Wade v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Powell and Senior Judge Annunziata

Argued by teleconference

NIKKOL IRENE WADE, S/K/A

NICOLE WADE

OPINION BY

v. Record No. 2636-09-1 JUDGE CLEO E. POWELL

AUGUST 10, 2010

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ISLE OF WIGHT COUNTY

Westbrook J. Parker, Judge

(Patricia A. Cannon; Patricia A. Cannon, PCP, on brief),

for appellant. Appellant submitting on brief.

Robert H. Anderson, III, Senior Assistant Attorney General

(Kenneth T. Cuccinelli, II, Attorney General, on brief), for

appellee.

Nikkol Irene Wade (appellant) appeals from her conviction for misdemeanor destruction

of property, in violation of Code § 18.2-137. On appeal, appellant contends that because she was

charged with a misdemeanor, she could not be convicted as a principal, accessory, or conspirator

to the crime and the evidence was otherwise insufficient for a conviction because it failed to

prove that she actually destroyed the mailbox. For the reasons that follow, we affirm appellant’s

conviction.

I. BACKGROUND

At approximately 9:00 p.m. on October 4, 2009, Joseph Hoffman and his wife, Dawn,

heard a car in front of their home. They saw the headlights turn off, heard the doors shut

followed by a “popping noise,” and watched the car drive off. Their mailbox had been damaged

two weeks earlier and, suspecting that their mailbox had been vandalized again, the Hoffmans

immediately ran outside to investigate. When they were approximately twenty yards away, they

saw two males standing at the mailbox. One of the males picked up the mailbox and threw it

into a ditch. The mailbox was in pieces but the post had not been damaged. 1

The two males got into a car driven by appellant and drove off. Mr. Hoffman was

familiar with appellant through his sixteen-year-old stepdaughter. The Hoffmans called 911 and

followed the vehicle until police stopped it.

When Deputy Morgan stopped the car, a male was driving. Appellant was in the front

passenger seat and her brother was in the back seat. All three confessed to being involved in

destroying the mailbox. The Hoffmans told Deputy Morgan that two males destroyed the

mailbox.

After this incident, appellant and her mother went to Mrs. Hoffman’s place of

employment and took Mrs. Hoffman flowers and a card. Appellant apologized for tearing the

mailbox down and offered to repair it.

At trial, appellant argued that the evidence was insufficient to prove that she actually

destroyed the mailbox. She further argued that this was a fact that the Commonwealth was

required to prove because except as provided by statute, only perpetrators can be convicted of

misdemeanors in Virginia. 2 The Commonwealth submitted that the evidence was sufficient

because appellant was present at the scene and admitted her culpability both when she spoke to

1

The value of the mailbox when originally purchased was $42, but Maurice Rhodes, the

owner of the property, did not know the value of the mailbox itself on the day it was destroyed.

2

Appellant contends that because Code § 18.2-23(A) provides that a person is guilty of a

misdemeanor if he conspires to trespass, Code § 18.2-23(A) therefore provides evidence that the

General Assembly only intended for a person who is not the actual perpetrator to be convicted of

a misdemeanor when he is charged under that section. This argument, however, is without merit.

A plain reading of this statute makes it clear that by enacting this statute, the General Assembly

merely intended to detail how a conspirator to trespass should be treated.

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Deputy Morgan and when she apologized to the victim. The trial court found the evidence

sufficient and convicted appellant.

II. ANALYSIS

The issue in this case is whether a person may be convicted of a misdemeanor as a

principal in the second degree. Appellant argues that because the General Assembly specifically

enacted statutes detailing how accessories and principals in the second degree are to be treated in

felony cases, see Code § 18.2-18, but did not do so with respect to misdemeanors, one may not

be convicted of a misdemeanor offense as an accessory or principal in the second degree. We

find no merit in appellant’s argument. In the instant matter, appellant was not convicted of

misdemeanor destruction of property as either an accessory or as a principal in the second

degree. Rather, as the law specifically recognizes, appellant was convicted as a principal in the

first degree.

