Petition for Rehearing En Banc October 30, 2018
THE CIRCUIT COURT OF THE CITY OF PETERSBURG DENNIS M. MARTIN,
SR., JUDGE NOS. CR16000048-00, CR16000064-00, CR16000065-00
M. Vandenbrook, Assistant Public Defender (Shaun R. Huband,
Deputy Public Defender, on brief), for appellant.
W. Stallard, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Present: Chief Judge Decker, Judges Humphreys, Petty, Beales,
Alston, Huff, Chafin, O'Brien, Russell, AtLee and
Malveaux Argued at Richmond, Virginia
J. HUMPHREYS JUDGE
appeal permits us to review and clarify our jurisprudence
with respect to the quantum of evidence sufficient to
constitute an attempt to commit a crime in the Commonwealth.
28, 2016, appellant Dustin Scott Jones ("Jones")
was convicted by the Circuit Court of the City of Petersburg
(the "circuit court") of conspiracy to commit
robbery,  attempted robbery, and use of a firearm in
the commission of attempted robbery. Jones argued on appeal
that the evidence did not prove attempted robbery because the
evidence did not establish that he performed an overt act in
furtherance of the intended robbery. Jones also contended
that the evidence was insufficient to sustain his conviction
for use of a firearm. A three-judge panel of this Court agreed
with Jones and reversed and dismissed both of his convictions
in an unpublished opinion. On October 30, 2018, we granted
the Commonwealth's petition for a rehearing en
approximately 5:45 a.m. on October 6, 2015, Petersburg Police
Officers Binford and Seabridge observed a white Mercedes
drive into the parking lot of a housing complex that they had
under observation. Officers Binford and Seabridge were in
full uniform but driving in an unmarked pickup truck. The
officers then observed a man exit the white Mercedes and walk
across the street. A few minutes later, two other men, who
were later identified as Jones and Phillip Boyce
("Boyce"), exited the white Mercedes and
"adjust[ed]" their clothing for four or five
minutes before starting to cross the street in the same
direction that the first man had gone.
Binford and Seabridge followed Jones and Boyce to an alley
between two residences. They witnessed Jones and Boyce at the
corner behind one of the houses, but not near the door. When
Jones and Boyce saw the police officers, Jones and Boyce
started to walk down the alley toward the street. Officers
Binford and Seabridge subsequently exited their truck and
identified themselves. At that point, Boyce stopped walking
and Jones fled. Officer Seabridge witnessed Jones run in and
out of a fenced parking lot before returning to the white
Mercedes. Officer Seabridge then saw Jones get in the white
Mercedes and drive away.
police officer conducted a traffic stop on the white Mercedes
and apprehended Jones a short time later. After responding to
the site of the traffic stop, Officer Seabridge searched the
white Mercedes and recovered a yellow bag with a ski mask.
Officer Seabridge also located another ski mask in a street
that Jones had travelled before Jones was stopped. Several
hours later, in response to a telephone call, Officer
Seabridge searched the fenced-in area where he previously
witnessed Jones running and found a sawed-off shotgun under a
Thomas Ewers interviewed Jones after his arrest. During the
interview, Jones gave conflicting statements about the
incident but eventually admitted that he and Boyce went to
the housing complex to "make sure Trip didn't get
hurt." Jones explained that "Trip," the third
person from the white Mercedes, had intended to rob a known
drug dealer, Austin Strickland ("Strickland"). At
the subsequent bench trial, neither party presented evidence
regarding where Strickland lived.
circuit court determined that Jones's statement to the
police that he accompanied Trip to protect him during the
planned robbery made Jones "part of the robbery."
Therefore, in addition to finding Jones guilty of conspiracy
to commit robbery, the circuit court also found Jones guilty
of attempted robbery and use of a firearm in the commission
of attempted robbery. On October 25, 2016, the circuit court
sentenced Jones to a total of twenty-three years in prison,
with twenty years suspended.
