COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and Clements Argued at Alexandria, Virginia
RICHARD LEE PAIGE MEMORANDUM OPINION* BY v. Record No. 1444-02-4 JUDGE JEAN HARRISON CLEMENTS SEPTEMBER 30, 2003 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY Burke F. McCahill, Judge
John C. Cherry, III, for appellant.
Jennifer R. Franklin, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Richard Lee Paige was convicted in a jury trial of
distribution of cocaine, in violation of Code § 18.2-248. On
appeal, he contends the trial court erred in denying his motion to
strike the distribution of cocaine charge on the ground that the
evidence was insufficient, as a matter of law, to sustain his
conviction as a principal in the second degree. Finding the
evidence sufficient, we affirm the conviction.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts and incidents of the
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. proceedings as are necessary to the parties' understanding of the
disposition of this appeal.
I. BACKGROUND
In accordance with familiar principles of appellate review,
we "state the evidence presented at trial in the light most
favorable to the Commonwealth, the prevailing party below."
Johnson v. Commonwealth, 259 Va. 654, 662, 529 S.E.2d 769, 773
(2000).
On August 25, 2000, officers from the Loudoun County
Sheriff's Office were conducting a narcotics investigation at the
Community Plaza Shopping Center in Loudoun County. As part of
that undercover operation, the officers set up a "controlled buy"
in an attempt to apprehend individuals suspected of distributing
crack cocaine in the area. A "controlled buy" occurs when a
private citizen, called a "cooperating individual" (C.I.), works
with the police to purchase contraband from a suspect, under
controlled circumstances. Specifically, the C.I. is searched
prior to the transaction to insure he has no money or contraband
with him. The C.I. is then given a specific amount of "buy money"
with which to purchase the contraband and is "wired" with a
microphone and transmitter so that the transaction can be
monitored by the police. After the transaction, the C.I. returns
to the police and is searched again. Any drugs purchased by the
C.I. are recovered by the police.
- 2 - Investigator Ken Dondero, the lead officer of the
investigation, testified that, prior to the transaction, he met
with the C.I. involved in the operation in a remote area near the
Community Plaza Shopping Center. The C.I. then made a recorded
telephone call to the residence of a suspect, not Paige, and spoke
to Gilbert Johnson and James Neal. Dondero, who was monitoring
the C.I.'s conversation, was familiar with Neal "from previous
deals." During the conversation with Neal, the C.I. asked to
purchase two "8 balls" of crack cocaine. An "8 ball" is
approximately one-eighth of an ounce of crack cocaine. The C.I.
agreed to meet Neal for the "buy" in fifteen minutes at the
Shoppers Food Warehouse located in the Community Plaza Shopping
Center.
When the call was concluded, Dondero searched the C.I., gave
him $250 with which to make the "buy," and "wired" him with an
"electronic monitoring device" consisting of a microphone and
transmitter. Dondero then drove the C.I. to the far end of the
Community Plaza Shopping Center and dropped him off. Monitored by
Dondero, the C.I. walked to the other end of the shopping center
and waited in front of the Shoppers Food Warehouse.
Other officers were positioned around the shopping center for
surveillance. Sergeant William Nugent was responsible for the
audio and video surveillance of the "controlled buy." From inside
an enclosed vehicle in the store's parking lot, he used a receiver
to monitor the C.I.'s transmitter and a periscope video camera
- 3 - with zoom capability to shoot the C.I.'s activities. Using that
equipment and a video recorder, Nugent made a videotape of the
transaction. The videotape, which was admitted into evidence and
viewed by the jury at trial, recorded what Nugent saw through the
camera and the sounds picked up by the C.I.'s microphone and
transmitted to Nugent's monitoring equipment.
After dropping the C.I. off at the shopping center, Dondero
parked his car in a space near the Shoppers Food Warehouse, from
which he "had a good view of the C.I." While sitting in his car,
he observed Neal approach the C.I. on foot and engage him in
conversation. Shortly thereafter, Dondero noticed a man, later
identified as Paige, walking near his car. Dondero observed Paige
"wander[ing] through the parking lot" and holding his hand up to
his face "as if he was speaking on a cell phone." According to
Dondero, Paige was "looking around the parking lot, acting
suspiciously." Dondero notified the other officers on the scene
that Paige could be a "lookout" for Neal because he "was observing
everything in the parking lot, [walking] not [in] any real
direction, just wandering around, looking around to see who else
might be on the lot or see who might be watching him or other
people." Dondero advised the other officers that, in light of his
suspicious behavior, Paige bore watching to "see if he ha[d]
anything to do with [the transaction]."
