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PAIGE v. COMMONWEALTH




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PAIGE

v.

COMMONWEALTH


COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Annunziata and Clements

Argued at Alexandria, Virginia

Record No. 1444-02-4

RICHARD LEE PAIGE

v.

COMMONWEALTH OF VIRGINIA

 

MEMORANDUM OPINION[1]BY
JUDGE JEAN HARRISON CLEMENTS

SEPTEMBER 30, 2003

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY

Burke F. McCahill, Judge

John C. Cherry, III, for appellant.

Jennifer R. Franklin, Assistant Attorney

General (Jerry W. Kilgore, Attorney General,

on brief), for appellee.

Richard Lee Paige was convicted in a jury trial of

distribution of cocaine, in violation of Code ? 18.2-248. On

appeal, he contends the trial court erred in denying his motion
to

strike the distribution of cocaine charge on the ground that the

evidence was insufficient, as a matter of law, to sustain his

conviction as a principal in the second degree. Finding the

evidence sufficient, we affirm the conviction.

As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, this opinion recites only those facts and incidents of
the

proceedings as are necessary to the parties’ understanding of
the

disposition of this appeal.

I. BACKGROUND

In accordance with familiar principles of appellate review,

we "state the evidence presented at trial in the light most

favorable to the Commonwealth, the prevailing party below."

Johnson v. Commonwealth, 259 Va. 654, 662, 529 S.E.2d 769, 773

(2000).

On August 25, 2000, officers from the Loudoun County

Sheriff’s Office were conducting a narcotics investigation at
the

Community Plaza Shopping Center in Loudoun County. As part of

that undercover operation, the officers set up a
"controlled buy"

in an attempt to apprehend individuals suspected of distributing

crack cocaine in the area. A "controlled buy" occurs
when a

private citizen, called a "cooperating individual"
(C.I.), works

with the police to purchase contraband from a suspect, under

controlled circumstances. Specifically, the C.I. is searched

prior to the transaction to insure he has no money or contraband

with him. The C.I. is then given a specific amount of "buy
money"

with which to purchase the contraband and is "wired"
with a

microphone and transmitter so that the transaction can be

monitored by the police. After the transaction, the C.I. returns

to the police and is searched again. Any drugs purchased by the

C.I. are recovered by the police.

Investigator Ken Dondero, the lead officer of the

investigation, testified that, prior to the transaction, he met

with the C.I. involved in the operation in a remote area near
the

Community Plaza Shopping Center. The C.I. then made a recorded

telephone call to the residence of a suspect, not Paige, and
spoke

to Gilbert Johnson and James Neal. Dondero, who was monitoring

the C.I.’s conversation, was familiar with Neal "from
previous

deals." During the conversation with Neal, the C.I. asked
to

purchase two "8 balls" of crack cocaine. An "8
ball" is

approximately one-eighth of an ounce of crack cocaine. The C.I.

agreed to meet Neal for the "buy" in fifteen minutes
at the

Shoppers Food Warehouse located in the Community Plaza Shopping

Center.

When the call was concluded, Dondero searched the C.I., gave

him $250 with which to make the "buy," and
"wired" him with an

"electronic monitoring device" consisting of a
microphone and

transmitter. Dondero then drove the C.I. to the far end of the

Community Plaza Shopping Center and dropped him off. Monitored
by

Dondero, the C.I. walked to the other end of the shopping center

and waited in front of the Shoppers Food Warehouse.

Other officers were positioned around the shopping center for

surveillance. Sergeant William Nugent was responsible for the

audio and video surveillance of the "controlled buy."
From inside

an enclosed vehicle in the store’s parking lot, he used a
receiver

to monitor the C.I.’s transmitter and a periscope video camera

with zoom capability to shoot the C.I.’s activities. Using that

equipment and a video recorder, Nugent made a videotape of the

transaction. The videotape, which was admitted into evidence and

viewed by the jury at trial, recorded what Nugent saw through
the

camera and the sounds picked up by the C.I.’s microphone and

transmitted to Nugent’s monitoring equipment.

