                               COURT OF APPEALS OF VIRGINIA


Present: Judges Kelsey, Haley and Petty
Argued at Salem, Virginia


ANDY RAY McKINNEY
                                                              MEMORANDUM OPINION * BY
v.     Record No. 1202-07-3                                    JUDGE WILLIAM G. PETTY
                                                                     JULY 8, 2008
COMMONWEALTH OF VIRGINIA


                        FROM THE CIRCUIT COURT OF GILES COUNTY
                                    Colin R. Gibb, Judge

                 Frederick M. Kellerman, Jr. (Stone & Kellerman, P.C., on brief), for
                 appellant.

                 Richard B. Smith, Special Assistant Attorney General
                 (Robert F. McDonnell, Attorney General, on brief), for appellee.


       A jury convicted appellant, Andy Ray McKinney, of being a principal in the second degree

to voluntary manslaughter in violation of Code § 18.2-35. McKinney appeals that conviction,

arguing that the evidence adduced at trial was insufficient to support his conviction. Specifically,

McKinney contends that the evidence did not establish (1) that McKinney’s “words, gestures,

signals or actions [were] unambiguous in their encouragement, advisement, urging or helping the

principal in the first degree”; and (2) that McKinney “adopt[ed] the criminal intent of an actual not

conditional threat by the principal in the first degree.” For the reasons stated below, we determine

that McKinney’s second argument is procedurally defaulted. We further hold that the evidence was

sufficient to support his conviction and, accordingly, we affirm.




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

        When the sufficiency of the evidence to sustain a criminal conviction is challenged on

appeal, we “view the evidence in the light most favorable to the Commonwealth, the party

prevailing below, and grant all reasonable inferences fairly deducible therefrom.” Clifton v.

Commonwealth, 22 Va. App. 178, 180, 468 S.E.2d 155, 156 (1996) (citing Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975)). That principle requires us 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.” Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis

and citation omitted). So viewed, the evidence establishes the following:

        During the early morning hours of April 7, 2006, Jerrett Clark shot and killed Curtis Horne. 1

At the time, Clark, Horne, McKinney, and a fourth man, Jerry Murray, were all at McKinney’s

home. McKinney and Murray had lived together in a romantic relationship for approximately

fifteen years, but no longer did so at the time relevant to this case. Curtis Horne, the victim, had

more recently been involved with McKinney, but had moved in with Murray for about a month

before returning to live with McKinney. McKinney was jealous of the involvement between his

two former lovers. Jerrett Clark had lived with McKinney for about a year, but, with the exception

of one incident, was not sexually involved with him. Clark considered McKinney a friend.

        On the evening of April 6, Murray came to McKinney’s home around 10:00 or 11:00 p.m.

and the group began playing cards, drinking heavily, and listening to music. McKinney became

upset during the evening because he believed Murray and Horne had been intimate that day and he

complained to Clark that the pair were talking about their relationship “in front of his face.”



        1
       Clark pleaded guilty to second-degree murder and was awaiting sentencing at the time
of McKinney’s trial.
                                            -2-
       Clark was carrying a pistol in a side holster throughout the evening. At one point, when he

was upset about Horne and Murray’s relationship, McKinney told Clark to “Shoot him” and then,

without further explanation, grabbed the gun out of Clark’s holster and began waving it around

saying “Well, I’ll- I’ll shoot him.” Clark testified at trial that he did not know what McKinney was

talking about and that McKinney did not point the pistol at anyone specifically. Clark retrieved the

pistol from McKinney and locked it in his bedroom dresser.

       About an hour later, Clark discovered that McKinney had left his home. After retrieving his

gun, Clark went outside and found McKinney returning in his car. Clark related their conversation

as follows:

               I said “Where did you go?” and he said, “I took care of it” and I
               said, “What did you take care of?” and he said, “It’s ablaze right
               now” and I kept talking to him and he said, “Jerry’s house” and I
               said, “What?” and he said, “Yeah, I took care of it, it’s ablaze right
               now” and then we went back into the house.

