COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Annunziata and Overton 

Argued at Richmond, Virginia 

MONIQUE LITTLEJOHN 

 OPINION BY 

v. Record No. 1834-95-2 JUDGE JAMES W. BENTON, JR. 

 MARCH 18, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Robert W. Duling, Judge 

 Kevin M. Schork (Epperly, Follis & Schork, 

P.C., on brief), for appellant. 

 Katherine P. Baldwin, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 A jury convicted Monique Littlejohn of (1) one charge of 

being an accessory before the fact to capital murder, (2) four 

charges of being an accessory before the fact to first degree 

murder, (3) two charges of being an accessory before the fact to 

malicious wounding, and (4) seven charges of being an accessory 

before the fact to the use of a firearm in the commission of a 

felony. This Court granted Littlejohn's appeal on the issues 

whether the trial judge abused his discretion when he denied 

Littlejohn's motion for a change in venue and whether the 

evidence was sufficient to uphold the convictions. Because the 

evidence was insufficient, we reverse the convictions. 

 I. 

 The evidence proved that at approximately 9:30 a.m. on 

October 14, 1994, police officers from the City of Richmond went 
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to 1008 St. James Street, Apartment C, in response to a report of 

multiple shootings. Tamika Jones, a minor, had reported to the 

police by telephone that Christopher Goins had shot her and her 

family. Inside the apartment, the police found two adults and 

three children dead from multiple gunshot wounds. The officers 

also found three baggies of powder and crack cocaine on James 

Randolph, Jones' deceased father, and later learned that Daphne 

Jones, Jones' deceased mother, had cocaine in her blood. Jones 

and one of her infant siblings had been shot but were alive. 

Littlejohn was indicted on fourteen charges of being an accessory 

before the fact to Goins' commission of these crimes. 

 At trial, Jones testified that Goins often visited her 

mother and stayed overnight at their apartment with her mother. 

Although Jones and her parents knew that Goins sold illegal 

drugs, Goins and the Jones family members trusted each other. 

Jones also testified that at one point she wanted to leave home 

and live with an aunt because of all the drug dealing that 

occurred in her family's apartment. Jones testified, however, 

that she developed a close relationship with Goins and on one 

occasion kept for him $2,400 of proceeds from his drug business. 

 Three years after Jones met Goins, she began having a sexual 

relationship with Goins. She was then twelve years old. She 

testified that she became pregnant by Goins in March 1994, when 

she was fourteen years old. Jones testified that although Goins 

was pleased that she was pregnant, when she told Goins that she 
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did not wish to deliver the baby, Goins said he would abide by 

her wishes. However, Goins did not give her money for an 

abortion as he had promised. 

 Devon Hicks, Jones' teenage friend, testified that Jones had 

confided only in him that she and Goins were sex partners. Hicks 

also testified that Jones hid that fact from her mother. No 

evidence established whether Jones' mother knew that Goins was 

the person who had impregnated her daughter. 

 Jones learned in 1993 that Littlejohn also had a sexual 

relationship with Goins. Littlejohn also had become pregnant by 

Goins during the same time period as Jones. In June 1994, 

however, Littlejohn underwent an emergency abortion due to a 

complication with her pregnancy. That same month, Jones' friends 

told Jones that Littlejohn had asked them to beat Jones in order 

to cause Jones to abort her baby. When Jones confronted 

Littlejohn about these allegations, Littlejohn admitted that they 

were true and said that she made the statements only because she 

was upset. Later in June, Jones overheard Littlejohn threaten to 

use a knife to "cut the baby out" of Jones. Littlejohn told 

Jones that if Littlejohn could not have Goins' baby, then neither 

could Jones. 