Eventually Paige walked up to Neal and the C.I., prompting
the C.I. to ask Neal if Paige was his "partner." After a cursory
- 4 - exchange with the two men, Paige continued walking. The C.I. then
handed Neal an item, which Dondero believed was the "buy money" he
had given him earlier. A moment later, Paige again walked up to
Neal and the C.I. After a brief conversation with Neal, Paige
walked away. At Neal's direction, the C.I. then walked to Neal's
"brown truck," which was parked in the parking lot, and stood
beside it. After a while, Neal and Paige, walking together,
approached Neal's truck.
When Neal and Paige arrived at Neal's truck, the following
exchange occurred:
C.I.: Do you all do insulation?
Neal: Yeah.
C.I.: Do ya? Shit, we're always looking for help.
Paige (opening the passenger door of the truck for the C.I.): Come on.
C.I.: I ain't getting in with you all. I don't know you, man. For real.
Paige: You gonna wait right here for us?
C.I.: Oh . . ., man.
Neal (sitting in the driver's seat of the truck): I be back, I be back, I be back in twenty minutes, man.
Paige: Man, everything's cool, man. It ain't even got to be going like that.
Neal: I can be back in twenty minutes.
Paige: Another twenty minutes, I got it waiting on the corner for you, right? Ain't nobody going to bullshit you.
- 5 - Paige (getting in the passenger seat of the truck): I don't care, I mean . . .
At that point, Neal started the truck, which drowned out the
continuing exchange. Eventually, the C.I. stated, "All right,"
and started walking back to the front of the Shoppers Food
Warehouse. Neal and Paige then drove off in the truck.
At that juncture, Investigator John Dodson, who had been
observing the transaction, began a "mobile surveillance" of Neal's
truck. He followed the truck out of the parking lot and tailed it
for approximately ten minutes to an apartment complex on Brethour
Court in the Sugarland Run subdivision. There, Dodson observed
Paige exit the vehicle, walk across a parking area, and enter the
apartment complex through the stairwell of Building 1405. "[A]
couple minutes later," Dodson saw Paige re-emerge from the
apartment complex and return to the truck. Once Paige was back in
the truck's passenger seat, Neal and he drove away. Dodson
followed the truck back to the area of the Shoppers Food
Warehouse.
When the truck turned into the entrance of the shopping
center parking lot, Dodson observed Paige get out of the truck and
begin to walk eastbound on an access road that was parallel to
Route 7. Dodson estimated that the access road was "a couple
hundred yards" away from the front of the Shoppers Food Warehouse
where the C.I. was standing. Dodson then observed Neal
- 6 - immediately continue on in the truck toward the front of Shoppers
Food Warehouse.
Approximately twenty minutes after Neal and Paige had left
the area in Neal's truck, Investigator Dondero, who had continued
his surveillance of the C.I., observed Neal's truck return to the
Shoppers Food Warehouse parking lot. Neal was alone in the truck.
Neal pulled up to the curb in front of the Shoppers Food Warehouse
where the C.I. was waiting. Dondero testified and the videotape
confirms that what "appeared to be an exchange" then took place.
The C.I. leaned through the passenger side window of Neal's truck,
"as if grabbing something," and, after a brief conversation with
Neal, "came back out" of the truck. Neal then drove away.
Dondero picked up the C.I. and retrieved from him the item
purchased from Neal, a "corner of a napkin" containing a substance
later determined to be crack cocaine. Thereafter, Dondero
searched the C.I. and found no other contraband or any of the "buy
money" on him.
Paige was indicted for distribution of cocaine, in violation
of Code § 18.2-248. At trial on that charge, the Commonwealth
proceeded against Paige solely on the theory that he was a
principal in the second degree in the distribution of the cocaine
to the C.I. Upon the conclusion of the Commonwealth's evidence,
Paige moved to strike the charge against him on the ground the
Commonwealth's evidence was insufficient to prove he had any
involvement in the actual distribution of the cocaine to the C.I.
