COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Humphreys and Senior Judge Coleman Argued at Chesapeake, Virginia
TARQUIA SIMONE STAGG MEMORANDUM OPINION * BY v. Record No. 1836-09-1 JUDGE SAM W. COLEMAN III OCTOBER 26, 2010 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH Dean W. Sword, Jr., Judge
Stephen B. Plott (Kozak & Associates, on brief), for appellant.
Karen Misbach, Assistant Attorney General II (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
On appeal from his jury trial convictions for murder, malicious wounding, and two counts of
use of a firearm during the commission of a felony, Tarquia S. Stagg contends the evidence was
insufficient to support his convictions. We disagree and affirm his convictions.
BACKGROUND
“Under well-settled principles of appellate review, we consider the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing party below.” Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008). “We also accord the Commonwealth the benefit of all inferences fairly deducible from the evidence.” Riner v. Commonwealth, 268 Va. 296, 303, 601 S.E.2d 555, 558 (2004). “When reviewing the sufficiency of the evidence to support a conviction, the Court will affirm the judgment unless the judgment is plainly wrong or without evidence to support it.” Bolden, 275 Va. at 148, 654 S.E.2d at 586.
Smallwood v. Commonwealth, 278 Va. 625, 629, 688 S.E.2d 154, 156 (2009).
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. So viewed, the evidence proved that on the night of January 27, 2008, Andre Lamb and
Deltron Nichols traveled to a convenience store. As they arrived, Lamb noticed a car backing
into a parking space. Kenneth Griffin, appellant’s father, was driving the vehicle, and appellant
was riding in the front passenger seat.
Lamb and Nichols entered the store. Appellant also entered the store, while Griffin
remained in the car. Appellant exited the store and returned to the passenger seat of Griffin’s
car. Lamb explained he also left the store and waited outside for Nichols. Appellant then
returned to the store as Griffin exited his vehicle, opened the car’s trunk, and began rummaging
through its contents. Inside the store, appellant asked Nichols if he had hit his father’s car.
Nichols responded that he had not. The two men left the store together, and a video recording
from the store depicts them talking to each other outside. Lamb heard appellant ask Nichols if
someone had hit his car. Appellant repeated his questions about the car as Lamb and Nichols
approached him.
Meanwhile, Griffin had retrieved a white bag from the trunk of his car and stood behind
the vehicle. Griffin then began shooting a semi-automatic pistol towards Lamb and Nichols.
Both men fell to the ground, having been struck by Griffin’s shooting. Appellant remained
where he had been standing during the shooting and then walked towards his father and patted
his stomach. The video showed that appellant did not turn and look at Griffin until after
numerous shots were fired. Lamb rose from the ground and ran towards his car as Griffin fired
again, striking Lamb in the leg. Appellant closed the car’s trunk and reentered the vehicle, again
sitting in the front passenger seat. Griffin fired once more and then got back into the car. The
two fled the scene.
Griffin fired a total of seven shots towards the unarmed Lamb and Nichols. Both men
were struck twice, and Nichols died as a result of his injuries. Lamb testified that neither he nor
-2- Nichols made any threats to appellant or his father. Lamb also testified that they did not touch
Griffin’s vehicle.
Appellant testified he had no intention of harming anyone, and denied having planned the
shooting with his father. He stated he had made a bad decision to leave the crime scene.
ANALYSIS
An individual is liable for a crime as a principal in the second degree when the
Commonwealth proves that he was “‘present, aiding and abetting, by helping some way in the
commission of the crime.’” Washington v. Commonwealth, 43 Va. App. 291, 306, 597 S.E.2d
256, 263 (2004) (quoting Ramsey v. Commonwealth, 2 Va. App. 265, 269, 343 S.E.2d 465, 468
(1986)). In other words, “‘[t]he Commonwealth must prove that the defendant consented to the
felonious purpose and the defendant contributed to its execution.’” Brickhouse v.
Commonwealth, 276 Va. 682, 686, 668 S.E.2d 160, 163 (2008) (quoting McMorris v.