 Jones also testified that Littlejohn never hit her or shoved 

her and that Littlejohn made no threats against her after June 

1994. Indeed, when Jones was in the hospital at various times 

between July and early October because of her pregnancy, 
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Littlejohn visited Jones several times. Littlejohn, who worked 

at the hospital where Jones was receiving treatment, spent free 

time in Jones' room and on occasion asked if Jones needed things 

that Littlejohn could deliver to her. Although Littlejohn acted 

as a friend and their dispute seemed to have subsided, Jones did 

not believe Littlejohn was sincere. On October 11, 1994, 

Littlejohn visited Jones in her hospital room several times 

during Littlejohn's work breaks. She told Jones that Goins 

"didn't want anything to do with the baby" and that on October 14 

she and Goins planned to go to New York, where Goins' ill father 

lived, to start a new life. She said Jones needed to find 

someone to love her and help her take care of her child. 

 Hicks, Jones' teenage friend who lived across from Jones' 

apartment, testified that on the morning of October 14, between 

8:00 a.m. and 8:30 a.m., he saw Goins and Stefan Winston on the 

porch leading to Jones' apartment. He also saw Barry Scott at 

Jones' door. Hicks, who knew Winston was involved in drugs, told 

Winston that Hicks' brother wanted to see Winston. Hicks then 

returned to his apartment and prepared for school. When Hicks 

was leaving for school, Jones called to him from her window and 

urged him to go to school. At that time, Goins was talking to 

one of Hicks' schoolmates and asked her if she wanted a ride to 

school. 

 Sherwyn Green testified that at 8:30 a.m. on the morning of 

October 14, he drove a friend, who was a cocaine dealer, to the 
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Jones' apartment. The cocaine dealer intended to sell cocaine to 

people in the apartment. When Green and the cocaine dealer 

arrived at the street in front of the apartment, they saw Goins 

and Winston talking outside the Jones' apartment building. Green 

testified that he and the cocaine dealer did not leave Green's 

car. Instead, they "wait[ed] for [Goins and Winston] to leave 

because [the cocaine dealer] didn't want to go up there while 

[Goins] was going up there because it would create a conflict." 

Green feared a conflict because his friend, the cocaine dealer, 

and Goins "both . . . were trying to sell drugs" to people in 

Jones' apartment. Green had been in Jones' apartment previously 

when his friend, the cocaine dealer, sold cocaine there. While 

Green and the cocaine dealer waited in Green's automobile, Goins 

went inside Jones' apartment. After Goins stayed in the 

apartment for a while and Winston remained outside, Green and the 

cocaine dealer drove to a nearby store three blocks away. 

 Jones testified that on the morning of October 14, between 

6:00 a.m. and 9:00 a.m., Barry Scott entered the apartment and 

visited her family. Scott entered the bedroom where Jones was 

playing with her four infant siblings. Scott talked to her and 

looked at the ultrasound "picture" that she had obtained while in 

the hospital. Scott left the apartment but returned ten minutes 

later with Goins. While Goins was in the apartment, Scott 

returned to the bedroom where Jones was and obtained the 

ultrasound "picture." He took the ultrasound "picture" into the 
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living room and showed it to Goins. Goins responded, "I don't 

want to see that. Take it back to her. Why are you showing me 

that . . . ?" When Scott returned the ultrasound "picture" to 

Jones, she admonished him for showing it to Goins and said, "I 

didn't want him to see it." 

 In the ensuing thirty or forty minutes, Jones heard her 

mother, her father, Scott, and Goins talking and laughing in the 

living room. When Jones went to the bathroom, she saw Goins 

sitting on the sofa. Although she made eye contact with Goins, 

they did not speak. Jones returned to her bedroom and heard more 

talking and laughing for fifteen minutes. Then she "started 

hearing shots." She heard her brother crying, her mother scream, 

shots, and footsteps of one person walking to the bedrooms. She 

then saw Goins standing at the door with a gun. After Goins shot 

her multiple times, she did not hear anything. Jones testified 

that she remained still and pretended to be dead. After a while, 

she got up and called the police. 

 Green testified that after he and the cocaine dealer drove 

to the nearby store, they made calls on the telephone. They also 

purchased sandwiches and waited for calls to be returned to them. 