After dropping the C.I. off at the shopping center, Dondero

parked his car in a space near the Shoppers Food Warehouse, from

which he "had a good view of the C.I." While sitting
in his car,

he observed Neal approach the C.I. on foot and engage him in

conversation. Shortly thereafter, Dondero noticed a man, later

identified as Paige, walking near his car. Dondero observed
Paige

"wander[ing] through the parking lot" and holding his
hand up to

his face "as if he was speaking on a cell phone."
According to

Dondero, Paige was "looking around the parking lot, acting

suspiciously." Dondero notified the other officers on the
scene

that Paige could be a "lookout" for Neal because he
"was observing

everything in the parking lot, [walking] not [in] any real

direction, just wandering around, looking around to see who else

might be on the lot or see who might be watching him or other

people." Dondero advised the other officers that, in light
of his

suspicious behavior, Paige bore watching to "see if he
ha[d]

anything to do with [the transaction]."

Eventually Paige walked up to Neal and the C.I., prompting

the C.I. to ask Neal if Paige was his "partner." After
a cursory

exchange with the two men, Paige continued walking. The C.I.
then

handed Neal an item, which Dondero believed was the "buy
money" he

had given him earlier. A moment later, Paige again walked up to

Neal and the C.I. After a brief conversation with Neal, Paige

walked away. At Neal’s direction, the C.I. then walked to Neal’s

"brown truck," which was parked in the parking lot,
and stood

beside it. After a while, Neal and Paige, walking together,

approached Neal’s truck.

When Neal and Paige arrived at Neal’s truck, the following

exchange occurred:

C.I.: Do you all do insulation?

Neal: Yeah.

C.I.: Do ya? Shit, we’re always looking

for help.

Paige (opening the passenger door of the

truck for the C.I.): Come on.

C.I.: I ain’t getting in with you all. I

don’t know you, man. For real.

Paige: You gonna wait right here for us?

C.I.: Oh . . ., man.

Neal (sitting in the driver’s seat of the

truck): I be back, I be back, I be back in

twenty minutes, man.

Paige: Man, everything’s cool, man. It

ain’t even got to be going like that.

Neal: I can be back in twenty minutes.

Paige: Another twenty minutes, I got it

waiting on the corner for you, right? Ain’t

nobody going to bullshit you.

Paige (getting in the passenger seat of the

truck): I don’t care, I mean . . .

At that point, Neal started the truck, which drowned out the

continuing exchange. Eventually, the C.I. stated, "All
right,"

and started walking back to the front of the Shoppers Food

Warehouse. Neal and Paige then drove off in the truck.

At that juncture, Investigator John Dodson, who had been

observing the transaction, began a "mobile
surveillance" of Neal’s

truck. He followed the truck out of the parking lot and tailed
it

for approximately ten minutes to an apartment complex on
Brethour

Court in the Sugarland Run subdivision. There, Dodson observed

Paige exit the vehicle, walk across a parking area, and enter
the

apartment complex through the stairwell of Building 1405.
"[A]

couple minutes later," Dodson saw Paige re-emerge from the

apartment complex and return to the truck. Once Paige was back
in

the truck’s passenger seat, Neal and he drove away. Dodson

followed the truck back to the area of the Shoppers Food

Warehouse.

When the truck turned into the entrance of the shopping

center parking lot, Dodson observed Paige get out of the truck
and

begin to walk eastbound on an access road that was parallel to

Route 7. Dodson estimated that the access road was "a
couple

hundred yards" away from the front of the Shoppers Food
Warehouse

where the C.I. was standing. Dodson then observed Neal

immediately continue on in the truck toward the front of
Shoppers

Food Warehouse.

Approximately twenty minutes after Neal and Paige had left

the area in Neal’s truck, Investigator Dondero, who had
continued

his surveillance of the C.I., observed Neal’s truck return to
the

Shoppers Food Warehouse parking lot. Neal was alone in the
truck.

Neal pulled up to the curb in front of the Shoppers Food
Warehouse

where the C.I. was waiting. Dondero testified and the videotape

confirms that what "appeared to be an exchange" then
took place.

The C.I. leaned through the passenger side window of Neal’s
truck,

"as if grabbing something," and, after a brief
conversation with

Neal, "came back out" of the truck. Neal then drove
away.

Dondero picked up the C.I. and retrieved from him the item

purchased from Neal, a "corner of a napkin" containing
a substance

later determined to be crack cocaine. Thereafter, Dondero

searched the C.I. and found no other contraband or any of the
"buy

money" on him.

Paige was indicted for distribution of cocaine, in violation

of Code ? 18.2-248. At trial on that charge, the Commonwealth

proceeded against Paige solely on the theory that he was a

principal in the second degree in the distribution of the
cocaine

to the C.I. Upon the conclusion of the Commonwealth’s evidence,

Paige moved to strike the charge against him on the ground the

Commonwealth’s evidence was insufficient to prove he had any

involvement in the actual distribution of the cocaine to the
C.I.

