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COURT OF APPEALS OF VIRGINIA






Present:  Judges Elder, Lemons and Senior Judge Cole

Argued at Richmond, Virginia





KELLEY ANN TIBBS

                       OPINION BY

v.      Record No. 1717-98-2    JUDGE MARVIN F. COLE

                                                                        MARCH 7, 2000

COMMONWEALTH OF VIRGINIA





       FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY

William R. Shelton, Judge



               John F. McGarvey for appellant.



               Robert H. Anderson, III, Assistant Attorney

General (Mark L. Earley, Attorney General, on

brief), for appellee.







       Appellant, Kelley Ann Tibbs, was convicted by a jury of

robbery, abduction and capital murder.  The capital murder

conviction was based on a finding of a murder committed in the

commission of robbery.  See Code   18.2-31(4).

       Appellant was sentenced to ten years for the robbery

conviction and life imprisonment for the capital murder

conviction.  She was also sentenced to ten years for the

abduction, but this conviction has not been appealed.

       At the writ stage of this proceeding, appellant contended:

(1) the trial court erred by entering final judgment on the

robbery verdict when the verdict was based on evidence that was

insufficient as a matter of law; and (2) the trial court erred

by entering final judgment on the capital murder verdict when

the verdict was based on evidence that was insufficient as a

matter of law.

       We denied the first assignment of error but granted the

second.  Therefore, the sole question before us is whether the

evidence is sufficient to support the capital murder conviction.

FACTS

       "On appeal, 'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'"  Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(citation omitted).  So viewed, the evidence proved that, on

July 26, 1997, appellant, Dana Vaughn and the victim, Stacy

Hanna, lived at 210 South Belmont Avenue in the City of

Richmond.  Tracy Bitner previously lived at the Belmont Avenue

house.  Domica Winckler lived around the corner from Belmont

Avenue.  Stephanie Cull lived in Chester.  They were all

friends.  

       Appellant had a homosexual relationship with Bitner.

Appellant and Bitner ended their relationship shortly before

Hanna moved into the Belmont Avenue house.  After Hanna moved

in, appellant and Hanna became romantically involved.  

       Around 9:00 p.m. on Saturday, July 26, 1997, appellant,

Vaughn, Cull, Bitner, Winckler, Hanna, a female named Sandy and

a female named Leslie attended a party.  Sandy was Bitner's new

friend.  At the party, Hanna made comments to appellant in an

attempt to dissuade appellant from reconciling with Bitner and

to further Hanna's romantic involvement with appellant; Hanna

told appellant that Bitner and Sandy were a happy couple, that

Bitner no longer wanted a romantic relationship with appellant,

and that appellant needed to be involved with Hanna.

       Later, the group returned to Belmont Avenue.  Appellant had

a private discussion with Sandy, while Bitner, Hanna, Vaughn and

others went into another room.  Afterwards, Hanna approached

appellant and said that Bitner told her, Hanna, that Bitner no

longer wanted a relationship with appellant and that Bitner

wanted Hanna to relate that information to appellant.

       Appellant, Cull, Bitner and Winckler then left the Belmont

Avenue house.  While gone, appellant learned that Bitner did not

make the statements that Hanna related to appellant.  Appellant

became angry with Hanna and expressed her desire to "beat her

ass."  According to appellant, "everybody else [in the car at

that time] was like yeah we're gonna beat her ass."  The

original plan was to "take her to Byrd Park and . . . rough her

up and leave her there and let her walk home."

       The four women then returned to the Belmont Avenue house.  

Appellant, Winckler and Cull invited Vaughn and Hanna to ride

with them and Bitner to Marsh Field in Chesterfield County to

"hang out."  Cull drove.  Upon arriving at Marsh Field,

appellant, Cull, Winckler and Bitner exited the car.  Hanna

remained in the car with Vaughn, who was ill.  A short time

later, appellant entered the car and told Hanna that she would

stay with Vaughn.  After Hanna exited the car, appellant told

Vaughn "that they were going to kick [Hanna's] ass" because she

lied to appellant about Bitner.  Appellant then exited the car

and joined the group, leaving Vaughn alone in the car.  

       While in the car at Marsh Field, Vaughn could not see the

group, but she "heard them start beating" Hanna.  Cull returned

to the car and turned on the headlights.  Vaughn then saw Hanna

"covered in blood."  Vaughn testified that she saw Bitner "push

[Hanna] down and Domica [Winckler] picked up a cinder block

. . . and threw it on her."  Eventually, all of them returned to

the car while Hanna lay on the ground.  

       Vaughn testified that, while leaving Marsh Field, "there

was a conversation."  Appellant "was saying that we needed to

take her to a hospital or something or a phone at least."  

Bitner "suggested that we cut out her tongue so she couldn't

talk."  Winckler "said that we needed to cut off her fingers so

she couldn't write."  They "went down the road a ways," then

returned to Hanna's location and placed Hanna in the trunk of

the car.

       En route to another location, Hanna "started beating on the

trunk," so Cull stopped the car and Winckler got out and opened

the trunk.  Hanna asked to be taken to a telephone "so she could

call her mother and tell her that she loved her," but Winckler

"told her no and shut the trunk."

       Cull then drove to an isolated location on Nash Road and

stopped the car.  Cull, Bitner, Winckler and appellant got out

of the car and stood around the trunk.  Vaughn testified that

she "heard Domica [Winckler] tell Stacy [Hanna] to give her her

rings and her watch."  Hanna "said that she could have them, all

but one."  Winckler "said give me all of them."  Hanna was then

removed from the trunk.  At that point, Cull, Winckler, Bitner,

and appellant took Hanna under the fence and down the road.  The

four women proceeded down a deserted path until Vaughn was

unable to see them.  At some point, Cull returned to the car.  

