Edward Harold Nelson, Sr. v. Commonwealth of VA ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Bumgardner
Argued at Salem, Virginia
EDWARD HAROLD NELSON, SR.
MEMORANDUM OPINION * BY
v. Record No. 0350-01-3 JUDGE LARRY G. ELDER
DECEMBER 18, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FRANKLIN COUNTY
William N. Alexander, II, Judge
(Mary E. Harkins, on brief), for appellant.
Appellant submitting on brief.
(Randolph A. Beales, Attorney General; Eugene
Murphy, Assistant Attorney General, on
brief), for appellee. Appellee submitting on
brief.
Edward Harold Nelson, Sr., (appellant) appeals from his
jury trial convictions for conspiracy to commit murder in
violation of Code §§ 18.2-22 and 18.2-30 and breaking and
entering with an intent to commit murder while armed with a
deadly weapon in violation of Code § 18.2-89. On appeal, he
contends the evidence was insufficient to prove that (1) he
entered into the agreement required for the conspiracy
conviction and (2) he was a principal in the second degree to
the breaking and entering. We hold the only reasonable
hypothesis flowing from the circumstantial evidence was that
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
appellant conspired with his son-in-law to kill his daughter's
boyfriend and that he aided and abetted the son-in-law's
breaking and entering in order to commit that offense. Thus, we
affirm appellant's convictions. 1
On appellate review, we examine the evidence in the light
most favorable to the Commonwealth, and we may not disturb the
jury's verdict unless it is plainly wrong or without evidence to
support it. See Traverso v. Commonwealth, 6 Va. App. 172, 176,
366 S.E.2d 719, 721 (1988). On issues of witness credibility,
we defer to the conclusions of "the fact finder[,] who has the
opportunity of seeing and hearing the witnesses." Schneider v.
Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736-37 (1985).
The fact finder is not required to believe all aspects of a
witness' testimony; it may accept some parts as believable and
reject other parts as implausible. See Pugliese v.
Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24 (1993).
Any element of an offense may be proved by circumstantial
evidence. See Coleman v. Commonwealth, 226 Va. 31, 53, 307
S.E.2d 864, 876 (1983). "Circumstantial evidence is as
competent and is entitled to as much weight as direct evidence,"
1
Appellant does not challenge the sufficiency of the
evidence to prove his son-in-law committed the offense of
breaking and entering with an intent to commit murder while
armed with a deadly weapon. He contends only that the evidence
was insufficient to prove he aided and abetted that offense.
Thus, we do not separately consider the sufficiency of the
evidence to prove his son-in-law's guilt as a principal in the
first degree.
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provided the evidence as a whole is sufficiently convincing to
exclude all reasonable hypotheses of innocence. Id.
An aider and abettor, also known as a principal in the
second degree, is one who is "present . . . and intend[s] his or
her words, gestures, signals, or actions to . . . encourage,
advise, urge, or in some way help the person committing the
crime to commit it." McGill v. Commonwealth, 24 Va. App. 728,
733, 485 S.E.2d 173, 175 (1997). Although "mere presence and
consent are not sufficient to constitute one an aider and
abettor," Jones v. Commonwealth, 208 Va. 370, 373, 157 S.E.2d
907, 909 (1967), proof that one "'is present at the commission
of a crime without disapproving or opposing it[] is evidence
from which, in connection with other circumstances, . . . the
[fact finder may] infer that he assented thereto, lent to it his
countenance and approval, and was thereby aiding and abetting
the same,'" Foster v. Commonwealth, 179 Va. 96, 100, 18 S.E.2d
314, 316 (1942) (citation omitted) (emphasis added).
A principal in the second degree is criminally responsible
for all acts committed in furtherance of "'the common [criminal]
purpose,'" as long as they are "'incidental probable
consequences of the execution of that [purpose],'" regardless of
whether the acts are "'part of the original design.'" Brown v.
Commonwealth, 130 Va. 733, 738, 107 S.E. 809, 811 (1921)
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(quoting 1 Wharton's Criminal Law § 258, at 329-30 (11th ed.
1912)), quoted with approval in Rollston v. Commonwealth, 11 Va.
App. 535, 542, 399 S.E.2d 823, 827 (1991).
A conspiracy, on the other hand, "is . . . 'an agreement
between two or more persons by some concerted action to commit
an offense.'" Wright v. Commonwealth, 224 Va. 502, 505, 287
S.E.2d 711, 713 (1982) (quoting Falden v. Commonwealth, 167 Va.
