Where appellant was convicted as an accomplice of her father’s aggravated malicious wounding and malicious wounding of two individuals, there was sufficient evidence that her actions created accomplice liability.
Kelly was at an apartment shared by Boykins and Cortez. Kelly had consensual sex with Boykins. Cortez later told Kelly to leave because other people were coming over and that “her brother was known as a snitch.” She left and called her father, who had mental health issues. She met him at the motel where he worked and lived. She told him men attempted to rape her and one of them called her brother a snitch.
Kelly then drove her father and another man to the apartment. She knocked on the door. Cortez answered, Kelly’s father pushed in and asked Kelly “who said it?” Kelly pointed to Cortez. The father then began repeatedly stabbing Cortez. The fight woke up Boykins, who was stabbed while trying to pull Kelly’s father off Cortez.
Kelly then drove her father and the other man back to the motel. Kelly’s father testified that Kelly said she needed to go back to the apartment to get her missing wallet and credit cards, and that she did not mention a sexual assault. He denied telling Kelly in advance that he was going to stab or assault anyone.
The father fled to California two days later and was arrested there. While jailed, his “paranoid delusions” required him to be transferred to a psychiatric unit.
Kelly was tried as an accomplice to her father’s assault of Cortez. The court determined the following:
“• Kelly left Boykins’ apartment feeling wronged in some way.
“• Kelly went straight to her father and conversed with him.
“• Kelly’s conversation with her father was about something that had taken place.
“• After Kelly told her father something had taken place, she drove her father and another man back there.
“• Kelly said her father told her to go back there, so she did.
“• Kelly nodded in affirmance and said, ‘yeah,’ when the Investigator told her ‘You knew your father was going back there to tune him up.’
“• Kelly’s claim that she went back to Boykins’ apartment for her wallet is not credible. Kelly said that she would not have told her father about what had happened if she had known that he was off his medications. This implies that she told him something that would upset him and a lack of a wallet would not do that.
“• During the police interview, Kelly twice denied having sex with Boykins but then said that she denied it because she didn’t want to make herself look bad.
“• Kelly had to show them where the actual door was.
“• In the interview with Investigator English, Kelly said, ‘We pushed our way through the door,’ which is consistent with the testimony of Cortez Jones.’
“• Kelly’s brother was called a snitch.
“• Kelly’s father asked her, ‘Who said it?’ Both sides conceded Kelly pointed out who that was. ‘There’s direction that’s being given and that clearly implies to the Court that this wasn’t about going back and getting her wallet. … [T]his wasn’t about her wallet. This was some sort of revenge or get after.’
“• There was concert of action between Kelly and her father in the attack on Cortez.”
Kelly appeals her conviction.
“The evidence is sufficient to sustain Kelly’s convictions for aggravated malicious wounding of Cortez and malicious wounding of Boykins because the evidence supports the trial court’s finding that Kelly acted in concert with her father in the assault on Cortez.
“Kelly argues that the evidence failed to show that she shared her father’s felonious purpose and specific intent to stab and wound Cortez and Boykins. However, such ‘lack of intent is … a defense to a conviction as a principal in the second degree, unless there was concert of action and the resulting crime, whether such crime was originally contemplated or not, is a natural and probable consequence of the intended wrongful act. …
“The evidence supports the trial court’s findings that there was concert of action between Kelly and her father in the assault on Cortez and that the resulting wounding of Cortez and Boykins – even if not originally contemplated by Kelly – were incidental and probable consequences of Kelly’s intended wrongful act. …
“The trial court rejected Kelly’s hypothesis of innocence that her purpose in returning to Cortez’s apartment was to recover her wallet. Deferring to the trial court’s credibility determination in rejecting Kelly’s explanation for her conduct, this Court holds that the evidence supports the trial court’s finding that Kelly brought her father to Cortez’s apartment for the criminal purpose of assaulting Cortez.
“Kelly acknowledges on appeal that she admitted to police investigators that she knew what her father was going to do, but not the extent of what he was going to do. … With knowledge of her father’s intent to assault Cortez, Kelly drove her father to Cortez’s apartment building, informed her father which apartment was his, knocked on the door, pointed out Cortez as the one who called her brother a snitch, and drove her father away from the crime scene and back to his motel room.
“Kelly thereby demonstrated that she shared her father’s intent to assault Cortez. … Because the assault on Cortez resulted from Kelly’s concert of action with her father, Kelly was liable for the stabbings that resulted when her father used a knife in the commission of the assault.
“Boykins’ defense of Cortez and the subsequent stabbing of Boykins were incidental probable consequences of the assault on Cortez. Therefore, Kelly is also liable for the malicious wounding of Boykins.”
Kelly v. Commonwealth, Record No. 0675-21-1, Aug. 2, 2022. CAV (Chaney) From the Circuit Court of the City of Williamsburg and County of James City (McGinty) Richard G. Collins for appellant. Craig W. Stallard, Jason S. Miyares for appellee. VLW 022-7-302, 13 pp. Unpublished opinion.