Vaughn "heard a cry and then [she] heard another cry and then

[she] heard the cry get muffled, something, and that was it."  

Winckler and Bitner returned to the car twenty minutes later,

followed by appellant.  All three women were muddy.  Vaughn

testified that Bitner and Winckler "were kind of bragging about

what they had done."  

[Winckler] said that she had stabbed her

with a bladeless knife in her chest.  And

Tracy [Bitner] was bragging how she had

stabbed her a bunch of times in the heart

saying, "Give me your heart, Bitch, why

don't you die."  And she had slit her throat

and stuffed mud in her mouth to get her to

stop screaming.

       Bitner testified that appellant, Winckler and Cull

initiated the attack on Hanna at Marsh Field when they began to

kick and hit Hanna.  Bitner saw appellant and Winckler with box

cutter razor knives.  Bitner took one of the box cutter razor

knives and cut Hanna on the back of her shoulder.  Appellant and

Winckler continued to kick and punch Hanna.  After Winckler hit

Hanna with a cinder block, the attackers "got in the car" to

leave.  They "went down the road a little bit and it was brought

up that [Hanna] was going to tell."  Cull then "turned around

and we went back" to get Hanna.  Hanna "had crawled" to a

different spot, and appellant and Winckler picked her up and

placed her in the trunk.  When asked if they planned on taking

Hanna to a hospital, Bitner stated, "I don't think a hospital

was involved."  Cull stopped her car twice after leaving Marsh

Field.  The first time, Cull "got out and kicked" Hanna; the

second time, all four participants exited and stood around the

open trunk during the robbery of Hanna.  Winckler ordered Hanna

to give her Hanna's watch, eventually taking it and spitting on

Hanna.  Cull then "cut [Hanna] on the leg" with the box cutter

razor knife.

       According to Bitner, after they arrived at Nash Road,

appellant, Cull, Winckler and she took Hanna down a "dirt road."

The four women had three box cutter razor knives.  "Thirty

steps" down the dirt road, Cull cut Hanna on her back with the

razor.  Cull then gave the razor to Bitner and returned to the

waiting car.  Appellant and Winckler had the other razors.  

Initially, Hanna walked "on her own and then she fell."  After

she fell, the group picked her up and carried her.  The group

stopped near a mud puddle.  Appellant, Winckler and Bitner

removed Hanna's clothes that allegedly belonged to appellant.  

Winckler then pushed Hanna to the ground and "in the mud."  

According to Bitner, Winckler "stabbed [Hanna] in the chest a

couple of times with the box cutter," and appellant "punched her

and stuff."  Bitner cut Hanna's throat with the box cutter razor

knife, after which appellant "came around and choked her."  

Bitner and Winckler left the scene first, while appellant

"stayed back" for "two or three minutes."  When Bitner and

Winckler left, Hanna was still alive and screaming.  Upon

arriving at Cull's car, appellant "said she stabbed [Hanna] with

a stick."  Bitner estimated that "an hour or two" passed from

the time of the first attack at Marsh Field until the group left

the Nash Road location.

       Appellant told the police that, after they removed Hanna

from the trunk at Nash Road, they ordered her to take off her

shirt and shorts.  Appellant, Bitner and Winckler took Hanna

down a dirt path, made her fall face first in muddy water, and

kicked her numerous times.  Appellant recalled Bitner saying she

tried to break Hanna's neck, but it would not break, so Bitner

said she cut it.  Appellant told Detective Mormando that

Winckler "took off [Hanna's] watch" and was wearing it when the

police arrived at her home.  In her statement, appellant said,

"we were all kind of feeding off each other because when Mica

[Winckler] hit her I was like yeah you know.  And I kicked her.  

And I hit her twice.  And then Tracy [Bitner] was like yeah you

know.  We're just gonna kick her around."  

       Detective McQuire recovered two of Hanna's rings at Marsh

Field.  Detective Mormando "took [Hanna's watch] off of Domica

Winckler's wrist at Richmond [P]olice headquarters when she was

interviewed there."

       Dr. Marcella Fierro, Chief Medical Examiner, performed the

autopsy on Hanna.  Dr. Fierro "counted a minimum of 65" cuts and

stab wounds inflicted upon Hanna, including a five and one-half

inch long, one-half inch deep cut on her neck and another "cut

above that [one] into the trachea, into the airway."  In

addition, Dr. Fierro saw numerous "blunt force injuries" to

Hanna's head and face, including "a fracture of the bridge of

her nose, big, black eyes, [and] an abrasion of her left cheek."  

"On the right side of [Hanna's] face she had a big [5-inch by

3-inch] contusion or big bruise underneath the scalp . . . .  In

front of that . . . was a three-quarters inch contusion or

bruise."  Dr. Fierro found "[a]nother one on the left parietal

region, and then three in a row . . . behind the left ear.  

There was one that was associated with a big bruise that you

could see on the outside."  In addition, Dr. Fierro found

numerous abrasions to Hanna's feet, torso, knee, elbow, hip and

shoulder.  Dr. Fierro also described linear cuts on Hanna's

hands indicating defensive injuries.  Internally, Hanna's

"organs were very pale," indicating "she lost a great deal of

blood."  Hanna's lungs "were very large and they were very

heavy.  And there was sand and water in the airways, and there

was sand and water in her stomach indicating she swallowed

muddy, sandy water."  Dr. Fierro opined that Hanna died of

"exsanguination [excessive loss of blood] due to the cutting

wounds and dragging" and of drowning.  According to Dr. Fierro,

Hanna was alive when her face was in the water.  When Dr. Fierro

received the body, Hanna was wearing underwear and an ankle

bracelet, but she found "no other personal effects."