The evidence, he argued, did not show he was present at the
scene

of the distribution or that he assisted Neal in the commission
of

the crime. The Commonwealth argued the evidence was sufficient

because it proved Paige was present for a "substantial
portion" of

the illegal transaction and that he overtly aided and abetted
Neal

in the commission of the crime. The trial court denied the

motion, without explanation, and Paige rested without presenting

any evidence. Making no additional argument, Paige renewed his

motion to strike, which the trial court again denied without

explanation. The jury subsequently found Paige guilty of

distribution of cocaine, as charged, and this appeal followed.

II. ANALYSIS

When the sufficiency of the evidence is challenged on appeal,

we review the evidence "in the light most favorable to the

Commonwealth, granting to it all reasonable inferences fairly

deducible therefrom." Bright v. Commonwealth, 4 Va. App.
248,

250, 356 S.E.2d 443, 444 (1997). We are further mindful that the

"credibility of a witness, the weight accorded the
testimony, and

the inferences to be drawn from proven facts are matters solely

for the fact finder’s determination." Crawley v.
Commonwealth, 29

Va. App. 372, 375, 512 S.E.2d 169, 170 (1999). We will not

disturb the conviction unless it is plainly wrong or unsupported

by the evidence. Sutphin v. Commonwealth, 1 Va. App. 241, 243,

337 S.E.2d 897, 898 (1985).

Paige acknowledges, on appeal, that Neal distributed cocaine

to the C.I. on August 25, 2000. He contends, however, that the

trial court erred in denying his motion to strike the
distribution

of cocaine charge against him, because the evidence is

insufficient as a matter of law to prove beyond a reasonable
doubt

that he participated as a principal in the second degree in the

distribution of cocaine by Neal. Specifically, Paige argues, as

he did at trial, that the evidence did not show he was present
at

the scene of the crime or that he assisted Neal in committing
the

crime. We disagree.

The Commonwealth prosecuted Paige in this case solely under

the theory that he was a principal in the second degree in
Neal’s

distribution of the cocaine to the C.I.[2]"[I]n
Virginia[,] a

principal in the second degree is held as culpable as one in the

first degree" and is, therefore, subject to the same
punishment

as a principal in the first degree. Briley v. Commonwealth, 221

Va. 563, 573, 273 S.E.2d 57, 63 (1980); Code ? 18.2-18. To hold

an accused accountable as a principal in the second degree, the

Commonwealth must prove the accused was "present, aiding
and

abetting, by helping some way in the commission of the
crime."

Ramsey v. Commonwealth, 2 Va. App. 265, 269, 343 S.E.2d 465, 468

(1986). Actual presence at the commission of the crime, however,

is not required to convict the accused as a principal in the

second degree. The accused need only be constructively present
at

the crime’s commission. See Sutton v. Commonwealth, 228 Va. 654,

666, 324 S.E.2d 665, 671 (1985) (Stephenson, J., dissenting in

Record No. 831788). As the Supreme Court stated in Sutton:

"’[T]he presence need not be a strict,

actual, immediate presence, such a presence

as would make [the defendant] an eye or ear

witness of what passes, but may be a

constructive presence. So that if several

persons set out together . . . upon one

common design, be it murder or other felony,

or for any other purpose unlawful in itself,

and each takes the part assigned him; . . .

they are all, provided the fact be committed,

in the eyes of the law, present at

it . . . .’"

Id. at 667, 324 S.E.2d at 672 (second alteration in original)

(quoting Dull v. Commonwealth, 66 Va. (25 Gratt.) 965, 977
(1875)

(emphasis added) (quoting 1 Russell on Crimes 27 (3d ed.
1845))).

Here, the record plainly shows that Paige was not actually

present when Neal transferred the cocaine to the C.I. directly
in

front of the Shoppers Food Warehouse store. The evidence

establishes that, at the time the cocaine was distributed, Paige

was "a couple hundred yards" away from the scene of
the

distribution, walking near the shopping center’s entrance on an

access road that was parallel to Route 7. The question remains,

however, whether the evidence was sufficient nevertheless to

sustain Paige’s conviction of distribution of cocaine as a

principal in the second degree. We believe the Supreme Court’s

decisions in Sutton and Grant v. Commonwealth, 216 Va. 166, 217

S.E.2d 806 (1975) (per curiam), govern the resolution of that

question.

