Powell v. Com.

• Decision Date: 14 December 1999
• Docket Number: Record No. 0026-99-1.
• Citation: 521 S.E.2d 787,31 Va. App. 167
• Court: Virginia Court of Appeals
• Parties: Michael Craig POWELL v. COMMONWEALTH of Virginia.

521 S.E.2d 787

31 Va. App. 167

Michael Craig POWELL v. COMMONWEALTH of Virginia.

Record No. 0026-99-1.

Court of Appeals of Virginia, Chesapeake.

December 14, 1999.

Greg H. Dohrman (Knicely & Cotorceanu, on brief), Williamsburg, for appellant.

Richard B. Smith, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., and WILLIS and ANNUNZIATA, JJ.

FITZPATRICK, Chief Judge.

Michael Craig Powell (appellant) was indicted by a grand jury for one count of grand larceny, in violation of Code § 18.2-95. At the conclusion of the Commonwealth's evidence, the trial court struck the grand larceny charge but allowed the case to proceed on a charge of accessory after the fact to a grand larceny, a violation of Code § 18.2-19. On appeal, appellant contends the trial court erred in finding the evidence sufficient to prove that he was an accessory after the fact to a grand larceny. For the following reasons, we reverse and dismiss.

I.

Under familiar principles of appellate review, we examine the evidence in the light most favorable to the Commonwealth, the prevailing party below, granting to it all reasonable inferences fairly deducible therefrom. See Juares v. Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997). So viewed, the evidence established that on May 10, 1998, appellant was working at the "Toss-A-Ball" game booth at Busch Gardens in Williamsburg, Virginia. Sergeant David Smith (Smith), an undercover security officer at Busch Gardens, gave appellant a marked $100 bill to play his game. Smith correctly received $96 in change.

When questioned by security personnel whether he had a $100 bill, appellant first stated that he had cashed it with his supervisor. Later that day, appellant admitted to Smith that he "had not been honest about the one hundred dollar bill and he did not give it to [his supervisor]." Appellant told Smith that he had given the $100 bill to another employee named Kenny Lambert (Lambert). At trial, Smith testified as follows:

He also told me that Kenny was stealing lots of money from Busch Gardens and that Kenny had stolen between [$]120 to $200 just today, and that Kenny had asked [appellant] ... to change the one hundred dollar bill out so that Kenny could seal [sic] the money — conceal the money more easily.

Lambert was working the "Toss-A-Ball" game with appellant on May 10, 1998. The marked $100 bill was never found.

At the conclusion of the Commonwealth's evidence, the trial court struck the grand larceny charge but allowed the case to proceed on a charge of accessory after the fact to a grand larceny committed by Lambert. The trial court ruled as follows:

However, the testimony from Sergeant Smith was that [appellant] knew that Kenny, whoever he is, was stealing the money and that [appellant] changed the hundred dollar bill for Kenny so that it would be easier for Kenny to get the money out of Busch Gardens. That is an accessory after the fact.

* * * * * *

I'm going to strike the Commonwealth's evidence with regard to the grand larceny embezzlement ... and we'll have the accessory after the fact to continue.

In his defense, appellant presented the testimony of Charles Petty (Petty), an ex-employee of Busch Gardens, who stated that it was very common for employees to change a $100 bill with other employees. Petty also testified that he knew Lambert was taking "a lot" of money from Busch Gardens but was not sure how much money he had taken.

At the conclusion of all the evidence, the trial court found appellant guilty of being an accessory after the fact to a grand larceny, stating the following:

From [appellant's] statement, I think it's reasonably fair for the Court to infer that he knew his friend was embezzling the money. He gives [Lambert] a hundred dollars and his statement to the officer, which is unrefuted, is he gave it to him because it would be easier to get the money out of the — out of Busch Gardens. That's aiding and abetting and assisting — providing assistance to a person who is committing a crime and he is providing him with aid and comfort.

Accordingly, the trial court convicted appellant of being an accessory after the fact to a grand larceny, in violation of Code § 18.2-19.

II.

Appellant argues that the evidence was insufficient to establish that he committed the crime of being an accessory after the fact to a grand larceny.¹ First, he contends that the evidence was insufficient to establish that the underlying crime had been committed. There was no evidence that Busch Gardens lost any money on May 10, 1998, or that Kenny Lambert's till was "short" that day. Although appellant stated that he thought Kenny Lambert had taken "between [$]120 to $200" from Busch Gardens, no corroborating evidence that the offense of grand larceny had been committed was introduced. We agree.

The Commonwealth must establish the following three elements to convict appellant of being an accessory after the fact: "that the defendant: (1) `receive[d], relieve[d], comfort[ed], or assist[ed]' a felon (2) after knowing that the felon was guilty of committing a completed felony and (3) that the felony was, in fact, completed." Dalton v. Commonwealth, 29 Va.App. 316, 326, 512 S.E.2d 142, 146-47 (1999) (en banc) (quoting Manley v. Commonwealth, 222 Va. 642, 644, 283 S.E.2d 207, 208 (1981)). "By definition, a person cannot be an accessory without the existence of a principal offender. Although conviction of the principal is not a condition precedent to conviction of an accessory, conviction of an accessory requires proof that the crime has been committed by a principal." Redman v. Commonwealth, 25 Va. App. 215, 218, 487 S.E.2d 269, 271 (1997) (citations omitted); see also Sheppard v. Commonwealth, 250 Va. 379, 393, 464 S.E.2d 131, 140 (1995) (noting that "the felony must be completed" to prove that the accused was an accessory after the fact).

In the instant case, the evidence was sufficient to prove the first element of the accessory offense. Appellant knew that Lambert was stealing money from Busch Gardens, and he assisted and aided Lambert in concealing that money. However, the...