542, 544, 189 S.E. 326, 327 (1937)). The crime is "complete
when the parties agree to commit an offense," and "[n]o overt
act in furtherance of the underlying crime is necessary." Gray
v. Commonwealth, 260 Va. 675, 680, 537 S.E.2d 862, 865 (2000).
Thus, "the participants may be found guilty of conspiracy even
though the planned crime was not fully consummated." Amato v.
Commonwealth, 3 Va. App. 544, 553, 352 S.E.2d 4, 9 (1987).
Proof of an explicit agreement is not required, and the
Commonwealth may, and frequently must, rely on circumstantial
evidence to establish the existence of a conspiracy. See
Stevens v. Commonwealth, 14 Va. App. 238, 241, 415 S.E.2d 881,
883 (1992). Although no overt act is necessary to establish a
conspiracy, the parties' "'overt conduct'" may support a finding
of the existence of a conspiracy, Poole v. Commonwealth, 7 Va.
App. 510, 513, 375 S.E.2d 371, 372 (1988) (quoting United States
v. Harris, 433 F.2d 333, 335 (4th Cir. 1970)), and "a common
purpose and plan may be inferred from a 'development and
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collocation of circumstances,'" Floyd v. Commonwealth, 219 Va.
575, 581, 249 S.E.2d 171, 175 (1978) (quoting United States v.
Godel, 361 F.2d 21, 23 (4th Cir. 1966) (quoting Glasser v.
United States, 315 U.S. 60, 80, 62 S. Ct. 457, 469, 86 L. Ed. 2d
680 (1942) (quoting United States v. Manton, 107 F.2d 834, 839
(2d Cir. 1939)))).
"Where it is shown that [the parties] by
their acts pursued the same object, one
performing one part and the other performing
another part so as to complete it or with a
view to its attainment, the jury will be
justified in concluding that they were
engaged in a conspiracy to effect that
object."
Amato, 3 Va. App. at 552, 352 S.E.2d at 9 (quoting 16
Am. Jur. 2d, Conspiracy § 42 (1979)).
"In order to establish the existence of a conspiracy, as
opposed to mere aiding and abetting, the Commonwealth must prove
'the additional element of preconcert and connivance not
necessarily inherent in the mere joint activity common to aiding
and abetting.'" Zuniga v. Commonwealth, 7 Va. App. 523, 527,
375 S.E.2d 381, 384 (1988) (quoting United States v. Peterson,
524 F.2d 167, 174 (4th Cir. 1975)).
Here, the circumstantial evidence supported the jury's
finding that appellant and his son-in-law, Cletis Junior
Roberts, had entered into an agreement to kill Arthur Simpson by
the time they arrived at Simpson's residence in the early
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morning hours of December 26, 1999. This same evidence
supported its finding that appellant aided and abetted Junior's
breaking and entering with intent to commit murder while armed
with a deadly weapon. At about 9:00 p.m. on December 25, 1999,
appellant was angry with his daughter, Catherine Roberts, when
he thought she had left Jessup, appellant's infant grandson whom
appellant supported financially, with Simpson. Appellant told
Catherine he would kill Simpson if she had, in fact, left Jessup
with Simpson. While making this threat, appellant removed his
.45 caliber handgun from a nearby drawer and displayed it
prominently on the coffee table which stood between him and
Catherine. Catherine said appellant did not "make idle threats
about killing people," and she took the threat seriously enough
to warn Simpson. Simpson knew appellant was not fond of him and
took the threat seriously enough to obtain a firearm and bullets
that same night, shortly after receiving the warning.
An hour or two after appellant's argument with Catherine,
appellant was still thinking about Catherine's relationship with
Simpson. Appellant asked Catherine's friend, Amanda, why
Catherine "love[d] [Simpson] so much." Shortly thereafter,
appellant and Junior agreed to go to Simpson's residence.
Although appellant did not say why he and Junior agreed to
go to Simpson's, the only reasonable hypothesis flowing from the
circumstantial evidence was that they agreed to do so in order
to kill Simpson. Before going to Simpson's residence, a drunken
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appellant called Amanda's residence twice, at 12:30 a.m. and
again around 2:00 a.m., "to make sure that Amanda was at home
and not at . . . Simpson's." The purpose of appellant's and
Junior's trip to Simpson's residence was important enough to
them to take Catherine's four-year-old son, Joey, out in the
middle of the night to help them find Simpson's residence, and
it apparently also was important enough for them to risk a drunk
driving citation or related accident. Although the record does
not make clear who drove Junior's car to Simpson's, Junior had a
blood alcohol concentration of .22, almost three times the legal
limit; appellant also had been drinking.
