826 S.E.2d 908
Va. Ct. App.2019Background
- Early morning police observed a white Mercedes at a housing complex; three men exited and two (Jones and Boyce) walked into an alley after "adjusting" clothes; officers approached and Jones fled, later arrested from the car.
- Officers recovered ski masks in the car/street and, later, a sawed-off shotgun under a bush where Jones had run.
- Jones told police he and Boyce accompanied a third man ("Trip") to "make sure Trip didn’t get hurt" during Trip’s planned robbery of a known drug dealer (victim location not established at trial).
- At bench trial Jones was convicted of conspiracy to commit robbery, attempted robbery, and use of a firearm in the attempted robbery; he appealed the latter two convictions for insufficient evidence.
- A three-judge panel reversed the attempted-robbery and firearm convictions; the Commonwealth successfully petitioned for rehearing en banc.
- The en banc Court of Appeals affirmed reversal: it held the evidence showed only preparation (no overt act commencing an element of robbery) and therefore both attempted-robbery and related firearm convictions must be dismissed.
Issues
| Issue | Jones's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Whether evidence established an overt act sufficient for attempted robbery | Jones: no overt/direct act in furtherance of robbery; only preparation | Commonwealth: intent established and any slight act in furtherance suffices as an overt act | Reversed — evidence insufficient; actions were preparatory and did not commence an element of robbery |
| Whether evidence supported conviction for use of a firearm in commission of a felony (Code § 18.2-53.1) | Jones: he merely possessed the shotgun; no use/attempted use or threatening display while committing/attempting robbery | Commonwealth: possession plus attendant facts supported the firearm charge tied to attempted robbery | Reversed — because attempted robbery fails, firearm conviction (which requires use/display while committing/attempting felony) fails as well |
Key Cases Cited
- Jay v. Commonwealth, 275 Va. 510 (defines overt-act requirement for attempted robbery)
- Pitt v. Commonwealth, 260 Va. 692 (attempt requires intent plus a direct but ineffectual act toward consummation)
- Lee v. Commonwealth, 144 Va. 594 (approves statement that slight acts in furtherance may constitute attempt where intent is clear)
- Hopson v. Commonwealth, 15 Va. App. 749 (Va. Ct. App. 1993) (panel reversed attempted-robbery convictions where acts amounted only to scouting)
- Jordan v. Commonwealth, 15 Va. App. 759 (Va. Ct. App. 1993) (companion to Hopson)
- Rogers v. Commonwealth, 55 Va. App. 20 (Va. Ct. App. 2009) (attempt conviction where preparations were interrupted at the scene)
- Hicks v. Commonwealth, 86 Va. 223 (1889) (classic ‘‘commencement of the consummation’’ language distinguishing preparation from attempt)
- Lynch v. Commonwealth, 131 Va. 769 (1921) (attempt must go so far that it would result in the crime unless frustrated by extraneous circumstances)