COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Annunziata and Senior Judge Coleman Argued at Richmond, Virginia
RASHEEN MALONE, S/K/A RASHEEN S. MALONE MEMORANDUM OPINION * BY v. Record No. 2798-00-1 JUDGE ROSEMARIE ANNUNZIATA FEBRUARY 19, 2002 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY E. Everett Bagnell, Judge
Carson E. Saunders, Jr. (Vincent Law Firm, on brief), for appellant.
Leah A. Darron, Assistant Attorney General (Randolph A. Beales, Acting Attorney General; Shelly R. James, Assistant Attorney General, on brief), for appellee.
Rasheen Malone was convicted of robbery in violation of
Code § 18.2-58, and use of a firearm in the commission of
robbery, in violation of Code § 18.2-53.1. He contends on
appeal that the evidence is not sufficient to support either
conviction. For the reasons that follow, we affirm his
convictions.
BACKGROUND
On appeal, we state the evidence and reasonable inferences
that may be drawn in the light most favorable to the party
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. prevailing below, the Commonwealth. Cooper v. Commonwealth, 31
Va. App. 643, 646, 525 S.E.2d 72, 73 (2000). On February 24,
2000, Rasheen Malone and Antonio Turner, residents of Newsoms,
Virginia, traveled to Boykins, Virginia. At about 3:30 p.m.,
while Wilroy Williams was filling his 1985 Ford pickup truck
with gas at a Mobil station, Turner and Malone approached the
vehicle. Turner asked Williams to give them a ride to the town
of Newsoms. Williams refused.
Williams went into the store to pay for his gas and, upon
returning to the truck, he found the two men were still standing
there. Turner again asked for a ride, explaining that he needed
to get to his child's home as quickly as possible because the
child was sick. Williams initially refused, but then changed
his mind. Turner got into the passenger seat while Malone sat
in the bed of the truck at the "wheel well" on the passenger
side. Williams took the route toward Newsoms suggested by
Turner.
En route, Turner pulled out a gun and said to Williams
"[g]ive me your pocketbook." Williams described the weapon as a
black, .38 caliber gun. He stated it was not a revolver.
Rather than give Turner his wallet, Williams put the truck in
neutral as he approached a stop sign, and jumped from the
vehicle. He ran to a school bus that was approaching from a
cross street and observed Turner drive his truck away with
Malone in the passenger seat.
- 2 - Williams told police Malone was wearing a red shirt and
that Turner had gold teeth, accurately describing features of
both men. He also identified both at trial as the men who rode
in his truck and drove it away.
The police found the truck parked by the road on the other
side of Newsoms. Tracks of two people walking away from the
truck and crossing an adjacent field were also found in the mud
beside the truck. The footprints were the only ones in the area
not made by the police. Detective Richard Morris made casts of
the footprints, which were sent to the laboratory for comparison
to shoes belonging to Malone and Turner. The shoes matched the
cast footprints.
Police found a live .380 bullet in Malone's pocket at the
time of his arrest. After being read his Miranda rights, which
he waived, Malone told police he saw Turner on February 24,
2000, for about 20 minutes to talk about a "Play Station." He
claimed that just after 3:00 p.m., he got on a school bus back
to Newsoms. The school bus driver, Annie Cross, testified that
Malone did not ride the bus that day, and Anne West testified
that Malone and Turner came to her house in Newsoms before the
school bus arrived.
Turner testified that he had been with Malone since
10:00 a.m. that day, that Malone had a .380 caliber gun in his
possession, and that they had gotten a ride to Boykins together.
Malone claimed he met up with Turner while walking towards a
- 3 - Mobil gas station in Boykins. He testified that he could not
recall how he had gotten to Boykins but stated that he had not
come with Turner.
Turner also testified that he and Malone got a ride from
Williams at the Mobil gas station. He claimed that Williams
jumped from the truck for no apparent reason when they reached
the stop sign, that he then jumped into the driver's seat, told
Malone nothing was wrong, and quickly drove the truck away.
At trial, Malone recanted his initial statement to the
police and admitted that he was with Turner on February 24 and
that he got a ride from Williams. He claimed he did not know a
robbery had taken place when Turner drove off with the truck,
although he knew that Williams had not given Turner permission
to take the truck. He attributed his earlier lie to police to
fear and to the fact that the police wanted him to "say that
[Turner] did it," although he asserted that when the police
questioned him he did not know he or Turner were being charged
with a robbery.
ANALYSIS
When the sufficiency of the evidence is challenged on
appeal, "[w]e view the evidence in the light most favorable to
the Commonwealth, granting to it all reasonable inferences
fairly deducible from the evidence." Cooper, 31 Va. App. at
646, 525 S.E.2d at 73. The appellate court must, therefore,
"discard the evidence of the accused in conflict with that of
- 4 - the Commonwealth, and regard as true all the credible evidence
favorable to the Commonwealth and all fair inferences that may
be drawn" from the credible evidence. Watkins v. Commonwealth,
26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998). The
credibility of the witnesses and the weight of the evidence are
matters to be determined solely by the trier of fact. Swanson
v. Commonwealth, 8 Va. App. 376, 378-79, 382 S.E.2d 258, 259
(1989). Furthermore, the decision of the trial court will not
be disturbed unless plainly wrong or without evidence to support
it. McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d
259, 261 (1997) (en banc). "If there is evidence to support the
conviction," this Court will not substitute its judgment for
that of the trier of fact, even were our opinion to differ.
