                                                COURT OF APPEALS OF VIRGINIA


              Present: Judges Alston, McCullough and Senior Judge Clements
UNPUBLISHED


              Argued at Chesapeake, Virginia


              DEON CHRISTOPHER COBB
                                                                               MEMORANDUM OPINION* BY
              v.        Record No. 1526-12-1                                 JUDGE JEAN HARRISON CLEMENTS
                                                                                     OCTOBER 22, 2013
              COMMONWEALTH OF VIRGINIA


                                  FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
                                             Marjorie A. Taylor Arrington, Judge

                                  Afshin Farashahi (Afshin Farashahi, P.C., on briefs), for appellant.

                                  Susan Baumgartner, Assistant Attorney General (Kenneth T.
                                  Cuccinelli, II, Attorney General, on brief), for appellee.


                        In a jury trial, Deon Christopher Cobb (appellant) was found guilty of murder, attempted

              robbery, conspiracy to commit robbery, and two counts of using a firearm in the commission of a

              felony. On appeal, appellant argues the trial court erred in admitting into evidence records of text

              messages sent to and received by a particular cellular telephone number. He contends the records

              were inadmissible hearsay and violated the best evidence rule. Appellant also contends the

              evidence was insufficient to support his convictions. We find no error and affirm the trial court’s

              decision and appellant’s convictions.

                        As the parties are fully conversant with the record in this case, and because this

              memorandum opinion carries no precedential value, this opinion recites only those facts and

              incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this

              appeal.



                        *
                            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                             FACTS

       “‘When the sufficiency of the evidence is challenged on appeal, we determine whether the

evidence, viewed in the light most favorable to the prevailing party, the Commonwealth, and the

reasonable inferences fairly deducible from that evidence support each and every element of the

charged offense.’” Slade v. Commonwealth, 43 Va. App. 61, 69, 596 S.E.2d 90, 94 (2004) (quoting

Haskins v. Commonwealth, 31 Va. App. 145, 149-50, 521 S.E.2d 777, 779 (1999)).

       At about 9:30 p.m. on September 14, 2010, Richard Emerle was in a room at the Budget

Lodge Motel in Chesapeake with Conell Darden and another individual. After receiving a

telephone call, Darden advised that he was expecting someone named “Cobb” to arrive at the door

of the motel room. Emerle was seated beside the door. Emerle answered a knock at the door and

admitted appellant, whom Emerle did not know. Appellant and Darden had a brief conversation.

As appellant prepared to leave, Emerle got up to open the door for him. Appellant said, “That’s

okay. I got it.” When appellant turned the door handle, thus unlocking the door, the door was

pushed open from the outside. Two gunmen appeared.

       One of the gunmen entered the room and demanded money. Initially, Darden said he did

not have any money. When the gunman persisted in his demand, Darden pointed at a dresser

drawer and said it was inside. As the gunman turned toward the dresser Darden tried to tackle him.

The gun fired, striking Darden in the chest. The gunman and the other armed individual fled from

the scene.

       The police arrived at the motel room at 9:37 p.m. in response to 911 calls placed by Emerle

and appellant. Darden was transported to the hospital for emergency medical treatment, but he died

from the gunshot wound he had suffered to his chest.

       When the police arrived, appellant was still in the vicinity of the motel room where Darden

was shot. During his investigation at the scene, Detective James Thomas examined the cellular

                                               -2-
telephone that belonged to appellant. At 10:58 p.m. on September 14, 2010, appellant’s phone

received a text message stating, “[W]ipe that draw off 4 me.” Presumably, the “draw” referred to in

the message was the dresser drawer where Darden indicated the cash was stored. The message was

sent from a device assigned the number 419-0926. As Exhibit 23, the Commonwealth introduced a

photograph of appellant’s telephone displaying that message.

       Video taken by a surveillance camera at the motel showed appellant interacting with two

men outside the room where the shooting occurred. When appellant reached the door of the room,

he raised his arm. Then, he knocked on the door and was admitted inside.

