Summary
affirming where robbery co-conspirators parked in a secluded area and moved through "the weeds" toward a nearby restaurant with masks, gloves, and a loaded firearm
Summary of this case from Taybron v. CommonwealthOpinion
44405 Record No. 820418. Record No. 820419.
December 3, 1982.
Present: All the Justices.
Evidence sufficient to sustain convictions of conspiracy to commit robbery.
(1) Criminal Law — Conspiracy — Defined.
(2) Criminal Procedure — Conspiracy — Evidence — Circumstantial — Conspiracy Can Be Proved by Circumstantial Evidence.
(3) Criminal Procedure — Appeals — Evidence — Court Views Evidence and all Reasonable Inferences Therefrom in Light Most Favorable to Commonwealth.
(4) Criminal Procedure — Appeals — Evidence — Verdict of Trial Court — Verdict of Trial Court Not Disturbed Unless Plainly Wrong or Without Evidence to Support It.
(5) Criminal Procedure — Conspiracy — Evidence — Trial Court Could Reasonably Infer From Evidence that Defendants Had Agreed to Commit Crimes.
(6) Criminal Procedure — Conspiracy — Robbery — Evidence — Sufficient for Trial Court Reasonably to Conclude that Defendants' Objective was Robbery.
A police officer, dispatched to an office building at about 10:40 p.m., found an unoccupied automobile parked in an area not visible from the road, about 25 feet from the gravelled area of the building parking lot and about 300 feet from a fast food restaurant. There was access from the place the automobile was parked to the restaurant parking lot. The officer examined the automobile and found the engine warm. He observed the vehicle for approximately 25 minutes. The officer then saw the defendants approaching the vehicle from the vicinity of the restaurant. They placed what appeared to be a pistol in the center of the trunk. As the defendants attempted to drive away, they were stopped by other officers. Two stocking masks, a black skullcap, two ski caps and a pair of brown gloves were found between the two front seats. These objects had not been there when the first officer examined the car. Another pair of gloves was found on the person of one of the defendants. A loaded pistol was found in the center of the trunk. One defendant had on his clothing and beard pieces of plant material similar to that between the car and the restaurant. One defendant stated to police that the pair had stopped to relieve themselves and denied knowledge of the pistol. In a bench trial at which defendants presented no evidence, they were convicted of conspiracy to commit robbery and sentenced. The question on appeal is whether the evidence is sufficient to sustain the convictions.
1. Conspiracy is an agreement between two or more persons by some concerted action to commit an offense.
2. A conspiracy may be proved by circumstantial evidence.
3. In determining the sufficiency of evidence on appeal, the evidence and all reasonable inferences therefrom are viewed in the light most favorable to the Commonwealth.
4. The verdict of the Trial Court will not be disturbed unless it is plainly wrong or without evidence to support it.
5. Considering all the circumstances, the Trial Court could reasonably infer that defendants had agreed to commit a crime, their actions being consistent with illegality and inconsistent with legality.
6. The finder of fact may draw a reasonable inference that a defendant intended to commit one crime rather than another, the evidence here being sufficient for the Trial Court reasonably to conclude the defendant's objective was robbery.
Appeal from a judgment of the Circuit Court of Chesterfield County. Hon. D. W. Murphey, judge presiding.
Affirmed.
Michael Morchower (C. David Whaley; Morchower Luxton, on brief), for appellant. (Record No. 820418.)
Robert H. Anderson, III, Assistant Attorney General (Gerald L. Baliles, Attorney General, on brief), for appellee. (Record No. 820418.)
Michael Morchower (C. David Whaley; Morchower Luxton, on brief), for appellant. (Record No. 820419.)
Robert H. Anderson, III, Assistant Attorney General (Gerald L. Baliles, Attorney General, on brief), for appellee. (Record No. 820419.)
In a bench trial, Samuel T. Wright and Vernon L. Lightfoot were convicted of conspiracy to commit robbery, and each was sentenced to five years imprisonment, with two years suspended. The sole question presented is whether the evidence is sufficient to sustain the convictions.
On March 27, 1981, at about 10:40 p.m., a policeman was dispatched to an office building in Chesterfield County. Upon his arrival, he encountered an unoccupied automobile "parked in a weeded area approximately 25 feet off of the gravel portion of the parking lot" in such a position that it could not be seen from the road. The car was parked in a dark area, the nearest illumination being from lights at a nearby McDonald's restaurant, approximately 300 feet away. The weeded area where the automobile was parked led to the McDonald's parking lot.
