Opinion
Record No. 1999-92-4
March 15, 1994
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY J. HOWE BROWN, JUDGE.
William D. Pickett (P. Clark Kattenburg, P.C., on brief), for appellant.
Richard B. Smith, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Baker, Barrow and Fitzpatrick.
Argued at Alexandria, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
In this criminal appeal, we hold that the jury instruction defining principals in the second degree was correct and the evidence supported the convictions of felony murder and the use of a firearm during the commission of a felony.
Jury Instruction
The trial court instructed the jury that in order to find that the defendant was a principal in the second degree it would have to find that he "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." The trial court further instructed the jury that the defendant's "[p]resence or consent are not sufficient to constitute aiding and abetting."
The jury had to "consider the instruction as a whole."Rollston v. Commonwealth, 11 Va. App. 535, 539, 399 S.E.2d 823, 825 (1991) (noting that "presence and consent do not suffice"). Therefore, the court's use of the disjunction "or" rather than the conjunction "and" between the words "presence" and "consent" did not permit the jury to convict the defendant as a principal in the second degree simply because he may have been present and may have consented.
Sufficiency of the Evidence
"'Neither premeditation nor an intent to kill is an element of felony murder;' only malice is required." Jones v. Commonwealth, 15 Va. App. 384, 388, 424 S.E.2d 563, 565 (1992). Shared intent to rob implies "common intent to commit all of the elements of robbery, including the use of such force, violence, or intimidation as would be expedient. . . . An incidental probable consequence of such shared intent [is] the use of a weapon, including a firearm if one should be at hand."Carter v. Commonwealth, 232 Va. 122, 126, 348 S.E.2d 265, 267 (1986). Further, "[a]n incidental and probable consequence of the use of a firearm in the commission of a robbery is that someone will get killed." Jones, 15 Va. App. at 389, 424 S.E.2d at 566.
When viewed in the light most favorable to the Commonwealth, the evidence in this case is sufficient to support the convictions. The defendant admitted he knew of the plan to rob the victim and expected a share of the proceeds. He accompanied the principal and pointed out the victim's car when the victim arrived. In addition, the defendant's statement to the police indicated that he knew the principal had a gun. Following the shooting, the defendant fled the scene with the principal, who had told the defendant that he had "shot the dude." From this evidence, the jury could have concluded beyond a reasonable doubt that the defendant possessed the requisite shared malice and that the shooting was a foreseeable consequence of the robbery. See Pugliese v. Commonwealth, ___ Va. ___, ___, 428 S.E.2d 16, 25 (1993).
Accordingly, we affirm the convictions.
Affirmed.