DISCUSSION

       At the time of this offense, Code   18.2-31 provided, in

pertinent part, as follows:

The following offenses shall constitute

capital murder, punishable as a Class 1

felony:

*      *      *      *      *      *      *

4.  The willful, deliberate and premeditated

killing of any person in the commission of

robbery or attempted robbery.

       "Code   18.2-31, defining capital murder, was first enacted

by the General Assembly in 1975 as part of a statutory scheme

enacted to eliminate the 'unbridled choice between the death

penalty and a lesser sentence' prohibited by Furman v. Georgia,

408 U.S. 238 (1972)."  Fitzgerald v. Commonwealth, 223 Va. 615,

635, 292 S.E.2d 798, 810 (1982).

       It is obvious from the statute that to convict of capital

murder the Commonwealth must prove that the defendant committed

two offenses:  (1) Willful, deliberate and premeditated murder;  

and (2) Robbery or attempted robbery.  

       "Robbery in Virginia has been repeatedly defined as a

common law crime against the person . . . .  '"Robbery at common

law is defined as the taking with the intent to steal, of the

personal property of another, from his person or in his

presence, against his will, by violence or intimidation."'"  

Crawford v. Commonwealth, 217 Va. 595, 597, 231 S.E.2d 309, 310

(1977) (citations omitted); see also Clay v. Commonwealth, 30

Va. App. 254, 258, 516 S.E.2d 684, 686 (1999) (en banc).

       The Commonwealth calls our attention to the limited nature

of this appeal and our ruling at the writ panel stage, wherein

we held that the evidence was sufficient and adequately proved

that Tibbs "acted in concert with the other women to take the

victim's rings and watch" and thus was guilty of robbery.  We

are bound by this decision in this appeal.  See Commonwealth v.

Burns, 240 Va. 171, 174, 395 S.E.2d 456, 457 (1990).

       In addition to proving the first degree murder and the

robbery, appellant contends the Commonwealth must also prove by

a preponderance of the evidence that the robbery was a

motivating factor for the killing.  She asserts that the murder

of Hanna was spawned by a "lover's quarrel" and that the robbery

of Hanna was purely incidental and in no way causally related or

connected to the murder.  She contends that in order to be

guilty of capital murder in the commission of a robbery, one

must intend to commit robbery before or at the same time he or

she intended to commit the killing.  Appellant asserts that,

under the facts of this case, she did not intend to kill Hanna

until after the completion of the robbery and that the murder

was committed with no regard to the robbery.  Therefore, argues

appellant, because the intent to kill did not occur before or

concomitant with the robbery, the capital murder conviction must

be reversed.

       In support of her argument, appellant cites Branch v.

Commonwealth, 225 Va. 91, 300 S.E.2d 758 (1983), Bunch v.

Commonwealth, 225 Va. 423, 304 S.E.2d 271, cert. denied, 464

U.S. 977 (1983), and Edmonds v. Commonwealth, 229 Va. 303, 329

S.E.2d 807, cert. denied, 474 U.S. 975 (1985).

       In Branch, witnesses saw Branch burn the contents of the

victim's wallet fifteen to twenty minutes after the fatal

shooting.  Branch and a friend drove the victim's corpse to

another location, where they left it.  See 225 Va. at 93, 300

S.E.2d at 759.  Branch attacked the robbery indictment, arguing

that "the evidence 'was insufficient . . . to establish specific

intent to steal the wallet contemporaneous with the shooting.'"  

Id. at 94, 300 S.E.2d at 759.  Branch asserted that "'[t]he

clear motive of removing the wallet and identification cards was

to thwart police efforts in identification of the corpse' -- an

intention not formulated until well after all violence against

the victim had been consummated and [the victim] was dead."  Id.  

The Supreme Court stated:

Here, as in Whitley[v. Commonwealth, 223 Va.

66, 286 S.E.2d 162 (1982),] and Wm.

Patterson[v. Commonwealth, 222 Va. 653, 283

S.E.2d 212 (1981)], the question is whether

robbery was the motive for the killing.  

Branch's conduct, both before and after the

killing, negates any inference that he had

conceived an intent to rob at the time he

shot his victim.  Up to that point, Branch

had actually offered [the victim] money in

an effort to resolve an argument and "to get

[the victim] out of my house."  The effort

failed, the argument continued, and the

killing occurred.  Branch's conduct

thereafter shows that he was motivated by no

other purpose than to cover up the crime he

had committed.  He personally supervised and

participated in the group's efforts to find

and destroy [the victim's] identification

documents and to dispose of his body.  The

record shows that the violent killing and

the unlawful taking were two separate acts,

performed for entirely different reasons.  

Because it is clear that Branch possessed no

intent to steal at the moment the shooting

occurred, we hold that the evidence was

insufficient as a matter of law to support

his conviction of robbery.  

225 Va. at 95-96, 300 S.E.2d at 760.



       In Bunch, the defendant was convicted of capital murder and

sentenced to death for robbing and murdering a woman with whom

he was having an intimate affair.  One of the issues raised by

Bunch was the sufficiency of the evidence of robbery to support

his capital murder conviction.  Bunch maintained "the evidence

was sufficient to make a prima facie case of homicide and

larceny, but not of capital murder in the commission of

robbery."  225 Va. at 439, 304 S.E.2d at 280.  The Supreme Court

found

that on January 31, 1982, Bunch went to [the

victim's] home with the intent to kill her

and steal her property, that he did kill her

as planned, and that he did steal property

from her person.  She may or may not have

been alive at the time he stole her

property, and she may even have been dead

for some time when he accomplished the

theft.  Neither of these eventualities is

material, however; the important

considerations are that robbery was the

motive for the killing and that Bunch had

the intent to rob when he killed [the

victim].  Nor does it make any difference

whether, as Bunch asserts, "the items

[stolen] could have been taken from parts of

the residence away from where the victim was

shot."



