COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Bray and Overton 

Argued at Norfolk, Virginia 

ANTONIO EUGENE DAVIS 

 MEMORANDUM OPINION*

v. Record No. 2244-96-1 BY JUDGE JOSEPH E. BAKER 

 SEPTEMBER 30, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

James M. Lumpkin, Judge Designate 

 David H. Moyer (Bashara & Hubbard, on brief), 

for appellant. 

 Kimberley A. Whittle, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Antonio Eugene Davis (appellant) appeals from his jury trial 

convictions for second degree murder, attempted robbery, and 

conspiracy to commit robbery, that were approved by the Circuit 

Court of the City of Norfolk (trial court). Appellant asserts 

that the evidence is insufficient to support the convictions. 

Finding no error, we affirm the judgment. 

 Upon familiar principles, we review the evidence in the 

light most favorable to the Commonwealth, granting to it all 

inferences fairly deducible therefrom. See Martin v. 

Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). 

Viewed accordingly, the record discloses that on July 16, 1993, 

appellant, Reynaurd Lewis, and an unidentified third man picked 

 

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

designated for publication. 
 2 

 

up Anthony Williams by automobile. Knowing that Timothy 

Hutchinson1

 (the victim) had some money, they drove to his 

apartment to "get paid," a street term that means taking money by 

force, if necessary. Upon arrival at the victim's apartment, 

Williams was the first to approach the victim's door. Williams 

testified that he knew appellant and Lewis were planning to take 

the victim's money because "[t]hat's what they were saying." 

 Appellant and Lewis followed Williams, and when the victim 

opened the door, Williams was "shoved" into the apartment by one 

of them. Appellant and Lewis were behind Williams when he was 

"shoved." Inside, Lewis demanded to know where the money was and 

began to argue with the victim. The two men exchanged gunshots. 

 Williams hid in a corner near the kitchen, but after the 

shootings, he saw the victim crawling on the floor. Lewis had 

left the scene. 

 Cheryl Hutchinson, the victim's wife, arrived home at her 

apartment between 12:30 and 1:00 p.m. to find her husband lying 

on their living room floor in a pool of blood. Two handguns were 

near the victim's semi-conscious body. The rescue squad took him 

from the scene, but he died of his wounds at Norfolk General 

Hospital. 

 Homicide detectives found a 9 millimeter handgun, a .380 

handgun, a number of shell casings, and spent bullets at the 

 1Hutchinson was the victim of the murder, attempted robbery, 

and conspiracy to commit robbery. 
 3 

apartment. Forensics examiner John Ward determined the victim 

had been shot multiple times and at least once at close range. 

Ward also determined that of the sixteen 9 millimeter shell 

casings all had been fired from the same weapon; however, that 

weapon was neither of the handguns recovered at the scene. Two 9 

millimeter bullets were determined to have been fired from the 

same gun as the shells. Ward examined the .380 shell casings but 

could not determine whether they had been fired from the .380 

weapon found at the scene. 

 Detective Shaun Squyres responded to a police dispatcher 

report that a gunshot victim had arrived for treatment at Norfolk 

General Hospital. Squyres believed that the gunshot victim may 

have been involved in the homicide at the Hutchinson apartment. 

Squyres interviewed the gunshot victim, Reynaurd Lewis, at the 

hospital and subsequently took him to police headquarters for 

further questioning. Appellant arrived at the hospital to talk 

to Lewis just as Squyres was escorting Lewis out the back door. 

 Within a few days of the shooting, Squyres interviewed 

Williams. Williams admitted that the group had driven to the 

victim's apartment planning to rob him. Although Williams 

testified at appellant's preliminary hearing that the group had 

approached the victim to sell him a gun, at trial Williams 

testified that he had made that statement only because of threats 

against him and his family. 

 Appellant asserts that the Commonwealth failed to prove that 
 4 

he was a party to a conspiracy to rob the victim and that the 

evidence is insufficient to support his convictions for second 

degree murder and attempted robbery. 

 "A conspiracy is 'an agreement between two or more persons 

by some concerted action to commit an offense.'" Brown v. 

Commonwealth, 3 Va. App. 101, 107, 348 S.E.2d 408, 411 (1986) 

(citations omitted); see also Feigley v. Commonwealth, 16 Va. 

App. 717, 722, 432 S.E.2d 520, 524 (1993); Amato v. Commonwealth, 

3 Va. App. 544, 551, 352 S.E.2d 4, 8 (1987). "Conspiracy 

requires '(1) an agreement between two or more persons, which 

constitutes the act; and (2) an intent to thereby achieve a 

certain objective which, under the common law definition, is the 

doing of either an unlawful act or a lawful act by unlawful 

means.'" Fortune v. Commonwealth, 12 Va. App. 643, 647, 406 

S.E.2d 47, 48 (1991) (quoting W. LaFave & A. Scott, Criminal Law

§ 461 (1972)). "The agreement is the essence of the conspiracy 

offense," Zuniga v. Commonwealth, 7 Va. App. 523, 527-28, 375 

S.E.2d 381, 384 (1988), and the "conspiracy is committed when the 

agreement to commit the offense is complete regardless whether 

any overt act in furtherance of commission of the substantive 

offense is initiated." Ramsey v. Commonwealth, 2 Va. App. 265, 

270, 343 S.E.2d 465, 469 (1986). The conspiracy does not end 

"until the spoils are divided and the co-conspirators have 'gone 

their separate ways.'" Stumpf v. Commonwealth, 8 Va. App. 200, 

206, 379 S.E.2d 480, 484 (1989) (quoting Berger v. Commonwealth, 
 5 

217 Va. 332, 335, 228 S.E.2d 559, 561 (1976)). "[T]he 

participants may be found guilty of conspiracy even though the 

planned crime was not fully consummated." Amato, 3 Va. App. at 

553, 352 S.E.2d at 9. 

 [T]he fact of a conspiracy, like any other 

fact, may be established by circumstantial 

evidence. . . . [B]ecause of the very nature 

of conspiracy, "it often may be established 

only by indirect and circumstantial 

evidence." Moreover, a formal agreement need 

not be shown; a conspiracy "can be inferred 

from the overt conduct of the parties." 

Stultz v. Commonwealth, 6 Va. App. 439, 442-43, 369 S.E.2d 215, 

217 (1988) (quoting Floyd v. Commonwealth, 219 Va. 575, 580, 581, 

249 S.E.2d 171, 174 (1978) (citation omitted)). 

 Important to our finding is the legal principle that "[e]ach 

member of a conspiracy is responsible for the acts of the others 

in furtherance of the conspiracy, and all conspirators, even 

those without knowledge of the particular act, may be tried where 

any of those acts are performed." Henry v. Commonwealth, 2 Va. 

App. 194, 198, 342 S.E.2d 655, 657 (1986). Here, the direct and 

circumstantial evidence discloses that, pursuant to a plan and 

agreement, appellant and Lewis drove to the victim's apartment to 

forcibly take the victim's money. The record clearly shows that 

the victim's death occurred as a result of the act of one of the 

participants of the conspiracy while an attempt was being made to 

carry out the robbery upon which appellant and Lewis had agreed. 

 The fact that appellant was not conclusively shown to have fired 

the shot that killed the victim does not, under these 
 6 

circumstances, exonerate him from the charges for which he stands 

convicted. 

 Upon the facts shown, we hold that the trial court did not 

err when it refused to strike the evidence and dismiss the 

murder, attempted robbery, and conspiracy charges. 

 Accordingly, the judgment of the trial court is affirmed. 

 Affirmed.