       When initially questioned by the police, appellant said that Tony Tucker had dropped him

off at the motel alone and that he was surprised when the gunmen appeared at the door of the motel

room.1 However, after being confronted by the surveillance video and the presence of the text

message about the “draw” on his phone, appellant admitted that Anthony Saunders was the shooter.

Appellant claimed that he had not been in contact with Saunders recently.

       The device assigned the number 419-0926 was a cellular telephone registered to Saunders’

thirteen-year-old son. Saunders often used that phone to communicate by text message with his

girlfriend, Shannon Walker, and others.

       Records of Verizon Wireless telephone company, the service provider for 419-0926,

demonstrated that on September 13, 2010, there were eight calls between appellant’s phone and

419-0926. There were thirteen calls between the two phone numbers on September 14, 2010, and

one call on September 15, 2010.

       The Commonwealth also introduced, as Exhibit 21, text messaging detail records of Verizon

Wireless relating to 419-0926. Monica Harper, the records custodian for Verizon Wireless, testified

regarding text messages sent from 419-0926 on September 14 through September 15, 2010.


       1
           Tucker testified that he did not give Cobb a ride to the motel that night.
                                                  -3-
Messages conveyed that the user of 419-0926 was planning to obtain some money and was trying to

recruit someone to do a “sting” with him. There were messages from the evening before the

shooting that the user of 419-0926 was at “deon’s” home. After the shooting of Darden occurred,

the user of 419-0926 sent text messages to Walker expressing desperation and affection, and also

that he was about to throw away his phone and go into hiding. On the day after the shooting, the

user of 419-0926 sent text messages to Walker stating that no one could identify him and that

“nobody knew me but Deon.” He further instructed someone to call “Deon’s phone” to see who

answered. The user of 419-0926 later indicated in a text message that the police had “Deon’s”

phone and that “Deon” might have talked to the police.

       Saunders was not arrested until about six months after Darden’s killing. Detective Thomas

testified at a pretrial motions hearing that the police did not recover Saunders’ telephone. In a

separate trial, Saunders was convicted of the murder of Darden, attempted robbery, conspiracy, and

two counts of using a firearm in the commission of a felony.

                                     PROCEDURAL HISTORY

       Appellant filed a pretrial motion in limine to exclude evidence of cell phone text messages

received by or recorded on his telephone, as well as any documentary evidence relating to such text

messages. In his motion, appellant contended the evidence was inadmissible hearsay and was

barred by the best evidence rule. At a hearing upon his motion, conducted on August 16, 2011,

Detective Thomas testified regarding the contents of two text messages he retrieved from

appellant’s phone and photographed, one of which was the message regarding the “draw.” Initially,

appellant argued that “the two text messages that Detective Thomas testified about are the specific

items of evidence that we’re asking the Court to exclude.” He argued the messages were hearsay

and did not fall within the exception to the hearsay rule regarding statements made by

co-conspirators. The Commonwealth countered that the text messages were admissible under either

                                                 -4-
the co-conspirator or declaration against penal interest exception to the hearsay rule. The prosecutor

then said she was unsure of whether, at trial, she would try to introduce appellant’s telephone

displaying the messages or the photographs of the messages displayed on the telephone. Defense

counsel then refocused her argument, stating, “I don’t have any problem with the pictures being

used in lieu of the cell phone. It was only the other records independently obtained from the phone

company that we would have objected to.” The trial court asked, “So you’re not objecting to the

photographs?” Defense counsel said she was not. At a subsequent hearing, the trial court overruled

the motion in limine, citing the declaration against penal interest exception to the hearsay rule.