Id. at 440, 304 S.E.2d at 280-81 (emphasis added).  The issue

addressed in Bunch was whether a robbery was committed.

       In Edmonds, a witness, Clark, saw appellant walking toward

a small grocery store.  See 229 Va. at 305, 329 S.E.2d at 809.  

Ten minutes later, another witness, McDaniel, found the store

owner dead inside the store.  See id.  That witness "saw Edmonds

and another man standing at the front door."  Id.  Edmonds left

the scene when he heard the police sirens.  See id. at 306, 329

S.E.2d at 810.  Although a witness noticed "a stack of ones in

the register" shortly before the murder, the police found no

currency when they arrived.  Id.  A twelve-year-old witness

looked through the store window just before McDaniel discovered

the body and "saw a man he later identified as Edmonds 'stooping

below the cash register.'"  Id.  Witnesses saw Edmonds with

dollar bills after the murder.  See id.  Another witness

testified that the victim "had told her that Edmonds had stolen

some watches from his store and was no longer welcome as a

customer."  Id.  Another witness testified that Edmonds told her

that the victim accused him of stealing the watches and "'said

he was going to get [the victim].'"  Id.

       After providing authorities with two earlier accounts

incriminating someone else, Edmonds said he went to the store to

buy a soft drink, at which time the victim aimed a pistol at him

and asked about the stolen watches.  See id.  Edmonds told the

victim he paid for the watches, but the victim cursed him and

threatened to shoot him, so Edmonds threw a brick at the victim,

striking him on the head.  The victim dropped the gun

momentarily, and, when he picked it up again, Edmonds grabbed a

"butcher knife and '[t]he man got cut.'"  Id. at 308, 329 S.E.2d

at 811.  Edmonds claimed the victim was alive and calling for

help when he left the store; on the way out, Edmonds said he

"picked up a handkerchief and a bag of candy."  Id.  Edmonds

denied taking the gun or the money.  See id.  

       Relying on Bunch, "Edmonds argue[d] that . . . the homicide

offense d[id] not rise to the level of capital murder in the

commission of robbery" because "the larceny occurred only after

the killing was consummated and that the evidence [wa]s

insufficient to prove that robbery was the motive for the

killing."  Id. at 309-10, 329 S.E.2d at 812 (emphasis added).

       Despite Edmonds' statement to police that the sole purpose

for going to the store was to buy a cold drink, the court found

it unlikely that one accused of shoplifting would return to the

shop to make a purchase.  See id. at 310, 329 S.E.2d at 812.

The Court explained:



Rejecting Edmonds' claim, the trial judge

was justified in relying on the sworn

testimony and the physical evidence adduced

at trial.  All the offenses -- the initial

assault, the fatal stabbing, and the larceny

-- were committed at some point within the

ten-minute interval between the time

Margaret Clark saw Edmonds on his way to the

store and the time Leonard McDaniel arrived.  

Death from the neck wound was not

instantaneous.  [The victim] was calling for

help as Edmonds was crouching behind the

cash register, and it is reasonable to

believe that the gag was applied to stifle

further outcry and to facilitate the theft.

       In light of the inferences raised by

this sequence of events and the time factor

involved, we are of opinion that the

evidence supports the conclusion that the

killing and the theft were interdependent

objects of a common criminal design, and we

will affirm the conviction of capital murder

in the commission of robbery.  

Id. at 310, 329 S.E.2d at 812-13 (emphasis added).



       In Edmonds, the Supreme Court did not use language

requiring the Commonwealth to prove that the robbery was a

motivating cause for the killing.  Instead, it found a

sufficient causal connection between the murder and robbery to

affirm the capital murder conviction by concluding "that the

killing and the theft were interdependent objects of a common

criminal design."  Id. at 310, 329 S.E.2d at 813.

       In addition to these three cases cited by appellant, many

other Supreme Court cases have interpreted the language used in

Code   18.2-31(4), "killing of any person in the commission of a

robbery or attempted robbery," and have discussed the requisite

relationship and causal connection between the murder and the

robbery in order to sustain a capital murder conviction.  We

will analyze some of those cases in order to interpret further

the statute and determine its proper application.

       In Briley v. Commonwealth, 221 Va. 532, 273 S.E.2d 48

(1980), cert. denied, 451 U.S. 1031 (1981), Linwood Briley was

convicted of capital murder in the commission of robbery.  

Briley and three accomplices accosted the victim outside a

restaurant, robbed him at gunpoint of his wallet, ordered him

into the victim's car, and transported the victim to an isolated

location.  See id. at 534-35, 273 S.E.2d at 50.  When the victim

"'started struggling'" at that location, Briley shot him.  Id.

at 535, 273 S.E.2d at 50.  Fifteen to twenty minutes elapsed

from the time the victim was robbed and seized until he was

killed.  See id.  After driving around in the victim's car,

Briley and his accomplices eventually stripped it of its parts.  

See id. at 536, 273 S.E.2d at 50.  Briley's "major contention"

on appeal was "that the trial court erred in refusing a defense

instruction which would have permitted the jury to find that the

robbery of [the victim] terminated at the . . . restaurant and,

therefore, that the defendant was guilty only of the non-capital

offense of first degree murder in the subsequent killing."  Id.

at 540, 273 S.E.2d at 53.  The Supreme Court found that the

victim's car "was a fruit of the robbery" showing "conclusively

that the violence against [the victim] and the trespass to his

automobile combined and continued unabated" from the initial

taking until the murder.  Id. at 544, 273 S.E.2d at 55.  