Standard of Review
presented on appeal with a challenge to the sufficiency of
the evidence, an appellate court reviews the evidence in the
"light most favorable" to the prevailing party at
trial, in this case, the Commonwealth. See Commonwealth
v. Hudson, 265 Va. 505, 514 (2003) (citation omitted);
see also Sullivan v. Commonwealth, 280 Va. 672, 676
(2010) (emphasizing that this deferential standard applies
"to any reasonable and justified inferences the
fact-finder may have drawn from the facts proved").
"Viewing the record through this evidentiary prism
requires [an appellate court] to 'discard the evidence of
the accused in conflict with that of the Commonwealth, and
regard as true all the credible evidence favorable to the
Commonwealth and all fair inferences to be drawn
therefrom.'" Bowman v. Commonwealth, 290
Va. 492, 494 (2015) (quoting Kelley v. Commonwealth,
289 Va. 463, 467-68 (2015)).
reviewing the sufficiency of the evidence to support a
conviction, the Court will affirm the judgment unless the
judgment is plainly wrong or without evidence to support
it." Bolden v. Commonwealth, 275 Va. 144, 148
(2008) (citing Coles v. Commonwealth, 270 Va. 585,
587 (2005); Burns v. Commonwealth, 261 Va. 307, 337
(2001)). The issue on appeal is "whether the record
contains evidence from which any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt." Young v. Commonwealth, 275
Va. 587, 591 (2008) (citation and internal quotation marks
The Court of Appeals Panel Opinion
October 2, 2018, a three-judge panel of this Court reversed
and dismissed Jones's conviction for attempted robbery
and his related conviction for the use of a firearm in the
commission of a felony. Regarding Jones's conviction for
attempted robbery, the panel cited our decision in Rogers
v. Commonwealth, 55 Va.App. 20 (2009), which articulated
the well-established precedent that "[a]n attempt in
criminal law is an unfinished crime and is composed of two
elements, the intent to commit the crime and the doing of
some direct [or overt] act toward its consummation, but
falling short of the accomplishment of the ultimate
design." Id. at 24-25. Mindful of
Rogers, the panel found that the evidence was
sufficient to establish Jones's intent to commit robbery.
However, it also concluded that the evidence did not show
that Jones committed a direct or overt act in furtherance of
panel noted that this Court's decision in Hopson v.
Commonwealth, 15 Va.App. 749 (1993), and its companion
case, Jordan v. Commonwealth, 15 Va.App. 759 (1993),
controlled its judgment. Those cases involved co-defendants
whose convictions for attempted robbery were reversed on
appeal. More importantly, however, Hopson and
Jordan grappled with the legal point of when
preparation to commit a robbery becomes an attempt to commit
that crime, and thus when criminality attaches.
and Jordan concerned a situation in which police
officers witnessed two men, later identified as Hopson and
Jordan, outside a store "behaving suspiciously and
repeatedly peeking around the corner of the building."
Hopson, 15 Va.App. at 752. The evidence also
revealed that Jordan wielded a pistol and that Hopson was
wearing a mask that covered his face. Id. Further,
"[o]n several occasions, apparently to reconnoiter it,
Jordan entered the store." Id. When the police
officers approached Hopson and Jordan, "both men quickly
tried to leave the premises[, ] . . . failed to stop at the
officers' command and were detained forcibly."
both Hopson and Jordan were arrested and convicted of
attempted robbery, this Court reversed their convictions on
appeal. As this Court explained, the evidence only proved
that Hopson and Jordan intended to rob the store.
Id. We also noted, however, that the evidence was
not sufficient to prove the second element of attempted
robbery: "[A]n overt, ineffectual act which 'must go
beyond mere preparation and be done to produce the intended
result.'" Id. (quoting Tharrington v.
Commonwealth, 2 Va.App. 491, 494 (1986)). More
specifically, we determined that neither Hopson nor Jordan
entered the store or attempted to enter the store with the
purpose of initiating the planned robbery. Id. The
Hopson/Jordan Court found that, given the
particular facts of the case,
Hopson and Jordan committed no act directed toward the
consummation of a robbery. Rather, the evidence discloses
nothing more than preparation to commit the crime. They
remained behind and beside the store and made no move toward
the door. They peeked around the corner several times, an
action consistent only with scouting the store. Neither man
made any move toward realizing the ultimate purpose of
Id. Therefore, we held that the evidence was
"consistent only with scouting the store" but did
not demonstrate an overt act necessary to support Hopson or
Jordan's convictions for attempted robbery. Id.;
see also Jordan, 15 Va.App. at 762 ("They were
diverted from their purpose before they committed any act
toward its accomplishment.").