In Sutton, both Mr. and Mrs. Sutton were convicted of raping

Mrs. Sutton’s niece, a minor who was living with them because
her

father had beaten her. Sutton, 228 Va. at 658, 660, 324 S.E.2d
at

667, 668. Mrs. Sutton was convicted of rape as a principal in
the

second degree. Id. at 658, 324 S.E.2d at 667. The evidence in

the case established that, on various occasions prior to the

actual rape itself, Mrs. Sutton told the victim that she would
get

over her fear of men if she had sexual intercourse with Mr.

Sutton, id. at 659, 324 S.E.2d at 667, and that she would have
to

return to her abusive father if she did not have sexual

intercourse with Mr. Sutton, id. at 660, 324 S.E.2d at 668. One

day after the Suttons took the victim to get birth control
pills,

Mr. Sutton had sexual intercourse with the victim. Id. The

victim did not physically resist because she was afraid that,

among other things, the Suttons would return her to her father.

Id.

During the rape itself, however, Mrs. Sutton "was not

physically present but was in bed in another room." Id. at
666,

324 S.E.2d at 672. Indeed, as Justice Stephenson noted, "at
all

times before and during the commission of the offense, [Mrs.

Sutton] was in another room, in bed, and quite probably asleep.

There [was] no evidence that she even knew that the crime was

being committed . . . ." Id. at 670, 324 S.E.2d at 674

(Stephenson, J., dissenting in Record No. 831788). Nevertheless,

the majority held that the evidence was sufficient to establish

Mrs. Sutton’s "constructive presence during the commission
of the

crime," id. at 666, 324 S.E.2d at 672, to prove that Mrs.
Sutton

assisted Mr. Sutton in the commission of the crime, id. at
667-68,

324 S.E.2d at 672, and to convict Mrs. Sutton as a principal in

the second degree, id. at 668, 324 S.E.2d at 672.

The Court reasoned in Sutton as follows:

In this case, [Mrs. and Mr. Sutton]

discussed [Mr. Sutton's] desire to have

intercourse with [the victim] and [the

victim's] resistance. They embarked on a

common purpose of inducing [the victim] by

intimidation to submit to [Mr. Sutton's]

advances. [Mrs. Sutton's] part in the scheme

was to so overcome [the victim] with the

prospect of returning to [her father] and a

life of physical abuse that she would no

longer refuse [Mr. Sutton's] demands. By her

reprimands of [the victim] and her warning

about the consequences of continued

resistance, [Mrs. Sutton] executed her part

in the crime and helped ensure the success of

their common enterprise.

Id. at 670, 324 S.E.2d at 674.

In Grant, the accused was convicted of robbery based on

evidence that, shortly after the robbery, he was seen driving a

car with the two assailants who had committed the actual robbery

as his passengers. Grant, 216 Va. at 167, 217 S.E.2d at 807. In

considering the sufficiency of the evidence to sustain Grant’s

conviction, the Supreme Court held as follows:

While there is no direct evidence that

the defendant was present at the scene of

the robbery and actively participating in

the crime, the circumstantial evidence

points unerringly to his guilt as an aider

and abettor of the offense. We believe the

evidence permits the reasonable inference

that, while the robbery was in progress, the

defendant, at some convenient distance from

the scene, was serving as a lookout, waiting

to aid the robbers in their escape. The

evidence permits the further inference that,

following the robbery, the defendant acted

as the driver of the "getaway" car in the

abortive escape attempt. Accordingly, he

was properly convicted as a principal in the

second degree.

Id. at 168-69, 217 S.E.2d 808.

Applying the Supreme Court’s rationale in Sutton and Grant

to the evidence before us, we conclude that the evidence was

sufficient to show that, although not actually present at the

crime’s commission when the distribution of cocaine took place,

Paige was constructively present at the crime’s commission and
was

aiding and abetting Neal, "by helping some way in the
commission

of the crime." Ramsey, 2 Va. App. at 269, 343 S.E.2d at
468.

