COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Elder and Senior Judge Cole 

Argued by teleconference 

GREELEY MILBURN BALL, JR. 

 MEMORANDUM OPINION* BY 

v. Record No. 1538-96-3 JUDGE SAM W. COLEMAN III 

 JANUARY 27, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF WASHINGTON COUNTY 

Charles H. Smith, Jr., Judge 

 Peter Curcio (Bressler, Curcio & Stout, on 

brief), for appellant. 

 Ruth Ann Morken, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), 

for appellee. 

 Greeley Milburn Ball, Jr. was convicted by a jury of 

robbery, conspiracy to commit robbery, and use of a firearm in 

the commission of robbery. On appeal, he contends that: (1) the 

evidence was insufficient to support the convictions, and (2) the 

trial court erred by imposing a sentence that was grossly 

disproportionate to that of a codefendant. We hold that the 

evidence was sufficient to convict appellant of the offenses and 

that Rule 5A:12 bars our consideration of appellant's 

disproportionate sentencing claim. Accordingly, we affirm the 

convictions. 

I. SUFFICIENCY OF THE EVIDENCE

 When the sufficiency of the evidence is challenged on 

 

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

designated for publication. 
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appeal, we view the evidence "in the light most favorable to the 

Commonwealth and give it all reasonable inferences fairly 

deducible therefrom." Higginbotham v. Commonwealth, 216 Va. 349, 

352, 218 S.E.2d 534, 537 (1975). The jury's verdict will not be 

disturbed unless it is "plainly wrong or without evidence to 

support it." Beavers v. Commonwealth, 245 Va. 268, 282, 427 

S.E.2d 411, 421 (1993). 

 Viewed accordingly, the evidence is sufficient to prove 

beyond a reasonable doubt that appellant conspired with Joseph 

Hobbs to commit robbery, that he aided and abetted Hobbs in the 

robbery, and that, by acting in concert with Hobbs, he is guilty 

of using a firearm in committing robbery. The evidence proved 

that appellant rapidly drove Joseph Hobbs in Hobbs' station wagon 

across the parking lot of the B & W Tobacco Store. Rather than 

parking in one of B & W's designated parking places in front of 

the store, appellant parked behind the store out of open view. 

Hobbs exited the car, went in the B & W store and robbed the 

store clerk at gunpoint while appellant remained in the car. 

 When Hobbs returned, appellant sped out of the parking lot 

and drove with Hobbs to the home of Hobbs' daughter, Marlena. 

Marlena testified that she observed appellant and Hobbs divide a 

large pile of money while listening to a police scanner after 

they came to her home. Hobbs left Marlena's house for about 

twenty minutes during which time appellant made no attempt to 

leave or place a phone call. Marlena then drove appellant and 
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Hobbs to appellant's trailer. During the drive, appellant told 

Hobbs to ride in the back seat because reports on the police 

scanner stated that some witnesses had identified Hobbs but had 

not seen appellant. Appellant also discussed how he and Hobbs 

could alter their appearance in order to avoid detection. 

 Several weeks after the robbery, appellant surrendered to 

Washington County Police Investigator Bobby Arnold. In a written 

statement to Investigator Arnold, appellant admitted that he 

drove Hobbs to and from the tobacco store. He claimed, however, 

that he was unaware that Hobbs intended to rob the clerk at the 

store. He said that Hobbs coerced him at gunpoint into assisting 

with the robbery. He further stated that he was forced to 

accompany Hobbs to South Carolina where he was able to escape 

several days later. 

A. Robbery

 The evidence is sufficient to sustain appellant's conviction 

for robbery as a principal in the second degree. "A principal in 

the second degree is one who is not only present at a crime's 

commission, but one who also commits some overt act, such as 

inciting, encouraging, advising, or assisting in the commission 

of the crime or shares the perpetrator's criminal intent." 