Adapting language from Haskell v. Commonwealth, 218 Va. 1033,

243 S.E.2d 477 (1978), a felony-murder case, the Court ruled

"that the killing involved here was so closely related in time,

place, and causal connection as to make the killing, as a matter

of law, a part of the same criminal enterprise."  Id. at 544,

273 S.E.2d at 55-56 (emphasis added).

       In Pope v. Commonwealth, 234 Va. 114, 116-17, 360 S.E.2d

352, 354 (1987), cert. denied, 485 U.S. 1015 (1988), Pope was

convicted of capital murder under former Code   18.2-31(d), now

Code   18.2-31(4), malicious wounding, attempted robbery and

four counts of using a firearm.  Pope contended "that the

evidence was insufficient to support his conviction of robbery,

and was consequently insufficient to establish the predicate for

capital murder under Code   18.2-31(d), which classifies as

capital murder those killings which are perpetrated 'in the

commission of robbery.'"  Id. at 124, 360 S.E.2d at 359.  He

contended:  (1) someone else stole the murder victim's purse

after appellant fled the scene and while the murder victim's

sister, who Pope also shot, ran into the hospital and left the

murder victim in the car unattended for less than thirty

seconds; and (2) he removed the murder victim's "purse

surreptitiously before the shooting and concealed it on his

person" so as to break any temporal and causal connection

between the murder and robbery.  Id.  The Supreme Court found

that the first contention "framed a factual issue" that the jury

was entitled to conclude "was neither reasonable nor persuasive"

and that, under Briley, Pope's second contention was "fallacious

as matter of law."  Id. at 124-25, 360 S.E.2d at 359.

       The Court explained:

We decided in Linwood Earl Briley v.

Commonwealth, . . . that when a killing and

a taking of property are so closely related

in time, place, and causal connection as to

make them parts of the same criminal

enterprise, the predicates for capital

murder under Code   18.2-31(d) are

established.  Further, these relationships

need not necessarily be jury questions.  

They may, in a proper case, be determined as

a matter of law.  

Id. at 125, 360 S.E.2d at 359 (citation omitted).



       In LeVasseur v. Commonwealth, 225 Va. 564, 304 S.E.2d 644

(1983), the Supreme Court employed the above-quoted language

from Briley and then said:

       Applying these principles to the

evidence before us, it is manifest that the

robbery and the murder of Pamela Benner are

even more inextricably connected than the

crimes in Briley.  The victim was, in the

absence of her family, the custodian of the

home and its contents.  The property was

stolen through the exercise of violence

against her.  The bloodstains on the

splintered doors to the locked bedrooms in

which the stolen property was kept are

circumstantial evidence that her ability to

protect the property had been subdued by

overwhelming violence before the theft

occurred.  While it is impossible to

ascertain the precise time of her death, in

relation to the taking of the property, the

Commonwealth's evidence shows that the

defendant, having gone there to rob her,

bound and beat her with a poker, before he

went upstairs to the kitchen, leaving traces

of blood and hair, to secure the ice pick

and carving fork with which he then stabbed

her repeatedly.

       The defendant's evidence does nothing

to separate the crimes as to time, place, or

causal connection.  Indeed, his version, if

believed, makes it unmistakably clear that

the robbery and the murder were a part of

the same criminal enterprise.



Id. at 591, 304 S.E.2d at 658-59.

       Similar language to that used in Pope and LeVasseur has

been used in other Supreme Court cases to define capital murder

"in the commission of robbery or attempted robbery" under Code

 18.2-31(4).  See George v. Commonwealth, 242 Va. 264, 277-78,

411 S.E.2d 12, 20 (1991), cert. denied, 503 U.S. 973 (1992);

Quesinberry v. Commonwealth, 241 Va. 364, 368, 402 S.E.2d 218,

221 (1991); Poyner v. Commonwealth, 229 Va. 401, 405, 329 S.E.2d

815, 820 (1985); Whitley v. Commonwealth, 223 Va. 66, 73, 286

S.E.2d 162, 166, cert. denied, 459 U.S. 882 (1982); Patterson v.

Commonwealth, 222 Va. 653, 656, 283 S.E.2d 212, 214 (1981).  All

of these cases involved capital murder in the commission of

robbery, and all used substantially the same language used in

Pope and LeVasseur to define capital murder.

ANALYSIS

       Appellant's sufficiency argument is two-fold:  (1) whether

robbery must be one of the motivating factors to convict someone

of capital murder under Code   18.2-31(4), and, if so, (2)

whether the Commonwealth proved the robbery was a motivating

factor for the murder.  According to appellant, the robbery was

incidental to the murder and a mere afterthought.

       Motive is not an essential element of murder.  See Ward v.

Commonwealth, 205 Va. 564, 570, 138 S.E.2d 293, 297 (1964).  

However, motive is generally a relevant circumstance to

establish intent when a conviction is based on circumstantial

evidence.  See Smith v. Commonwealth, 220 Va. 696, 702, 261

S.E.2d 550, 554 (1980).

Intent . . . is a requisite element in many

crimes, but motive is not.  Motive is merely

a circumstance tending to prove the guilt of

the alleged perpetrator, as its absence may

tend to show his innocence.  It is relevant

and probative on the issue of identity of

the criminal agent, but it is not an element

of any crime.  "Motive and intent are not

synonymous.  Motive is the inducing cause,

while intent is the mental state with which

the criminal act is committed . . . .  The

prosecution is never required to prove

motive, although it may do so."  Motive has

never been a requisite element of the crime

of murder in Virginia or in any other

jurisdiction of which we are aware.