Viewed in the light most favorable to the Commonwealth, the

evidence, and the reasonable inferences fairly deducible from
it,

establish that Neal and Paige came to the parking lot at
Shoppers

Food Warehouse in response to the C.I.’s request to buy cocaine

from Neal. Their common purpose was to make money by
successfully

selling cocaine to the C.I. and perhaps gain a steady customer
in

the process. While Neal and the C.I. discussed the
"buy," Paige,

serving as a lookout, cased the parking lot, with his cell phone

in hand, to make sure the transaction was not a trap. Only after

speaking with Paige did Neal take the "buy money" from
the C.I.

and direct him to his truck. When the C.I. refused Paige’s

invitation to get in the truck and accompany them to the source
of

the cocaine, Paige assured the doubting C.I. that the deal was

legitimate and would be consummated shortly. Paige, whose role
in

the scheme at that point was to secure the success of the

transaction by convincing the skeptical buyer to wait for them,

told the C.I. that "nobody [was] going to bullshit"
him and that

he had the cocaine "waiting on the corner." Paige and
Neal

repeated they would be back in twenty minutes with the cocaine.

At Brethour Court, Paige alone entered the apartment complex,

and obtained the cocaine that was to be distributed to the C.I.

When he returned moments later to Neal’s truck, Neal and he

returned to the Shoppers Food Warehouse parking lot. After

dropping Paige off near the entrance of the parking lot,

approximately two hundred yards from where the C.I. was waiting,

Neal immediately drove to the front of the store and delivered
the

cocaine to the C.I.

This evidence adequately establishes Paige’s role as a

confederate of Neal in their common enterprise to sell cocaine
to

the C.I. Neal’s role was to negotiate the sale with the C.I.,

collect the purchase price, and deliver the drugs in return. The

various roles assigned to and executed by Paige during the

transaction were no less meaningful. But for his encouragement,

persuasion, and other assistance, the transaction would not have

taken place.

Hence, in light of Paige’s extensive involvement in the

common enterprise, including his stint in the parking lot as a

lookout, and the fact that, having been dropped off by Neal

immediately prior to the transfer of the cocaine to the C.I.,

Paige was located near the entrance to the parking lot only two

hundred yards away from the scene of the crime, the jury was

entitled to find by inference that Paige had been posted as a

lookout at a convenient distance from the scene to make sure
that

Neal was not followed into or out of the parking lot and that
the

distribution itself occurred without any problems. The jury was

further entitled to find from the evidence that, when the

distribution of cocaine took place, Paige was discharging his

lookout duties.

We conclude, therefore, that the evidence is sufficient, as a

matter of law, to support the finding beyond a reasonable doubt

that Paige participated in the distribution of cocaine to the
C.I.

as a principal in the second degree.

Paige also argues that, because he was not observed obtaining

the cocaine inside the apartment complex or with the cocaine in

his possession, the merely circumstantial evidence of the

Commonwealth did not exclude the reasonable hypothesis of

innocence that the cocaine was in Neal’s sole possession at all

times. We find this argument meritless. "Whether an
alternative

hypothesis is reasonable is a question of fact, and, therefore,
is

binding on appeal unless plainly wrong." Archer v.
Commonwealth,

26 Va. App. 1, 12-13, 492 S.E.2d 826, 832 (1997). Paige suggests

that Neal and he left the shopping center parking lot to test
the

C.I.’s resolve. He further suggests the possibility that he went

into the apartment complex for a reason other than to procure

cocaine. Here, however, there was no evidence to support either

suggestion. The only hypotheses of innocence "which must be
. . .

excluded are those which flow from the evidence itself, and not

from the imaginations of defense counsel." Cook v.
Commonwealth,

226 Va. 427, 433, 309 S.E.2d 325, 329 (1983).

Accordingly, we hold that Paige was properly convicted of

distribution of cocaine as a principal in the second degree and

affirm the conviction.

Affirmed.

 

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not

designated for publication.

 

[2]Nothing in the
record reveals why the Commonwealth chose

to proceed against Paige solely on the theory that he was a

principal in the second degree. Because, pursuant to Code

? 18.2-18, a principal in the second degree and an accessory

before the fact "may be indicted, tried, convicted and
punished

in all respects as if a principal in the first degree," the

Commonwealth is not required to elect between those two theories

and, depending on the evidence, a defendant may be convicted

under either theory, thus, essentially rendering the issue of

the defendant’s presence at the commission of the crime moot.

See Ward v. Commonwealth, 205 Va. 564, 568, 138 S.E.2d 293, 296

(1964); see also Sutton v. Commonwealth, 228 Va. 654, 670 n.*,

324 S.E.2d 665, 674 n.* (1985) (Stephenson, J., dissenting in

Record No. 831788).


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