COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Kelsey and Senior Judge Willis Argued at Chesapeake, Virginia

MICHAEL ANDRE OW ENS, 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. Hans on, Jr., Judge (Allyson Denise Lee, on brief), for appellant. Appellant submitting on brief. Virginia B. Theisen, Senior As sistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

On appeal from his conviction of possession of burg lary tools, Michael Owens contends that the evidence was insufficient to su pport the trial court’s finding th at 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 ev idence in the light most fa vorable to the Commonwealth, granting to it all reasonable inferenc es 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 ho urs of June 20, 2007, while a passenger in a car driven by Venject Billups, Owens told Billups and Cornelius Burn ey that there wa s money inside Sh aquitta Gilliams’ house located at 2114 Kimb all Circle in Virginia Beach. He sa id no one was home . The three men agreed they would break into the house and take the mone y. Owens directed B illups to the house.- 2 - Burney testified that when they arrived, he an d Billups exited the car an d 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 glas s patio door. The glass door shattered. When the glass broke, Burney and Billups abandoned the burgla ry and fled. Burney “t ossed” the screwdriver. The house was occupied. The occupants ca lled the police, who responded and arrested Billups and Burney in the neig hborhood. Sergeant Knight found Owens “l aying on the [rear] floorboard” of the car. Owens gave a false name. At the conclusion of the evidence, Owens move d 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 attemp ted burglary as a principal in the second degree, conspiracy to commit bur glary, and possession of burglary t ools. We denied his petition for appeal on the attempted burglary and conspi racy 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 po ssession any tools, implements or outfit, with intent to commit bur glary, robbery or larceny, upon conviction thereof he shall be gu ilty of a Class 5 felony. The possession of such burglarious tool s, implements or outfit by any person other than a licensed dealer, shall be prima facie evidence of an intent to commit burglary or larceny.- 3 - “Possession [of a burglary tool or to ols] 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 constitute s constructive possession by all th e conspirators). Moreover, a co-conspirator may be criminally li able for an act of another member of the conspiracy if the act is “done in the furtherance of the conspiracy” an d 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 th e object of the confederacy, are responsible for such incidental cr ime. 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 th e 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 wa s 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- 4 - 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 conf ederate 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 le nding 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 Ke ntucky Supreme Court decision in acknowledging that one engaged in a joint ente rprise may be convict ed of constructive possession of burglary tools “although actual custody of the to ols at the time was in an accomplice.” Burnette , 194 Va. at 792, 75 S.E.2d at 487 (exp laining that Kentucky’s burglary tool possession statute was substantia lly similar to Virginia’s) (citing Commonwealth v. Robinson , 45 S.W.2d 844 (Ky. 1932)). The Court revers ed the conviction in that case because the Commonwealth failed to prove the defenda nts “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 tool s under the front seat a nd in the trunk of a car occupied by Burnette and a companion and charge d Burnette with possession of burglary tools. The Supreme Court acknowledged the principle of constructive possessio n 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- 5 - underlying crime or conspiracy to commit such a crime, the evidence was insufficient to support Burnette’s conviction for po ssessing 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 ch arges. When Burney attempted to burglarize the residence with the screwdriver, a probable asp ect of the burglary attempt, Owens, who set in motion and participated in the burglary plan, wa s 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.