Moehring v. Commonwealth, 223 Va. 564, 567, 290 S.E.2d 891, 892 

(1982). A principal in the second degree "may be indicted, tried 

and convicted, and punished in all respects as if a principal in 

the first degree." Code § 18.2-18. "In order for a person to be 
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a principal in the second degree to a felony, the individual must 

'know or have reason to know of the principal's criminal 

intention and must intend to encourage, incite, or aid the 

principal's commission of the crime.'" Jones v. Commonwealth, 

15 Va. App. 384, 387, 424 S.E.2d 563, 565 (1992) (quoting McGhee 

v. Commonwealth, 221 Va. 422, 427, 270 S.E.2d 729, 732 (1980)). 

 The evidence proves that appellant drove Hobbs' car and 

parked it behind the B & W Tobacco Store where the car and its 

occupants would be obscured from public view. As soon as Hobbs 

returned to the car, the appellant sped away. The manner in 

which appellant drove the car and where he parked it warrant the 

inference that he was aware of Hobbs' intention to rob the clerk 

at the store and that he did so to facilitate an escape after the 

robbery. 

 After the robbery, Hobbs and appellant divided the stolen 

money. Appellant discussed how they could disguise themselves to 

avoid detection. Furthermore, they fled to South Carolina. 

Although appellant claims that Hobbs forced him to participate 

against his will and forced him to flee to South Carolina, the 

jury could disregard this claim, particularly in view of the fact 

that appellant made no attempt to escape or to call the police 

when Hobbs had left him alone at Marlena's house. 

 On these facts, the jury could have reasonably concluded 

that appellant drove the getaway car and thereby acted as a 

principal in the second degree to assist Hobbs in the robbery. 
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The jury was free to disbelieve any or all of appellant's 

statement to Investigator Arnold, including the claim that he was 

unaware that Hobbs intended to rob the store clerk and that Hobbs 

coerced him into assisting with the robbery. See Pugilese v. 

Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24 (1993) 

("[T]he fact finder is not required to believe all aspects of a 

defendant's statement or testimony; the . . . jury may reject 

that which it finds implausible, but accept other parts which it 

finds to be believable."). Thus, the evidence is sufficient to 

sustain appellant's conviction for robbery. 

B. Conspiracy to Commit Robbery

 "Conspiracy is defined as 'an agreement between two or more 

persons by some concerted action to commit an offense.'" Feigley 

v. Commonwealth, 16 Va. App. 717, 722, 432 S.E.2d 520, 524 (1993) 

(quoting Wright v. Commonwealth, 224 Va. 502, 505, 297 S.E.2d 

711, 713 (1992)). Proof of the existence of an agreement is an 

essential element to establish the crime of conspiracy. See

Fortune v. Commonwealth, 12 Va. App. 643, 647, 406 S.E.2d 47, 48 

(1991); see also Zuniga v. Commonwealth, 7 Va. App. 523, 527, 375 

S.E.2d 381, 384 (1988) ("In order to establish the existence of a 

conspiracy, as opposed to mere aiding and abetting, the 

Commonwealth must prove the additional element of preconcert and 

connivance not necessarily inherent in the mere joint activity 

common to aiding and abetting.") (citation omitted). Thus, the 

Commonwealth must prove beyond a reasonable doubt that an 
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agreement to rob existed. See Floyd v. Commonwealth, 219 Va. 

575, 580, 249 S.E.2d 171, 174 (1978). However, proof of an 

explicit agreement is not required, and the Commonwealth may, and 

frequently must, rely on circumstantial evidence to establish the 

conspiracy. See Stevens v. Commonwealth, 14 Va. App. 238, 241, 

415 S.E.2d 881, 883 (1992). 

 Viewing the evidence in the light most favorable to the 

Commonwealth, the facts prove that appellant and Hobbs 

participated in a planned and calculated series of acts in which 

appellant delivered Hobbs to the scene of the crime, facilitated 

an expedient "getaway" after Hobbs committed the robbery, and 

devised a plan for them to flee Virginia without detection. 

Appellant's coordinated participation supports the finding that 

he and Hobbs were working in concert pursuant to an earlier plan 

or agreement to rob the store. The fact that they divided the 

proceeds from the robbery further suggests that they agreed to 

rob the store and to share the proceeds. From these facts, the 

jury could have reasonably concluded that appellant and Hobbs 

conspired to rob the store, share the proceeds, and flee the 

jurisdiction. Thus, the evidence is sufficient to support the 

conviction for conspiracy to commit robbery. 

