Rasheen Malone (s/k/a Rasheen S.) v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present:  Chief Judge Fitzpatrick, Judge Annunziata and
          Senior Judge Coleman
Argued at Richmond, Virginia

RASHEEN MALONE, S/K/A
 RASHEEN S. MALONE
                                            MEMORANDUM OPINION * BY
v.   Record No. 2798-00-1                 JUDGE ROSEMARIE ANNUNZIATA
                                               FEBRUARY 19, 2002
COMMONWEALTH OF VIRGINIA

           FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY
                    E. Everett Bagnell, Judge

           Carson E. Saunders, Jr. (Vincent Law Firm, on
           brief), for appellant.

           Leah A. Darron, Assistant Attorney General
           (Randolph A. Beales, Acting Attorney General;
           Shelly R. James, Assistant Attorney General,
           on brief), for appellee.

     Rasheen Malone was convicted of robbery in violation of

Code § 18.2-58, and use of a firearm in the commission of

robbery, in violation of Code § 18.2-53.1.     He contends on

appeal that the evidence is not sufficient to support either

conviction.    For the reasons that follow, we affirm his

convictions.

                             BACKGROUND

     On appeal, we state the evidence and reasonable inferences

that may be drawn in the light most favorable to the party

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
prevailing below, the Commonwealth.        Cooper v. Commonwealth,
31

Va. App. 643, 646
,
525 S.E.2d 72, 73
(2000).       On February 24,

2000, Rasheen Malone and Antonio Turner, residents of Newsoms,

Virginia, traveled to Boykins, Virginia.       At about 3:30 p.m.,

while Wilroy Williams was filling his 1985 Ford pickup truck

with gas at a Mobil station, Turner and Malone approached the

vehicle.    Turner asked Williams to give them a ride to the town

of Newsoms.    Williams refused.

        Williams went into the store to pay for his gas and, upon

returning to the truck, he found the two men were still standing

there.    Turner again asked for a ride, explaining that he needed

to get to his child's home as quickly as possible because the

child was sick.    Williams initially refused, but then changed

his mind.    Turner got into the passenger seat while Malone sat

in the bed of the truck at the "wheel well" on the passenger

side.    Williams took the route toward Newsoms suggested by

Turner.

        En route, Turner pulled out a gun and said to Williams

"[g]ive me your pocketbook."    Williams described the weapon as a

black, .38 caliber gun.    He stated it was not a revolver.

Rather than give Turner his wallet, Williams put the truck in

neutral as he approached a stop sign, and jumped from the

vehicle.    He ran to a school bus that was approaching from a

cross street and observed Turner drive his truck away with

Malone in the passenger seat.

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     Williams told police Malone was wearing a red shirt and

that Turner had gold teeth, accurately describing features of

both men.   He also identified both at trial as the men who rode

in his truck and drove it away.

     The police found the truck parked by the road on the other

side of Newsoms.    Tracks of two people walking away from the

truck and crossing an adjacent field were also found in the mud

beside the truck.   The footprints were the only ones in the area

not made by the police.   Detective Richard Morris made casts of

the footprints, which were sent to the laboratory for comparison

to shoes belonging to Malone and Turner.   The shoes matched the

cast footprints.

     Police found a live .380 bullet in Malone's pocket at the

time of his arrest.   After being read his Miranda rights, which

he waived, Malone told police he saw Turner on February 24,

2000, for about 20 minutes to talk about a "Play Station."    He

claimed that just after 3:00 p.m., he got on a school bus back

to Newsoms.   The school bus driver, Annie Cross, testified that

Malone did not ride the bus that day, and Anne West testified

that Malone and Turner came to her house in Newsoms before the

school bus arrived.

     Turner testified that he had been with Malone since

10:00 a.m. that day, that Malone had a .380 caliber gun in his

possession, and that they had gotten a ride to Boykins together.

Malone claimed he met up with Turner while walking towards a

                                - 3 -
Mobil gas station in Boykins.   He testified that he could not

recall how he had gotten to Boykins but stated that he had not

come with Turner.

     Turner also testified that he and Malone got a ride from

Williams at the Mobil gas station.      He claimed that Williams

jumped from the truck for no apparent reason when they reached

the stop sign, that he then jumped into the driver's seat, told

Malone nothing was wrong, and quickly drove the truck away.

     At trial, Malone recanted his initial statement to the

police and admitted that he was with Turner on February 24 and

that he got a ride from Williams.    He claimed he did not know a

robbery had taken place when Turner drove off with the truck,

although he knew that Williams had not given Turner permission

to take the truck.   He attributed his earlier lie to police to

fear and to the fact that the police wanted him to "say that

[Turner] did it," although he asserted that when the police

questioned him he did not know he or Turner were being charged

with a robbery.