        At trial, the Commonwealth sought to introduce Exhibit 21, the Verizon Wireless records of

text messages made and received by 419-0926 on September 14 and 15, 2010. Harper testified that

Exhibit 21 was an accurate copy of the company’s records reflecting those messages. Appellant

objected to Exhibit 21, stating that the issue addressed at the pretrial hearing was the admissibility of

the “two specific text messages,” and “not the remainder of the text messages that the

Commonwealth is intending here to offer again today.” Appellant argued the Commonwealth had

not laid an adequate foundation through Harper for admission of the documents as business records.

He further contended the records were not admissible under either the co-conspirator statement or

declaration against penal interest exception to the hearsay rule and that the best evidence rule barred

admission of the records. The trial court agreed that the Commonwealth had not established an

adequate foundation through Harper, but that that could be remedied since Harper was still available

as a witness. The trial court recessed for the day and had the parties brief the issues raised regarding

the admissibility of Exhibit 21.

        The following day, after allowing the parties further opportunity for argument, the trial court

stated that it would permit the Commonwealth to lay a foundation for introduction of the records

through Harper. The Commonwealth requested a ruling regarding whether a prima facie case of

                                                  -5-
conspiracy had been established at that juncture. The trial court ruled the evidence already

introduced established a prima facie case of conspiracy. The trial court then stated,

               With regard to the best evidence ruling, I wonder, . . . back when
               that rule was established, you know, we had carbon paper or before
               that, and we’ve had the invention of computers, and a text message
               seems to me originates from a radio wave, an electronic wave.
               How do you get the original of that, when you get the writing,
               doesn’t that come from -- isn’t that just memorializing what the
               wave is? Interesting questions. I’m sure at some point in the
               future we’ll get some better case law on this. Technology now is
               moving extremely quickly. I guess the law needs to catch up with
               it. I do think the Commonwealth needs to have some further
               questions of the custodian, so I will allow that.

       The Commonwealth recalled Harper to the witness stand. In response to questioning by

the prosecutor, Harper testified that the records contained in Exhibit 21 were kept in the normal

course of business, were relied upon by Verizon Wireless in the transaction of business, and

were created instantaneously with the text messages themselves. Exhibit 21 then was introduced

without any objection other than those appellant previously had raised.

       Subsequently, when the Commonwealth sought to introduce Exhibit 23, appellant stated he

had “no objection other than the objections previously made at the pretrial motions in August.”

                                            ANALYSIS

                     I. Admission of Verizon Wireless Text Message Records

       Appellant contends the trial court committed reversible error by admitting Exhibit 21 into

evidence because the records were inadmissible hearsay and barred by the best evidence rule. 2


       2
         Appellant’s argument on best evidence grounds does not encompass an objection to
Exhibit 23, the photograph of the text message as found by the police on appellant’s phone,
“[W]ipe that draw off 4 me.” Appellant states in his brief that a proper way to establish the
content of text messages is “through photographs of those messages on that phone,” precisely
what Exhibit 23 is. Moreover, appellant conceded at oral argument in this Court that he had no
valid objection to Exhibit 23 based upon the best evidence rule.
       Although appellant argues on appeal that the text message in Exhibit 23 was inadmissible
hearsay, appellant did not raise this objection when the evidence was introduced at trial. Instead,
appellant relied upon the argument raised at the August 2011 pretrial hearing. Although he made
                                                -6-
“The admissibility of evidence is within the broad discretion of the trial court, and a ruling will not

be disturbed on appeal in the absence of an abuse of discretion.” Blain v. Commonwealth, 7

Va. App. 10, 16-17, 371 S.E.2d 838, 842 (1988).

                                        A. Best Evidence Rule

        Appellant argues the trial court erred in rejecting his contention that the best evidence rule

barred admission of Exhibit 21. 3

        Appellant’s trial occurred prior to the adoption of the Virginia Rules of Evidence, which

became effective on July 1, 2012. Therefore, the admissibility of evidence in this case was

governed by the common law rules of evidence. See Brown v. Commonwealth, 54 Va. App. 107,

113, 676 S.E.2d 326, 329 (2009).