Hopson and Jordan to the facts of this
case, the panel found that "the evidence did not prove
that [Jones] had begun the actual robbery or that its
execution was otherwise imminent." The panel reached
this conclusion by noting that the Commonwealth did not
present evidence that Strickland, the intended victim of the
thwarted robbery, lived in the area where Officers Binford
and Seabridge encountered Jones and his co-conspirators.
Thus, the panel concluded that "the evidence showed only
some possible preparation for the intended crime, rather than
any overt act." Officers Binford and Seabridge
"intervened before the intended robbery occurred."
that the evidence did not establish the second element of an
attempt to commit offense, an overt act in furtherance of
criminal intent, the panel reversed and dismissed Jones's
attempted robbery conviction. As a necessary consequence, the
panel also reversed and dismissed Jones's related
conviction for use of a firearm.
The Elements of Attempted Robbery
resolving the issues before us, we think it important to
undertake a thorough review of the Commonwealth's
jurisprudence with respect to the attempted commission of a
crime, including our prior precedent on this subject.
crime of robbery in Virginia is not defined by statute."
Johnson v. Commonwealth, 209 Va. 291, 293 (1968).
"Consequently, we look to the common law for its
definition." Pierce v. Commonwealth,
205 Va. 528, 532 (1964) (citing Fleming v.
Commonwealth, 170 Va. 636, 639 (1938); Butts v.
Commonwealth, 145 Va. 800, 811 (1926)). The common law
defines robbery as the "taking, with intent to steal, of
the personal property of another, from his person or in his
presence, against his will, by violence or
intimidation." Jay v. Commonwealth, 275 Va.
510, 524 (2008) (citations omitted).
what constitutes an attempt must also be ascertained from the
common law.See Johnson, 209 Va. at 293. The
English common law doctrine of criminal attempt can be traced
back to the eighteenth century. Over time, however, courts have
blurred the line between mere preparation to commit a crime
and the type of act sufficient to establish an attempted
offense. This is, at least in part, a consequence of courts
throughout the nation utilizing a wide and not entirely
consistent variety of phrases to describe the type of act
required. These phrases include a "step toward the
commission of the crime," an "act in part execution
of the intent," a "direct movement toward the
commission of the offense," an "act in furtherance
of the crime," a "substantial step toward the
commission of the offense," and "some appreciable
fragment of the crime." Wayne R. LaFave, Criminal
Law § 11.4 (5th ed. 2010) (citations omitted).
so, the common law generally informs us that "to
constitute an act of attempt, the act must possess four
characteristics: first, it must be a step toward a punishable
offense; second, it must be apparently (but not necessarily
in reality) adapted to the purpose intended; third, it must
come dangerously near to success; fourth, it must not
succeed." J. H. Beale, Jr., Criminal
Attempts, 16 Harv. L. Rev. 491, 492 (1903). This
case, as well as Hopson and Jordan, focuses
on the third of these characteristics. However, how near to
success any effort to commit a crime must come before
criminality attaches is obviously a question to be determined
in each case upon the specific facts of the case and the
elements of the intended crime. In an attempt to find a legal
test to satisfy this question, most courts and commentators
on the subject agree with Justice Oliver Wendell Holmes,
Jr.'s observation that "[a]s the aim of the law is
not to punish sins, but is to prevent certain external
results, the act done must come pretty near to accomplishing
that result before the law will notice it."
Commonwealth v. Kennedy, 170 Mass. 18, 20 (1897).
these principles in mind, it follows that to convict a
defendant of attempted robbery,
the Commonwealth is required to prove beyond a reasonable
doubt that [the defendant] intended to steal personal
property from [the victim], against his will, by force,
violence, or intimidation. Additionally, the Commonwealth
must prove beyond a reasonable doubt that [the defendant]
committed a direct, but ineffectual, act to
accomplish the crime.