 While they were waiting, Green saw Littlejohn arrive in her 

automobile. As Littlejohn sat in the automobile, they observed 

Winston walking along Baker Street. Shortly thereafter, Goins 

arrived, walking along another street. Goins spoke to Winston 

and then entered Littlejohn's automobile. Littlejohn drove away 
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with Goins as her passenger. Winston walked away. 

 The police met Littlejohn while she was on her way to work 

on the afternoon of October 14. When the police told her of the 

shootings, Littlejohn went with the police for questioning. 

Littlejohn falsely told the police that she had not seen Goins 

that day, that she had recently moved to get away from Goins, and 

that Goins did not know where she lived. When the police 

searched Littlejohn's apartment, with her permission, they found 

men's clothing and various handgun publications, including a 

manual for the operation of a Glock .45 caliber automatic. The 

police also saw a safe, which Littlejohn falsely told them was in 

the apartment before she began her occupancy. Later, the police 

found inside the safe Littlejohn's social security card, birth 

certificate, car title, and an identification card bearing a 

photograph of Goins with the name, "Derrick Readon," an alias 

used by Goins. Upon searching Littlejohn's car, the police found 

Littlejohn's driver's license and another identification card 

bearing a photograph of Goins with the name, "Derrick Readon." 

After the police questioned Littlejohn, they released her. 

 A few days later, after Littlejohn's apartment had already 

been searched by the police, Littlejohn's mother found a .45 

caliber cartridge underneath Littlejohn's bed and informed the 

police. Firearms experts concluded that the unspent cartridge 

had been loaded at some time into the same magazine that had held 

the bullets used to kill Jones' family. The evidence proved that 
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Jones and the people in the apartment had all been shot with .45 

caliber ammunition shot from a gun of a type made only by Glock. 

 On November 17, 1994, Littlejohn and Goins were arrested in 

New York. At that time, Littlejohn was charged with obtaining a 

drug without a prescription, a charge unrelated to this case. 

 Renita Phifer testified that she was incarcerated in the 

same prison in New York with Littlejohn. She talked with 

Littlejohn after Littlejohn learned in a telephone conversation 

that "Barry" talked to the police about Goins and Littlejohn. 

Phifer said Littlejohn became upset and confided in her. She 

testified that Littlejohn said "they were really out to get her." 

 She also testified that Littlejohn told her that the police had 

found a gun which had been discarded and that Littlejohn was 

worried because she did not know if her fingerprints were on the 

gun. She further testified that Littlejohn told her "Barry" said 

that Goins had killed people and that Littlejohn "knew about it." 

 Phifer testified that Littlejohn said that there were rumors 

that she had threatened Jones and her family. When she asked 

Littlejohn if the rumors were true, Littlejohn "smirk[ed]" and 

nodded affirmatively. 

 Phifer testified that Littlejohn was angry about the "other 

girl" and had several "run-ins" with her because the girl was 

"saying she was carrying [Littlejohn's] 'husband's' baby." 

Phifer testified that Littlejohn said that she had waited in her 

car parked near the Jones' apartment for Goins on October 14, and 
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that she and Goins left together. Phifer also testified that 

Littlejohn said "one little mistake had ruined her whole life." 

Phifer did not know the nature of Littlejohn's "mistake." 

 At the close of the Commonwealth's case, Littlejohn moved to 

strike the evidence on the ground that no proof of a plan or 

shared intent had been established. The trial judge denied the 

motion. The jury convicted Littlejohn of all of the charges 

against her. The trial judge imposed the jury's recommended 

sentence of one hundred and eighty-eight years, and the judge 

suspended ten years. 

 II. 

 Before trial, the trial judge denied Littlejohn's motion for 

a change in venue. This Court granted Littlejohn's petition for 

appeal on this issue. However, Littlejohn failed to submit a 

written argument on the issue in her brief. That issue was 

therefore waived. See Rule 5A:20(c); Roach v. Commonwealth, 251 

Va. 324, 335, 468 S.E.2d 98, 104, cert. denied, U.S. , 117 

S. Ct. 365, 136 L. Ed. 2d 256 (1996). 

 III. 

