                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Humphreys and Senior Judge Coleman
Argued at Chesapeake, Virginia


TARQUIA SIMONE STAGG
                                                               MEMORANDUM OPINION * BY
v.     Record No. 1836-09-1                                    JUDGE SAM W. COLEMAN III
                                                                   OCTOBER 26, 2010
COMMONWEALTH OF VIRGINIA


                FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                               Dean W. Sword, Jr., Judge

                 Stephen B. Plott (Kozak & Associates, on brief), for appellant.

                 Karen Misbach, Assistant Attorney General II (Kenneth T.
                 Cuccinelli, II, Attorney General, on brief), for appellee.


       On appeal from his jury trial convictions for murder, malicious wounding, and two counts of

use of a firearm during the commission of a felony, Tarquia S. Stagg contends the evidence was

insufficient to support his convictions. We disagree and affirm his convictions.

                                           BACKGROUND

                         “Under well-settled principles of appellate review, we
                 consider the evidence presented at trial in the light most favorable
                 to the Commonwealth, the prevailing party below.” Bolden v.
                 Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008).
                 “We also accord the Commonwealth the benefit of all inferences
                 fairly deducible from the evidence.” Riner v. Commonwealth, 268
                 Va. 296, 303, 601 S.E.2d 555, 558 (2004). “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, 275 Va. at 148, 654
                 S.E.2d at 586.

Smallwood v. Commonwealth, 278 Va. 625, 629, 688 S.E.2d 154, 156 (2009).


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       So viewed, the evidence proved that on the night of January 27, 2008, Andre Lamb and

Deltron Nichols traveled to a convenience store. As they arrived, Lamb noticed a car backing

into a parking space. Kenneth Griffin, appellant’s father, was driving the vehicle, and appellant

was riding in the front passenger seat.

       Lamb and Nichols entered the store. Appellant also entered the store, while Griffin

remained in the car. Appellant exited the store and returned to the passenger seat of Griffin’s

car. Lamb explained he also left the store and waited outside for Nichols. Appellant then

returned to the store as Griffin exited his vehicle, opened the car’s trunk, and began rummaging

through its contents. Inside the store, appellant asked Nichols if he had hit his father’s car.

Nichols responded that he had not. The two men left the store together, and a video recording

from the store depicts them talking to each other outside. Lamb heard appellant ask Nichols if

someone had hit his car. Appellant repeated his questions about the car as Lamb and Nichols

approached him.

       Meanwhile, Griffin had retrieved a white bag from the trunk of his car and stood behind

the vehicle. Griffin then began shooting a semi-automatic pistol towards Lamb and Nichols.

Both men fell to the ground, having been struck by Griffin’s shooting. Appellant remained

where he had been standing during the shooting and then walked towards his father and patted

his stomach. The video showed that appellant did not turn and look at Griffin until after

numerous shots were fired. Lamb rose from the ground and ran towards his car as Griffin fired

again, striking Lamb in the leg. Appellant closed the car’s trunk and reentered the vehicle, again

sitting in the front passenger seat. Griffin fired once more and then got back into the car. The

two fled the scene.

       Griffin fired a total of seven shots towards the unarmed Lamb and Nichols. Both men

were struck twice, and Nichols died as a result of his injuries. Lamb testified that neither he nor

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Nichols made any threats to appellant or his father. Lamb also testified that they did not touch

Griffin’s vehicle.

       Appellant testified he had no intention of harming anyone, and denied having planned the

shooting with his father. He stated he had made a bad decision to leave the crime scene.

                                            ANALYSIS

       An individual is liable for a crime as a principal in the second degree when the

Commonwealth proves that he was “‘present, aiding and abetting, by helping some way in the

commission of the crime.’” Washington v. Commonwealth, 43 Va. App. 291, 306, 597 S.E.2d

256, 263 (2004) (quoting Ramsey v. Commonwealth, 2 Va. App. 265, 269, 343 S.E.2d 465, 468

(1986)). In other words, “‘[t]he Commonwealth must prove that the defendant consented to the

felonious purpose and the defendant contributed to its execution.’” Brickhouse v.

Commonwealth, 276 Va. 682, 686, 668 S.E.2d 160, 163 (2008) (quoting McMorris v.

Commonwealth, 276 Va. 500, 505, 666 S.E.2d 348, 350 (2008)).

       Although “[e]vidence of a defendant’s mere presence at a crime scene is insufficient to

sustain a conviction as a principal in the second degree,” id., the Commonwealth may prove that

an individual is guilty as a principal in the second degree “by any combination of circumstantial

or direct evidence,” id. at 687, 668 S.E.2d at 163. Thus, the evidence, taken as a whole, must

show that appellant “committed an overt act knowingly in furtherance of the commission of the

crime . . ., or that [he] shared in the criminal intent of the principal committing the crime.” Id.

“This rule cannot be interpreted to mean that any overt act that is advantageous to the principal’s

criminal plan is sufficient; the defendant must also share in the principal’s criminal intent.”

McMorris, 276 Va. at 505, 666 S.E.2d at 350.

