Charles J. Perry v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Coleman and Senior Judge Cole
Argued at Richmond, Virginia
CHARLES J. PERRY
MEMORANDUM OPINION *
v. Record No. 0237-95-2 BY JUDGE MARVIN F. COLE
JULY 9, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
John J. Trexler (Beddow, Marley, Burgess &
Associates, on brief), for appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
On appeal from his convictions of robbery, abduction and
assault, Charles J. Perry contends that the evidence was
insufficient to sustain the convictions. We disagree and affirm
the trial court.
In November, 1993, Larry Bonner, the victim, was arrested
and incarcerated in Petersburg. He was released on bond, with
Perry acting as his bondsman. Earl Fields co-signed as a
guarantor on Bonner's bond. Bonner agreed to pay Perry's fee in
bi-weekly installments, which he failed to do on a regular basis.
On April 30, 1994, Bonner still owed Perry money on the
bond. Fields saw Bonner at a nightclub in Petersburg and asked
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Bonner whether he had any money. Bonner responded that he did
not. After calling Perry, Fields handcuffed Bonner and
transported him to Perry's house.
Bonner testified that when he arrived at Perry's house,
Perry struck him in the face several times and asked whether he
had any money. Then, Perry and Fields both struck and kicked
Bonner. Bonner testified, "Fields took my gold tooth out with
the pliers. Perry busted my eardrum, with his hands . . . ."
The gold "tooth" was a gold crown that was removed from Bonner's
front tooth.
Bonner stated he was then handcuffed to Perry's garage door
from about 1:30 a.m. until 8:00 a.m., when Fields took Bonner to
the Petersburg jail.
Bonner testified that, as a result of the incident, his eyes
were swollen, the skin was broken on his wrists from the
handcuffs, his ribs were sore, and his nose was bleeding. He
also said they "messed [his] teeth up." Henry Stewart, a
doctor's assistant at the jail, testified that, when Bonner
arrived at the jail, he had abrasions and swelling below both
eyes. He had a red mark around both wrists, and one hand was
swollen. Stewart said Bonner complained of tenderness on his
right side, soreness in his neck, and a swollen left cheek.
Perry testified that he instructed Fields to bring Bonner to
his house on April 30, 1994, and that, when they arrived,
Bonner's eyes were puffy and red. Perry said he could not return
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Bonner to jail without a bailpiece, and the bailpiece forms were
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at his office and at his house. He denied he abused Bonner and
said he did not see Fields abuse Bonner. Perry denied Bonner was
handcuffed to a doorknob, stating that he has no garage or tool
shed. Perry testified that the sergeant at the Petersburg jail
told him not to bring Bonner in until after 7:30 a.m. because the
jail was busy.
I. Robbery
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). The elements of
robbery are "[1] the taking, with the intent to steal, [2] of the
personal property of another, [3] from his person or in his
presence, [4] against his will, by violence or intimidation."
Jordan v. Commonwealth, 2 Va. App. 590, 595, 347 S.E.2d 152, 155
(1986).
A principal in the second degree is a
person who is present, aiding and abetting,
by helping some way in the commission of the
crime. Presence or consent alone is not
sufficient to constitute aiding and abetting.
It must be shown that the defendant intended
his words, gestures, signals or actions to in
some way encourage, advise, or urge, or in
some way help the person committing the crime
to commit it.
Ramsey v. Commonwealth, 2 Va. App. 265, 269, 343 S.E.2d 465, 468
(1986).
Perry instructed Fields to bring Bonner to Perry's house on
April 30, 1994. Bonner arrived at Perry's house in handcuffs.
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Bonner testified that, upon his arrival, Perry struck him in the
face several times and asked if he had any money. Bonner stated
that both Perry and Fields beat and kicked him, and that Perry
"busted his eardrum with his hands." Bonner also testified that
"Fields took my gold tooth out with the pliers."
Although Perry testified that he did not harm or abuse
appellant, the fact finder believed the testimony of Bonner.