Cantrell v. Commonwealth, 229 Va. 387, 397, 329 S.E.2d 22, 28-29

(1985) (citations omitted); see also Brown v. Commonwealth, 238

Va. 213, 221, 381 S.E.2d 225, 230 (1989).

       Based on language used by the Supreme Court and our

analysis of extant case law, we believe that whether the robbery

was a "motivating factor" for the murder is a circumstance that

may be considered in proving whether the "killing and a taking

of property are so closely related in time, place, and causal

connection as to make them parts of the same criminal

enterprise," Pope, 234 Va. at 125, 360 S.E.2d 359, and,

therefore, "were interdependent objects of a common criminal

design."  Quesinberry, 241 Va. at 374, 402 S.E.2d at 224.  

However, we decline to hold that robbery as a motivating factor

is a sine quo non to support a capital murder conviction under

Code   18.2-31(4).  Evidence of motivation goes to a person's

intent and can help prove that a robbery actually was committed

or attempted, see George, 242 Va. at 279-80, 411 S.E.2d at 21-22

(evidence established that defendant "harbored intention" and,

therefore, "was motivated" both to molest and to rob victim;

holding that such evidence established murder "so closely

related in time, place and causal connection to the robbery that

the killing became part of the same criminal enterprise as the

robbery"), or it may be employed to show that a possible

post-murder robbery was sufficiently connected to the murder.  

Compare Whitley, 223 Va. at 72-74, 286 S.E.2d at 166-67 (where

defendant took victim's property after murder, Supreme Court

rejected defendant's argument that intent to steal was formed

after murder resulting in mere larceny and found sufficient

evidence for jury to conclude that "murder was committed with

intent to rob" to fit within capital murder statute), with

Branch, 225 Va. at 95-96, 300 S.E.2d at 760 (no evidence of

intent to rob where idea to take and destroy victim's

identification from his wallet occurred only after alleged

accidental murder; holding evidence insufficient as a matter of

law to support robbery conviction).

       Accordingly, we hold that in order for a murder to be

committed "in the commission of robbery or attempted robbery"

the killing must be "so closely related in time, place, and

causal connection as to make the killing . . . a part of the

same criminal enterprise."  Briley, 221 Va. at 544, 273 S.E.2d

at 56.  In establishing this relationship, sufficient evidence

must be presented from which the fact finder can conclude that

the killing and robbery were "interdependent objects of a common

criminal design."  Edmonds, 229 Va. at 310, 329 S.E.2d at 813.  

In some situations, such as a post-murder theft of property,

proof that robbery was the motive for the killing may help

establish the requisite causal connection to support a verdict

that a murder occurred in the commission of robbery.  See Bunch,

225 Va. at 440, 304 S.E.2d at 280-81 (addressing defendant's

argument that taking occurred one to two hours after murder and,

thus, was larceny rather than robbery and affirming based on

evidence that robbery was motive for killing).  Therefore,

motivation may be a factor subsumed in the more encompassing and

comprehensive requirement that the murder and robbery be a part

of the same criminal enterprise and interdependent objects of a

common criminal design.

       For example, where a murder follows a robbery closely in

time and circumstances, it is reasonable to infer that the

motive for the murder was to escape detection and/or eliminate

witnesses.  See Poyner, 229 Va. at 423, 329 S.E.2d at 836.  In

other words, where the predicate crime occurs first, it is

enough if the murder and robbery share enough of a relationship

or connection in time and purpose such that a fact finder can

reasonably conclude a sufficient causal nexus exists between

them.

       Based on our interpretation of extant case law and the

facts of this case, we need not rely on or limit our analysis

merely to motivation.  Here, the robbery occurred before the

murder;  therefore, the question is whether the murder and

robbery were part of the same criminal enterprise and

interdependent objects of a common criminal design.

Where [a] defendant challenges the

sufficiency of the evidence, it is our duty

under familiar principles "to look to that

evidence which tends to support the verdict

and to permit the verdict to stand unless

plainly wrong.  If there is evidence to

sustain the verdict, this court should not

overrule it and substitute its own judgment,

even if its opinion might differ from that

of the jury."

George, 242 Va. at 278, 411 S.E.2d at 20 (citation omitted).  

Thus, we look at the evidence before the jury, sitting as fact

finder, and the reasonable inferences drawn from the evidence to

determine whether sufficient evidence was before the jury from

which it could find appellant guilty beyond a reasonable doubt.

       On Saturday night, July 26, 1997, when Tibbs, Winckler,

Cull and Bitner began discussing a plan to teach Hanna a lesson

in the form of an "ass whipping," they may not have intended

that the affair would end up in murder, robbery, and abduction.  

However, they entered into an enterprise known as concert of

action, which is defined as "'action that has been planned,

arranged, adjusted, agreed on and settled between parties acting

together pursuant to some design or scheme.'"  Rollston v.

Commonwealth, 11 Va. App. 532, 542, 399 S.E.2d 823, 827 (1991).

       In Spradlin v. Commonwealth, 195 Va. 523, 79 S.E.2d 443

(1954), the Supreme Court said:

If there is concert of action with the

resulting crime one of its incidental

probable consequences, then whether such

crime was originally contemplated or not,

all who participate in any way in bringing

it about are equally answerable and are

bound by the acts of every other person

connected with the consummation of such

resulting crime.  The question of whether

the offense is the natural and probable

result of the intended wrongful act is

usually for the jury.  

Id. at 558, 79 S.E.2d at 445.