                        In Virginia, the best evidence rule provides that “where the
                contents of a writing are desired to be proved, the writing [the
                primary evidence] itself must be produced or its absence
                sufficiently accounted for before other evidence of its contents can
                be admitted.” Randolph v. Commonwealth, 145 Va. 883, 889, 134
                S.E. 544, 546 (1926); Butts v. Commonwealth, 145 Va. 800, 816,
                133 S.E. 764, 769 (1926). Thus, if the purpose is to prove the truth



statements to the contrary at trial during argument regarding the admissibility of Exhibit 21, at
the pretrial hearing appellant said he was challenging the admissibility only of “records
independently obtained from the phone company,” not the admissibility of photographs Thomas
took of text messages on appellant’s telephone. Thus the record does not reflect that appellant
preserved a hearsay objection to Exhibit 23 because he did not, at the time the evidence was
offered, raise or renew a hearsay objection to that same evidence. See Rule 5A:18; Marlowe v.
Commonwealth, 2 Va. App. 619, 621, 347 S.E.2d 167, 168 (1986) (“To be timely, an objection
must be made when the occasion arises -- at the time the evidence is offered or the statement
made.”). Accordingly, we do not consider such a contention on appeal.
        We need not consider independently the admissibility of Exhibit 7, which consisted of
two pages of records of text messages pertaining to 419-0926. Exhibit 7 was merely an excerpt
of, and was contained completely within, Exhibit 21.
        3
         We note that the trial court made no specific rulings regarding application of the various
aspects of the best evidence rule. Nonetheless, the trial court’s decision to admit Exhibit 21 over
appellant’s objection on the basis of the best evidence rule permits us to consider the issue on
appeal. But see Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 489 (1998) (it
is incumbent upon appellant to obtain a ruling from the trial court or “there is no ruling for us to
review on appeal”).
                                                -7-
                of the contents of a writing, the primary evidence must be
                produced, if available.

Bradshaw v. Commonwealth, 16 Va. App. 374, 379, 429 S.E.2d 881, 884 (1993). The best

evidence rule applies only to writings. See Midkiff v. Commonwealth, 280 Va. 216, 219, 694

S.E.2d 576, 577 (2010) (finding best evidence rule did not bar introduction of photographs and

video recordings copied from the hard drive of defendant’s computer); Brown, 54 Va. App. at 120,

676 S.E.2d at 332 (best evidence rule did not bar testimony regarding the contents of a surveillance

camera videotape).

        Appellant claims that the display of text messages on the actual cellular device assigned the

number 419-0926 was the writing which the Commonwealth sought to prove at trial and that in the

unexplained absence of the device or photographs of the text messages displayed, secondary

evidence was inadmissible to prove the content of text messages sent or received by the device. A

writing has been defined by the General Assembly as “any representation of words, letters, symbols,

numbers, or figures, whether (i) printed or inscribed on a tangible medium or (ii) stored in an

electronic or other medium and retrievable in a perceivable form and whether an electronic

signature . . . is or is not affixed.” Code § 1-257.

        No Virginia appellate court has yet determined whether a text message is a “writing” for

purposes of the best evidence rule. However, other courts, applying their own rules of evidence,

have found that “a text message is a writing because it consists of letters, words, or numbers set

down by mechanical or electronic recording, or other form of data compilation.” State v. Espiritu,

176 P.3d 885, 892 (Haw. 2008). See also Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 577

(D. Md. 2007). We assume without deciding that a text message qualifies as a “writing.”

        Nonetheless, under the best evidence rule, where the admitted evidence qualifies as an

original of the writing in question “application of the best evidence rule is unnecessary.” Winston v.

Commonwealth, 16 Va. App. 901, 904, 434 S.E.2d 4, 5 (1993). Courts have applied the concept of
                                                   -8-
“duplicate originals” to mechanically reproduced copies. See, e.g., Burton v. F. A. Seifert & Co.,

108 Va. 338, 352-53, 61 S.E. 933, 939 (1908) (applying the duplicate original principle to

“letter-press copies”); Chesapeake & O. R. Co. v. F. W. Stock & Sons, 104 Va. 97, 101, 51 S.E.