- 7 - The evidence, he argued, did not show he was present at the scene
of the distribution or that he assisted Neal in the commission of
the crime. The Commonwealth argued the evidence was sufficient
because it proved Paige was present for a "substantial portion" of
the illegal transaction and that he overtly aided and abetted Neal
in the commission of the crime. The trial court denied the
motion, without explanation, and Paige rested without presenting
any evidence. Making no additional argument, Paige renewed his
motion to strike, which the trial court again denied without
explanation. The jury subsequently found Paige guilty of
distribution of cocaine, as charged, and this appeal followed.
II. ANALYSIS
When the sufficiency of the evidence is challenged on appeal,
we review the evidence "in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom." Bright v. Commonwealth, 4 Va. App. 248,
250, 356 S.E.2d 443, 444 (1997). We are further mindful that the
"credibility of a witness, the weight accorded the testimony, and
the inferences to be drawn from proven facts are matters solely
for the fact finder's determination." Crawley v. Commonwealth, 29
Va. App. 372, 375, 512 S.E.2d 169, 170 (1999). We will not
disturb the conviction unless it is plainly wrong or unsupported
by the evidence. Sutphin v. Commonwealth, 1 Va. App. 241, 243,
337 S.E.2d 897, 898 (1985).
- 8 - Paige acknowledges, on appeal, that Neal distributed cocaine
to the C.I. on August 25, 2000. He contends, however, that the
trial court erred in denying his motion to strike the distribution
of cocaine charge against him, because the evidence is
insufficient as a matter of law to prove beyond a reasonable doubt
that he participated as a principal in the second degree in the
distribution of cocaine by Neal. Specifically, Paige argues, as
he did at trial, that the evidence did not show he was present at
the scene of the crime or that he assisted Neal in committing the
crime. We disagree.
The Commonwealth prosecuted Paige in this case solely under
the theory that he was a principal in the second degree in Neal's
distribution of the cocaine to the C.I.1 "[I]n Virginia[,] a
principal in the second degree is held as culpable as one in the
first degree" and is, therefore, subject to the same punishment
as a principal in the first degree. Briley v. Commonwealth, 221
Va. 563, 573, 273 S.E.2d 57, 63 (1980); Code § 18.2-18. To hold
1 Nothing in the record reveals why the Commonwealth chose to proceed against Paige solely on the theory that he was a principal in the second degree. Because, pursuant to Code § 18.2-18, a principal in the second degree and an accessory before the fact "may be indicted, tried, convicted and punished in all respects as if a principal in the first degree," the Commonwealth is not required to elect between those two theories and, depending on the evidence, a defendant may be convicted under either theory, thus, essentially rendering the issue of the defendant's presence at the commission of the crime moot. See Ward v. Commonwealth, 205 Va. 564, 568, 138 S.E.2d 293, 296 (1964); see also Sutton v. Commonwealth, 228 Va. 654, 670 n.*, 324 S.E.2d 665, 674 n.* (1985) (Stephenson, J., dissenting in Record No. 831788).
- 9 - an accused accountable as a principal in the second degree, the
Commonwealth must prove the accused was "present, aiding and
abetting, by helping some way in the commission of the crime."
Ramsey v. Commonwealth, 2 Va. App. 265, 269, 343 S.E.2d 465, 468
(1986). Actual presence at the commission of the crime, however,
is not required to convict the accused as a principal in the
second degree. The accused need only be constructively present at
the crime's commission. See Sutton v. Commonwealth, 228 Va. 654,
666, 324 S.E.2d 665, 671 (1985) (Stephenson, J., dissenting in
Record No. 831788). As the Supreme Court stated in Sutton:
"'[T]he presence need not be a strict, actual, immediate presence, such a presence as would make [the defendant] an eye or ear witness of what passes, but may be a constructive presence. So that if several persons set out together . . . upon one common design, be it murder or other felony, or for any other purpose unlawful in itself, and each takes the part assigned him; . . . they are all, provided the fact be committed, in the eyes of the law, present at it . . . .'"
Id. at 667, 324 S.E.2d at 672 (second alteration in original)
(quoting Dull v. Commonwealth, 66 Va. (25 Gratt.) 965, 977 (1875)
(emphasis added) (quoting 1 Russell on Crimes 27 (3d ed. 1845))).