Commonwealth, 276 Va. 500, 505, 666 S.E.2d 348, 350 (2008)).
Although “[e]vidence of a defendant’s mere presence at a crime scene is insufficient to
sustain a conviction as a principal in the second degree,” id., the Commonwealth may prove that
an individual is guilty as a principal in the second degree “by any combination of circumstantial
or direct evidence,” id. at 687, 668 S.E.2d at 163. Thus, the evidence, taken as a whole, must
show that appellant “committed an overt act knowingly in furtherance of the commission of the
crime . . ., or that [he] shared in the criminal intent of the principal committing the crime.” Id.
“This rule cannot be interpreted to mean that any overt act that is advantageous to the principal’s
criminal plan is sufficient; the defendant must also share in the principal’s criminal intent.”
McMorris, 276 Va. at 505, 666 S.E.2d at 350.
Appellant asserts he was unaware of his father’s plan and intent to shoot the victims. The
evidence, while primarily circumstantial, supports the fact finder’s determination that appellant
-3- was a principal in the second degree to the crimes. While suspicion of guilt is never enough to
sustain a conviction, see Sutphin v. Commonwealth, 1 Va. App. 241, 244, 337 S.E.2d 897, 898
(1985), “‘[c]ircumstantial evidence is as acceptable to prove guilt as direct evidence.’” Cirios v.
Commonwealth, 7 Va. App. 292, 295, 373 S.E.2d 164, 165 (1988) (quoting Parks v.
Commonwealth, 221 Va. 492, 494, 270 S.E.2d 755, 759 (1980)). When the Commonwealth
relies primarily upon circumstantial evidence to establish the guilt of a defendant:
“[A]ll necessary circumstances proved must be consistent with guilt and inconsistent with innocence and must exclude every reasonable hypothesis of innocence. The circumstances of motive, time, place, means, and conduct must all concur to form an unbroken chain which links the defendant to the crime beyond a reasonable doubt.”
Boothe v. Commonwealth, 4 Va. App. 484, 492, 358 S.E.2d 740, 745 (1987) (quoting Bishop v.
Commonwealth, 227 Va. 164, 169, 313 S.E.2d 390, 393 (1984)).
Viewing the evidence in the light most favorable to the Commonwealth and according it
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COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Humphreys and Senior Judge Coleman Argued at Chesapeake, Virginia
TARQUIA SIMONE STAGG MEMORANDUM OPINION * BY v. Record No. 1836-09-1 JUDGE SAM W. COLEMAN III OCTOBER 26, 2010 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH Dean W. Sword, Jr., Judge
Stephen B. Plott (Kozak & Associates, on brief), for appellant.
Karen Misbach, Assistant Attorney General II (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
On appeal from his jury trial convictions for murder, malicious wounding, and two counts of
use of a firearm during the commission of a felony, Tarquia S. Stagg contends the evidence was
insufficient to support his convictions. We disagree and affirm his convictions.
BACKGROUND
“Under well-settled principles of appellate review, we consider the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing party below.” Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008). “We also accord the Commonwealth the benefit of all inferences fairly deducible from the evidence.” Riner v. Commonwealth, 268 Va. 296, 303, 601 S.E.2d 555, 558 (2004). “When reviewing the sufficiency of the evidence to support a conviction, the Court will affirm the judgment unless the judgment is plainly wrong or without evidence to support it.” Bolden, 275 Va. at 148, 654 S.E.2d at 586.
Smallwood v. Commonwealth, 278 Va. 625, 629, 688 S.E.2d 154, 156 (2009).
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. So viewed, the evidence proved that on the night of January 27, 2008, Andre Lamb and
Deltron Nichols traveled to a convenience store. As they arrived, Lamb noticed a car backing
into a parking space. Kenneth Griffin, appellant’s father, was driving the vehicle, and appellant
was riding in the front passenger seat.