       The jury as fact finder knew that Hanna was alive when the

group made its last stop at Nash Road.  Prior to that time,

there was conversation about taking Hanna to a hospital, but

this was rejected for fear of disclosure.  Bitner "suggested

that we cut out her tongue so she couldn't talk," and Winckler

"said that we need to cut off her fingers so she couldn't

write."  Cull, Bitner, Winckler and Tibbs got out of the car and

went to the trunk.  Winckler forced a badly beaten Hanna to

relinquish her rings and watch.  The rings and watch were

delivered pursuant to demand, after which Hanna was taken down a

dirt road.  At first, Hanna walked, but when unable to do so,

the group carried her.  En route down the dirt road, Bitner,

Tibbs and Winckler were in possession of box cutter razor knives

which they used to cut Hanna from time to time.  Bitner

testified that Hanna was bleeding "really, really bad" as she

was carried down the dirt road.  When the group arrived at a mud

puddle, they stopped, and Tibbs and Winckler removed Hanna's

clothing because it allegedly belonged to Tibbs.  Bitner

testified that Hanna "was pushed in the mud."  Bitner further

testified as follows during direct examination:

Q.  What happened, she went down in the mud?

A.  Uh huh.

Q.  Was she on her back or on her stomach?

               A.  She was on her stomach.

               Q.  What happened when she went down

                   in the mud on her stomach?



               A.  Domica [Winckler] stabbed her in

                   the chest a couple of times with

                   the box cutter.

                   

Q.  What did Kelley Tibbs do?

               A.  Just punched her and stuff.

               

Q.  What did you do?

*      *      *      *      *      *      *



               A.  I cut her on her throat.



*      *      *      *      *      *      *



               Q.  What did you see Ms. Tibbs do at

                   that point?

A.  Choke her.

       As the group and Hanna proceeded down the dirt road, Vaughn

was in the car, unable to see them.  Vaughn "heard a cry and

then [she] heard another cry and then [she] heard the cry get

muffled, something, and that was it."  The dastardly deed was

accomplished.

       This case involved four codefendants who inflicted two

beatings on the victim in two locations removed from each other.  

After the first attack, the codefendants transported Hanna to

the second location and robbed her of her watch and jewelry.  

Immediately thereafter, appellant, Bitner and Winckler

forcefully accompanied Hanna down the Nash Road path and

actively participated in causing her death.  The killing of

Hanna immediately after she was robbed and taken from the trunk

"was so closely related in time, place, and causal connection as

to make the killing, as a matter of law, a part of the same

criminal enterprise."  Briley, 221 Va. at 544, 273 S.E.2d at

55-56.  This temporal relationship established "that the killing

and the theft were interdependent objects of a common criminal

design."  Edmonds, 229 Va. at 310, 329 S.E.2d at 813.

       Moreover, the jury could reasonably infer that Winckler,

acting in concert with appellant in committing the murder, took

Hanna's watch and participated with appellant in murdering Hanna

so she could keep the watch and silence Hanna.  After the crime,

Winckler kept the watch and was wearing it when the police

arrested her.  Furthermore, two of Hanna's rings were never

recovered, providing the jury with evidence that one of the

other co-actors in the murder may have desired and retained

Hanna's property.  From this evidence, the jury could have

concluded that co-actor Winckler, at least, coveted Hanna's

property and that appellant acted for the dual purpose of

silencing Hanna and furthering Winckler's acquisition of Hanna's

property.

       The Commonwealth's evidence was competent, was not

inherently incredible and was sufficient to prove beyond a

reasonable doubt that appellant committed a murder in the

commission of robbery.  Accordingly, we affirm appellant's

capital murder conviction.

                                                                                       Affirmed.



Elder, J., dissenting.

       I join generally in the majority's recitation of the facts

and the law, but I disagree with its application of the law to

the facts.  Therefore, I respectfully dissent.

       The relevant version of Code   18.2-31 provided that "[t]he

willful, deliberate and premeditated killing of any person in

the commission of robbery or attempted robbery" constitutes

capital murder.  For a murder to be committed "in the commission

of robbery or attempted robbery," the killing must be "so

closely related in time, place, and causal connection as to make

the killing . . . a part of the same criminal enterprise."  

Briley v. Commonwealth, 221 Va. 532, 544, 273 S.E.2d 48, 56

(1980) (emphasis added).  In establishing this relationship, the

record must contain sufficient evidence from which the fact

finder can conclude that the killing and robbery are

"interdependent objects of a common criminal design."  Edmonds

v. Commonwealth, 229 Va. 303, 310, 329 S.E.2d 807, 813 (1985).  

As the majority acknowledges, determining whether the record

contains such evidence necessarily involves an examination of

the perpetrators' intent.  See slip op. at 21-22; Whitley v.

Commonwealth, 223 Va. 66, 72-74, 286 S.E.2d 162, 166-67 (1982)

(holding evidence sufficient to support finding that "murder was

committed with intent to rob" to fit within capital murder

statute but noting that proof of coexistence of intent to kill

and intent to steal may not be required under the statute when

the killing and robbery are part of a continuing criminal

enterprise).

       Intent may and often must be proved by circumstantial

evidence.  See Whitley, 223 Va. at 73, 296 S.E.2d at 166.  A

perpetrator's motive in committing an offense, although not an

element of murder, is a circumstance relevant to establishing

intent.  See Smith v. Commonwealth, 220 Va. 696, 702, 261 S.E.2d

550, 554 (1980).  His conduct and statements also may be

relevant circumstantial evidence of motive and, thus, intent.  

See Long v. Commonwealth, 8 Va. App. 194, 198, 379 S.E.2d 473,

476 (1989).  Circumstantial evidence "is as competent and is

entitled to as much weight as direct evidence, provided it is

sufficiently convincing to exclude every reasonable hypothesis

[flowing from the evidence] except that of guilt."  Coleman v.

Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983); see

Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27,

29 (1993).  Although an accused may try to prove his lack of

intent by testifying about it or offering evidence of his

statements to police or others, the trier of fact is entitled to

assess the credibility of the testimony or statements and to

reject them in whole or in part.  See Pugliese v. Commonwealth,

16 Va. App. 82, 92, 428 S.E.2d 16, 24 (1993).

       The majority asserts that "where a murder follows a robbery

closely in time and circumstances, it is reasonable to infer

that the motive for the murder was to escape detection [of the

robbery] and/or eliminate witnesses."  It cites Poyner v.

Commonwealth, 229 Va. 401, 432, 329 S.E.2d 815, 836 (1985), in

support of this proposition.  I agree that this inference is

appropriate where the only reasonable hypothesis flowing from

the evidence, viewed in the light most favorable to the

Commonwealth, is that the motive for the murder was, as stated,

to escape detection for the robbery.  In fact, this was the case

in Poyner, where the defendant robbed an ice cream store and

immediately shot the only witness.  See id.  The record provided

no evidence that the victim's body was "mutilated . . . [or]

raped" and, therefore, no evidence of any other motive or intent

for the murder.  See id.  Under those circumstances, the court

held the fact finder "could reasonably have concluded that [the

defendant] killed [the victim] to prevent her from calling for

help and to keep her from identifying him as the robber."  Id.

at 433, 329 S.E.2d at 836.

       Similarly, in Whitley, the evidence, viewed in the light

most favorable to the Commonwealth, supported the jury's finding

that the defendant murdered the victim in order to steal her

car.  See Whitley, 223 Va. at 72-74, 286 S.E.2d at 166-67.  It

established that, on the night of the murder, the defendant's

car was "broken down," the defendant previously had expressed an

interest in buying a car from the victim's daughter, and the

defendant killed the victim, took her car keys and stole her

car.  See id. at 73-74, 286 S.E.2d at 166.  The defendant had

presented the hypothesis that his statements to police (in which

he said that he entered the victim's house to use the phone and

that the victim said something which "provoked the fatal

attack") and the physical evidence (which established that he

removed the victim's clothing and sexually assaulted her with

two umbrellas) required a finding that "the killing was the act

of a 'sexual psychopath' and that the larceny [of the

automobile] was committed 'only as an after-thought.'"  Id. at

72-73, 286 S.E.2d at 166.  The Court held "the jury logically

could have concluded that both sex and robbery motivated [the

defendant's] conduct," despite the fact that the taking may not

have occurred until after the victim's death and that the jury

was entitled to reject the defendant's statements about what

occurred and why.  Id. at 73-74, 286 S.E.2d at 166.  Once the

jury rejected the defendant's statements, the only hypothesis

flowing from the remaining evidence--viewed in the light most

favorable to the Commonwealth--was that the defendant's desire

to steal the victim's car was a motive for the murder, although

the physical evidence supported a finding that he had multiple

motives.

       In appellant's case, in contrast to Whitley, the

Commonwealth's evidence established merely the possibility of

multiple intents.  The evidence did not exclude the reasonable

hypothesis that the perpetrators acted with only one intent in

killing the victim--to prevent her from identifying them as the

people who had viciously beaten and cut her--and that the

robbery was, as appellant argues, merely an afterthought, even

though it occurred before the killing.  The Commonwealth's

evidence makes clear that the perpetrators' original intent was

to "kick [the victim's] ass" because she had lied to appellant.  

After inflicting the beating, they expressed fear that the

victim "was going to tell," and they put her in the trunk of the

car and discussed how to keep her from doing so.  They then

drove to another location where they stood around the trunk and

told the victim to relinquish all of her jewelry.  After she did

so, they removed her from the trunk, walked her down a dirt

road, and removed most of her clothing.  They continued to kick,

beat, cut and stab her, and she eventually died.  Although two

of the victim's rings were abandoned and others were never

found, one of the perpetrators kept and wore the victim's watch.

       Thus, the evidence, viewed in the light most favorable to

the Commonwealth, establishes that the perpetrators acted with

an intent to cover up the beating and that this was a motive for

the victim's murder.  Although they may also have acted with the

dual intent to cover up the robbery, no direct evidence supports

such a finding, and the circumstantial evidence that appellant

or any of her accomplices harbored such an intent is minimal;

the only such evidence is the fact of the robbery itself,

Winckler's keeping the victim's watch, and the subsequent

killing of the victim.  

       Another reasonable hypothesis flowing from the

circumstantial evidence, even viewed in the light most favorable

to the Commonwealth, is that appellant and her accomplices

intended to kill the victim solely to cover up the beating.  

Thus, in contrast to Whitley, this hypothesis of innocence flows

from the Commonwealth's evidence and does not require acceptance

of the subsequent statements of appellant or her accomplices.

       Therefore, although the evidence establishes that the

robbery and murder were "closely related in time [and] place," I

would hold that it fails, as a matter of law, to establish the

"causal connection" necessary to support a finding that the

killing and robbery were "interdependent objects of a common

criminal design."  The evidence fails to prove that this offense

constituted murder "in the commission of robbery" and

established, at most, robbery in the commission of murder, which

does not meet the requirements of Code   18.2-31.  That

appellant and her accomplices may have acted in concert in

committing robbery and murder does not, without more, render the

murder an act of capital murder.

       For these reasons, I would reverse appellant's conviction

for capital murder.  Therefore, I respectfully dissent.



 Appellant does not challenge the sufficiency of the

evidence to prove this prong of the capital murder offense.

 Because the robbery preceded the murder, it cannot, as

argued by appellant, be regarded an afterthought.  









1





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