Jones v. Commonwealth

Decision Date07 May 2019
Docket NumberRecord No. 1764-16-2
Parties Dustin Scott JONES v. COMMONWEALTH of Virginia
CourtVirginia Court of Appeals

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


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firearm.2 A three-judge panel of this Court agreed with Jones and reversed and dismissed both of his convictions in an unpublished opinion.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 .


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.


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, 578 S.E.2d 781 (2003) (citation omitted); see also Sullivan v. Commonwealth, 280 Va. 672, 676, 701 S.E.2d 61 (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, 777 S.E.2d 851 (2015) (quoting Kelley v. Commonwealth, 289 Va. 463, 467-68, 771 S.E.2d 672 (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, 654 S.E.2d 584 (2008) (citing Coles v. Commonwealth, 270 Va. 585, 587, 621 S.E.2d 109 (2005) ; Burns v. Commonwealth, 261 Va. 307, 337, 541 S.E.2d 872 (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, 659 S.E.2d 308 (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, 683 S.E.2d 311 (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, 683 S.E.2d 311. 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, 427 S.E.2d 221 (1993), and its companion case, Jordan v. Commonwealth, 15 Va. App. 759, 427 S.E.2d 231 (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, 427 S.E.2d 221. 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, 346 S.E.2d 337 (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, 427 S.E.2d 231 ("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...

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