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

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 

 1

 Appellant does not challenge the sufficiency of the 

evidence to prove this prong of the capital murder offense. 
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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 
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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, 
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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 
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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 
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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. 
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 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, 
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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 
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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 
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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 
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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. 
- 21 - 

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 
- 22 - 

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, 
- 23 - 

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;2 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 

 2

 Because the robbery preceded the murder, it cannot, as 

argued by appellant, be regarded an afterthought. 
- 24 - 

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 
- 25 - 

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. 
- 26 - 

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 
- 27 - 

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 
- 28 - 

commission of robbery. Accordingly, we affirm appellant's 

capital murder conviction. 

 Affirmed. 
- 29 - 

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 
- 30 - 

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 
- 31 - 

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 
- 32 - 

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 
- 33 - 

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. 
- 34 - 

 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.