Here, the record plainly shows that Paige was not actually
present when Neal transferred the cocaine to the C.I. directly in
front of the Shoppers Food Warehouse store. The evidence
establishes that, at the time the cocaine was distributed, Paige
was "a couple hundred yards" away from the scene of the
- 10 - distribution, walking near the shopping center's entrance on an
access road that was parallel to Route 7. The question remains,
however, whether the evidence was sufficient nevertheless to
sustain Paige's conviction of distribution of cocaine as a
principal in the second degree. We believe the Supreme Court's
decisions in Sutton and Grant v. Commonwealth, 216 Va. 166, 217
S.E.2d 806 (1975) (per curiam), govern the resolution of that
question.
In Sutton, both Mr. and Mrs. Sutton were convicted of raping
Mrs. Sutton's niece, a minor who was living with them because her
father had beaten her. Sutton, 228 Va. at 658, 660, 324 S.E.2d at
667, 668. Mrs. Sutton was convicted of rape as a principal in the
second degree. Id. at 658, 324 S.E.2d at 667. The evidence in
the case established that, on various occasions prior to the
actual rape itself, Mrs. Sutton told the victim that she would get
over her fear of men if she had sexual intercourse with Mr.
Sutton, id. at 659, 324 S.E.2d at 667, and that she would have to
return to her abusive father if she did not have sexual
intercourse with Mr. Sutton, id. at 660, 324 S.E.2d at 668. One
day after the Suttons took the victim to get birth control pills,
Mr. Sutton had sexual intercourse with the victim. Id. The
victim did not physically resist because she was afraid that,
among other things, the Suttons would return her to her father.
Id.
- 11 - During the rape itself, however, Mrs. Sutton "was not
physically present but was in bed in another room." Id. at 666,
324 S.E.2d at 672. Indeed, as Justice Stephenson noted, "at all
times before and during the commission of the offense, [Mrs.
Sutton] was in another room, in bed, and quite probably asleep.
There [was] no evidence that she even knew that the crime was
being committed . . . ." Id. at 670, 324 S.E.2d at 674
(Stephenson, J., dissenting in Record No. 831788). Nevertheless,
the majority held that the evidence was sufficient to establish
Mrs. Sutton's "constructive presence during the commission of the
crime," id. at 666, 324 S.E.2d at 672, to prove that Mrs. Sutton
assisted Mr. Sutton in the commission of the crime, id. at 667-68,
324 S.E.2d at 672, and to convict Mrs. Sutton as a principal in
the second degree, id. at 668, 324 S.E.2d at 672.
The Court reasoned in Sutton as follows:
In this case, [Mrs. and Mr. Sutton] discussed [Mr. Sutton's] desire to have intercourse with [the victim] and [the victim's] resistance. They embarked on a common purpose of inducing [the victim] by intimidation to submit to [Mr. Sutton's] advances. [Mrs. Sutton's] part in the scheme was to so overcome [the victim] with the prospect of returning to [her father] and a life of physical abuse that she would no longer refuse [Mr. Sutton's] demands. By her reprimands of [the victim] and her warning about the consequences of continued resistance, [Mrs. Sutton] executed her part in the crime and helped ensure the success of their common enterprise.
Id. at 670, 324 S.E.2d at 674.
- 12 - In Grant, the accused was convicted of robbery based on
evidence that, shortly after the robbery, he was seen driving a
car with the two assailants who had committed the actual robbery
as his passengers. Grant, 216 Va. at 167, 217 S.E.2d at 807. In
considering the sufficiency of the evidence to sustain Grant's
conviction, the Supreme Court held as follows:
While there is no direct evidence that the defendant was present at the scene of the robbery and actively participating in the crime, the circumstantial evidence points unerringly to his guilt as an aider and abettor of the offense. We believe the evidence permits the reasonable inference that, while the robbery was in progress, the defendant, at some convenient distance from the scene, was serving as a lookout, waiting to aid the robbers in their escape. The evidence permits the further inference that, following the robbery, the defendant acted as the driver of the "getaway" car in the abortive escape attempt. Accordingly, he was properly convicted as a principal in the second degree.
Id. at 168-69, 217 S.E.2d 808.