Lamb and Nichols entered the store. Appellant also entered the store, while Griffin
remained in the car. Appellant exited the store and returned to the passenger seat of Griffin’s
car. Lamb explained he also left the store and waited outside for Nichols. Appellant then
returned to the store as Griffin exited his vehicle, opened the car’s trunk, and began rummaging
through its contents. Inside the store, appellant asked Nichols if he had hit his father’s car.
Nichols responded that he had not. The two men left the store together, and a video recording
from the store depicts them talking to each other outside. Lamb heard appellant ask Nichols if
someone had hit his car. Appellant repeated his questions about the car as Lamb and Nichols
approached him.
Meanwhile, Griffin had retrieved a white bag from the trunk of his car and stood behind
the vehicle. Griffin then began shooting a semi-automatic pistol towards Lamb and Nichols.
Both men fell to the ground, having been struck by Griffin’s shooting. Appellant remained
where he had been standing during the shooting and then walked towards his father and patted
his stomach. The video showed that appellant did not turn and look at Griffin until after
numerous shots were fired. Lamb rose from the ground and ran towards his car as Griffin fired
again, striking Lamb in the leg. Appellant closed the car’s trunk and reentered the vehicle, again
sitting in the front passenger seat. Griffin fired once more and then got back into the car. The
two fled the scene.
Griffin fired a total of seven shots towards the unarmed Lamb and Nichols. Both men
were struck twice, and Nichols died as a result of his injuries. Lamb testified that neither he nor
-2- Nichols made any threats to appellant or his father. Lamb also testified that they did not touch
Griffin’s vehicle.
Appellant testified he had no intention of harming anyone, and denied having planned the
shooting with his father. He stated he had made a bad decision to leave the crime scene.
ANALYSIS
An individual is liable for a crime as a principal in the second degree when the
Commonwealth proves that he was “‘present, aiding and abetting, by helping some way in the
commission of the crime.’” Washington v. Commonwealth, 43 Va. App. 291, 306, 597 S.E.2d
256, 263 (2004) (quoting Ramsey v. Commonwealth, 2 Va. App. 265, 269, 343 S.E.2d 465, 468
(1986)). In other words, “‘[t]he Commonwealth must prove that the defendant consented to the
felonious purpose and the defendant contributed to its execution.’” Brickhouse v.
Commonwealth, 276 Va. 682, 686, 668 S.E.2d 160, 163 (2008) (quoting McMorris v.
Commonwealth, 276 Va. 500, 505, 666 S.E.2d 348, 350 (2008)).
Although “[e]vidence of a defendant’s mere presence at a crime scene is insufficient to
sustain a conviction as a principal in the second degree,” id., the Commonwealth may prove that
an individual is guilty as a principal in the second degree “by any combination of circumstantial
or direct evidence,” id. at 687, 668 S.E.2d at 163. Thus, the evidence, taken as a whole, must
show that appellant “committed an overt act knowingly in furtherance of the commission of the
crime . . ., or that [he] shared in the criminal intent of the principal committing the crime.” Id.
“This rule cannot be interpreted to mean that any overt act that is advantageous to the principal’s
criminal plan is sufficient; the defendant must also share in the principal’s criminal intent.”
McMorris, 276 Va. at 505, 666 S.E.2d at 350.
Appellant asserts he was unaware of his father’s plan and intent to shoot the victims. The
evidence, while primarily circumstantial, supports the fact finder’s determination that appellant
-3- was a principal in the second degree to the crimes. While suspicion of guilt is never enough to
sustain a conviction, see Sutphin v. Commonwealth, 1 Va. App. 241, 244, 337 S.E.2d 897, 898
(1985), “‘[c]ircumstantial evidence is as acceptable to prove guilt as direct evidence.’” Cirios v.
Commonwealth, 7 Va. App. 292, 295, 373 S.E.2d 164, 165 (1988) (quoting Parks v.
Commonwealth, 221 Va. 492, 494, 270 S.E.2d 755, 759 (1980)). When the Commonwealth
relies primarily upon circumstantial evidence to establish the guilt of a defendant:
“[A]ll necessary circumstances proved must be consistent with guilt and inconsistent with innocence and must exclude every reasonable hypothesis of innocence. The circumstances of motive, time, place, means, and conduct must all concur to form an unbroken chain which links the defendant to the crime beyond a reasonable doubt.”