Pitt v. Commonwealth, 260 Va. 692, 695 (2000)
(emphasis added) (citing Johnson, 209 Va. At 293).
direct but ineffectual act is commonly referred to as an
"overt act." Jay, 275 Va. at 525 (citing
Sizemore v. Commonwealth, 218 Va. 980, 984 (1978)).
The overt act requirement distinguishes an attempt to commit
a crime from "mere preparation" to do so, which is
not a criminal offense. See Sizemore, 218 Va. at
983. However, "[t]he question as to what is [an overt]
act, is often a difficult one to determine, and no general
rule, which can be readily applied as a test to all cases,
can be laid down . . . . Each case must, therefore, be
determined upon its own facts." Jay, 275 Va. at
525 (quoting Hicks v. Commonwealth, 86 Va. (11
Hans.) 223, 226 (1889) (reversing a defendant's
conviction for attempted poisoning and concluding that
obtaining a poisonous substance and soliciting another to put
it in an intended victim's coffee amounted to mere
preparation)). As a result, criminal attempt "is more
intricate and difficult of comprehension than any other
branch of the criminal law." Hicks, 86 Va. (11
Hans.) at 226.
endeavor to define an overt act sufficient to transition from
preparation to an attempt, our Supreme Court has been
consistent with the conclusion of Justice Holmes on the
subject and repeatedly emphasized that the act must reach
"far enough toward the accomplishment of the desired
result to amount to the commencement of the
consummation." Jay, 275 Va. at 526 (quoting
Hicks, 86 Va. (11 Hans.) at 226-27); see
also, e.g., Howard v. Commonwealth,
207 Va. 222, 227 (1966); Merritt v. Commonwealth,
164 Va. 653, 657 (1935); Thacker v. Commonwealth,
134 Va. 767, 769-70 (1922). Put another way, the "overt
act" must be an action that begins (commences) the
execution (consummation) of one or more elements of a crime
but does not complete all of them.
only the second element of attempted robbery is at issue.
Jones concedes his intent to rob Strickland. Specifically, in
his brief to this Court, Jones states that "[w]ith all
reasonable inferences drawn in favor of the Commonwealth, the
evidence at trial established that [Jones] and his
codefendants . . . intended to rob a drug dealer[.]"
Jones argues only that he did not undertake some overt act in
furtherance of his intent. The Commonwealth disagrees and
argues that the circuit court's judgment that Jones had
committed an attempted robbery was not plainly wrong and was
supported by credible evidence.
petition for rehearing en banc and in its brief, the
Attorney General argues that the panel failed to properly
consider controlling precedent from our Supreme Court and
that the two cases relied upon by the panel, Hopson
and Jordan, were wrongly decided and misapplied case
law regarding the requirement of an overt act for an attempt
conviction. According to the Attorney General, an
overt act is established if the prosecution proves
any "slight act" done in furtherance
of a defendant's criminal intent. While the General
Assembly is free to define an overt act or the law of attempt
more broadly than the common law if they choose to do so, in
the absence of such action on their part, the courts of the
Commonwealth remain bound by the common law as it is
historically understood. The construction the Attorney
General and apparently the concurrence would place on that
phrase however, is inconsistent with the overwhelming body of
common law jurisprudence on the subject.
support of its argument, the Attorney General cites our
Supreme Court's decision in Lee v. Commonwealth,
144 Va. 594 (1926), where it affirmed a defendant's
conviction for attempted murder. In Lee, the
defendant expressed his intention to kill his first cousin,
Loving, after being ordered to leave Loving's home.
Id. at 598-99. The defendant then returned to his
own home, armed himself with a loaded shotgun, went back to
Loving's home, and crept around the corner of the house.
Id. at 601-02. "He thereupon stationed himself
outside the door with his gun held in position to
shoot." Id. at 602. During a subsequent scuffle
between the defendant and Loving, "the gun was
discharged and the barrel burst." Id. at 598.