Commonwealth v. Presley, 256 Va. 465, 466, 507 S.E.2d 72, 72
(1998).
Malone was convicted of robbery and use of a firearm to
commit robbery as a principal in the second degree. To support
a finding of guilt on this ground, the Commonwealth must prove
that Malone 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." Bass v. Commonwealth, 31 Va. App. 373,
389, 523 S.E.2d 534, 542 (2000) (internal quotations and
citations omitted). An aider and abettor "must be guilty of
some overt act, or . . .
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Annunziata and Senior Judge Coleman Argued at Richmond, Virginia
RASHEEN MALONE, S/K/A RASHEEN S. MALONE MEMORANDUM OPINION * BY v. Record No. 2798-00-1 JUDGE ROSEMARIE ANNUNZIATA FEBRUARY 19, 2002 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY E. Everett Bagnell, Judge
Carson E. Saunders, Jr. (Vincent Law Firm, on brief), for appellant.
Leah A. Darron, Assistant Attorney General (Randolph A. Beales, Acting Attorney General; Shelly R. James, Assistant Attorney General, on brief), for appellee.
Rasheen Malone was convicted of robbery in violation of
Code § 18.2-58, and use of a firearm in the commission of
robbery, in violation of Code § 18.2-53.1. He contends on
appeal that the evidence is not sufficient to support either
conviction. For the reasons that follow, we affirm his
convictions.
BACKGROUND
On appeal, we state the evidence and reasonable inferences
that may be drawn in the light most favorable to the party
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. prevailing below, the Commonwealth. Cooper v. Commonwealth, 31
Va. App. 643, 646, 525 S.E.2d 72, 73 (2000). On February 24,
2000, Rasheen Malone and Antonio Turner, residents of Newsoms,
Virginia, traveled to Boykins, Virginia. At about 3:30 p.m.,
while Wilroy Williams was filling his 1985 Ford pickup truck
with gas at a Mobil station, Turner and Malone approached the
vehicle. Turner asked Williams to give them a ride to the town
of Newsoms. Williams refused.
Williams went into the store to pay for his gas and, upon
returning to the truck, he found the two men were still standing
there. Turner again asked for a ride, explaining that he needed
to get to his child's home as quickly as possible because the
child was sick. Williams initially refused, but then changed
his mind. Turner got into the passenger seat while Malone sat
in the bed of the truck at the "wheel well" on the passenger
side. Williams took the route toward Newsoms suggested by
Turner.
En route, Turner pulled out a gun and said to Williams
"[g]ive me your pocketbook." Williams described the weapon as a
black, .38 caliber gun. He stated it was not a revolver.
Rather than give Turner his wallet, Williams put the truck in
neutral as he approached a stop sign, and jumped from the
vehicle. He ran to a school bus that was approaching from a
cross street and observed Turner drive his truck away with
Malone in the passenger seat.
- 2 - Williams told police Malone was wearing a red shirt and
that Turner had gold teeth, accurately describing features of
both men. He also identified both at trial as the men who rode
in his truck and drove it away.
The police found the truck parked by the road on the other
side of Newsoms. Tracks of two people walking away from the
truck and crossing an adjacent field were also found in the mud
beside the truck. The footprints were the only ones in the area
not made by the police. Detective Richard Morris made casts of
the footprints, which were sent to the laboratory for comparison
to shoes belonging to Malone and Turner. The shoes matched the
cast footprints.
Police found a live .380 bullet in Malone's pocket at the
time of his arrest. After being read his Miranda rights, which
he waived, Malone told police he saw Turner on February 24,
2000, for about 20 minutes to talk about a "Play Station." He
claimed that just after 3:00 p.m., he got on a school bus back
to Newsoms. The school bus driver, Annie Cross, testified that
Malone did not ride the bus that day, and Anne West testified
that Malone and Turner came to her house in Newsoms before the
school bus arrived.
Turner testified that he had been with Malone since
10:00 a.m. that day, that Malone had a .380 caliber gun in his
possession, and that they had gotten a ride to Boykins together.
Malone claimed he met up with Turner while walking towards a
- 3 - Mobil gas station in Boykins. He testified that he could not
recall how he had gotten to Boykins but stated that he had not
come with Turner.
Turner also testified that he and Malone got a ride from
Williams at the Mobil gas station. He claimed that Williams
jumped from the truck for no apparent reason when they reached
the stop sign, that he then jumped into the driver's seat, told
Malone nothing was wrong, and quickly drove the truck away.