       McKinney and Clark went back inside and joined Horne and Murray. The group was sitting

around a small table, drinking and discussing the Bible. Clark described what happened next:

               I said, “Well, if you [referring to Murray] don’t believe in Jesus, I
               ought to shoot you in the foot” and then that’s when Andy
               [McKinney] said, “Shoot Curtis [Horne], he’s the one lying.”

                          *       *       *       *      *       *       *

               I looked at Andy and I said, “Do you really want me to shoot
               him?” and Andy just shrugged his shoulders and I pulled my [gun
               from my holster] and cocked the hammer and as I was pulling it
               out of its holster and I put it to Curtis’ head and I said, “You don’t
               believe I’ll do it, Andy” and Andy just looked at me and that’s
               when I shot [Horne].

Clark testified that he would not have shot Horne if McKinney had not told him to do so.

       After Clark shot Horne, McKinney “jumped back and said, ‘Oh my God’” and Murray

jumped away from the table as well. Clark left McKinney’s home, and McKinney called the police.

McKinney gave a statement to the police investigator that was introduced into evidence at trial. In
                                                -3-
that statement, McKinney admitted that he was jealous of Murray and Horne’s relationship and that

he told Clark to shoot Horne. McKinney denied believing that Clark would actually shoot Horne

based on his statement.

       At the conclusion of the evidence, the court partially granted McKinney’s motion to strike.

It reduced the charge from principal in the second degree to murder to principal in the second

degree to voluntary manslaughter, concluding that McKinney told Clark to shoot Horne in the heat

of passion. 2 The jury convicted McKinney of voluntary manslaughter, and he was sentenced to

three years incarceration. This appeal followed.

                                            II. ANALYSIS

       When considering the sufficiency of the evidence presented below, we “presume the

judgment of the trial court to be correct” and reverse only if the trial court’s decision is “plainly

wrong or without evidence to support it.” Davis v. Commonwealth, 39 Va. App. 96, 99, 570

S.E.2d 875, 876-77 (2002); see Code § 8.01-680. We do not “substitute our judgment for that of

the trier of fact.” Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002).

“Instead, the relevant question is whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). We are mindful

that “great deference must be given to the factfinder who, having seen and heard the witnesses,

assesses their credibility and weighs their testimony.” Walton v. Commonwealth, 255 Va. 422,

426, 497 S.E.2d 869, 871 (1988).


       2
         McKinney did not include in his question presented or his argument the issue of
whether the trial court’s implied finding of lack of malice on McKinney’s part is material to our
analysis of the sufficiency of the evidence. Therefore, we will not address it on appeal. See
Moore v. Commonwealth, 51 Va. App. 1, 3-4, 654 S.E.2d 305, 306 (2007) (Under Rule
5A:12(c), “[o]nly questions presented in the petition for appeal will be noticed by the Court of
Appeals.” (citation omitted)).

                                                 -4-
       Although a principal in the second degree is not the perpetrator of a crime, he or she

“may be indicted, tried, convicted and punished in all respects as if a principal in the first degree

. . . .” Code § 18.2-18; see also Brown v. Commonwealth, 130 Va. 733, 736, 107 S.E. 809, 810

(1921); accord Rollston v. Commonwealth, 11 Va. App. 535, 539, 399 S.E.2d 823, 825 (1991).

To prove that McKinney was criminally liable as a principal in the second degree for Horne’s

death, the Commonwealth was required “to show that [he] was not only present [during the

crime] but that [he] procured, encouraged, countenanced, or approved commission of the crime.