The defendant was subsequently convicted of attempted murder.
appeal, our Supreme Court analyzed the difference between
preparation and attempt. In doing so, the Lee Court
quoted with approval the following statement from the Supreme
Court of Mississippi in Stokes v. State, 46 So. 627
[W]henever the design of a person to commit a crime is
clearly shown, slight acts done in furtherance of this design
will constitute an attempt, and this court will not destroy
the practical and common sense administration of the law with
subtleties as to what constitutes preparation, and what an
act done toward the commission of a crime. Too many subtle
distinctions have been drawn along these lines for practical
purposes. Too many loopholes have been made whereby parties
are enabled to escape punishment for that which is known to
be criminal in its worst sense.
Lee, 144 Va. at 600; see also Stokes, 46
So. at 629.
Attorney General emphasizes the Lee Court's use
of the phrase "slight acts," but that phrase should
be considered in the context of Stokes. In the
Stokes case, the Supreme Court of Mississippi upheld
a defendant's conviction for attempted murder even though
the defendant never shot at the intended victim. Id.
at 628. Rather, the defendant hired an assassin. Id.
On the night that the killing was to occur, however, police
officers arrested the defendant outside of the intended
victim's home as the defendant was handing a loaded gun
to the would-be assassin, who had secretly informed the
police of the defendant's plan. Id. Relying upon
its so-called "slight acts" standard, the Supreme
Court of Mississippi determined that the defendant had
committed an overt act sufficient to sustain his conviction
of attempted murder. Id. at 629.
defendant in Stokes also contended that because he
did not actually shoot at the intended victim, he could not
be held guilty of attempted murder. In disposing of that
issue, the Supreme Court of Mississippi stated,
[w]here a party is indicted for an attempt to murder by
shooting with a gun, at what time shall it be said that such
party has committed an overt act. Is it necessary, in order
to convict, that a party shall be allowed to proceed to do
all towards the accomplishment of his crime, except actually
to pull the trigger? If not, then when may it be said that an
overt act has been committed? When it is proved that a party
has the design to kill and has the means to accomplish that
design, shall it be held that no crime is committed unless
that design is frustrated at the very instant it is attempted
to be carried out? Must the citizen be required to imperil
his existence up to the time of the actual menace before he
can claim the protection of the law and procure the
punishment of the offender? The mere buying of the gun would
be preparation and not attempt. The mere buying of a gun and
loading it might not constitute an attempt. But when the
facts show, in furtherance of the design, that a gun has been
procured and loaded, and the party so procuring and loading
the gun has armed himself and started out on his mission to
kill, but is prevented from carrying out his design by such
extraneous circumstances as that the party he intends to kill
does not come to the point where he expected to carry out his
design, or if the party designing to kill is arrested and
prevented from carrying out the design, he is clearly guilty
of the attempt.
Id. at 628. Our Supreme Court in Lee quoted
the entirety of this passage from Stokes. See
Lee, 144 Va. at 601.
from quoting passages from the Stokes opinion,
however, our Supreme Court did not attempt to comprehensively
analyze the occasionally subtle differences between mere
preparation and an attempt to commit a crime. Rather, our
Supreme Court noted that it "heartily concur[red]"
with most of the principles outlined by the Stokes
court and subsequently affirmed the defendant's
conviction for attempted murder. See Lee, 144 Va. at
Attorney General also relies upon subsequent Virginia case
law approving of the "slight acts" standard
originally explained in Stokes and adopted in
Lee. For example, the Commonwealth cites Martin
v. Commonwealth, 195 Va. 1107, 1112-13 (1954), where the
Court affirmed a defendant's conviction for attempted
"pandering." The Martin Court explicitly
relied upon and quoted Stokes and Lee in
its analysis. See id. at 1112. Further, the Attorney
General cites examples from this Court, as well as our
Supreme Court, where the word "slight" is used as a
descriptive word in similar contexts, such as the amount of
corroboration necessary to support a conviction following a
defendant's confession. See Watkins v.
Commonwealth, 238 Va. 341, 348 (1989) ("[W]here, as
here, the accused has fully confessed ...