TUCK v. COMMONWEALTH




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TUCK

v.

COMMONWEALTH


COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Bumgardner and Frank

Argued at Salem, Virginia

Record No. 3376-02-3

KARL RAY TUCK

v.

COMMONWEALTH OF VIRGINIA

 

MEMORANDUM OPINION[1]
BY JUDGE RUDOLPH BUMGARDNER, III

DECEMBER 9, 2003

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY

Charles J. Strauss, Judge

Gregory T. Casker for appellant.

Robert H. Anderson, III, Senior Assistant Attorney General

(Jerry W. Kilgore, Attorney General, on brief), for appellee.

The trial court convicted Karl Ray Tuck of grand larceny. He
contends the evidence is

insufficient to support his conviction because it merely showed
he was in the car when it was

stolen. Finding the evidence established more than mere presence
at the time of the taking, we

affirm.

On appeal, we review the evidence and all reasonable inferences
deducible therefrom in

the light most favorable to the Commonwealth, Commonwealth v.
Hudson, 265 Va. 505, 514,

578 S.E.2d 781, 786 (2003), and uphold the conviction unless it
is plainly wrong or without

evidence to support it, Code ? 8.01-680. The defendant and his
father, Clyde Ray Tuck, stopped

at Kim Mattox’s trailer at approximately 8:00 p.m. Clyde Tuck
indicated that their car was

inoperable, either out of gas or broken down, and asked for a
ride home. Bill Ridgeway, who

was visiting Mattox and knew Clyde Tuck, agreed to give them a
ride. Clyde Tuck sat in the

front passenger seat, and the defendant sat in the rear.

On the way to the Tucks’ trailer, Ridgeway stopped at his
residence. Both Tucks

remained in the car and waited for Ridgeway to return and take
them the rest of the way home.

After five minutes, while Ridgeway was still in the house, the
car drove off. Ridgeway and his

brother-in-law went to the Tucks’ trailer but could not find
them. They looked for the Tucks’

disabled vehicle but could not find it. Ridgeway reported the
vehicle stolen and kept trying to

locate the Tucks over the next six weeks. The vehicle was
eventually found when an unnamed

party wrecked it.

The defendant contends the evidence failed to show he was the
thief or that he was acting

in concert with his father. He argues that Hampton v.
Commonwealth, 32 Va. App. 644, 529

S.E.2d 843 (2000), and Moehring v. Commonwealth, 223 Va. 564,
290 S.E.2d 891 (1982),

control the case.

In Hampton, the defendant moved from the rear seat to the front
seat knowing the car was

stolen but not attempting to get out of it. Aside from his
presence and failure to oppose the

taking, no other circumstance proved he participated in the
theft or shared the perpetrator’s

criminal intent. This Court reversed the conviction because
moving to the front seat was

"consistent with the hypothesis that he did so for his own
comfort and convenience." 32

Va. App. at 652, 529 S.E.2d at 847.

In Moehring, the defendant was hitchhiking with a companion. The
companion stole a

truck when the owner left the keys in it while he paid for gas.
The companion drove off but

returned and picked up the defendant, who had continued to
hitchhike. Although the defendant

was present before the theft and accepted a ride after the
theft, he did not aid the theft or share

the thief’s criminal intent. 223 Va. at 568, 290 S.E.2d at
892.

An accused is a principal in the second degree if he is present
at the commission of a

crime and either commits some overt act in furtherance thereof
or shares the perpetrator’s

criminal intent. Triplett v. Commonwealth, 141 Va. 577, 586, 127
S.E. 486, 489 (1925). The

trier of fact may infer that a person lent his countenance and
approval to a crime when he is

present without disapproving it and other circumstances support
such a finding. Foster v.

Commonwealth, 179 Va. 96, 100, 18 S.E.2d 314, 316 (1942). "‘[W]hether
a person does in fact

aid or abet another in the commission of a crime is a question
which may be determined by

circumstances as well as by direct evidence.’" Shiflett
v. Commonwealth, 151 Va. 556, 561, 145

S.E. 336, 338 (1928) (father aided son during murder) (quoting
Brown v. Commonwealth, 130

Va. 733, 736, 107 S.E. 809, 810 (1921)).

In Pugliese v. Commonwealth, 16 Va. App. 82, 482 S.E.2d 16
(1993), the defendant was

convicted of murder as a principal in the second degree and
robbery. He knew the shooter

intended to cheat the victim out of money. The perpetrator told
the defendant he was going to

shoot the victim, and the defendant was present when he did so.
The defendant remained in the

van while the perpetrator disposed of the body, helped dispose
of the van, and received part of

the stolen money. This Court concluded the defendant
countenanced the crimes and lent his

support to the murder and robbery when he accompanied the
perpetrator. The defendant knew of

the perpetrator’s announced intention to take the victim’s
money and did nothing to discourage

or report it. Id. at 94, 482 S.E.2d at 25.

The defendant and his father went to Maddox’s house, and they
asked for a ride. They

obtained a ride using the ruse that their car had broken down
and they were stranded. The two

continued the deception when they remained in the car while
Ridgeway went inside his

residence. When the car drove off five minutes later, neither
the defendant nor his father could

be found. They were not found at home, and no car was found
where the Tucks had said it broke

down. Neither the defendant, his father, nor the car could be
found for six weeks.

As in Pugliese, the defendant was an active participant in the
crime. He and his father

deceived the owner to gain access to his car. The defendant
accepted the ride with his father and

remained in the car with him when Ridgeway went inside. Ridgeway
planned to return and take

the Tucks the rest of the way home. The vehicle, the defendant,
and his father vanished together.

No evidence suggested anyone else took the car. The defendant
never reported the theft, and

neither he nor his father could be found for six weeks. The
evidence and the reasonable

inferences drawn from it, demonstrate that the defendant and his
father acted in concert and

shared the same criminal intent. Whether the defendant shared
the perpetrator’s criminal intent

is a question of fact. Creasy v. Commonwealth, 166 Va. 721, 726,
186 S.E. 63, 65 (1936)

(conviction upheld when defendant did not aid in crime, but
participated in its fruits).

The defendant was not merely present; other circumstances
supported the finding that he

committed overt acts, lent his support to the theft, and shared
the criminal intent. Accordingly,

we affirm.

Affirmed.

 

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not designated for publication.


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