In other words, [he] must [have] share[d] the criminal intent of the party who actually committed

the [crime] or be guilty of some overt act in furtherance thereof.” 3 Augustine v. Commonwealth,

226 Va. 120, 124, 306 S.E.2d 886, 888 (1983).

       The requisite intent may be inferred from the accused’s “‘words, gestures, looks or signs

. . .’” as shown by the facts and circumstances of the case. Pugliese v. Commonwealth, 16

Va. App. 82, 93, 428 S.E.2d 16, 24 (1993) (quoting Foster v. Commonwealth, 179 Va. 96, 99, 18

S.E.2d 314, 315-16 (1942)). Put simply:

               When the alleged accomplice is actually present and performs
               overt acts of assistance or encouragement, he has communicated to
               the perpetrator his willingness to have the crime proceed and has
               demonstrated that he shares the criminal intent of the perpetrator.
               When the alleged accomplice is actually present but performs no
               overt act, he is nonetheless a principal in the second degree if he
               has previously communicated to the perpetrator that he shares the
               perpetrator’s criminal purpose.

Ronald J. Bacigal, Criminal Offenses & Defenses in Virginia 496 (2007-2008 ed). Moreover,

               “proof 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, it is competent for the jury to

       3
         However, “[s]pecific intent is not required to convict the defendant as a principal in the
second degree.” Rollston, 11 Va. App. at 540, 399 S.E.2d at 826. The mens rea requirement for
conviction as a principal in the second degree is the defendant’s intent “‘to in some way
encourage, advise, or urge, or in some way help the person committing the crime to commit it.’”
Id. (quoting Ramsey v. Commonwealth, 2 Va. App. 265, 269, 343 S.E.2d 465, 468 (1986)).
                                                -5-
               infer that he assented thereto, lent to it his countenance and
               approval, and was thereby aiding and abetting the same.”

Pugliese, 16 Va. App. at 93-94, 428 S.E.2d at 25 (quoting Foster, 179 Va. at 99-100, 18 S.E.2d at

316) (citations omitted).

                                                   A.

       There is ample evidence in this record from which the jury could have reasonably

concluded that McKinney was a principal in the second degree. The evidence shows that over

the course of the evening McKinney had expressed to Clark his anger regarding the relationship

between Horne and Murray. He also intimated to Clark that he had burned down Murray’s

house and, albeit without mentioning a name, told Clark to “shoot him.”

       Immediately prior to the killing, McKinney specifically commanded Clark to “shoot

Curtis.” When Clark was pulling his pistol out of its holster, Clark asked whether McKinney

“really want[ed]” him to shoot Horne. McKinney merely shrugged his shoulders. When Clark

stated to McKinney immediately before shooting Horne in the head, “You don’t believe I’ll do

it[,]” McKinney “just looked” at him and did nothing to dissuade Clark. See Pugliese, 16

Va. App. at 94, 428 S.E.2d at 25 (“While mere presence at the scene of a crime or knowledge

that a crime is going to be committed does not constitute aiding and abetting, accompanying a

person with full knowledge that the person intends to commit a crime and doing nothing to

discourage it bolsters the perpetrator’s resolve, lends countenance to the perpetrator’s criminal

intentions and thereby aids and abets the actual perpetrator in the commission of the crime.”).

Thus, by his words, gestures, and actions, viewed in the light most favorable to the

Commonwealth, McKinney explicitly demonstrated that he shared Clark’s criminal intent to kill

Horne. Hence, we conclude that the evidence is sufficient to support McKinney’s conviction.




                                                -6-
                                                 B.

       McKinney also argues on appeal, “[a] principal in the second degree must adopt the

criminal intent of an actual not conditional threat by the principal in the first degree.” He states

that “[a] conditional threat is not actionable as an assault” and that “[t]herefore, McKinney could

not adopt the criminal intent of Clark based upon Clark’s statement” that he “ought to shoot

[Murray] in the foot” for his professed atheism. However, he fails to explain how Clark’s

statement regarding Murray has any bearing on McKinney’s command to “shoot Curtis.”

       While McKinney raises this issue he does not cite any legal authority for it or make a

legal argument beyond the ambiguous and conclusory statements set forth above. We will not

address an argument on appeal that is unsupported by legal argument. See Rule 5A:20(e).

                                         III. CONCLUSION

       The evidence adduced at trial was sufficient to support McKinney’s conviction.

Accordingly, we affirm.

                                                                                           Affirmed.




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