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OCTOBER 5, 1999
Record No. 0131-98-3
WARREN LEE BROGGIN, JR.
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Richard S. Miller, Judge
Present: Chief Judge Fitzpatrick, Judges
Coleman and Bumgardner
Argued at Salem, Virginia
MEMORANDUM OPINION* BY JUDGE SAM W.
B. Leigh Drewry, Jr., for appellant.
Kathleen B. Martin, Assistant Attorney General,
(Mark L. Earley, Attorney General, on brief), for appellee.
Warren Lee Broggin was convicted in a bench
trial of robbery and use of a firearm in the commission of a
felony in violation of Code ?? 18.2-58 and 18.2-53.1. On
appeal, Broggin contends that the trial court erroneously
admitted hearsay evidence and that the evidence was insufficient
to support the convictions. We affirm.
On review of a challenge to the sufficiency of
the evidence, we view the evidence in the light most favorable to
the prevailing party and grant to it all reasonable inferences
fairly deducible therefrom. See Commonwealth v. Jenkins,
255 Va. 516, 521, 499 S.E.2d 263, 265 (1998).
Vachel Pollard, Tyshon Reeves, and Warren
Broggin hired a cab. The cab company dispatched Stanley Williams
to transport the three. At some point during the evening, Pollard
gave Reeves a pistol. After making several trips by cab, the
three directed the driver to take them to Pollard’s grandmother’s
house. While the cab driver waited, the three decided to rob him.
After discussing the plan, Broggin said, "all right
. . . we’ll do that."
The three men then directed the driver to a
dead-end street. When there, Reeves told the driver to stop the
car, and with pistol in hand, told the driver to "Give it
up." The three took $25 in bills, some change, a utility
knife, a pager, and a scanner from the driver. Reeves testified
that Broggin took the scanner.
Pollard, who testified for the Commonwealth,
stated that Broggin had agreed to rob the driver and that Broggin
knew about the gun. Reeves also testified that Broggin was aware
of the plan to rob the driver and that he agreed to it.
On direct examination, when the Commonwealth’s
attorney asked Pollard if he was testifying because "he
wanted to," he responded, "I ain’t – no, I was
supposed to testify." On cross-examination, defense counsel
asked whether Pollard had arranged through his counsel to benefit
from testifying against Broggin.
[Defense Counsel]: Now Mr. Pollard, of
course you’re charged in this as well; is this right?
[Pollard]: Yes, sir.
[Defense Counsel]: And you’ve talked to
your lawyer, Mr. Light, about this haven’t you?
[Pollard]: Yes, sir.
[Defense Counsel]: And you’ve also
– you realize –- you’re testifying today
because you’re hoping your testimony is going to help
you, aren’t you?
[Pollard]: Yes, sir.
[Defense Counsel]: And you want to do
or say anything that’s going to help you, don’t you?
[Pollard]: Yes, sir.
[Defense Counsel]: If that means that
you’ve got to point the finger at somebody else you’re
going to do that; isn’t that right?
[Pollard]: No, sir.
Over Broggin’s hearsay objection, the
Commonwealth introduced a statement that Pollard earlier had made
to Detective Viar soon after Pollard’s arrest. The trial court
admitted the evidence as a prior consistent statement that
Pollard had made before he had an opportunity to meet with
counsel and make arrangements to benefit from his testimony.
Pollard’s prior statement made immediately after the arrest also
implicated Broggin as part of the scheme. However, in some
respects Pollard’s prior statement contradicted his trial
The trial court did not err by allowing the
Commonwealth to introduce Pollard’s hearsay statement made to
Detective Viar soon after Pollard’s arrest.
[E]vidence of a prior consistent
out-of-court statement is admissible when the opposing
party: (1) suggests that the declarant had a motive to
falsify his testimony and the consistent statement was
made prior to the existence of that motive, (2) alleges
that the declarant, due to his relationship to the matter
or to an involved party, had a design to misrepresent his
testimony and the prior consistent statement was made
before the existence of that relationship, (3) alleges
that the declarant’s testimony is a fabrication of recent
date and the prior consistent statement was made at a
time when its ultimate effect could not have been
foreseen, or (4) impeaches the declarant with a prior
Mitchell v. Commonwealth, 25 Va. App.
81, 84-85, 486 S.E.2d 551, 552-53 (1997); see Faison v.
Hudson, 243 Va. 397, 404-05, 417 S.E.2d 305, 309-10 (1992)
(noting exceptions to rule barring admission of prior consistent
After being apprehended, accomplices frequently
have a tendency and incentive to shift blame. See Lilly
v. Virginia, 119 S. Ct. 1887, 1904 (1999) (Rehnquist,
C.J., concurring) (noting that a codefendant’s custodial
confession is viewed with "’strong suspicion’" given
his "’strong motivation to implicate the defendant and
exonerate himself’" (quoting Lee v. Illinois, 476
U.S. 530, 541 (1986))). Here, Broggin’s counsel suggested that
Pollard had a reason to fabricate by implicating Broggin. Broggin
implied that Pollard had reached agreements with the assistance
of his counsel from which, Pollard stood to gain by incriminating
Broggin. Because Broggin implied that Pollard had a recent motive
to incriminate him, Pollard’s prior consistent statement, made at
a time before Pollard had an opportunity to meet with counsel or
arrange to benefit from his testimony, was relevant to
corroborate Pollard’s trial testimony.
