
S.E.2d at 316).
The record is clear that Campbell, while living in
appellant's apartment, manufactured and distributed crack
cocaine. The evidence supports appellant's conviction as a
principal in the second degree in both the manufacture and
distribution of cocaine. With respect to the manufacture of cocaine, the record shows
that appellant accompanied Campbell on trips to purchase cocaine.
Appellant provided Campbell with the use of her apartment to
"cook" cocaine, and was present when Campbell "cooked" the powder
cocaine into crack cocaine. Appellant also directly assisted
Campbell with "cooking" the cocaine.
With respect to distribution of cocaine, the record shows
that appellant knowingly allowed Campbell to use her apartment as
a distribution center for cocaine. Appellant was present in her
apartment when Campbell transferred cocaine to Hall and Brock to
pass along to customers. Appellant was also present when
Campbell sold cocaine directly to customers in appellant's
apartment. Appellant was unemployed, and Campbell paid the rent
and damages fees for her apartment. The trial court was free to
draw the reasonable inference that appellant knew that the money
Campbell used to pay the bills was derived from the drug sales he
-5- routinely made in her presence.
Thus, the evidence clearly shows that appellant was present
during the commission of the crime and aided and abetted the
manufacture and distribution of cocaine. The Commonwealth did
not present direct evidence of appellant's intent, but
"'[b]ecause direct proof of intent is often impossible, it must
be shown by circumstantial evidence.'" White v. Commonwealth, 25
Va. App. 662, 668, 492 S.E.2d 451, 454 (1997) (en banc) (quoting Servis v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165
(1988)). We must respect reasonable inferences drawn by the
finder of fact from the evidence presented at trial. Phoung, 15
Va. App. at 460, 424 S.E.2d at 714 (citing Traverso, 6 Va. App.
at 176, 366 S.E.2d at 721). The court drew a reasonable
inference that appellant intended her actions of accompanying
Campbell to buy drugs, helping Campbell "cook" cocaine, providing
Campbell a location for the sale of drugs, and profiting from his
drug sales to assist Campbell in the manufacture and distribution
of cocaine.
Accordingly, we affirm. Affirmed.
-6-