 Littlejohn argues that the evidence was insufficient to 

prove beyond a reasonable doubt that she was an accessory before 

the fact to the charged offenses. We agree. 

 An accessory before the fact "is one not present at the 

commission of the offense, but who is in some way concerned 

therein, . . . before[hand] . . . , as [a] contriver, instigator 
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or adviser." Hitt v. Commonwealth, 131 Va. 752, 759, 109 S.E. 

597, 600 (1921). 

 This definition mandates that in the trial of 

an accessory before the fact the Commonwealth 

establish the following elements beyond a 

reasonable doubt: the commission of the 

crime by the principal, the accessory's 

absence at the commission of the offense, and 

that before the commission of the crime, the 

accessory was "in some way concerned therein 

. . . as [a] contriver, instigator or 

advisor." 

McGhee v. Commonwealth, 221 Va. 422, 425-26, 270 S.E.2d 729, 731 

(1980) (citations and footnotes omitted). 

 The Commonwealth, therefore, must prove beyond a reasonable 

doubt that "the accused . . . either [knew] or [had] reason to 

know of the principal's criminal intention and . . . [that the 

accused] intend[ed] to encourage, incite, or aid the principal's 

commission of the crime." Id. at 427, 270 S.E.2d at 732. 

Although the Commonwealth may meet its burden of proof through 

circumstantial evidence, see Dickerson v. City of Richmond, 2 Va. 

App. 473, 477, 346 S.E.2d 333, 335 (1986), "[u]nder familiar 

principles, such proof is insufficient if it creates merely a 

suspicion of guilt; the . . . evidence must be consistent with 

guilt and exclude every reasonable hypothesis that the accused is 

innocent of the charged offense." Id. 

 Viewed in the light most favorable to the Commonwealth, the 

evidence proved that Littlejohn was angry with Jones because 

Jones was pregnant with Goins' child and that Littlejohn had 

threatened to harm Jones four months before the murders. 
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Although the evidence proved that Littlejohn harbored animosity 

toward Jones four months before the murders, no evidence linked 

that animosity to Goins' killing of five people in the apartment 

or his shooting of Jones and her sibling. No evidence proved 

that Littlejohn was with Goins and Scott before they went to the 

apartment. Furthermore, no evidence proved that Littlejohn knew 

beforehand that Goins intended to kill or shoot the people in the 

apartment. The fact that Littlejohn had animosity toward Jones 

does not, without more, permit an inference that, before the 

fact, she contrived, instigated, or advised in Goins' rampage in 

the apartment. Indeed, no evidence in this record proved that 

when Goins entered the apartment he did so with the intent to 

commit murder. 

 Unlike McGhee, where the evidence proved that the accused 

repeatedly encouraged the assailant to commit the murders, see

221 Va. at 427-28, 270 S.E.2d at 733, here no such facts were 

proved. The evidence that Littlejohn was angry with Jones four 

months before the murders does not support an inference, beyond a 

reasonable doubt, that Littlejohn encouraged Goins to commit 

murder, that she knew of Goins' intention when he entered the 

apartment, or that Littlejohn intended to aid in Goins' 

commission of the murders. 

 Other evidence at trial proved that after Goins went into 

the apartment, Littlejohn arrived at a store three blocks away 

from the apartment and waited for Goins in her automobile. 
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Although the jury could have reasonably concluded that Littlejohn 

was waiting at the store for Goins to arrive, no evidence proved 

and no inference arises from the evidence that Littlejohn knew 

that Goins was in the Jones' apartment, that Goins went there 

intending to kill anyone, or that Littlejohn's presence at the 

store was for the purpose of aiding him in so doing. See

Moehring v. Commonwealth, 223 Va. 564, 568, 290 S.E.2d 891, 892 

(1982) ("Under such circumstances, it is difficult to regard 

[her] as a 'lookout,' or an accessory before the fact."). The 

jury had no evidentiary basis to infer that Littlejohn knew that 

Goins would commit murder before he met her. The evidence does 

not exclude the hypothesis that Littlejohn was waiting for Goins 

after having agreed merely to meet him at that time and place. 

