COURT OF APPEALS OF VIRGINIA 

Present: Judges Humphreys, Kelsey and Senior Judge Willis 

Argued at Chesapeake, Virginia 

MICHAEL ANDRE OWENS, S/K/A 

 MICHAEL LEVY OWENS 

 OPINION BY 

v. Record No. 0618-08-1 JUDGE JERE M.H. WILLIS, JR. 

 MAY 5, 2009 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Edward W. Hanson, Jr., Judge 

 (Allyson Denise Lee, on brief), for appellant. Appellant submitting 

on brief. 

 Virginia B. Theisen, Senior Assistant Attorney General (Robert F. 

McDonnell, Attorney General, on brief), for appellee. 

 On appeal from his conviction of possession of burglary tools, Michael Owens contends that 

the evidence was insufficient to support the trial court’s finding that he possessed such tools in 

violation of Code § 18.2-94. We affirm the judgment of the trial court. 

Background

“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) (quoting Martin v. Commonwealth, 4 Va. App. 

438, 443, 358 S.E.2d 415, 418 (1987)). 

 In the early morning hours of June 20, 2007, while a passenger in a car driven by Venject 

Billups, Owens told Billups and Cornelius Burney that there was money inside Shaquitta Gilliams’ 

house located at 2114 Kimball Circle in Virginia Beach. He said no one was home. The three men 

agreed they would break into the house and take the money. Owens directed Billups to the house. 
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 Burney testified that when they arrived, he and Billups exited the car and headed for the rear 

of the house, while Owens remained in the car. Burney carried a screwdriver with which he tried to 

pry open the sliding glass patio door. The glass door shattered. When the glass broke, Burney and 

Billups abandoned the burglary and fled. Burney “tossed” the screwdriver. 

 The house was occupied. The occupants called the police, who responded and arrested 

Billups and Burney in the neighborhood. Sergeant Knight found Owens “laying on the [rear] 

floorboard” of the car. Owens gave a false name. 

 At the conclusion of the evidence, Owens moved to strike, arguing: 

There’s been no - - there’s no proof of any conspiracy other than 

the uncorroborated statement of Mr. Burney. There’s no proof - - 

there’s no evidence that Mr. Owens took p[art] in any burglary. 

No burglary tools were found on Mr. Owens. And as a matter of 

fact, Mr. Burney’s the one who said that those tools, I think it was 

the screwdriver, was with him. 

 The trial court convicted Owens of attempted burglary as a principal in the second 

degree, conspiracy to commit burglary, and possession of burglary tools. We denied his petition 

for appeal on the attempted burglary and conspiracy convictions, but granted an appeal on his 

challenge to the sufficiency of the evidence to support his conviction for possessing burglary 

tools. Unquestionably, the screwdriver employed by Burney was a burglary tool. 

Analysis

Owens contends that no evidence proved he possessed or exercised dominion and control 

over any burglary tool. 

Code § 18.2-94 provides as follows: 

If any person have in his possession any tools, implements or 

outfit, with intent to commit burglary, robbery or larceny, upon 

conviction thereof he shall be guilty of a Class 5 felony. The 

possession of such burglarious tools, implements or outfit by any 

person other than a licensed dealer, shall be prima facie evidence 

of an intent to commit burglary or larceny. 
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“Possession [of a burglary tool or tools] may be joint or several.” Burnette v. 

Commonwealth, 194 Va. 785, 792, 75 S.E.2d 482, 487 (1953) (explaining that use of burglary 

tools by co-conspirator constitutes constructive possession by all the conspirators). Moreover, a 

co-conspirator may be criminally liable for an act of another member of the conspiracy if the act 

is “done in the furtherance of the conspiracy” and can “be reasonably foreseen as a necessary or 

natural consequence of the” conspiracy. Pinkerton v. United States, 328 U.S. 640, 647-48 

(1946). 

All those who assemble themselves together with an intent to 

commit a wrongful act, the execution whereof makes probable, in 

the nature of things, a crime not specifically designed, but 

incidental to that which was the object of the confederacy, are 

responsible for such incidental crime. Hence, it is not necessary 

that the crime should be a part of the original design; it is enough if 

it be one of the incidental probable consequences of the execution 

of that design, and should appear at the moment to one of the 

participants to be expedient for the common purpose. 