The officer examined the automobile and noted the engine was still warm. After looking into the car's interior, he assumed a position where he could observe the car without being seen. In addition, he called for assistance. Other officers arrived at the McDonald's parking lot in marked vehicles.
After maintaining a surveillance for about 25 minutes, the officer observed the defendants coming from the vicinity of the McDonald's restaurant. Using binoculars, he saw the pair place what appeared to be a gun directly in the center of the trunk of the automobile. The other officers stopped the car as the defendants attempted to drive away.
After the car was stopped, the police discovered two stocking masks, a black skullcap, two ski caps, and a pair of brown gloves between the two front seats. These items were not present when the officer first examined the car. A second pair of gloves was later found on Lightfoot.
The police found a loaded .38 caliber revolver lying in the center of the trunk in approximately the same position the officer had seen the defendants place an object. The trunk was very clean, with no other item being in the vicinity of the gun. When arrested, Wright had on his clothing and beard pieces of plant material similar to the weeds in the area between the car and the McDonald's restaurant.
Lightfoot gave the police a statement. He said that he and Wright had been "just riding around," and had parked the car so they could urinate. He admitted looking into the automobile's trunk, but denied any knowledge of the gun. When asked to explain how the gun got in the trunk, he suggested it may have been placed there by someone who borrowed his car. The defense presented no evidence.
This statement, made after any conspiracy had ended, was admitted as evidence only against Lightfoot.
[1-2] Conspiracy is defined as "an agreement between two or more persons by some concerted action to commit an offense." Falden v. Commonwealth, 167 Va. 542, 544, 189 S.E. 326, 327 (1937). A conspiracy may be proved by circumstantial evidence." Indeed, from the very nature of the offense, it often may be established only by indirect and circumstantial evidence." Floyd v. Commonwealth, 219 Va. 575, 580, 249 S.E.2d 171, 174 (1978).
[3-4] In determining the sufficiency of the evidence, we must view it and all reasonable inferences therefrom in the light most favorable to the Commonwealth. The verdict of the trial court will not be disturbed unless it is plainly wrong or without evidence to support it. Carter v. Commonwealth, 223 Va. 528, 532, 290 S.E.2d 865, 867 (1982).
The defendants contend there is no proof they had an agreement to commit a crime. However, their actions were consistent with illegality and inconsistent with legality. They parked their car in a secluded area, hidden from the road. They left the car, taking with them ski masks, gloves, and a loaded .38 caliber weapon. From the officer's testimony and the weeds found on Wright, the court could infer the pair headed towards Mcdonald's, one of the few open establishments in the otherwise deserted area. Considering all these circumstances, the trial court could reasonably infer the defendants had agreed to commit a crime.
Defendants further argue that even if this is the case, there is insufficient evidence to show they had conspired to commit a robbery. They argue it is equally likely they had set out to commit another felony or even a misdemeanor. We do not agree.
We have held in a number of cases that the finder of fact may draw reasonable inferences that a defendant intended to commit one crime rather than another. Black v. Commonwealth, 222 Va. 838, 841, 284 S.E.2d 608, 609 (1981); Johnson v. Commonwealth, 209 Va. 291, 295, 163 S.E.2d 570, 574 (1968). In Black, the evidence indicated the defendant attempted to break into a residence. We held that, considering all the circumstances, the finder of fact could infer his intent was to commit a larceny rather than a rape or other crime. Black, 222 Va. at 841, 284 S.E.2d at 609. In Johnson, the defendant placed a gun to a cabdriver's back. However, the driver escaped before the crime could be completed. Again, we held the evidence sufficient to infer that a robbery rather than another crime had been contemplated. Johnson, 209 Va. at 295, 163 S.E.2d at 574. In the present case, the evidence was sufficient for the trial court to reasonably conclude the defendants' objective was robbery.
We cannot say as a matter of law that the conclusions of the trial court were plainly wrong or without evidence to support them. Therefore, the judgments will be affirmed.
Affirmed.
In my opinion, the evidence is insufficient to sustain these convictions. Even viewed in the light most favorable to the Commonwealth, the prosecutor's evidence only creates a suspicion that there was an agreement between Wright and Lightfoot. Moreover, only by indulging in pure speculation can one conclude that the intent of any such agreement was to commit a robbery, or even to commit a felony. In Virginia, a person cannot conspire to commit a misdemeanor. Code Sec. 18.2-22. Finally, the evidence is insufficient to establish the target of the alleged robbery. This is demonstrated by the trial court's statement:
"They were out there for the purpose of robbing something. It might not have been McDonald's. It could have been Pizza Hut across [Route] 60 . . ."
Consequently, I would reverse the convictions and dismiss the indictments.