However, as Broggin points out, Pollard’s prior
statement conflicted in some respects with his trial testimony.
In the prior statement, Pollard had said that the three decided
to rob the driver before the cab ride and that the idea was
originally Broggin’s. Also, Pollard had said that Broggin took
cash from the driver, but at trial he stated that Broggin was
present and supported the robbery, but he did not take any items
from the cab driver.
The fact that Pollard’s prior statement
differed in some respects from his trial testimony did not render
it inadmissible as a prior consistent statement. The statement
was materially consistent with Pollard’s trial testimony insofar
as it implicated Broggin as having knowledge of and agreeing to
rob the driver at gunpoint. Whether evidence is admissible lies
within the sound discretion of the trial court and will not be
disturbed on appeal absent an abuse of discretion. See Blain
v. Commonwealth, 7 Va. App. 10, 16-17, 371 S.E.2d 838, 842
(1988). The prior statement was relevant to disprove Broggin’s
assertion of recent fabrication. To the extent that the statement
contained evidence in addition to the prior consistent statement,
the trial court is presumed to have disregarded those portions of
the statement that did not serve the purpose for which the court
admitted it. See Yarborough v. Commonwealth, 217
Va. 971, 978, 234 S.E.2d 286, 291 (1977) (holding that trial
court is presumed to know and properly apply the law); Hall v.
Commonwealth, 14 Va. App. 892, 902, 421 S.E.2d 455, 462
(1992) (en banc) (holding that the trial court is
presumed to disregard prejudicial or inadmissible evidence).
As to the sufficiency of the evidence, the
evidence is sufficient to support Broggin’s convictions for
robbery and use of a firearm in the commission of a felony. When
the sufficiency of the evidence is challenged on appeal, we
review the evidence to determine whether the elements of the
offense are proven beyond a reasonable doubt, and we uphold the
conviction unless it is plainly wrong or lacks evidentiary
support. See Jenkins, 255 Va. at 520, 499 S.E.2d at
265. Mere conflicts in the evidence or the fact that there is
evidence, which if believed would not support a conviction, do
not render the evidence insufficient. See Lewis v.
Commonwealth, 8 Va. App. 574, 582, 383 S.E.2d 736, 741 (1989)
"When the alleged accomplice is
actually present and performs overt acts of assistance or
encouragement, he has communicated to the perpetrator his
willingness to have the crime proceed and has
demonstrated that he shares the criminal intent of the
perpetrator. When the alleged accomplice is actually
present, but performs no overt act, he is nonetheless a
principal in the second degree if he has previously
communicated to the perpetrator that he shares the
perpetrator’s criminal purpose."
Rollston v. Commonwealth, 11 Va. App.
535, 539, 399 S.E.2d 823, 825-26 (1991) (quoting Roger D. Groot, Criminal
Offenses and Defenses in Virginia 183 (1984)).
Here, the evidence, viewed in the light most
favorable to the Commonwealth, showed that Broggin was aware of,
and agreed to, a plan to rob the driver. Reeves testified that
Broggin took the scanner from the driver. Thus, Broggin committed
an overt act in furtherance of the robbery and communicated his
approval and intent to participate prior to the robbery.
Accordingly, the evidence was sufficient to convict him of
robbery as a principal in the second degree.
Because the evidence was sufficient to convict
Broggin of robbery as a principal in the second degree, so too is
it sufficient to convict him of use of a firearm in the
commission of a felony. With the exception of certain capital
murder charges, every felony principal in the second degree may
be indicted, tried, convicted, and punished as a principal in the
first degree. See Code ? 18.2-18. Although Broggin
did not personally possess the weapon, by acting in concert with
Reeves and Pollard to commit the robbery, Broggin is criminally
accountable for use of the weapon in the commission of a felony. See
Carter v. Commonwealth, 232 Va. 122, 125-26, 348 S.E.2d
265, 267-68 (1986); Cortner v. Commonwealth, 222 Va. 557,
562-63, 281 S.E.2d 908, 911 (1981). Thus, the evidence is
sufficient to convict him of using a firearm in the commission of
a felony in violation of Code ? 18.2-53.1.
Accordingly, the trial court did not err by
admitting Pollard’s prior consistent statement to rebut
allegations of recent fabrication. Furthermore, the evidence is
sufficient to support the convictions of robbery and use of a
firearm in the commission of a felony. We affirm the convictions.
* Pursuant to Code ? 17.1-413,
recodifying Code ? 17-116.010, this opinion is not
designated for publication.
 Despite the Commonwealth’s
claim that Broggin failed to state adequate grounds for his
objection, Broggin preserved the issue for appeal. See
Rule 5A:18. Without prompting, the Commonwealth offered specific
grounds for admitting the hearsay as a prior consistent
statement. Broggin objected to the statement and objected to the
grounds on which it was offered. The trial court considered and
ruled on the specific issue. The trial court was fully aware of
the nature of Broggin’s objection. Accordingly, appellant
preserved the issue for appeal.