Very shortly after appellant's second telephone call to
confirm that Amanda was not at Simpson's, Junior and appellant
arrived at Simpson's residence. Junior pounded on the door and
yelled at Catherine and Simpson to come out. Junior said that
appellant was there with him and that "they were going to kill
[Catherine and Simpson]." (Emphasis added). Appellant did not
disclaim Junior's threat, and the circumstantial evidence
supported a finding that appellant stood nearby armed with the
same .45 caliber handgun he had displayed to Catherine hours
earlier when he had threatened to kill Simpson. When Catherine
yelled to appellant to take Junior home, appellant did not
respond. Immediately after Junior broke down the door and
Simpson shot him, Simpson and Catherine each separately
encountered the armed appellant directly outside the door.
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Simpson called to appellant for help, but instead of offering
help, appellant said he would kill Simpson if Simpson had killed
Junior. Simpson then fled through the back door, and as
Catherine tried to escape through the front door, she saw the
gun in appellant's hand, and appellant struck her in the head
with it.
After police arrived at the scene and found appellant on
the front porch of the nearby Furrow residence, they spotted a
clip loaded with bullets in the front of that house, and they
found appellant's .45 caliber handgun and another loaded clip
hidden beneath some leaves behind a fence post halfway between
the Simpson and Furrow residences.
The only reasonable hypothesis flowing from the
"'development and collocation of circumstances,'" Floyd, 219 Va.
at 581, 249 S.E.2d at 175 (quoting Godel, 361 F.2d at 23
(quoting Glasser, 315 U.S. at 80, 62 S. Ct. at 469 (quoting
Manton, 107 F.2d at 839))), including appellant's prior threat
to kill Simpson and the display of his handgun, and Junior's
threat upon their arrival at Simpson's residence that they were
there to kill Simpson, accompanied by appellant's immediate
armed presence with the handgun he previously had displayed to
Catherine when he threatened to kill Simpson, his failure to
disclaim Junior's threat, and his subsequent threat to kill
Simpson if Simpson had killed Junior, is that appellant and
Junior had entered into an agreement to kill Simpson.
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This same evidence supports the jury's finding that
appellant was a principal in the second degree to Junior's
breaking and entering into Simpson's residence with intent to
commit murder while armed with a deadly weapon. Contrary to
appellant's argument that he was merely present at the scene,
the evidence established that appellant agreed to accompany
Junior to Simpson's residence, phoned Amanda's house twice to be
sure she was not at Simpson's, and stood, armed, with Junior
outside Simpson's residence as Junior threatened its occupants
and kicked in the door. Appellant's failure to disclaim
Junior's threat or to respond to Catherine's request to calm
Junior, although not dispositive of appellant's guilt, provides
additional circumstantial evidence both that he shared Junior's
criminal intent and that he intended, by his armed presence, to
help Junior commit the breaking and entering.
For these reasons, we hold that the only reasonable
hypothesis flowing from the circumstantial evidence, viewed in
the light most favorable to the Commonwealth, was that appellant
conspired with Junior to kill Simpson and that he aided and
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abetted Junior's breaking and entering in order to commit that
offense. Thus, we affirm appellant's convictions. 2
Affirmed.
2
As a final matter, we note our concern with the
performance of appellant's court-appointed counsel in the
prosecution of this appeal. Rule 5A:20 requires that a party's
brief on appeal "shall contain the principles of law, the
argument, and the authorities relating to each question
presented." (Emphases added). Despite the serious nature of
the issues on which this appeal was granted, appellant's court-
appointed counsel cited no authority for her claim that the
evidence was insufficient to support the convictions. The
argument section itself comprises less than one page of
counsel's three-and-one-half-page brief and can in no way be
said to constitute zealous representation. See, e.g., Va. Rules
of Professional Conduct, Preamble, ¶2 ("As advocate, a lawyer
zealously asserts the client's position under the rules of the
adversary system."); id. Rule 1.3 cmt. [1] ("A lawyer should act
with commitment and dedication to the interests of the client
and with zeal in advocacy upon the client's behalf."). Although
we do not view the shortcomings in appellant's brief as
sufficient to warrant dismissal of the appeal, we also do not
wish to encourage their repetition.
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