                             ANALYSIS

     When the sufficiency of the evidence is challenged on

appeal, "[w]e view the evidence in the light most favorable to

the Commonwealth, granting to it all reasonable inferences

fairly deducible from the evidence."      Cooper,
31 Va. App. at

646
,
525 S.E.2d at 73
.   The appellate court must, therefore,

"discard the evidence of the accused in conflict with that of

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the Commonwealth, and regard as true all the credible evidence

favorable to the Commonwealth and all fair inferences that may

be drawn" from the credible evidence.    Watkins v. Commonwealth,
26 Va. App. 335, 348
,
494 S.E.2d 859, 866
(1998).   The

credibility of the witnesses and the weight of the evidence are

matters to be determined solely by the trier of fact.     Swanson

v. Commonwealth,
8 Va. App. 376, 378-79
,
382 S.E.2d 258, 259
(1989).   Furthermore, the decision of the trial court will not

be disturbed unless plainly wrong or without evidence to support

it.   McGee v. Commonwealth,
25 Va. App. 193, 197-98
,
487 S.E.2d

259, 261
(1997) (en banc).    "If there is evidence to support the

conviction," this Court will not substitute its judgment for

that of the trier of fact, even were our opinion to differ.

Commonwealth v. Presley,
256 Va. 465, 466
,
507 S.E.2d 72, 72
(1998).

      Malone was convicted of robbery and use of a firearm to

commit robbery as a principal in the second degree.   To support

a finding of guilt on this ground, the Commonwealth must prove

that Malone was "present, aiding and abetting, and intended his

or her words, gestures, signals, or actions to in some way

encourage, advise, urge, or . . . help the person committing the

crime to commit it."    Bass v. Commonwealth,
31 Va. App. 373,

389
,
523 S.E.2d 534, 542
(2000) (internal quotations and

citations omitted).    An aider and abettor "must be guilty of

some overt act, or . . . must share the criminal intent of the

                                - 5 -
principal."    Rollston v. Commonwealth,
11 Va. App. 535, 539
,
399

S.E.2d 823, 825
(1991) (internal quotations and citations

omitted).   While presence alone during the commission of a crime

is not sufficient to establish a defendant is a principal in the

second degree, see Triplett v. Commonwealth,
141 Va. 577, 585
,
127 S.E. 486, 489
(1925), an observer's failure to disapprove or

object to the commission of a crime "is evidence from which, in

connection with other circumstances . . . 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); accord Johnson v.

Commonwealth,
18 Va. App. 441, 449
,
444 S.E.2d 559, 564
(1994)

(finding that presence during the commission of a crime,

combined with other circumstances, "supports a fact finder's

determination that a criminal intent existed").

     Malone contends that the Commonwealth proved nothing more

than his presence during the commission of the robbery.    We

disagree.

     The evidence at trial and the inferences deducible

therefrom sufficiently demonstrate that Malone acted in concert

with Turner.   First, it can be inferred from the evidence that

Malone had been with Turner for several hours before seeing

Williams and, therefore, knew that Turner fabricated the

"emergency" underlying his request for a ride.    Second, physical

evidence tied Malone to the perpetration and planning of the

                                - 6 -
robbery.   The gun Malone had on his person the day of the

robbery and the bullet found in his pocket just two hours after

the robbery were consistent with the gun used in the robbery.

Third, Malone's act of getting into the cab of the vehicle when

Williams jumped from the truck, knowing Turner did not have

permission to take the truck, is evidence that he aided the

commission of the robbery and shared Turner's criminal intent.

Fourth, Malone's flight after abandoning the vehicle by the side

of the road is evidence of guilt.      See Murray v. Commonwealth,
210 Va. 282, 283
,
170 S.E.2d 3, 4
(1969) (holding that trier of

fact may consider flight as a factor tending to prove guilt).

Finally, the trier of fact could consider that Malone lied to

the police and disclaimed all responsibility at trial "to

conceal his guilt and thus [is] evidence of his guilt."

Rollston,
11 Va. App. at 548
,
399 S.E.2d at 831
; accord Wright

v. West,
505 U.S. 277, 296
(1992) (trier of fact may consider

perjured testimony as affirmative evidence of guilt).

     While no single piece of evidence is sufficient to sustain

Malone's conviction, the totality of the evidence proves beyond

a reasonable doubt that Malone aided and abetted Turner in the

commission of the robbery and the use of a firearm in its

commission.   See Stamper v. Commonwealth,
220 Va. 260, 273
,
257

S.E.2d 808, 818
(1979); cf. Hampton v. Commonwealth,
32 Va. App.

644, 651-52
,
529 S.E.2d 843, 847
(2000) (reversing defendant's

conviction as principal in the second degree where evidence

                               - 7 -
consisted only of defendant's "not leaving the vehicle and

moving into the front seat," as the driver stole the vehicle).

     We, therefore, affirm his convictions.

                                                        Affirmed.

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