"'[W]here a fact is equally susceptible of two interpretations 

one of which is consistent with the innocence of the accused, 

[the trier of fact] cannot arbitrarily adopt that interpretation 

which incriminates [the accused].'" Corbett v. Commonwealth, 210 

Va. 304, 307, 171 S.E.2d 251, 253 (1969) (citation omitted). 

 Other evidence adduced at trial, but which does not prove 

Littlejohn's involvement before the crimes were committed, was 

the evidence that when the police questioned Littlejohn after the 

murders and informed her of Goins' involvement, Littlejohn lied 

concerning her relationship with Goins. However, "such 

suspicious conduct does not constitute evidence sufficient to 

support a finding of guilt beyond a reasonable doubt." Bishop v. 
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Commonwealth, 227 Va. 164, 170, 313 S.E.2d 390, 393 (1984). 

 "The giving by the accused of an unclear or 

unreasonable or false explanation of his 

conduct or account of his doings are matters 

for the jury to consider, but they do not 

shift from the Commonwealth the ultimate 

burden of proving by the facts or the 

circumstances, or both, that beyond all 

reasonable doubt the defendant committed the 

crime charged against him." 

Hyde v. Commonwealth, 217 Va. 950, 955, 234 S.E.2d 74, 78 (1977) 

(citation omitted). 

 Although the police found in Littlejohn's apartment an 

unused cartridge matching the bullets used in the murders and a 

manual describing the operation of a gun similar to the one used 

in the murders, that proof only engenders a suspicion. Likewise, 

the evidence proved that Littlejohn talked to Phifer about events 

that occurred after the murders. None of these circumstances 

proved or supported an inference that before the murders, 

Littlejohn knew that Goins intended to commit the murders or in 

any way aided, encouraged, or incited him to do so. 

 Moreover, the evidence did not exclude the hypothesis that 

Goins committed the murders for reasons completely unrelated to 

Littlejohn. See McGhee, 221 Va. at 427, 270 S.E.2d at 732 ("The 

evidence must . . . establish that the accessory before the fact 

shared the criminal intent of the principal."). In fact, no 

evidence in this record proved the catalyst for the shootings. 

The evidence proved that before Goins went to the Jones' 

apartment, in a neighborhood where he was well known, he was 
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openly socializing with Scott and Winston on the street in front 

of the apartment. He also talked with a teenage girl. No 

evidence tended to prove that he sought to hide his presence at 

the apartment or was concerned about being seen there. Thus, 

evidence exists that supports a reasonable inference that the 

murders were not planned in advance of Goins' arrival in the 

Jones' apartment. 

 Moreover, the evidence raises the possibility that something 

that occurred in the apartment caused Goins to react 

spontaneously. The evidence proved that after Goins entered the 

apartment, he was laughing and talking with Jones' parents. The 

evidence proved that in the past Goins sold illegal drugs to 

Jones' mother and was known as a drug dealer by people in and 

around the low income housing complex where the Joneses lived. 

Goins often stayed overnight in the Jones' apartment, a place 

where drug activity occurred. The evidence also proved that when 

Goins murdered the Jones family, Jones' mother had cocaine in her 

body and Jones' father had three bags of cocaine on his person. 

Furthermore, the evidence proved that while Goins was in the 

apartment, another cocaine dealer was in the vicinity of the 

Jones' apartment waiting for Goins to leave so that he could sell 

cocaine to Jones' parents without creating a conflict with Goins. 