161, 162 (1905) (recognizing that a “carbon copy” may be regarded as a “duplicate original”).

Under this view, “[m]any of the documents that we commonly refer to as ‘copies’ are in fact

‘duplicate originals,’ and are treated as ‘originals’ for purposes of the best evidence rule.” Charles

E. Friend & Kent Sinclair, The Law of Evidence in Virginia 18-4[a], at 1195 (7th ed. 2012).

       Neither this Court nor the Supreme Court of Virginia has decided whether the printed record

of an exchange of text messages is an original or duplicate original of the messages. Nonetheless,

we have observed that “[t]he potentially limitless application of computer technology to evidentiary

questions will continually require legal adaptation.” Penny v. Commonwealth, 6 Va. App. 494,

499, 370 S.E.2d 314, 317 (1988).

       In Adams v. State, 117 P.3d 1210, 1219 (Wyo. 2005) (quoting Wyoming Rules of

Evidence 1001(3)), the Wyoming Supreme Court ruled admissible as an original or duplicate

original a computer printout of instant messages between the defendant and a police officer,

noting that state’s rules of evidence defined an original as “including any computer printout or

other readable output of data stored in a computer or similar device, which is ‘shown to reflect

the data accurately.’” Similarly, in Laughner v. State, 769 N.E.2d 1147, 1159 (Ind. Ct. App. 2002),

the Indiana Court of Appeals applied that state’s rules of evidence and found that a printout of

messages sent between two computers was an original for purposes of the best evidence rule. See

also Lorraine, 241 F.R.D. at 577-78 (applying the Federal Rules of Evidence).

       We conclude that, under the law applicable at the time of appellant’s trial, the Verizon

Wireless records of the text messages were originals or duplicate originals for purposes of the best

evidence rule. Harper testified that the text messages were recorded instantaneously by the

                                                 -9-
company at the time they were created. Thus, the printout of the company’s records of the text

messages was an original writing, just as mechanically reproduced or photocopied documents are

considered originals. Therefore, the trial court did not err in finding that the best evidence rule did

not bar the introduction of Exhibit 21.

                                              B. Hearsay

        Appellant also contends the Verizon Wireless records of the text messages were

inadmissible hearsay. Hearsay is “‘testimony in court, or written evidence, of a statement made

out of court, the statement being offered as an assertion to show the truth of matters asserted

therein, and thus resting for its value upon the credibility of the out of court asserter.’”

Stevenson v. Commonwealth, 218 Va. 462, 465, 237 S.E.2d 779, 781 (1977) (quoting

McCormick on Evidence § 246, at 584 (2d ed. 1972)). In order for hearsay to be admissible, it

must “come within one of the many established exceptions to the general prohibition against

admitting hearsay.” Hanson v. Commonwealth, 14 Va. App. 173, 187, 416 S.E.2d 14, 22 (1992).

“‘[T]he party seeking to rely upon an exception to the hearsay rule has the burden of establishing

admissibility.’” Braxton v. Commonwealth, 26 Va. App. 176, 183-84, 493 S.E.2d 688, 691

(1997) (quoting Neal v. Commonwealth, 15 Va. App. 416, 420-21, 425 S.E.2d 521, 524 (1992)).

        Initially, we note that not all the text messages contained in Exhibit 21 were admitted for

the truth of the matters asserted therein. Many of the messages in the records were those sent to

or from 419-0926 with innocuous communication that had nothing to do with the conspiracy or

commission of the crimes. The messages unrelated to these matters were not offered to prove

the truth of their assertions, and did not constitute hearsay.