Boothe v. Commonwealth, 4 Va. App. 484, 492, 358 S.E.2d 740, 745 (1987) (quoting Bishop v.
Commonwealth, 227 Va. 164, 169, 313 S.E.2d 390, 393 (1984)).
Viewing the evidence in the light most favorable to the Commonwealth and according it
all reasonable inferences therefrom, the fact finder could conclude that, after having left the store
and returned to Griffin’s car, appellant then followed the victims back into the store and
confronted Nichols with the accusation that he touched or hit Griffin’s car. While appellant was
inside the store confronting Nichols, Griffin was retrieving the gun from the trunk of the car.
Appellant’s repeated questioning and interaction drew the victims towards Griffin’s car,
exposing them to Griffin’s gunfire. Appellant’s conduct therefore constitutes the overt act
required to support a finding of guilt as a principal in the second degree.
The evidence further supports the jury’s finding that appellant’s conduct was knowingly
in furtherance of the commission of Griffin’s crime, i.e., appellant intended his actions to aid in
Griffin’s shooting Nichols and Lamb. See McMorris, 276 Va. at 505, 666 S.E.2d at 350
(requiring evidence of criminal intent in addition to evidence of an overt act). Rather than
expressing surprise or fleeing or intervening when the shots were fired, appellant stood by -4- observing his father shoot the two men. Appellant then walked towards his father, touched
Griffin’s stomach, and then closed the car’s trunk before reentering the vehicle. Appellant’s
reaction to the gunfire and to his father’s course of conduct belies his assertion that he was
unaware of the intended shooting. See Thomas v. Commonwealth, 279 Va. 131, 156, 688 S.E.2d
220, 234 (2010) (“‘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 jury to infer that he asserted thereto, lent to it his countenance and approval,
and was thereby aiding and abetting the same.’” (quoting Foster v. Commonwealth, 179 Va. 96,
100, 18 S.E.2d 314, 316 (1942))). From the totality of these circumstances, it is reasonable to
infer that after appellant first exited the store, he reentered it and confronted the victims after
having spoken with his father, who was retrieving a gun from the car’s trunk, and appellant lured
the victims to where his father shot them. Then, consistent with appellant being a party to the
shooting, he left the scene with his father without offering aid to the victims or calling for help or
ever reporting the incident. Indeed, appellant sat in the car waiting for Griffin as Griffin fired the
final shot at the victims.
The jury viewed the video recording of the incident and permissibly concluded from the
circumstantial evidence that appellant was actively involved in the crimes and shared his father’s
criminal intent. From the evidence presented, the jury could infer that appellant and his father
had agreed to commit the crimes and appellant participated in the offenses by luring the two
victims to the vehicle so his father could shoot them. In addition, appellant’s flight from the
scene after the shootings was evidence of his guilt. See Clagett v. Commonwealth, 252 Va. 79,
93, 472 S.E.2d 263, 271 (1996).
“‘[W]hat inferences are to be drawn from proved facts is within the province of the [fact
finder] so long as the inferences are reasonable and justified.’” Higginbotham v.
-5- Commonwealth, 216 Va. 349, 353, 218 S.E.2d 534, 537 (1975) (quoting LaPrade v.
Commonwealth, 191 Va. 410, 418, 61 S.E.2d 313, 316 (1950)).
A reviewing court does not “‘ask itself whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt.’” Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)
(quoting Woodby v. INS, 385 U.S. 276, 282 (1966)) (emphasis in original). Instead, we ask only
“‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’”
Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008) (quoting Jackson,
443 U.S. at 319) (emphasis in original).
The evidence fully supports the jury’s verdicts. Noting that an appellate court is “not
permitted to reweigh the evidence,” Nusbaum v. Berlin, 273 Va. 385, 408, 641 S.E.2d 494, 507
(2007), we affirm appellant’s convictions.
Affirmed.
-6-