COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Coleman and Elder 

Argued at Salem, Virginia 

JOSEPH WILLIAM LAMONT DAVIS 

 MEMORANDUM OPINION* BY 

v. Record No. 1959-95-3 JUDGE LARRY G. ELDER 

 OCTOBER 1, 1996 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG 

Mosby G. Perrow, III, Judge 

 Wade Allen Bowie (Richard P. Cunningham & 

Associates, P.C., on briefs), for appellant. 

 Margaret Ann B. Walker, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Joseph William Lamont Davis (appellant) appeals his 

conviction for malicious wounding, in violation of Code 

§ 18.2-51, and use of a firearm in the commission of malicious 

wounding, in violation of Code § 18.2-53.1. Appellant contends 

that the Commonwealth failed to present sufficient evidence to 

support the convictions. We disagree and affirm appellant's 

convictions. 

 I. 

 FACTS 

 On February 20, 1995, Troy Roberson and a group of people 

gathered outside Roberson's residence in Lynchburg. A car 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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carrying appellant, Darrell Morgan, and Damien Saunders pulled up 

in front of a neighbor's house. The three men exited the car, 

approached Roberson, and demanded that he return some car rims 

that appellant believed that Roberson possessed. Appellant 

became angry when Roberson denied having knowledge of the rims. 

Appellant and Morgan each pulled out a gun and placed them 

against Roberson's head, while Saunders took forty dollars from 

Roberson's pants pocket. 

 Roberson then began to run toward his residence. As 

Roberson ran, he looked back at appellant and Morgan and saw 

appellant "shooting at [him]." Roberson testified that he saw 

appellant fire the first gunshot, which missed him and hit his 

house. Appellant conceded that the evidence proved that he fired 

the first gunshot. Roberson did not look back to see who fired 

the additional six gunshots. Roberson testified that he 

believed, but was not sure, that the second shot fired was the 

one that hit him in his arm. A witness testified that he saw 

shots fired from the vicinity of where appellant and Morgan were 

standing, but he could not say whether either, or both, of the 

men fired shots at Roberson. 

 Police found six bullet holes in Roberson's residence. 

Appellant gave a statement after his arrest denying his presence 

when the shooting occurred. Evidence also showed that appellant 

sent Roberson several letters denying involvement in the shooting 

and offering Roberson $2,000 to "drop it." 
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 Appellant and Morgan were tried at a bench trial on July 10, 

1995. The trial court struck the evidence against Morgan, but 

found appellant guilty of the charged offenses. Appellant now 

appeals to this Court. 

 II. 

SUFFICIENCY OF THE EVIDENCE 

 When the sufficiency of the evidence is challenged on 

appeal, we must construe the evidence in the light most favorable 

to the Commonwealth, granting to it all reasonable inferences 

fairly deducible therefrom. Higginbotham v. Commonwealth, 216 

Va. 349, 352, 218 S.E.2d 534, 537 (1975). Even where evidence is 

entirely circumstantial, the inferences drawn from the 

circumstantial evidence are within the province of the fact 

finder and not the appellate court so long as the inferences are 

reasonable and justified. O'Brien v. Commonwealth, 4 Va. App. 

261, 263-64, 356 S.E.2d 449, 450 (1987). "[C]ircumstantial 

evidence alone is sufficient to sustain a conviction." Johnson 

v. Commonwealth, 2 Va. App. 598, 604-05, 347 S.E.2d 163, 167 

(1986). However, "all necessary circumstances proved must be 

consistent with guilt and inconsistent with innocence and exclude 

every reasonable hypothesis of innocence." Moran v. 

Commonwealth, 4 Va. App. 310, 314, 357 S.E.2d 551, 553 (1987). 

 Viewing the evidence in the light most favorable to the 

Commonwealth, we hold that the Commonwealth presented sufficient 

evidence to convict appellant of the charged crimes. Appellant 
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admits that he fired the first gunshot which missed Roberson but 

hit Roberson's house. The trial court reasonably inferred from 

the credible evidence that the remaining six gunshots originated 

from the guns fired by appellant and/or Morgan. The one gunshot 

wounding Roberson therefore originated from either appellant's 

gun or Morgan's gun. Assuming that the gunshot which wounded 

Roberson originated from Morgan's gun, appellant would be 

responsible as a principal in the second degree, under the 

"concert of action" theory. 

 Concert of action has been defined as "action that has been 

planned, arranged, adjusted, agreed on and settled between the 

parties acting together pursuant to some design or scheme." 

Berkeley v. Commonwealth, 19 Va. App. 279, 283, 451 S.E.2d 41, 43 

(1994). "All participants in such planned enterprises may be 

held accountable for incidental crimes committed by another 

participant during the enterprise even though not originally or 

specifically designed." Id.1 In this case, Morgan and appellant 

 

 1 In Carter v. Commonwealth, 232 Va. 122, 126-27, 348 

S.E.2d 265, 268 (1986), the Supreme Court of Virginia stated: 

 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 
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acted together in demanding that Roberson return the rims and in 

holding guns to his head while Saunders took money from 

Roberson's pocket in place of the rims. The evidence supported 

the reasonable inference that when Roberson fled toward his 

residence, Morgan and appellant pointed their weapons at him in a 

joint and concerted effort to stop him from fleeing or to 

retaliate. Assuming that appellant did not fire the wounding 

shot, appellant was nonetheless criminally responsible for 

Morgan's acts, as a principal in the second degree, under the 

concert of action theory.2

 Riddick v. Commonwealth, 226 Va. 244, 

248, 308 S.E.2d 117, 119 (1983)(holding that "even if 

[defendant's cohort] killed the victim, defendant was criminally 

responsible for the acts of the gunman . . . as a principal in 

the second degree"). See also Washington v. Commonwealth, 216 

Va. 185, 191, 217 S.E.2d 815, 821-22 (1975)(holding that where 

 

for the common purpose. 

See also Ascher v. Commonwealth, 12 Va. App. 1105, 1128, 408 

S.E.2d 906, 920 (1991), cert. denied, 506 U.S. 865 (1992); 

Rollston v. Commonwealth, 11 Va. App. 535, 541-42, 399 S.E.2d 

823, 827 (1991). 

 2 We recognize that "[b]efore a person may be convicted as 

a principal in the second degree, the Commonwealth bears the 

burden of proving that a principal in the first degree committed 

the underlying substantive offense." Fleming v. Commonwealth, 13 

Va. App. 349, 353, 412 S.E.2d 180, 182 (1991). Appellant argues 

that because the trial court struck all charges against Morgan, 

the trial court could not have held appellant liable as a 

principal in the second degree. Under the facts of this case, we 

disagree. If appellant did not fire the wounding shot, as he 

maintains, then the credible evidence proves only one other 

theory: that Morgan, as the principal in the first degree, fired 

the wounding shot. 
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the defendant acted in concert with his cohort in killing a 

prison guard, the Commonwealth did not have to establish which of 

the two men fired the fatal shots). 
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 For these reasons, we affirm appellant's convictions. 

Affirmed.