At trial, Malone recanted his initial statement to the
police and admitted that he was with Turner on February 24 and
that he got a ride from Williams. He claimed he did not know a
robbery had taken place when Turner drove off with the truck,
although he knew that Williams had not given Turner permission
to take the truck. He attributed his earlier lie to police to
fear and to the fact that the police wanted him to "say that
[Turner] did it," although he asserted that when the police
questioned him he did not know he or Turner were being charged
with a robbery.
ANALYSIS
When the sufficiency of the evidence is challenged on
appeal, "[w]e view the evidence in the light most favorable to
the Commonwealth, granting to it all reasonable inferences
fairly deducible from the evidence." Cooper, 31 Va. App. at
646, 525 S.E.2d at 73. The appellate court must, therefore,
"discard the evidence of the accused in conflict with that of
- 4 - the Commonwealth, and regard as true all the credible evidence
favorable to the Commonwealth and all fair inferences that may
be drawn" from the credible evidence. Watkins v. Commonwealth,
26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998). The
credibility of the witnesses and the weight of the evidence are
matters to be determined solely by the trier of fact. Swanson
v. Commonwealth, 8 Va. App. 376, 378-79, 382 S.E.2d 258, 259
(1989). Furthermore, the decision of the trial court will not
be disturbed unless plainly wrong or without evidence to support
it. McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d
259, 261 (1997) (en banc). "If there is evidence to support the
conviction," this Court will not substitute its judgment for
that of the trier of fact, even were our opinion to differ.
Commonwealth v. Presley, 256 Va. 465, 466, 507 S.E.2d 72, 72
(1998).
Malone was convicted of robbery and use of a firearm to
commit robbery as a principal in the second degree. To support
a finding of guilt on this ground, the Commonwealth must prove
that Malone 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." Bass v. Commonwealth, 31 Va. App. 373,
389, 523 S.E.2d 534, 542 (2000) (internal quotations and
citations omitted). An aider and abettor "must be guilty of
some overt act, or . . . must share the criminal intent of the
- 5 - principal." Rollston v. Commonwealth, 11 Va. App. 535, 539, 399
S.E.2d 823, 825 (1991) (internal quotations and citations
omitted). While presence alone during the commission of a crime
is not sufficient to establish a defendant is a principal in the
second degree, see Triplett v. Commonwealth, 141 Va. 577, 585,
127 S.E. 486, 489 (1925), an observer's failure to disapprove or
object to the commission of a crime "is evidence from which, in
connection with other circumstances . . . that he assented
thereto, lent to it his countenance and approval, and was
thereby aiding and abetting the same." Foster v. Commonwealth,
179 Va. 96, 100, 18 S.E.2d 314, 316 (1942); accord Johnson v.
Commonwealth, 18 Va. App. 441, 449, 444 S.E.2d 559, 564 (1994)
(finding that presence during the commission of a crime,
combined with other circumstances, "supports a fact finder's
determination that a criminal intent existed").
Malone contends that the Commonwealth proved nothing more
than his presence during the commission of the robbery. We
disagree.
The evidence at trial and the inferences deducible
therefrom sufficiently demonstrate that Malone acted in concert
with Turner. First, it can be inferred from the evidence that
Malone had been with Turner for several hours before seeing
Williams and, therefore, knew that Turner fabricated the
"emergency" underlying his request for a ride. Second, physical
evidence tied Malone to the perpetration and planning of the
- 6 - robbery. The gun Malone had on his person the day of the
robbery and the bullet found in his pocket just two hours after
the robbery were consistent with the gun used in the robbery.
Third, Malone's act of getting into the cab of the vehicle when
Williams jumped from the truck, knowing Turner did not have
permission to take the truck, is evidence that he aided the
commission of the robbery and shared Turner's criminal intent.
Fourth, Malone's flight after abandoning the vehicle by the side
of the road is evidence of guilt. See Murray v. Commonwealth,
210 Va. 282, 283, 170 S.E.2d 3, 4 (1969) (holding that trier of
fact may consider flight as a factor tending to prove guilt).
Finally, the trier of fact could consider that Malone lied to
the police and disclaimed all responsibility at trial "to
conceal his guilt and thus [is] evidence of his guilt."
Rollston, 11 Va. App. at 548, 399 S.E.2d at 831; accord Wright
v. West, 505 U.S. 277, 296 (1992) (trier of fact may consider
perjured testimony as affirmative evidence of guilt).
While no single piece of evidence is sufficient to sustain
Malone's conviction, the totality of the evidence proves beyond
a reasonable doubt that Malone aided and abetted Turner in the
commission of the robbery and the use of a firearm in its
commission. See Stamper v. Commonwealth, 220 Va. 260, 273, 257
S.E.2d 808, 818 (1979); cf. Hampton v. Commonwealth, 32 Va. App.
644, 651-52, 529 S.E.2d 843, 847 (2000) (reversing defendant's
conviction as principal in the second degree where evidence
- 7 - consisted only of defendant's "not leaving the vehicle and
moving into the front seat," as the driver stole the vehicle).
We, therefore, affirm his convictions.
Affirmed.
- 8 -