Downey v. Commonwealth

1

DONNELL DOWNEY v. COMMONWEALTH OF VIRGINIA

No. 0600-22-2

Court of Appeals of Virginia

April 4, 2023

FROM THE CIRCUIT COURT OF KING WILLIAM COUNTY B. Elliott Bondurant, Judge

Charles E. Haden for appellant.

Liam A. Curry, Assistant Attorney General (Jason S. Miyares Attorney General, on brief), for appellee.

Present: Judges O'Brien, Ortiz and Raphael Argued at Richmond, Virginia

MEMORANDUM OPINION ^[*]

MARY GRACE O'BRIEN JUDGE

The trial court convicted Donnell Downey (appellant) of first-degree murder, conspiracy to commit burglary conspiracy to commit robbery, burglary, attempted robbery, and three counts of use of a firearm in the commission of a felony. The court also found appellant guilty of violating the terms of his pretrial bond. On appeal, appellant contends that the evidence is insufficient to support his convictions. He also argues that his indictment for attempted robbery cited the wrong statute, and therefore, he was found guilty of a "non-existent offense." Finally, he asserts that the court erred by sentencing him to "[1] year in prison" for violating the terms of his pretrial bail, to 20 years of incarceration for attempted robbery, and to 20 years of incarceration for conspiracy to commit robbery because the sentences "exceed the maximum penalty allowed by statute." For the following reasons, we affirm appellant's convictions but remand the case for a new sentencing hearing. See Rawls v. Commonwealth, 278 Va. 213, 221-22 (2009).

BACKGROUND

On appeal, we state the facts in the light most favorable to the Commonwealth. Poole v. Commonwealth, 73 Va.App. 357, 360 (2021). In doing so, we discard any of appellant's conflicting evidence and regard as true all credible evidence favorable to the Commonwealth and all inferences that may reasonably be drawn from that evidence. Gerald v. Commonwealth, 295 Va. 469, 473 (2018).

O.A., an eight-year-old child, was shot and killed during a residential burglary and attempted robbery on January 21, 2019. O.A. lived with his father, Orlando Anderson, and his paternal grandmother, Linda Anderson, in King William County.

On the night of January 21, O.A. and his grandmother were asleep in her bedroom, and Anderson was in his room. Anderson heard a loud noise and discovered that two masked intruders had broken into his home. He grabbed a shotgun and attempted to shoot, but his gun jammed. The intruders then shot at Anderson as they ran out of the back door. Anderson chased them and managed to fire one round from his shotgun. As he returned inside, Anderson heard Linda yell that O.A. had been shot. Anderson and Linda rushed O.A. to the hospital, where he later died from a single gunshot wound to the head.

During a forensic investigation of Anderson's home, police recovered several "Federal Brand, caliber .9 millimeter Luger" cartridge casings, which a later analysis confirmed were all fired from the same gun. Appellant's DNA was found on the cartridge casings. Several bullets recovered at the scene also had been fired from a Glock pistol.

On the afternoon of January 21, Trevon Holmes^[1] and his cousin, Charles Coleman, drove to Keith Hargrove's residence in Richmond to purchase marijuana. While there, Holmes saw appellant holding a Glock pistol. Later that day, Holmes returned home, leaving Coleman, Hargrove, and appellant at Hargrove's house.

State Police Special Agent Martin Kriz interviewed appellant several times during his investigation. Appellant admitted that he had been with Coleman and Hargrove on January 21. Coleman told appellant that "there was going to be money and drugs and they were going to take that money and drugs and split it between themselves." Appellant traveled from Richmond to Anderson's residence with Coleman and Hargrove, and described in detail how they broke in, including that appellant entered the house after Coleman kicked in the door. Appellant told Special Agent Kriz he was carrying a firearm when he entered Anderson's house but denied firing it. When confronted with the DNA evidence, appellant admitted that he had supplied ammunition to Coleman and Hargrove as part of their plan.

At trial, appellant acknowledged that he had repeatedly admitted his involvement in the crimes during the investigation; however, he claimed that he lied to police because he thought he might be having a heart attack and "would have said anything to get [a] medical bond." He admitted that he was in Richmond with Coleman and Hargrove and he knew they were planning "some scheme or scam," but he denied participating and stated that he did not leave Richmond that night. Finally, he explained that he could provide the detailed account of the crimes to Special Agent Kriz only because he heard Coleman and Hargrove discuss the crimes the next day.

