COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Annunziata and Senior Judge Overton Argued at Norfolk, Virginia
ROBERT WAYNE DEHAVEN MEMORANDUM OPINION * BY v. Record No. 1886-01-1 JUDGE NELSON T. OVERTON JULY 23, 2002 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK John C. Morrison, Jr., Judge
Joseph A. Pennington (Joseph A. Pennington & Associates, P.C., on brief), for appellant.
Jennifer R. Franklin, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Robert Wayne Dehaven, appellant, was convicted of conspiring
to receive stolen goods. He appeals and contends the evidence was
insufficient to support his conviction, alleging specifically that
(I) there was no evidence that he entered an agreement to perform
an unlawful act and (II) the only evidence of wrongful conduct
involved a two-party transaction which is not a sufficient
predicate for a conspiracy conviction. For the following reasons,
we affirm appellant's conviction.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Facts
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)
(citation omitted). "The credibility of the witnesses and the
weight accorded the evidence are matters solely for the fact
finder who has the opportunity to see and hear that evidence as
it is presented." Sandoval v. Commonwealth, 20 Va. App. 133,
138, 455 S.E.2d 730, 732 (1995).
So viewed, the evidence proved that Chrystine Kelley stole
goods, such as medicine, DVDs, tools, clothes and Disney movies,
to support her heroin addiction. Kelley was a "booster," who is
someone who steals merchandise and "fences" the goods. From
1993 until February 10, 2000, Kelley sold these stolen goods to
appellant at a pawnshop, a flea market, in parking lots, or on
side streets. From January 1, 1998 until August 8, 2000, the
time period in question, Kelley had approximately 100
transactions with appellant. The goods she sold appellant at
any one transaction had a retail value of between $2,000 and
$10,000. She would carry the goods, always in their original
wrappers, in grocery bags to where she met appellant. Depending
on how much merchandise she was selling appellant in the
transaction, she would either dump it out, count it, and
-2- appellant would pay her for it, or she would deliver the goods
to appellant with an amount already tallied, appellant would pay
her that amount, and "get back to her" if something was not
right. Appellant was only one of three "fences" to whom Kelley
sold the stolen goods. Kelley "boosted" the goods immediately
after stealing them, within an hour if she could "get in touch
with the fence."
Appellant would request certain items from Kelley, such as
DVDs, specific size bottles of medicine, or computer software,
and suggested to Kelley the stores from which to steal the
specific goods he wanted. When Kelley was in withdrawal and
"too sick to steal," she would borrow money from appellant for a
"fix."
Kelley knew of six or seven other people who "boosted" for
appellant, including Eddie Brown. Brown, also a heroin addict,
met appellant in November 1999. A friend of Brown's told him
that appellant "buys medicine." Brown stole medicine from
K-Mart and sold it, in its original packaging, to appellant the
same day. Brown also sold appellant DVDs, Nintendo cartridges,
hair clippers, and "just about anything." If Brown sold to
appellant early in the day, appellant encouraged Brown to "go
out and get some more." Brown stole merchandise and sold it to
appellant in order to support his heroin addiction.
-3- Thereafter, Brown worked with the police as a confidential
informant. Brown introduced appellant to Officer W.L. Brabson,
who was working as an undercover officer. Brabson sold
appellant a bag containing DVDs. Brown told appellant that
Lawrence Hill, another officer working on the case, was "the
person to see if he needed more DVD movies." Two weeks later,
Brabson called appellant's cell phone and arranged to meet and
sell appellant more DVDs. When they met thirty-five minutes
later in the Big Top lot, appellant drove up and told Brabson to
get in the vehicle "because he did not want to look suspicious."
Brabson sold appellant DVDs, film, and razor blades for cash.
Several months later, Brabson again called appellant's cell
phone and told him he had more DVDs and arranged to meet him at
a 7-Eleven parking lot. When appellant drove up, Brabson handed
him the bag of DVDs, appellant put the bag into the backseat and
paid Brabson in cash.
After buying these goods from his "boosters," appellant
would sell the goods to Carl Schumacher one or more times a
week. Appellant would bring the goods to Schumacher's
warehouse. Schumacher sold the stolen property from his
warehouse.
-4- Discussion
I.
