Donte Ward v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Felton and Senior Judge Overton
Argued at Chesapeake, Virginia
DONTE WARD
MEMORANDUM OPINION * BY
v. Record No. 0306-02-1 JUDGE RUDOLPH BUMGARDNER, III
APRIL 15, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
James A. Cales, Jr., Judge
(Sonya A. Weaver; Weaver Law Offices, on
brief), for appellant. Appellant submitting
on brief.
Amy L. Marshall, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
The trial court convicted Donte Ward of two counts each of
robbery, malicious wounding, and use of a firearm in the
commission of robbery. He challenges the sufficiency of the
evidence supporting his conviction of maliciously wounding
Georgia Heath, Code § 18.2-51. Finding the evidence sufficient,
we affirm.
On appeal, we review the evidence and the reasonable
inferences therefrom in the light most favorable to the
Commonwealth. Commonwealth v. Taylor, 256 Va. 514, 516, 506
S.E.2d 312, 313 (1998). The defendant, Jamall Mabry, and Larry
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Mabry were passengers in a car looking for someone to rob. They
saw an elderly couple and decided to attack them. Both Mabrys
had guns. Two of the men attacked Dillard White. They threw
him to the concrete, kicked him, and took his wallet containing
$700. One man said, "put the gun on him," and White heard a
click.
When Georgia Heath came upon the attack, the third member
of the group attacked her. He jerked her purse off her arm and
"slung" her against the building. After she fell to the ground,
the attacker approached with a "big long knife" and grabbed her
necklace. Heath cut two fingers and sustained bruises from her
leg to her shoulder.
The defendant told police he was with the Mabrys when they
spotted the elderly couple, and one of them said, "Let's . . .
get them." He knew both Mabrys had guns. The defendant and
Larry Mabry approached White, and Jamall Mabry approached Heath.
Larry Mabry wrestled White to the ground, and Jamall Mabry
kicked him in the stomach and took his wallet. Jamall Mabry
also took the purse. The defendant maintains he was not armed,
but he admits he received $25 after the attack.
The defendant argues the Commonwealth failed to prove he
had the intent to maim, disfigure, disable, or kill Heath. He
maintains the evidence "does not warrant the presumption that
the defendant anticipated or expected that the taking of a purse
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would result in serious injury." However, the evidence,
corroborated by the defendant's own statement, proved the three
men acted in concert.
"If there is concert of action with the
resulting crime one of its incidental
probable consequences, then whether such
crime was originally contemplated or not,
all who participate in any way in bringing
it about are equally answerable and bound by
the acts of every other person connected
with the consummation of such resulting
crime."
Hampton v. Commonwealth, 34 Va. App. 412, 418, 542 S.E.2d 41, 44
(2001) (citation omitted). The three men planned the robbery
and selected their two victims. Two of them attacked White,
repeatedly kicked him, and threatened to use a gun. The third
man snatched Heath's purse, slung her into the wall, and then
went at her with a knife. The group only fled after they
succeeded in stealing White's wallet.
"The concert of action doctrine is essentially a
restatement of the 'natural and probable consequences' doctrine.
. . . In effect, the participant who does not cause the
ultimate harm is a principal in the second degree to the
participant who does cause that harm." Roger D. Groot, Criminal
Offenses and Defenses in Virginia 91 (4th ed. Supp. 2002). The
Commonwealth proceeded against the defendant as a principal in
the second degree. Each participant became accountable for the
incidental crimes committed by the other participants even
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though they were not originally or specifically designed. Each
person acting in concert is jointly liable for the conduct of
the others that is "'connected with the consummation of the
resulting crime.'" Hampton, 34 Va. App. at 418, 542 S.E.2d at
44 (quoting Ascher v. Commonwealth, 12 Va. App. 1105, 1128, 408
S.E.2d 906, 920 (1991)).
The trial court found malice and stated, "when you throw a
lady of that age against a wall, it certainly has malice with
robbery, and I think you could foresee the injury." The
evidence of the nature of the attack permits that finding.
"Where a victim is significantly weaker than an aggressor, a
physical attack is more likely to cause severe bodily injury."
Campbell v. Commonwealth, 12 Va. App. 476, 485, 405 S.E.2d 1, 5
(1991) (en banc). See also Nobles v. Commonwealth, 218 Va. 548,
551, 238 S.E.2d 808, 810 (1977) (whether malice exists is a
question of fact). In addition, the use of deadly weapons
against the victims permitted the trial court to infer malice.
Satcher v. Commonwealth, 244 Va. 220, 257, 421 S.E.2d 821, 843
(1992).
All three men acted in concert and participated in the
robberies. It does not matter which one inflicted which blows.
The defendant was a principal in the second degree to the
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malicious wounding of Heath whether he struck her or not. 1
Accordingly, we affirm.
Affirmed.
1
In his brief, the defendant challenges the sufficiency of
the evidence on the remaining charges. He was not granted an
appeal on those issues, and we will not address them.
Rule 5A:12(c); Perez v. Commonwealth, 25 Va. App. 137, 139 n.2,
486 S.E.2d 578, 579 n.2 (1997).
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