 The evidence proved that this other cocaine dealer, tired of 

waiting, went three blocks away to a store, made telephone calls, 

and received messages on a pager while Goins was in the 
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apartment. The conclusion is inescapable that drug activity was 

inexorably linked to the events that occurred in the apartment. 

 The evidence also established that Goins became perturbed in 

the apartment when his friend showed him an ultrasound picture of 

Jones' fetus. Evidence in the record also proved that Jones had 

attempted to hide from her mother her sexual relationship with 

Goins. Indeed, Jones did not testify whether she had informed 

her parents that Goins had impregnated her. The evidence did 

prove that when Goins and Jones saw each other, they did not 

speak. Thus, the evidence raises the possibility that Goins went 

on a rampage as a result of being confronted with the ultrasound 

"picture." The evidence also proved, however, that after Goins 

saw the ultrasound "picture" Goins continued laughing and talking 

with Jones' parents for almost an hour before he began shooting 

the people in the apartment. 

 Simply put, the evidence in this record fails to establish 

why Goins went on his murderous rampage. The record leaves that 

to speculation, including the possibility that he planned the 

murders before he entered the apartment. 

 Because no direct evidence tends to prove that Littlejohn 

knew that Goins intended to commit the murders and the shootings 

and that she encouraged him, the Commonwealth argues that the 

jury could have inferred that whatever the catalyst for Goins' 

actions may have been, Littlejohn had prior knowledge and shared 

his intent because of her animosity toward Jones. However, that 
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inference could only have arisen if the jury "engage[d] in 

speculation and conjecture." Wright v. Commonwealth, 217 Va. 

669, 670, 232 S.E.2d 733, 734 (1977). 

 "[E]vidence is not sufficient to support a 

conviction if it engenders only a suspicion 

or even a probability of guilt. Conviction 

cannot rest upon conjecture. The evidence 

must be such that it excludes every 

reasonable hypothesis of innocence." 

Hyde, 217 Va. at 955, 234 S.E.2d at 78 (citation omitted). When, 

from the circumstantial evidence, "it is just as likely, if not 

more likely," that a "reasonable hypothesis of innocence" 

explains the accused's conduct, the evidence cannot be said to 

rise to the level of proof beyond a reasonable doubt. Haywood v. 

Commonwealth, 20 Va. App. 562, 567-68, 458 S.E.2d 606, 609 

(1995). 

 In summary, nothing about Littlejohn's conduct provides a 

basis from which the jury could have inferred beyond a reasonable 

doubt that, before Goins committed the murders, Littlejohn shared 

in Goins' intent. No evidence proved or tended to prove that 

Littlejohn knew Goins' whereabouts or purposes prior to meeting 

him. Most critically, no evidence was admitted from which the 

jury could have drawn an inference, to the exclusion of an 

equally reasonable contrary inference, that Littlejohn knew Goins 

was going to commit the murders or that she intended to assist 

Goins in committing the murders. 

 In addition, the evidence proved that Goins was known as a 

drug dealer, that his relationship with the adults in the 
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apartment was tied to his drug dealing, and that drugs were found 

on and in the bodies of the dead adults. The evidence also 

proved that another seller of cocaine was outside the apartment 

and dared not enter lest he and Goins met and had a conflict. 

Thus, the evidence also did not exclude the hypothesis that the 

killings and Goins' motive were drug related, unknown to 

Littlejohn, and completely unrelated to her attitude toward 

Jones. 

 Therefore, the evidence failed to prove beyond a reasonable 

doubt that Littlejohn "share[d] the criminal intent of the 

principal." McGhee, 221 Va. at 427, 270 S.E.2d at 732. 

Suspicion, no matter how strong, is not enough. See Bishop, 227 

Va. at 170, 313 S.E.2d at 393. Convictions cannot rest upon 

speculation and conjecture. See Smith v. Commonwealth, 192 Va. 

453, 461, 65 S.E.2d 528, 533 (1951). Accordingly, we reverse the 

convictions. 

 Reversed.