        Appellant argues on appeal that the text message records were not admissible under the

hearsay exception relating to statements by co-conspirators. The Commonwealth responds that




                                                 - 10 -
the records qualified for admission under hearsay exceptions pertaining to statements by

co-conspirators, declarations against penal interests, or present sense impressions.

       The record does not reflect that the trial court ruled Exhibit 21 admissible based upon any

of the exceptions advanced by the parties on appeal. Rather, the trial court agreed with

appellant’s initial argument that the Commonwealth had not laid sufficient foundation for the

records’ admission under the business record exception to the hearsay rule, but permitted the

Commonwealth to question Harper further to establish a proper foundation. Although the trial

court had the parties brief the applicability of the hearsay exceptions asserted, the court did not

rely on any of them in ruling Exhibit 21 admissible.

       “Under the modern Shopbook Rule, . . . a recognized exception to the hearsay rule,

verified regular entries may be admitted in evidence without requiring proof from the original

observers or record keepers.” Ford Motor Co. v. Phelps, 239 Va. 272, 275, 389 S.E.2d 454, 457

(1990). “‘Admission of such evidence is conditioned . . . on proof that the document comes from

the proper custodian and that it is a record kept in the ordinary course of business made

contemporaneously with the event by persons having the duty to keep a true record.’” Sparks v.

Commonwealth, 24 Va. App. 279, 282, 482 S.E.2d 69, 70-71 (1997) (quoting “Automatic”

Sprinkler Corp. v. Coley & Peterson, Inc., 219 Va. 781, 793, 250 S.E.2d 765, 773 (1979)). “‘[I]n

Virginia today, personal knowledge of the entrant, or of the entrant’s informant, is no longer an

absolute prerequisite to the admissibility of business records, provided that the “circumstantial

guarantees of trustworthiness” – regularity of preparation and reliance upon the records by those

for whom they are prepared – are present.’” Cooper v. Commonwealth, 54 Va. App. 558, 568,

680 S.E.2d 361, 366 (2009) (quoting Charles E. Friend, The Law of Evidence in Virginia

§ 18-15, at 775 (6th ed. 2003)).




                                                - 11 -
       In McDowell v. Commonwealth, 273 Va. 431, 641 S.E.2d 507 (2007), the trial court

admitted at the defendant’s grand larceny trial a report prepared by an undercover detective

employed by the store following a shoplifting incident. The report was based upon a

merchandise inventory which indicated what items were missing, as well as the price of the

stolen items. The Supreme Court ruled there “was a ‘regularity of . . . preparation’ of [the report]

upon which [the store] relied ‘in the transaction of business,’ thus guaranteeing ‘the

trustworthiness or reliability’ of the [r]eport[.]” Id. at 436, 641 S.E.2d at 509 (quoting

“Automatic” Sprinkler Corp., 219 Va. at 793, 250 S.E.2d at 773). Thus, the report qualified for

admission under the business record exception to the hearsay rule. See id. at 436, 641 S.E.2d at

510.

       In this case, Harper, the custodian of records for Verizon Wireless, testified that the

records contained in Exhibit 21 were accurate, that they were made in the regular course of

business, that they were relied upon by Verizon Wireless in the transaction of business, and that

they were made contemporaneously with the creation of the text messages themselves. Harper’s

testimony thus established the reliability of the Verizon Wireless records, and the trial court did

not err in admitting Exhibit 21 under the business records exception to the hearsay rule.