       Appellant asserts he was unaware of his father’s plan and intent to shoot the victims. The

evidence, while primarily circumstantial, supports the fact finder’s determination that appellant

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was a principal in the second degree to the crimes. While suspicion of guilt is never enough to

sustain a conviction, see Sutphin v. Commonwealth, 1 Va. App. 241, 244, 337 S.E.2d 897, 898

(1985), “‘[c]ircumstantial evidence is as acceptable to prove guilt as direct evidence.’” Cirios v.

Commonwealth, 7 Va. App. 292, 295, 373 S.E.2d 164, 165 (1988) (quoting Parks v.

Commonwealth, 221 Va. 492, 494, 270 S.E.2d 755, 759 (1980)). When the Commonwealth

relies primarily upon circumstantial evidence to establish the guilt of a defendant:

               “[A]ll necessary circumstances proved must be consistent with
               guilt and inconsistent with innocence and must exclude every
               reasonable hypothesis of innocence. The circumstances of motive,
               time, place, means, and conduct must all concur to form an
               unbroken chain which links the defendant to the crime beyond a
               reasonable doubt.”

Boothe v. Commonwealth, 4 Va. App. 484, 492, 358 S.E.2d 740, 745 (1987) (quoting Bishop v.

Commonwealth, 227 Va. 164, 169, 313 S.E.2d 390, 393 (1984)).

       Viewing the evidence in the light most favorable to the Commonwealth and according it

all reasonable inferences therefrom, the fact finder could conclude that, after having left the store

and returned to Griffin’s car, appellant then followed the victims back into the store and

confronted Nichols with the accusation that he touched or hit Griffin’s car. While appellant was

inside the store confronting Nichols, Griffin was retrieving the gun from the trunk of the car.

Appellant’s repeated questioning and interaction drew the victims towards Griffin’s car,

exposing them to Griffin’s gunfire. Appellant’s conduct therefore constitutes the overt act

required to support a finding of guilt as a principal in the second degree.

       The evidence further supports the jury’s finding that appellant’s conduct was knowingly

in furtherance of the commission of Griffin’s crime, i.e., appellant intended his actions to aid in

Griffin’s shooting Nichols and Lamb. See McMorris, 276 Va. at 505, 666 S.E.2d at 350

(requiring evidence of criminal intent in addition to evidence of an overt act). Rather than

expressing surprise or fleeing or intervening when the shots were fired, appellant stood by
                                                -4-
observing his father shoot the two men. Appellant then walked towards his father, touched

Griffin’s stomach, and then closed the car’s trunk before reentering the vehicle. Appellant’s

reaction to the gunfire and to his father’s course of conduct belies his assertion that he was

unaware of the intended shooting. See Thomas v. Commonwealth, 279 Va. 131, 156, 688 S.E.2d

220, 234 (2010) (“‘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 infer that he asserted thereto, lent to it his countenance and approval,

and was thereby aiding and abetting the same.’” (quoting Foster v. Commonwealth, 179 Va. 96,

100, 18 S.E.2d 314, 316 (1942))). From the totality of these circumstances, it is reasonable to

infer that after appellant first exited the store, he reentered it and confronted the victims after

having spoken with his father, who was retrieving a gun from the car’s trunk, and appellant lured

the victims to where his father shot them. Then, consistent with appellant being a party to the

shooting, he left the scene with his father without offering aid to the victims or calling for help or

ever reporting the incident. Indeed, appellant sat in the car waiting for Griffin as Griffin fired the

final shot at the victims.

        The jury viewed the video recording of the incident and permissibly concluded from the

circumstantial evidence that appellant was actively involved in the crimes and shared his father’s

criminal intent. From the evidence presented, the jury could infer that appellant and his father

had agreed to commit the crimes and appellant participated in the offenses by luring the two

victims to the vehicle so his father could shoot them. In addition, appellant’s flight from the

scene after the shootings was evidence of his guilt. See Clagett v. Commonwealth, 252 Va. 79,

93, 472 S.E.2d 263, 271 (1996).

        “‘[W]hat inferences are to be drawn from proved facts is within the province of the [fact

finder] so long as the inferences are reasonable and justified.’” Higginbotham v.

                                                 -5-
Commonwealth, 216 Va. 349, 353, 218 S.E.2d 534, 537 (1975) (quoting LaPrade v.

Commonwealth, 191 Va. 410, 418, 61 S.E.2d 313, 316 (1950)).

       A reviewing court does not “‘ask itself whether it believes that the evidence at the trial

established guilt beyond a reasonable doubt.’” Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)

(quoting Woodby v. INS, 385 U.S. 276, 282 (1966)) (emphasis in original). Instead, we ask only

“‘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.’”

Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008) (quoting Jackson,

443 U.S. at 319) (emphasis in original).

       The evidence fully supports the jury’s verdicts. Noting that an appellate court is “not

permitted to reweigh the evidence,” Nusbaum v. Berlin, 273 Va. 385, 408, 641 S.E.2d 494, 507

(2007), we affirm appellant’s convictions.

                                                                                          Affirmed.




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