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COURT OF APPEALS OF VIRGINIA
Present:    Judges Elder, Lemons and Senior Judge Cole
Argued at Richmond, Virginia
KELLEY ANN TIBBS
OPINION BY
v.    Record No.  1717-98-2                                       JUDGE MARVIN F. COLE
MARCH  7,  2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
John F. McGarvey for appellant.
Robert H. Anderson, III, Assistant Attorney
General  (Mark L. Earley, Attorney General, on
brief), for appellee.
Appellant, Kelley Ann Tibbs, was convicted by a jury of
robbery, abduction and capital murder.    The capital murder
conviction was based on a finding of a murder committed in the
commission of robbery.    See Code  §  18.2-31(4).
Appellant was sentenced to ten years for the robbery
conviction and life imprisonment for the capital murder
conviction.    She was also sentenced to ten years for the
abduction, but this conviction has not been appealed.
At the writ stage of this proceeding, appellant contended:
(1) the trial court erred by entering final judgment on the
robbery verdict when the verdict was based on evidence that was
insufficient as a matter of law; and  (2) the trial court erred
by entering final judgment on the capital murder verdict when




the verdict was based on evidence that was insufficient as a
matter of law.
We denied the first assignment of error but granted the
second.    Therefore, the sole question before us is whether the
evidence is sufficient to support the capital murder conviction.
FACTS
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'"    Archer v.
Commonwealth,  26 Va. App.  1,  11,  492 S.E.2d  826,  831  (1997)
(citation omitted).    So viewed, the evidence proved that, on
July  26,  1997, appellant, Dana Vaughn and the victim, Stacy
Hanna, lived at  210 South Belmont Avenue in the City of
Richmond.    Tracy Bitner previously lived at the Belmont Avenue
house.    Domica Winckler lived around the corner from Belmont
Avenue.    Stephanie Cull lived in Chester.    They were all
friends.
Appellant had a homosexual relationship with Bitner.
Appellant and Bitner ended their relationship shortly before
Hanna moved into the Belmont Avenue house.    After Hanna moved
in, appellant and Hanna became romantically involved.
Around  9:00 p.m. on Saturday, July  26,  1997, appellant,
Vaughn, Cull, Bitner, Winckler, Hanna, a female named Sandy and
a female named Leslie attended a party.    Sandy was Bitner's new
friend.    At the party, Hanna made comments to appellant in an
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attempt to dissuade appellant from reconciling with Bitner and
to further Hanna's romantic involvement with appellant; Hanna
told appellant that Bitner and Sandy were a happy couple, that
Bitner no longer wanted a romantic relationship with appellant,
and that appellant needed to be involved with Hanna.
Later, the group returned to Belmont Avenue.    Appellant had
a private discussion with Sandy, while Bitner, Hanna, Vaughn and
others went into another room.    Afterwards, Hanna approached
appellant and said that Bitner told her, Hanna, that Bitner no
longer wanted a relationship with appellant and that Bitner
wanted Hanna to relate that information to appellant.
Appellant, Cull, Bitner and Winckler then left the Belmont
Avenue house.    While gone, appellant learned that Bitner did not
make the statements that Hanna related to appellant.    Appellant
became angry with Hanna and expressed her desire to "beat her
ass."    According to appellant, "everybody else  [in the car at
that time] was like yeah we're gonna beat her ass."    The
original plan was to "take her to Byrd Park and  .  .  . rough her
up and leave her there and let her walk home."
The four women then returned to the Belmont Avenue house.
Appellant, Winckler and Cull invited Vaughn and Hanna to ride
with them and Bitner to Marsh Field in Chesterfield County to
"hang out."    Cull drove.    Upon arriving at Marsh Field,
appellant, Cull, Winckler and Bitner exited the car.    Hanna
remained in the car with Vaughn, who was ill.    A short time
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later, appellant entered the car and told Hanna that she would
stay with Vaughn.    After Hanna exited the car, appellant told
Vaughn "that they were going to kick  [Hanna's] ass" because she
lied to appellant about Bitner.    Appellant then exited the car
and joined the group, leaving Vaughn alone in the car.
While in the car at Marsh Field, Vaughn could not see the
group, but she "heard them start beating" Hanna.    Cull returned
to the car and turned on the headlights.    Vaughn then saw Hanna
"covered in blood."    Vaughn testified that she saw Bitner "push
[Hanna] down and Domica  [Winckler] picked up a cinder block
.  .  . and threw it on her."    Eventually, all of them returned to
the car while Hanna lay on the ground.