"The weight which should be given to evidence and whether the
testimony of a witness is credible are questions which the fact
finder must decide." Bridgeman v. Commonwealth, 3 Va. App. 523,
528, 351 S.E.2d 598, 601 (1986). Bonner's testimony was
competent and was not inherently incredible. From his testimony,
the fact finder could have inferred beyond a reasonable doubt
that Fields extracted the gold crown in the quest to obtain
something of monetary value from Bonner. The fact finder could
also have inferred beyond a reasonable doubt that Perry intended
his actions of beating and kicking Bonner to aid and encourage
Fields in removing the gold crown because it was removed during
the joint attack on Bonner.
Moreover, the fact finder could have concluded that Fields
and Perry were acting in concert to obtain something of value
from Bonner. As such, Perry is deemed to have shared Fields'
intent and is criminally responsible for Fields' acts as a
principal in the second degree. See Riddick v. Commonwealth, 226
Va. 244, 248, 308 S.E.2d 117, 119 (1983). Accordingly, Perry is
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equally responsible for Fields' removal of the gold crown.
The evidence also supports a finding that the taking was
effected through the use of violence or intimidation. From the
evidence of the beating of the handcuffed victim, and the use of
pliers to remove the gold crown from Bonner's mouth, the fact
finder could have found beyond a reasonable doubt that the
beating and the theft of the crown were "interdependent objects
of a common criminal design" to obtain something of monetary
value from Bonner. See Yeatts v. Commonwealth, 242 Va. 121, 138,
410 S.E.2d 254, 265 (1991), cert. denied, 503 U.S. 946 (1992).
Thus, the violence and intimidation, through both the beating and
the forceful extraction of the gold crown, preceded or was
concomitant with the taking. Therefore, the evidence was
sufficient to prove beyond a reasonable doubt that Perry
committed robbery.
II. Abduction
The evidence proved that Fields handcuffed Bonner while he
was in the nightclub, then transported him to Perry's house,
where he was beaten and handcuffed to the garage door for over
six hours before he was taken to jail.
Code § 18.2-47 provides, in part:
Any person, who, by force, intimidation or
deception, and without legal justification or
excuse, seizes, takes, transports, detains,
or secretes the person of another, with the
intent to deprive such other person of his
personal liberty or to withhold or conceal
him from any person, authority or institution
lawfully entitled to his charge, shall be
deemed guilty of "abduction."
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Nothing in Code § 19.2-149 1 imparted legal justification to
beat Bonner and handcuff him for six hours to a door before
surrendering him to jail. Although Perry denied that he abused
Bonner or handcuffed him to a door, the fact finder believed
Bonner's testimony. See Bridgeman, 3 Va. App. at 528, 351 S.E.2d
at 601. From this evidence, the fact finder could have found
beyond a reasonable doubt that Perry detained Bonner, by force,
without legal justification, and with the intent to deprive him
of his personal liberty. Thus, the evidence was sufficient to
prove beyond a reasonable doubt that Perry committed abduction.
III. Assault
"Criminal assault . . . is 'any attempt or offer with force
or violence to do corporal hurt to another.'" Martin v.
Commonwealth, 13 Va. App. 524, 527, 414 S.E.2d 401, 402 (1992)
(en banc) (citation omitted). Bonner stated that Perry struck
him, kicked him, and "busted [his] eardrum with his hands."
Bonner also testified that, as a result of the conduct of Perry
and Fields, his eyes were swollen, his ribs were sore, his nose
bled, and his teeth were "messed up." Henry Stewart's testimony
corroborated Bonner's testimony concerning Bonner's wounds.
1
Code § 19.2-149 provides, in pertinent part: "A surety on
a bond in a recognizance may at any time arrest his principal and
surrender him to the court before which the recognizance was
taken or before which such principal's appearance is required, or
to the sheriff, sergeant or jailer of the county or city wherein
the court before which such principal's appearance is required is
located . . . ."
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Although Perry testified that Bonner was injured before he
arrived at Perry's house, the fact finder believed the testimony
of Bonner concerning the beating. See Bridgeman, 3 Va. App. at
528, 351 S.E.2d at 601. From this evidence, the fact finder
could have found beyond a reasonable doubt that Perry was guilty
of assault.
For the foregoing reasons, the judgment of the trial court
is affirmed.
Affirmed.
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