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Jones v. Commonwealth

Court of Appeals of Virginia

May 7, 2019


          Upon a Petition for Rehearing En Banc October 30, 2018


          Aaron M. Vandenbrook, Assistant Public Defender (Shaun R. Huband, Deputy Public Defender, on brief), for appellant.

          Craig 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



         This 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.

         On June 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, [1] 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.[2] A three-judge panel of this Court agreed with Jones and reversed and dismissed both of his convictions in an unpublished opinion.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 banc.

         I. BACKGROUND

         At 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.

         Officers 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.

         Another 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 bush.

         Detective 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.

         The 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.

         II. ANALYSIS

         A. Standard of Review

         When 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)).

         "When 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 omitted).

         B. The Court of Appeals Panel Opinion

         On 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 that intent.

          The 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.

         Hopson 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." Id.

         While 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 robbery.

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.").

         Applying 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."

         Finding 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.

         C. The Elements of Attempted Robbery

         In 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.

         "The 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).

         Similarly, what constitutes an attempt must also be ascertained from the common law.[3]See Johnson, 209 Va. at 293. The English common law doctrine of criminal attempt can be traced back to the eighteenth century.[4] 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).

         Even 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).

         With 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).

         The 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.

         In its 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.

         Here, 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.

         In its 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.[5] 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.

         In 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.

         On 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 (Miss. 1908):

[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.

         The 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.

         The 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.

         Aside 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 601-02.

         The 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."[6] 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 ...

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