At trial, appellant argued that Wharton's Rule barred his
conviction for conspiring to receive stolen goods. Appellant
never argued to the trial court that the evidence was insufficient
to prove he entered into an unlawful agreement. "The Court of
Appeals will not consider an argument on appeal which was not
presented to the trial court." Ohree v. Commonwealth, 26
Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). See Rule 5A:18.
Accordingly, Rule 5A:18 bars our consideration of whether the
evidence was sufficient to prove appellant entered into an
unlawful agreement. Moreover, the record does not reflect any
reason to invoke the good cause or ends of justice exceptions to
Rule 5A:18.
II.
"Wharton's Rule" is defined as "'[w]hen to the idea of an
offense plurality of agents is logically necessary, conspiracy,
which assumes the voluntary accession of a person to a crime of
such a character that it is aggravated by a plurality of agents,
cannot be maintained.'" Stewart v. Commonwealth, 225 Va. 473,
478, 303 S.E.2d 877, 879 (1983) (quoting 2 F. Wharton, Criminal
Law § 1604, at 1862 (12th ed. 1932)). "Wharton's Rule,
therefore, will bar conviction for conspiracy to commit a
criminal act where only those parties necessary to the
-5- commission of the underlying offense are involved in the
conspiracy to commit that offense." Brown v. Commonwealth, 10
Va. App. 73, 80, 390 S.E.2d 386, 389 (1990).
The evidence in this case supports more than a mere
buy-sell agreement. Appellant was the "middle man" between his
"boosters" and Schumacher. Appellant directed the activities of
his "boosters," Kelley and Brown, by telling them what he
wanted, where they could find the specific goods, and, if it was
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Annunziata and Senior Judge Overton Argued at Norfolk, Virginia
ROBERT WAYNE DEHAVEN MEMORANDUM OPINION * BY v. Record No. 1886-01-1 JUDGE NELSON T. OVERTON JULY 23, 2002 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK John C. Morrison, Jr., Judge
Joseph A. Pennington (Joseph A. Pennington & Associates, P.C., on brief), for appellant.
Jennifer R. Franklin, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Robert Wayne Dehaven, appellant, was convicted of conspiring
to receive stolen goods. He appeals and contends the evidence was
insufficient to support his conviction, alleging specifically that
(I) there was no evidence that he entered an agreement to perform
an unlawful act and (II) the only evidence of wrongful conduct
involved a two-party transaction which is not a sufficient
predicate for a conspiracy conviction. For the following reasons,
we affirm appellant's conviction.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Facts
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)
(citation omitted). "The credibility of the witnesses and the
weight accorded the evidence are matters solely for the fact
finder who has the opportunity to see and hear that evidence as
it is presented." Sandoval v. Commonwealth, 20 Va. App. 133,
138, 455 S.E.2d 730, 732 (1995).
So viewed, the evidence proved that Chrystine Kelley stole
goods, such as medicine, DVDs, tools, clothes and Disney movies,
to support her heroin addiction. Kelley was a "booster," who is
someone who steals merchandise and "fences" the goods. From
1993 until February 10, 2000, Kelley sold these stolen goods to
appellant at a pawnshop, a flea market, in parking lots, or on
side streets. From January 1, 1998 until August 8, 2000, the
time period in question, Kelley had approximately 100
transactions with appellant. The goods she sold appellant at
any one transaction had a retail value of between $2,000 and
$10,000. She would carry the goods, always in their original
wrappers, in grocery bags to where she met appellant. Depending
on how much merchandise she was selling appellant in the
transaction, she would either dump it out, count it, and
-2- appellant would pay her for it, or she would deliver the goods
to appellant with an amount already tallied, appellant would pay
her that amount, and "get back to her" if something was not
right. Appellant was only one of three "fences" to whom Kelley
sold the stolen goods. Kelley "boosted" the goods immediately
after stealing them, within an hour if she could "get in touch
with the fence."
Appellant would request certain items from Kelley, such as
DVDs, specific size bottles of medicine, or computer software,
and suggested to Kelley the stores from which to steal the
specific goods he wanted. When Kelley was in withdrawal and
"too sick to steal," she would borrow money from appellant for a
"fix."
Kelley knew of six or seven other people who "boosted" for
appellant, including Eddie Brown. Brown, also a heroin addict,
met appellant in November 1999. A friend of Brown's told him
that appellant "buys medicine." Brown stole medicine from
K-Mart and sold it, in its original packaging, to appellant the
same day. Brown also sold appellant DVDs, Nintendo cartridges,
hair clippers, and "just about anything." If Brown sold to
appellant early in the day, appellant encouraged Brown to "go
out and get some more." Brown stole merchandise and sold it to
appellant in order to support his heroin addiction.
