Joseph Lamont Nelson v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Felton, Kelsey and Senior Judge Willis
Argued by teleconference
JOSEPH LAMONT NELSON
MEMORANDUM OPINION * BY
v. Record No. 1868-02-2 JUDGE WALTER S. FELTON, JR.
JUNE 24, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
Edward L. Hogshire, Judge
Bonnie J. Lepold (Snook & Haughey, P.C., on
brief), for appellant.
Leah A. Darron, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Joseph Nelson was convicted in a bench trial of robbery, in
violation of Code § 18.2-58, and use of a firearm in the
commission of a felony, in violation of Code § 18.2-53.1. On
appeal, Nelson contends that the evidence is insufficient to
establish the conviction for use of a firearm in the commission
of a felony when there was neither evidence to show he possessed
a gun nor that he was acting in concert with another who did.
We affirm the judgment of the trial court.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I. BACKGROUND
At approximately nine or ten o'clock, on the evening of
November 25, 1999, Floyd Hearns left his brother-in-law's home
to purchase beer at a nearby gas station. As he walked alone to
the gas station, Hearns passed a crowd of people seated on the
porch of a duplex. One of the individuals on the porch, later
identified as Joseph Nelson, approached him and asked if he was
looking for drugs. Hearns responded, no. Nelson then stated he
was going to rob Hearns.
Almost immediately thereafter, Hearns' attention was drawn
to a second individual, later identified as Latrelle Gray, who
walked up behind and pointed a gun at him. Hearns' attention
was diverted to the gunman. Nelson then reached around Hearns'
neck with his right arm and began choking him with enough force
that he became weak and fell down. With Hearns on the ground,
Nelson forcefully removed a $100 bill and ripped his pants
pocket.
After Nelson took the money, Hearns got up from the ground
and proceeded to the gas station where he called the police.
Officer L. A. Durrette responded to the call and proceeded to
the gas station. There, he took a report from Hearns who gave a
description of the two men who robbed him. He and Hearns then
drove by the duplex where the robbery occurred. Hearns
identified Nelson as they twice drove by the duplex. Nelson was
sitting on the front porch.
- 2 -
Officer Durrette stopped the police car and exited the
vehicle. Nelson stood up and turned to go inside the house.
Officer Durrette drew his weapon, called out to Nelson by name,
and ordered him to get down on the ground. 1 Nelson was then
taken into custody. Once in custody, Nelson was patted down for
weapons. When other officers arrived, Nelson was then searched
and photographed. The search of Nelson yielded a one hundred
dollar bill, one twenty dollar bill, four one dollar bills, and
a one dollar food stamp. No gun was recovered. Latrelle Gray
was not at the duplex when Nelson was arrested. However, he was
later identified and arrested in the courthouse on one of
Nelson's court dates.
Nelson was charged with robbery, in violation of Code
§ 18.2-58, and use of a firearm in the commission of a felony,
in violation of Code § 18.2-53.1. At trial, Nelson argued that
he did not rob Hearns, that neither he nor Gray had a gun that
evening, and that the one hundred dollar bill found in his
pocket was money he received after selling his Sony
Playstation 2. Furthermore, he contended that he did not plan
or call out to anyone to help him.
The trial court found Nelson guilty on both charges. It
stated:
1
Officer Durrette testified that he personally knew Nelson
and at the time of these events Nelson had outstanding warrants
on other charges.
- 3 -
[I]t's clearly a case in which the victim
was accosted by both the defendant, who
strong armed him, and another person unknown
to the victim, who was later identified,
without knowing the name, as the wheeler
[sic] of the gun.
And as I've already indicated, it seems to
me it's too much of a coincidence to say
that the wheeler [sic] of the gun was acting
independently. I find there is a concert of
action by reasonable inference in this case.
Identification of the defendant was made on
the scene almost, very shortly thereafter at
the same location. And I don't put a great
deal of credence in the defendant's
justification for having had the money.
Nelson appeals his conviction.
II. ANALYSIS
Nelson contends that the evidence was insufficient to prove
beyond a reasonable doubt the charge of using a firearm in the
commission of a felony. He argues the evidence neither showed
that he possessed a gun or that he was acting in concert with
another who did. We disagree.
When the sufficiency of the evidence is
challenged on appeal, it is well established
that we must view the evidence in the light
most favorable to the Commonwealth, granting
to it all reasonable inferences fairly
deducible therefrom. The conviction will be
disturbed only if plainly wrong or without
evidence to support it.
Jones v. Commonwealth, 13 Va. App. 566, 572, 414 S.E.2d 193, 196
(1992).
"It is well settled in Virginia that whenever a witness
testifies, his or her credibility becomes an issue." Hughes v.
- 4 -
Commonwealth, 39 Va. App. 448, 462, 573 S.E.2d 324, 330 (2002)
(quoting Tatum v. Commonwealth, 17 Va. App. 585, 592, 440 S.E.2d
133, 137 (1994)). "The credibility of the witnesses and the
weight accorded the evidence are matters solely for the fact
finder who has the opportunity to see and hear that evidence as
it is presented." Id. (quoting Sandoval v. Commonwealth, 20
Va. App. 133, 138, 455 S.E.2d 730, 732 (1995)). At trial, the
judge discounted Nelson's testimony and accepted Hearns' account
of events. As a result, we are bound by the factual findings of
the lower court. See Campbell v. Commonwealth, 39 Va. App. 180,
186, 571 S.E.2d 906, 909 (2002).
Code § 18.2-53.1 states:
It shall be unlawful for any person to use
or attempt to use any pistol, shotgun,
rifle, or other firearm or display such
weapon in a threatening manner while
committing or attempting to commit . . .
robbery, carjacking, burglary, malicious
wounding as defined in [Code]
§ 18.2-51 . . . .
Code § 18.2-18 permits "[i]n the case of every felony, every
principal in the second degree and every accessory before the
fact may be indicted, tried, convicted and punished in all
respects as if a principal in the first degree . . . ."
See also Cortner v. Commonwealth, 222 Va. 557, 562-63, 281
S.E.2d 908, 911 (1981). "Every person who is present at the
commission of a [crime], encouraging or inciting the same by
words, gestures, looks, or signs, or who in any way, or by any
- 5 -
means, countenances or approves the same is, in law, assumed to
be an aider and abettor, and is liable as principle." Foster v.
Commonwealth, 179 Va. 96, 99, 18 S.E.2d 314, 315-16 (1942).
Although Nelson never actually possessed the gun used
during the robbery, he acted in concert with Gray, who did
display the weapon. In confronting Hearns, Nelson expressed his
intent to rob him. Nelson subsequently used the distraction of
Gray pointing a gun at Hearns to put Hearns in a choke hold,
wrestle him to the ground, and to forcefully remove a one
hundred dollar bill from Hearns' pocket. That Nelson did not
call out to anyone else prior to or during the course of the
robbery is of no consequence. Presence without disapproving or
opposing the commission of a crime, in connection with other
circumstances, is evidence that a defendant lent his countenance
and approval to the crime. Hampton v. Commonwealth, 32 Va. App.
644, 649, 529 S.E.2d 843, 845 (2000).
The evidence was sufficient to prove beyond a reasonable
doubt that Nelson, by acting in concert with Gray, used a firearm
during the commission of a felony. The judgment of the trial
court is affirmed.
Affirmed.
- 6 -