Opinion
Record No. 0328-92-1 Record No. 0330-92-1
November 9, 1993
FROM THE CIRCUIT COURT OF SURRY COUNTY ROBERT G. O'HARA, JR., JUDGE.
S. DeLacy Stith for appellants.
Eugene Murphy, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Baker and Bray.
Argued at Norfolk, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Johnny Tynes, Jr. (Johnny) and Trabion Tynes (Trabion), appellants, appeal from their joint trial convictions by the Circuit Court of Surry County (trial court) for violation of Code § 18.2-279 (maliciously shooting into an occupied dwelling). They contend that the trial court erroneously convicted them of that crime as principals in the second degree. The sole issue presented by this appeal is whether the evidence is sufficient to support their respective convictions. Finding no error, we affirm the judgments of the trial court.
Although separately indicted, appellants waived their right to jury trials and consented to be tried together by the trial court.
Relevant to our decision, the record discloses that approximately one month prior to the incident from which this appeal emanates, appellants were jointly involved in an altercation with Littleton Holloway (Holloway). Approximately one month after the altercation, on the night before the shooting for which appellants were convicted, Trabion and Anton Moore (Moore) were in a fight with Holloway that concluded with Holloway and others shooting at them as they fled from that fight scene. Johnny later claimed that he had bested Holloway in the earlier fight and that Holloway had beaten Trabion in the latter conflict.
When Trabion and Moore fought Holloway, Johnny was in "D.C." While there, Johnny received a telephone call from Trabion concerning Trabion's and Moore's fight with Holloway. Following that telephone conversation, Johnny, with a shotgun and shells stored in the trunk of his car, drove to Surry. In Surry, he met with Trabion, age eighteen, Moore, age fifteen, Travis Montana (Montana), age fifteen and William Taylor (Taylor) and Stacey Williams (Williams) who were described merely as "juveniles." Johnny had learned that Holloway was at the house where Leroy Parham (Parham) lived. Johnny drove Trabion and the other juveniles to Parham's house. En route, Williams suggested that they "shoot the house up." Upon arrival, they parked near the house. At one point, according to Johnny's testimony, he "popped the trunk and we [Johnny and Moore] went back and put his coat in the trunk" where Johnny had placed the gun and shells. After having been shot at by Holloway and others, Moore stated that "he was going to get them." Moore obtained the gun from the trunk and, while Johnny stood by, Moore fired into the house. Moore carried the gun back inside the car and Johnny got in and drove away. Moore gave the spent shell to Trabion who later threw it away. Johnny returned the gun to the trunk.
Johnny gave a written statement to the police in which he acknowledged the prior altercations and the phone call from Trabion. He also stated that because the others with whom he and Trabion had fought had guns he had gotten one "because [he] was scare [sic] not to have one."
Trabion also gave a written statement in which he admitted that when Moore re-entered the car he broke open the gun and gave Trabion the shell which Trabion discarded. Trabion also stated that Johnny returned the gun to the trunk of Johnny's car.
Appellants concede that the Commonwealth proved the primary felony. They argue, however, that the Commonwealth only proved that they were present at the scene of the crime. Moreover, appellants assert that because no proof of their intent to commit the crime was shown, they cannot be convicted as principals in the second degree. See Underwood v. Commonwealth, 218 Va. 1045, 1048, 243 S.E.2d 231, 233 (1978). To that argument, the Commonwealth responds that in this case there is evidence of appellants' culpability beyond mere presence that also proves a shared intent which supports the judgments of the trial court.
Every person who is present at the commission of a felony who in any way, or by any means, countenances or approves the crime is, in law, assumed to be an aider and abettor, and is liable as a principal. Foster v. Commonwealth, 179 Va. 96, 99, 18 S.E.2d 314, 315-16 (1942). In determining whether the record supports that principle, we view the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom, Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). We will not disturb the judgment of the trial court unless it is plainly wrong or without evidence to support it. Code § 8.01-680; Stockton v. Commonwealth, 227 Va. 124, 146, 314 S.E.2d 371, 385, cert. denied, 469 U.S. 873 (1984). Even though there may be some evidence favorable to the defense, the trier of fact is not required to accept entirely either that presented by the Commonwealth or the defense, Barrett v. Commonwealth, 231 Va. 102, 107, 341 S.E.2d 190, 193 (1986), and may reject that which is found to be implausible, and accept that which it finds believable. See Durham v. Commonwealth, 214 Va. 166, 169, 198 S.E.2d 603, 606 (1973).
Here, credible evidence discloses a history of violence among Johnny, Trabion and Moore and Holloway. Johnny beat Holloway and Holloway beat Trabion. In addition, Holloway and his friends fired shots at Trabion and Moore, causing Trabion to place a long distance call to Johnny to report the incident, and causing Moore to declare that "he was going to get them." The record further discloses that after Williams suggested that they "shoot up the place," Johnny "popped the trunk," accompanied Moore to the trunk where the gun was stored, and stood by without protesting as Moore took possession of the gun and shells and shot "up the place."
It is apparent from this comment that Williams and the others knew Johnny had a gun and shells in the trunk.
To constitute one as an aider and abettor, he or she must be shown to have shared the criminal intent required of the principal. Triplett v. Commonwealth, 141 Va. 577, 586, 127 S.E. 486, 489 (1925). However, "[s]pecific intent is not required to convict the defendant as a principal in the second degree."Rollston v. Commonwealth, 11 Va. App. 535, 540, 399 S.E.2d 823, 826 (1991). From the record, it is reasonable for the fact finder to infer that both appellants shared Moore's intent to shoot into the occupied dwelling.
For the reasons stated, we find that sufficient evidence supports the convictions of both appellants and we cannot say that the judgments of the trial court are plainly wrong. Accordingly, the judgments of the trial court are affirmed.
Affirmed.