-3- Thereafter, Brown worked with the police as a confidential
informant. Brown introduced appellant to Officer W.L. Brabson,
who was working as an undercover officer. Brabson sold
appellant a bag containing DVDs. Brown told appellant that
Lawrence Hill, another officer working on the case, was "the
person to see if he needed more DVD movies." Two weeks later,
Brabson called appellant's cell phone and arranged to meet and
sell appellant more DVDs. When they met thirty-five minutes
later in the Big Top lot, appellant drove up and told Brabson to
get in the vehicle "because he did not want to look suspicious."
Brabson sold appellant DVDs, film, and razor blades for cash.
Several months later, Brabson again called appellant's cell
phone and told him he had more DVDs and arranged to meet him at
a 7-Eleven parking lot. When appellant drove up, Brabson handed
him the bag of DVDs, appellant put the bag into the backseat and
paid Brabson in cash.
After buying these goods from his "boosters," appellant
would sell the goods to Carl Schumacher one or more times a
week. Appellant would bring the goods to Schumacher's
warehouse. Schumacher sold the stolen property from his
warehouse.
-4- Discussion
I.
At trial, appellant argued that Wharton's Rule barred his
conviction for conspiring to receive stolen goods. Appellant
never argued to the trial court that the evidence was insufficient
to prove he entered into an unlawful agreement. "The Court of
Appeals will not consider an argument on appeal which was not
presented to the trial court." Ohree v. Commonwealth, 26
Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). See Rule 5A:18.
Accordingly, Rule 5A:18 bars our consideration of whether the
evidence was sufficient to prove appellant entered into an
unlawful agreement. Moreover, the record does not reflect any
reason to invoke the good cause or ends of justice exceptions to
Rule 5A:18.
II.
"Wharton's Rule" is defined as "'[w]hen to the idea of an
offense plurality of agents is logically necessary, conspiracy,
which assumes the voluntary accession of a person to a crime of
such a character that it is aggravated by a plurality of agents,
cannot be maintained.'" Stewart v. Commonwealth, 225 Va. 473,
478, 303 S.E.2d 877, 879 (1983) (quoting 2 F. Wharton, Criminal
Law § 1604, at 1862 (12th ed. 1932)). "Wharton's Rule,
therefore, will bar conviction for conspiracy to commit a
criminal act where only those parties necessary to the
-5- commission of the underlying offense are involved in the
conspiracy to commit that offense." Brown v. Commonwealth, 10
Va. App. 73, 80, 390 S.E.2d 386, 389 (1990).
The evidence in this case supports more than a mere
buy-sell agreement. Appellant was the "middle man" between his
"boosters" and Schumacher. Appellant directed the activities of
his "boosters," Kelley and Brown, by telling them what he
wanted, where they could find the specific goods, and, if it was
early in the day, by directing them to obtain more goods. In
addition, appellant made loans to Kelley so she could get "a
fix" to feel well enough to steal more goods, giving appellant a
vested interest in Kelley's success. The fact finder could
reasonably infer that the "boosters" sold stolen goods to
appellant knowing that appellant intended to resell them and
that by following appellant's directives on what to steal and
where to steal the goods, the "boosters" intended to further,
promote, and cooperate in appellant's plan to resell the goods.
Appellant knew what his buyer wanted and, therefore, directed
his "boosters" to get those particular goods. See Feigley v.
Commonwealth, 16 Va. App. 717, 722-23, 432 S.E.2d 520, 524
(1993) ("A conspiracy to distribute drugs can be shown by a
series of drug transactions where one person sells drugs to a
buyer who, in turn, resells them to a third party."). More
parties were involved in the conspiracy to receive stolen goods
-6- than were necessary for the underlying offense of receiving
stolen goods; therefore, Wharton's Rule does not bar appellant's
conspiracy conviction.
The evidence, viewed in the light most favorable to the
Commonwealth, was sufficient to support the finding that a
conspiracy existed between appellant and his "boosters" to get
stolen goods to resell to third parties, one of whom was
Schumacher. For these reasons, appellant's conviction is
affirmed.
-7-