Wade v. Commonwealth Of Va.

• Decision Date: 10 August 2010
• Docket Number: Record No. 2636-09-1.
• Citation: 56 Va.App. 689,696 S.E.2d 258
• Parties: Nikkol Irene WADE, s/k/a Nicole Wadev.COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

56 Va.App. 689

696 S.E.2d 258

Nikkol Irene WADE, s/k/a Nicole Wadev.COMMONWEALTH of Virginia.

Record No. 2636-09-1.

Court of Appeals of Virginia.

Aug. 10, 2010.

(Patricia A. Cannon; Patricia A. Cannon, PCP, on brief), for appellant. Appellant submitting on brief.

Robert H. Anderson, III, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: ELDER and POWELL, JJ., and ANNUNZIATA, Senior Judge.

POWELL, Judge.

Nikkol Irene Wade (appellant) appeals from her conviction for misdemeanor destruction of property, in violation of Code § 18.2-137. On appeal, appellant contends that because she was charged with a misdemeanor, she could not be convicted as a principal, accessory, or conspirator to the crime and the evidence was otherwise insufficient for a conviction because it failed to prove that she actually destroyed the mailbox. For the reasons that follow, we affirm appellant's conviction.

I. BACKGROUND

At approximately 9:00 p.m. on October 4, 2009, Joseph Hoffman and his wife, Dawn, heard a car in front of their home. They saw the headlights turn off, heard the doors shut followed by a “popping noise,” and watched the car drive off. Their mailbox had been damaged two weeks earlier and, suspecting that their mailbox had been vandalized again, the Hoffmans immediately ran outside to investigate. When they were approximately twenty yards away, they saw two males standing at the mailbox. One of the males picked up the mailbox and threw it into a ditch. The mailbox was in pieces but the post had not been damaged.¹

The two males got into a car driven by appellant and drove off. Mr. Hoffman was familiar with appellant through his sixteen-year-old stepdaughter. The Hoffmans called 911 and followed the vehicle until police stopped it.

When Deputy Morgan stopped the car, a male was driving. Appellant was in the front passenger seat and her brother was in the back seat. All three confessed to being involved in destroying the mailbox. The Hoffmans told Deputy Morgan that two males destroyed the mailbox.

After this incident, appellant and her mother went to Mrs. Hoffman's place of employment and took Mrs. Hoffman flowers and a card. Appellant apologized for tearing the mailbox down and offered to repair it.

At trial, appellant argued that the evidence was insufficient to prove that she actually destroyed the mailbox. She further argued that this was a fact that the Commonwealth was required to prove because except as provided by statute, only perpetrators can be convicted of misdemeanors in Virginia. ² The Commonwealth submitted that the evidence was sufficient because appellant was present at the scene and admitted her culpability both when she spoke to Deputy Morgan and when she apologized to the victim. The trial court found the evidence sufficient and convicted appellant.

II. ANALYSIS

The issue in this case is whether a person may be convicted of a misdemeanor as a principal in the second degree. Appellant argues that because the General Assembly specifically enacted statutes detailing how accessories and principals in the second degree are to be treated in felony cases see Code § 18.2-18, but did not do so with respect to misdemeanors, one may not be convicted of a misdemeanor offense as an accessory or principal in the second degree. We find no merit in appellant's argument. In the instant matter, appellant was not convicted of misdemeanor destruction of property as either an accessory or as a principal in the second degree. Rather, as the law specifically recognizes, appellant was convicted as a principal in the first degree.

“[A]t common law, in misdemeanors, there are no accessories, all concerned being principals.” Watts v. Commonwealth, 99 Va. 872, 880, 39 S.E. 706, 708 (1901) (quoting 1 Wharton's Criminal Law § 223); see also Spradlin v. Commonwealth, 195 Va. 523, 527, 79 S.E.2d 443, 445 (1954); Foster v. Commonwealth, 179 Va. 96, 99, 18 S.E.2d 314, 315 (1942); Ronald J. Bacigal Criminal Offenses and Defenses 494-95 (2009-2010 ed.) (“As regards misdemeanors, there generally is no distinction between principals and accessories. Any person who is proven to have had the requisite mental state and to have done sufficient acts to have criminal liability is a principal; otherwise, he is innocent.”). “The common law of England, insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force ... and be the rule of decision, except as altered by the General Assembly.” Code § 1-200.

“[A] statutory provision will not be held to change the common law unless the legislative intent to do so is plainly manifested.” Herndon v. St. Mary's Hosp., Inc., 266 Va. 472, 476, 587 S.E.2d 567, 569 (2003). “Statutes in derogation

of the common law are to be strictly construed and not to be enlarged in their operation by construction beyond their express terms.” Chesapeake & Ohio Ry. Co. v. Kinzer, 206 Va. 175, 181, 142 S.E.2d 514, 518 (1965). Accordingly, “[a] statutory change in the common law is limited to that which is expressly stated in the statute or necessarily implied by its language because there is a presumption that no change was intended.” Mitchem v. Counts, 259 Va. 179, 186, 523 S.E.2d 246, 250 (2000). “When an enactment does not encompass the entire subject covered by the common law, it abrogates the common-law rule only to the extent that its terms are directly and irreconcilably opposed to the rule.” Boyd [ v. Commonwealth, 236 Va. 346, 349, 374 S.E.2d 301, 302 (1988) ].

Evans v. Evans, 280 Va. 76, 83-84, 695 S.E.2d 173, 176-77 (2010) (quoting Isbell v. Commercial Inv. Assocs., Inc., 273 Va. 605, 613-14, 644 S.E.2d 72, 75 (2007)). In Isbell, the Supreme Court restated the reason for applying these...