“[A]t common law, in misdemeanors, there are no accessories, all concerned being

principals.” Watts v. Commonwealth, 99 Va. 872, 880, 39 S.E. 706, 708 (1901) (quoting 1

Wharton’s Criminal Law § 223); see also Spradlin v. Commonwealth, 195 Va. 523, 527, 79

S.E.2d 443, 445 (1954); Foster v. Commonwealth, 179 Va. 96, 99, 18 S.E.2d 314, 315 (1942);

Ronald J. Bacigal, Criminal Offenses and Defenses 494-95 (2009-2010 ed.) (“As regards

misdemeanors, there generally is no distinction between principals and accessories. Any person

who is proven to have had the requisite mental state and to have done sufficient acts to have

criminal liability is a principal; otherwise, he is innocent.”). “The common law of England,

insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this

Commonwealth, shall continue in full force . . . and be the rule of decision, except as altered by

the General Assembly.” Code § 1-200.

“[A] statutory provision will not be held to change the common

law unless the legislative intent to do so is plainly manifested.”

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Herndon v. St. Mary’s Hosp., Inc., 266 Va. 472, 476, 587 S.E.2d

567, 569 (2003). “Statutes in derogation of the common law are to

be strictly construed and not to be enlarged in their operation by

construction beyond their express terms.” Chesapeake & Ohio Ry.

Co. v. Kinzer, 206 Va. 175, 181, 142 S.E.2d 514, 518 (1965).

Accordingly, “[a] statutory change in the common law is limited to

that which is expressly stated in the statute or necessarily implied

by its language because there is a presumption that no change was

intended.” Mitchem v. Counts, 259 Va. 179, 186, 523 S.E.2d 246,

250 (2000). “When an enactment does not encompass the entire

subject covered by the common law, it abrogates the common-law

rule only to the extent that its terms are directly and irreconcilably

opposed to the rule.” Boyd [v. Commonwealth, 236 Va. 346, 349,

374 S.E.2d 301, 302 (1988)].

Evans v. Evans, 280 Va. 76, 83-84, ___ S.E.2d ___, ___ (2010) (quoting Isbell v. Commercial

Inv. Assocs., Inc., 273 Va. 605, 613-14, 644 S.E.2d 72, 75 (2007)). In Isbell, the Supreme Court

restated the reason for applying these principles:

“[The General Assembly] is presumed to have known and to have

had the common law in mind in the enactment of a statute. The

statute must therefore be read along with the provisions of the

common law, and the latter will be read into the statute unless it

clearly appears from express language or by necessary implication

that the purpose of the statute was to change the common law.”

273 Va. at 614, 644 S.E.2d at 75-76 (quoting Wicks v. City of Charlottesville, 215 Va. 274, 276,

208 S.E.2d 752, 755 (1974)).

In considering these established canons of construction, it is clear that the General

Assembly did not intend to abrogate the common law rule that, in misdemeanor cases, all

participants are principals. The General Assembly enacted Code § 18.2-18, addressing

principals in the second degree and accessories before the fact in felony cases, specifically

stating that “[i]n the case of every felony, every principal in the second degree and every

accessory before the fact may be indicted, tried, convicted and punished in all respects as if a

principal in the first degree . . . .”

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Because the General Assembly chose not to address misdemeanors when it enacted the

statutes governing how accessories before the fact and principals in the second degree are to be

treated in felony cases, the common law as it applied to misdemeanors was not abrogated. Thus,

in misdemeanor cases, all involved parties are principals and may be convicted of the

misdemeanor offense. Watts, 99 Va. at 880, 39 S.E. at 708.

Here, the evidence proves that appellant purposely drove the getaway car to help her

brother and the other male flee the scene of the crime. When confronted by Deputy Morgan, all

three acknowledged participation in destroying the mailbox. Moreover, appellant admitted to

Mrs. Hoffman that she destroyed the mailbox and offered to pay to replace it. Thus, there is

sufficient evidence to support appellant’s conviction and we affirm.

III. CONCLUSION

For the foregoing reasons, we affirm appellant’s conviction.

Affirmed.

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