Applying the Supreme Court's rationale in Sutton and Grant
to the evidence before us, we conclude that the evidence was
sufficient to show that, although not actually present at the
crime's commission when the distribution of cocaine took place,
Paige was constructively present at the crime's commission and was
aiding and abetting Neal, "by helping some way in the commission
of the crime." Ramsey, 2 Va. App. at 269, 343 S.E.2d at 468.
Viewed in the light most favorable to the Commonwealth, the
evidence, and the reasonable inferences fairly deducible from it,
- 13 - establish that Neal and Paige came to the parking lot at Shoppers
Food Warehouse in response to the C.I.'s request to buy cocaine
from Neal. Their common purpose was to make money by successfully
selling cocaine to the C.I. and perhaps gain a steady customer in
the process. While Neal and the C.I. discussed the "buy," Paige,
serving as a lookout, cased the parking lot, with his cell phone
in hand, to make sure the transaction was not a trap. Only after
speaking with Paige did Neal take the "buy money" from the C.I.
and direct him to his truck. When the C.I. refused Paige's
invitation to get in the truck and accompany them to the source of
the cocaine, Paige assured the doubting C.I. that the deal was
legitimate and would be consummated shortly. Paige, whose role in
the scheme at that point was to secure the success of the
transaction by convincing the skeptical buyer to wait for them,
told the C.I. that "nobody [was] going to bullshit" him and that
he had the cocaine "waiting on the corner." Paige and Neal
repeated they would be back in twenty minutes with the cocaine.
At Brethour Court, Paige alone entered the apartment complex,
and obtained the cocaine that was to be distributed to the C.I.
When he returned moments later to Neal's truck, Neal and he
returned to the Shoppers Food Warehouse parking lot. After
dropping Paige off near the entrance of the parking lot,
approximately two hundred yards from where the C.I. was waiting,
Neal immediately drove to the front of the store and delivered the
cocaine to the C.I.
- 14 - This evidence adequately establishes Paige's role as a
confederate of Neal in their common enterprise to sell cocaine to
the C.I. Neal's role was to negotiate the sale with the C.I.,
collect the purchase price, and deliver the drugs in return. The
various roles assigned to and executed by Paige during the
transaction were no less meaningful. But for his encouragement,
persuasion, and other assistance, the transaction would not have
taken place.
Hence, in light of Paige's extensive involvement in the
common enterprise, including his stint in the parking lot as a
lookout, and the fact that, having been dropped off by Neal
immediately prior to the transfer of the cocaine to the C.I.,
Paige was located near the entrance to the parking lot only two
hundred yards away from the scene of the crime, the jury was
entitled to find by inference that Paige had been posted as a
lookout at a convenient distance from the scene to make sure that
Neal was not followed into or out of the parking lot and that the
distribution itself occurred without any problems. The jury was
further entitled to find from the evidence that, when the
distribution of cocaine took place, Paige was discharging his
lookout duties.
We conclude, therefore, that the evidence is sufficient, as a
matter of law, to support the finding beyond a reasonable doubt
that Paige participated in the distribution of cocaine to the C.I.
as a principal in the second degree.
- 15 - Paige also argues that, because he was not observed obtaining
the cocaine inside the apartment complex or with the cocaine in
his possession, the merely circumstantial evidence of the
Commonwealth did not exclude the reasonable hypothesis of
innocence that the cocaine was in Neal's sole possession at all
times. We find this argument meritless. "Whether an alternative
hypothesis is reasonable is a question of fact, and, therefore, is
binding on appeal unless plainly wrong." Archer v. Commonwealth,
26 Va. App. 1, 12-13, 492 S.E.2d 826, 832 (1997). Paige suggests
that Neal and he left the shopping center parking lot to test the
C.I.'s resolve. He further suggests the possibility that he went
into the apartment complex for a reason other than to procure
cocaine. Here, however, there was no evidence to support either
suggestion. The only hypotheses of innocence "which must be . . .
excluded are those which flow from the evidence itself, and not
from the imaginations of defense counsel." Cook v. Commonwealth,
226 Va. 427, 433, 309 S.E.2d 325, 329 (1983).
Accordingly, we hold that Paige was properly convicted of
distribution of cocaine as a principal in the second degree and
affirm the conviction.
Affirmed.
- 16 -