                                   II. Sufficiency of the Evidence

       Appellant contends the evidence was insufficient to prove that he participated in the

attempted robbery as a principal in the second degree or that he conspired with Saunders to commit

robbery. A principal in the second degree

               may be indicted, tried, convicted and punished as if a principal in
               the first degree. See Code § 18.2-18. To convict based on this
               theory, the Commonwealth must prove the defendant was present
               at the scene and “‘share[d] the criminal intent of the party who
               actually committed the [crime] or [was] guilty of some overt act in
               furtherance thereof.’” Rollston v. Commonwealth, 11 Va. App.
               535, 540, 399 S.E.2d 823, 826 (1991) (quoting Augustine v.
               Commonwealth, 226 Va. 120, 124, 306 S.E.2d 886, 888-89
                                                - 12 -
               (1983)). A defendant may be convicted as a principal in the
               second degree if he or she is present, “‘keeping watch or guard at
               some convenient distance.’” Id. at 539, 399 S.E.2d at 825 (quoting
               Brown v. Commonwealth, 130 Va. 733, 736, 107 S.E. 809, 810
               (1921)). “‘[P]roof that a person is present at the commission of a
               crime without disapproving or opposing it, is evidence from which,
               in connection with other circumstances, . . . the [fact finder] may
               infer that he assented thereto . . . .’” Pugliese v. Commonwealth,
               16 Va. App. 82, 93-94, 428 S.E.2d 16, 25 (1993) (quoting Foster v.
               Commonwealth, 179 Va. 96, 99-100, 18 S.E.2d 314, 316 (1942)).

Allard v. Commonwealth, 24 Va. App. 57, 62-63, 480 S.E.2d 139, 141-42 (1997). Moreover,

“one who never held or possessed a firearm m[ay] nevertheless be convicted as a principal in the

second degree of the use of a firearm in the commission of a felony where he acted in concert

with the gunman.” Carter v. Commonwealth, 232 Va. 122, 125, 348 S.E.2d 265, 267 (1986).

       A conspiracy is “‘an agreement between two or more persons by some concerted action

to commit an offense.’” Feigley v. Commonwealth, 16 Va. App. 717, 722, 432 S.E.2d 520, 524

(1993) (quoting Wright v. Commonwealth, 224 Va. 502, 505, 297 S.E.2d 711, 713 (1982)).

However, proof of an explicit agreement is not required, and the Commonwealth may, and

frequently must, rely on circumstantial evidence to establish the conspiracy. See Stevens v.

Commonwealth, 14 Va. App. 238, 241, 415 S.E.2d 881, 883 (1992). Indeed, “‘[t]he existence of

an unlawful and inherently covert agreement can be inferred from the overt conduct of the

parties.’” Floyd v. Commonwealth, 219 Va. 575, 581, 249 S.E.2d 171, 174 (1978) (quoting

United States v. Harris, 433 F.2d 333, 335 (4th Cir. 1970)).

       The evidence proved that appellant was present and assisting when Saunders tried to rob

Darden and that appellant and Saunders were acting pursuant to a preconceived plan to commit

the crime. The Commonwealth’s evidence showed that appellant communicated by cell phone

with Saunders, who was using the phone with number 419-0926, numerous times on the day the

shooting occurred. Saunders indicated he was going to obtain some money and that he was

trying to get someone to help him. He also indicated that he was with appellant that day.
                                              - 13 -
Surveillance video showed appellant interacting with two individuals outside the motel before he

gained admission to the room. When appellant opened the door as if to leave the room, the door

was pushed open and two armed men appeared. Appellant thereby assisted Saunders, whom

appellant identified as the shooter, in gaining entrance to the motel room. Saunders shot Darden

when Darden tried to tackle him. Later, Saunders told appellant by text message to “wipe the

draw” and thus remove potentially incriminating evidence that Saunders could have left behind

in the motel room. Saunders told Walker that no one in the motel room but appellant could

identify him, and speculated that appellant had cooperated with the police.

       Considering all the facts and circumstances, the evidence proved beyond a reasonable

doubt that appellant entered into an agreement with Saunders to commit robbery, appellant was

present and assisting at the time of the attempted robbery, and Saunders shot Darden during the

robbery attempt. Thus, the evidence was sufficient to prove appellant guilty of the offenses.

                                         CONCLUSION

       For the foregoing reasons, we find the trial court did not err and affirm appellant’s

convictions.

                                                                                       Affirmed.




                                              - 14 -