Vaughn testified that, while leaving Marsh Field, "there
was a conversation."    Appellant "was saying that we needed to
take her to a hospital or something or a phone at least."
Bitner "suggested that we cut out her tongue so she couldn't
talk."    Winckler "said that we needed to cut off her fingers so
she couldn't write."    They "went down the road a ways," then
returned to Hanna's location and placed Hanna in the trunk of
the car.
En route to another location, Hanna "started beating on the
trunk," so Cull stopped the car and Winckler got out and opened
the trunk.    Hanna asked to be taken to a telephone "so she could
call her mother and tell her that she loved her," but Winckler
"told her no and shut the trunk."
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Cull then drove to an isolated location on Nash Road and
stopped the car.    Cull, Bitner, Winckler and appellant got out
of the car and stood around the trunk.    Vaughn testified that
she "heard Domica  [Winckler] tell Stacy  [Hanna] to give her her
rings and her watch."    Hanna "said that she could have them, all
but one."    Winckler "said give me all of them."    Hanna was then
removed from the trunk.    At that point, Cull, Winckler, Bitner,
and appellant took Hanna under the fence and down the road.    The
four women proceeded down a deserted path until Vaughn was
unable to see them.    At some point, Cull returned to the car.
Vaughn "heard a cry and then  [she] heard another cry and then
[she] heard the cry get muffled, something, and that was it."
Winckler and Bitner returned to the car twenty minutes later,
followed by appellant.    All three women were muddy.    Vaughn
testified that Bitner and Winckler "were kind of bragging about
what they had done."
[Winckler] said that she had stabbed her
with a bladeless knife in her chest.    And
Tracy  [Bitner] was bragging how she had
stabbed her a bunch of times in the heart
saying, "Give me your heart, Bitch, why
don't you die."    And she had slit her throat
and stuffed mud in her mouth to get her to
stop screaming.
Bitner testified that appellant, Winckler and Cull
initiated the attack on Hanna at Marsh Field when they began to
kick and hit Hanna.    Bitner saw appellant and Winckler with box
cutter razor knives.    Bitner took one of the box cutter razor
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knives and cut Hanna on the back of her shoulder.    Appellant and
Winckler continued to kick and punch Hanna.    After Winckler hit
Hanna with a cinder block, the attackers "got in the car" to
leave.    They "went down the road a little bit and it was brought
up that  [Hanna] was going to tell."    Cull then "turned around
and we went back" to get Hanna.    Hanna "had crawled" to a
different spot, and appellant and Winckler picked her up and
placed her in the trunk.    When asked if they planned on taking
Hanna to a hospital, Bitner stated, "I don't think a hospital
was involved."    Cull stopped her car twice after leaving Marsh
Field.    The first time, Cull "got out and kicked" Hanna; the
second time, all four participants exited and stood around the
open trunk during the robbery of Hanna.    Winckler ordered Hanna
to give her Hanna's watch, eventually taking it and spitting on
Hanna.    Cull then "cut  [Hanna] on the leg" with the box cutter
razor knife.
According to Bitner, after they arrived at Nash Road,
appellant, Cull, Winckler and she took Hanna down a "dirt road."
The four women had three box cutter razor knives.    "Thirty
steps" down the dirt road, Cull cut Hanna on her back with the
razor.    Cull then gave the razor to Bitner and returned to the
waiting car.    Appellant and Winckler had the other razors.
Initially, Hanna walked "on her own and then she fell."    After
she fell, the group picked her up and carried her.    The group
stopped near a mud puddle.    Appellant, Winckler and Bitner
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removed Hanna's clothes that allegedly belonged to appellant.
Winckler then pushed Hanna to the ground and "in the mud."
According to Bitner, Winckler "stabbed  [Hanna] in the chest a
couple of times with the box cutter," and appellant "punched her
and stuff."    Bitner cut Hanna's throat with the box cutter razor
knife, after which appellant "came around and choked her."
Bitner and Winckler left the scene first, while appellant
"stayed back" for "two or three minutes."    When Bitner and
Winckler left, Hanna was still alive and screaming.    Upon
arriving at Cull's car, appellant "said she stabbed  [Hanna] with
a stick."    Bitner estimated that "an hour or two" passed from
the time of the first attack at Marsh Field until the group left
the Nash Road location.