FBI Special Agent Jeremy D'Errico created a report based on data collected from cell phones belonging to Holmes, Coleman, Hargrove, and appellant. The data showed that all four phones were in the same area in Richmond around 10:15 p.m. on January 21, consistent with Holmes's testimony. Holmes's phone left the area shortly before 11:00 p.m. and traveled north into Hanover County. Between 11:00 p.m. and 11:40 p.m., data from Hargrove's phone established that Hargrove traveled from Richmond to a location near Anderson's house around the time of the intrusion. The other phones did not have any recorded data. By approximately 12:30 a.m. on January 22, Hargrove's phone was back in Richmond.

The court rejected appellant's testimony and convicted him of the charged offenses.

ANALYSIS

I. Sufficiency of the Evidence

Appellant first argues that the evidence was insufficient to support his convictions because the Commonwealth "failed to prove that [he] participated in the offenses or otherwise acted in concert with the others to commit the offenses." Additionally, appellant contends that "there was no proof of an agreement" to support his conspiracy convictions.

"When reviewing the sufficiency of the evidence, '[t]he judgment of the trial court is presumed correct and will not be disturbed unless it is plainly wrong or without evidence to support it.'" Smith v. Commonwealth, 296 Va. 450, 460 (2018) (alteration in original) (quoting Commonwealth v. Perkins, 295 Va. 323, 327 (2018)). "In such cases, '[t]he Court does not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.'" Secret v. Commonwealth, 296 Va. 204, 228 (2018) (alteration in original) (quoting Pijor v. Commonwealth, 294 Va. 502, 512 (2017)). "Rather, the relevant question is, upon review of the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. (quoting Pijor, 294 Va. at 512).

Appellant admitted at trial that he knew Coleman and Hargrove were planning "some scheme or scam." Although he claimed at trial that he did not participate, he repeatedly admitted his involvement during his interviews with the police. Appellant provided details about the crimes-such as the layout of the house, the point of entry, and the gunfire exchange with Anderson-that permitted the fact finder to infer he was present when the crimes occurred. The court permissibly rejected appellant's testimony that he lied to the police to get a bond and instead reasonably credited his prior inculpatory statements. See Sierra v. Commonwealth, 59 Va.App. 770, 784 (2012) ("[T]he trial court . . . 'was at liberty to discount [appellant's] self-serving statements as little more than lying to "conceal his guilt," and could treat such prevarications as "affirmative evidence of guilt."'" (quoting Armstead v. Commonwealth, 56 Va.App. 569, 581 (2010))). Moreover, the evidence that Holmes had seen appellant with a gun earlier that evening and the presence of appellant's DNA on the bullet casings found in Anderson's home support the court's conclusion that appellant actively participated in the crimes and acted in concert with the others.

Additionally, ample evidence supports appellant's conspiracy convictions.

"Conspiracy is defined as 'an agreement between two or more persons by some concerted action to commit an offense.'" Speller v. Commonwealth, 69 Va.App. 378, 389 (2018) (quoting Wright v. Commonwealth, 224 Va. 502, 505 (1982)). "Proof of an explicit agreement," however "is not required, and the Commonwealth may, and frequently must, rely on circumstantial evidence to establish the conspiracy." Combs v. Commonwealth, 30 Va.App. 778, 787 (1999). Indeed, "it is a rare case where any 'formal agreement among alleged conspirators' can be established." Pulley v. Commonwealth, 74 Va.App. 104, 120 (2021) (quoting Carr v. Commonwealth, 69 Va.App. 106, 118 (2018)). Accordingly, the fact finder may infer a conspiracy "from the overt actions of the parties, and a common purpose and plan may be inferred from a development and collocation of circumstances." Combs, 30 Va.App. at 787 (quoting McQuinn v. Commonwealth, 19 Va.App. 418, 425 (1994)). Thus, when "the defendants 'by their acts pursued the same object, one performing one part and the others performing another part so as to complete it or with a view to its attainment, the [fact finder] will be justified in concluding that they were engaged in a conspiracy to [effect] that object.'" Pulley, 74 Va.App. at 120 (first alteration in original) (quoting Carr, 69 Va.App. at 118). Appellant admitted that he went to Anderson's residence with Coleman and Hargrove and entered the house after Coleman kicked in the door. He also admitted that he provided ammunition to the others. The cell phone location data corroborated appellant's pretrial confession. From this evidence, the...