C. Use of a Firearm in the Commission of Robbery

 The evidence is sufficient to sustain appellant's conviction 

for use of a firearm in the commission of robbery as a principal 

in the second degree. Code § 18.2-53.1 makes it unlawful for any 
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person to use a firearm in the commission of a robbery. Under 

the principle of vicarious responsibility, one who did not 

actually possess a firearm during the commission of a robbery may 

nonetheless be convicted under the statute as a principal in the 

second degree where he acted in concert with and shared the 

common purpose of an armed codefendant. See Carter v. 

Commonwealth, 232 Va. 122, 125-26, 348 S.E.2d 265, 267 (1986) 

(upholding conviction for use of firearm during robbery as 

principal in second degree where unarmed defendant accompanied by 

armed codefendant entered and robbed pharmacy); Cortner v. 

Commonwealth, 222 Va. 557, 563, 281 S.E.2d 908, 911-12 (1981) 

(unarmed defendant and three others robbed victim after armed 

codefendant shot victim; Court held defendant vicariously 

responsible as principal in second degree because defendant 

shared common purpose of armed assailant to rob victim); Blake v. 

Commonwealth, 15 Va. App. 706, 709, 427 S.E.2d 219, 221 (1993) 

(upholding conviction of unarmed defendant where codefendant 

jammed a gun in victim's ribs during robbery; Court held 

defendant vicariously responsible for use of firearm during 

robbery because codefendant "possessed and used the gun in 

furtherance of their joint resolve to commit robbery"). 

 Appellant attempts to distinguish his case from Carter and 

Cortner. He argues that he may not be held vicariously 

responsible for using the firearm when he was not physically 

present when the clerk was robbed. We find his argument 
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unpersuasive. As noted, the evidence sufficiently proved that 

appellant conspired with Hobbs to rob the tobacco store and aided 

and abetted in committing the robbery. By aiding and abetting in 

the commission of a crime, a principal in the second degree is 

equally accountable for the acts of his confederate. Thus, the 

evidence proves that Hobbs possessed and used a firearm in 

furtherance of appellant's and Hobbs' common purpose to rob the 

tobacco store. Because appellant and Hobbs shared the common 

intent to rob the store, 

 they shared the common intent to commit all 

of the elements of robbery, including the use 

of such force 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 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. 

Carter, 232 Va. at 126, 348 S.E.2d at 267-68. Thus, the evidence 

is sufficient to support appellant's conviction for use of a 

firearm in the commission of robbery. 

II. DISPROPORTIONATE SENTENCES - RULE 5A:12(c)

 Appellant next contends that the trial court erred by 

imposing the jury's sentence which is grossly disproportionate to 

the sentence that Hobbs received as the principal in a separate 

trial for the same offenses. Appellant asks us to vacate or 

reduce his sentences. Appellant concedes that he did not raise 

this sentencing issue before the trial court or in his petition 
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for appeal. He argues that Rule 5A:18 controls and he requests 

that we address the disparity in sentencing under the "ends of 

justice" exception to Rule 5A:18. 

 Appellant's contention is without merit. Although Rule 

5A:12(c) does state that "[t]he provisions of Rule 5A:18 shall 

apply to limit those questions which [this Court] will rule upon 

on appeal," it also states that "[o]nly questions presented in 

the petition for appeal will be noticed by the Court of Appeals." 

 Rule 5A:12(c) (emphasis added). Rule 5A:12(c) does not contain 

an ends of justice exception. Accordingly, we may not consider 

appellant's disproportionate sentencing claim because it was not 

raised in the petition for appeal and was not a question for 

which we granted review. See Cruz v. Commonwealth, 12 Va. App. 

664, 664 n.1, 406 S.E.2d 406, 407 n.1 (1991). 

 For the foregoing reasons, we affirm the convictions. 

 Affirmed.