Brown v. Commonwealth, 130 Va. 733, 738, 107 S.E. 809, 811 (1921). 

In Carter v. Commonwealth, 232 Va. 122, 348 S.E.2d 265 (1986), the Supreme Court 

held that a person engaged in a criminal concert of action with others incurs vicarious criminal 

responsibility for the use of a firearm in the commission of a felony even though the person did 

not use the firearm or know his co-actor possessed it. Id. at 126, 348 S.E.2d at 267 (holding that 

the evidence warranted an inference that Carter’s participation in a plan to rob victim made him 

liable for using a firearm because the shooting was done as incident of a common purpose). The 

Court explained: 

In these circumstances, each co-actor is criminally responsible for 

the shooting, even those who did not intend it or anticipate that it 

would occur. Because they shared the common intent to rob, they 

shared the common intent to commit all of the elements of robbery, 

including the use of such force, violence, or intimidation as would 

be expedient for the accomplishment of their purpose. An 

incidental probable consequence of such a shared intent was the 

use of a weapon, including a firearm if one should be at hand. In 
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such circumstances, the law is well settled in Virginia that each 

co-actor is responsible for the acts of the others, and may not 

interpose his personal lack of intent as a defense. 

Id. at 126, 348 S.E.2d at 267-68. 

“A person assisting his confederate to commit a crime is accountable for all crimes 

committed by the confederate in furtherance of the criminal enterprise, even though the 

accomplice may never have intended that the second felony would be committed.” Jones v. 

Commonwealth, 15 Va. App. 384, 387, 424 S.E.2d 563, 565 (1992). “As long as the felony 

actually committed by the principal was a probable consequence of the execution of the 

originally intended criminal design, the person lending assistance is accountable as a principal in 

the second degree to the felony subsequently committed.” Id. at 388, 424 S.E.2d at 565. 

In Burnette, the Supreme Court relied on a Kentucky Supreme Court decision in 

acknowledging that one engaged in a joint enterprise may be convicted of constructive 

possession of burglary tools “although actual custody of the tools at the time was in an 

accomplice.” Burnette, 194 Va. at 792, 75 S.E.2d at 487 (explaining that Kentucky’s burglary 

tool possession statute was substantially similar to Virginia’s) (citing Commonwealth v. 

Robinson, 45 S.W.2d 844 (Ky. 1932)). The Court reversed the conviction in that case because 

the Commonwealth failed to prove the defendants “conspired to commit a crime, or that 

defendant had committed any criminal act.” Id. Such is not the case here. 

 In Burnette, police found burglary tools under the front seat and in the trunk of a car 

occupied by Burnette and a companion and charged Burnette with possession of burglary tools. 

The Supreme Court acknowledged the principle of constructive possession of burglary tools by 

one engaged in a joint enterprise. It reversed Burnette’s conviction because the Commonwealth 

did not prove that Burnette and his companion “had conspired to commit a crime, or that 

[Burnette] had committed any criminal act.” Id. at 793, 75 S.E.2d at 487. Absent proof of an 
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underlying crime or conspiracy to commit such a crime, the evidence was insufficient to support 

Burnette’s conviction for possessing burglary tools. Id. The Burnette holding is distinguishable 

from this case. The Commonwealth proved that Owens and his companions conspired to 

commit burglary and that he was a principal in the second degree to the attempt to consummate 

that conspiracy. He stands convicted of those charges. When Burney attempted to burglarize the 

residence with the screwdriver, a probable aspect of the burglary attempt, Owens, who set in 

motion and participated in the burglary plan, was criminally liable as a principal in the second 

degree. See Carter, 232 Va. at 126, 348 S.E.2d at 267-68 (an incidental, probable consequence 

of intended robbery was use of firearm); Cotter v. Commonwealth, 19 Va. App. 382, 386-87, 

452 S.E.2d 20, 22 (1994); Jones, 15 Va. App. at 387-88, 424 S.E.2d at 565 (person assisting 

confederate is accountable for all crimes committed by confederate that was probable 

consequence of intended criminal enterprise). 

Accordingly, we affirm the judgment of the trial court. 

Affirmed.