Appellant told the police that, after they removed Hanna
from the trunk at Nash Road, they ordered her to take off her
shirt and shorts.    Appellant, Bitner and Winckler took Hanna
down a dirt path, made her fall face first in muddy water, and
kicked her numerous times.    Appellant recalled Bitner saying she
tried to break Hanna's neck, but it would not break, so Bitner
said she cut it.    Appellant told Detective Mormando that
Winckler "took off  [Hanna's] watch" and was wearing it when the
police arrived at her home.    In her statement, appellant said,
"we were all kind of feeding off each other because when Mica
[Winckler] hit her I was like yeah you know.    And I kicked her.
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And I hit her twice.    And then Tracy  [Bitner] was like yeah you
know.    We're just gonna kick her around."
Detective McQuire recovered two of Hanna's rings at Marsh
Field.    Detective Mormando "took  [Hanna's watch] off of Domica
Winckler's wrist at Richmond  [P]olice headquarters when she was
interviewed there."
Dr. Marcella Fierro, Chief Medical Examiner, performed the
autopsy on Hanna.    Dr. Fierro "counted a minimum of  65" cuts and
stab wounds inflicted upon Hanna, including a five and one-half
inch long, one-half inch deep cut on her neck and another "cut
above that  [one] into the trachea, into the airway."    In
addition, Dr. Fierro saw numerous "blunt force injuries" to
Hanna's head and face, including "a fracture of the bridge of
her nose, big, black eyes,  [and] an abrasion of her left cheek."
"On the right side of  [Hanna's] face she had a big  [5-inch by
3-inch] contusion or big bruise underneath the scalp  .  .  .         .    In
front of that  .  .  . was a three-quarters inch contusion or
bruise."    Dr. Fierro found "[a]nother one on the left parietal
region, and then three in a row  .  .  . behind the left ear.
There was one that was associated with a big bruise that you
could see on the outside."    In addition, Dr. Fierro found
numerous abrasions to Hanna's feet, torso, knee, elbow, hip and
shoulder.    Dr. Fierro also described linear cuts on Hanna's
hands indicating defensive injuries.    Internally, Hanna's
"organs were very pale," indicating "she lost a great deal of
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blood."    Hanna's lungs "were very large and they were very
heavy.    And there was sand and water in the airways, and there
was sand and water in her stomach indicating she swallowed
muddy, sandy water."    Dr. Fierro opined that Hanna died of
"exsanguination  [excessive loss of blood] due to the cutting
wounds and dragging" and of drowning.    According to Dr. Fierro,
Hanna was alive when her face was in the water.    When Dr. Fierro
received the body, Hanna was wearing underwear and an ankle
bracelet, but she found "no other personal effects."
DISCUSSION
At the time of this offense, Code  §  18.2-31 provided, in
pertinent part, as follows:
The following offenses shall constitute
capital murder, punishable as a Class  1
felony:
*                                                                       *   *   *   *   *   *
4.    The willful, deliberate and premeditated
killing of any person in the commission of
robbery or attempted robbery.
"Code  §  18.2-31, defining capital murder, was first enacted
by the General Assembly in  1975 as part of a statutory scheme
enacted to eliminate the 'unbridled choice between the death
penalty and a lesser sentence' prohibited by Furman v. Georgia,
408 U.S.  238  (1972)."    Fitzgerald v. Commonwealth,  223 Va.  615,
635,  292 S.E.2d  798,  810  (1982).
It is obvious from the statute that to convict of capital
murder the Commonwealth must prove that the defendant committed
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two offenses:                                                           (1) Willful, deliberate and premeditated murder;1
and  (2) Robbery or attempted robbery.
"Robbery in Virginia has been repeatedly defined as a
common law crime against the person  .  .  .                            .    '"Robbery at common
law is defined as the taking with the intent to steal, of the
personal property of another, from his person or in his
presence, against his will, by violence or intimidation."'"
Crawford v. Commonwealth,  217 Va.  595,  597,  231 S.E.2d  309,  310
(1977)  (citations omitted); see also Clay v. Commonwealth,  30
Va. App.  254,  258,  516 S.E.2d  684,  686  (1999)  (en banc).
The Commonwealth calls our attention to the limited nature
of this appeal and our ruling at the writ panel stage, wherein
we held that the evidence was sufficient and adequately proved
that Tibbs "acted in concert with the other women to take the
victim's rings and watch" and thus was guilty of robbery.    We
are bound by this decision in this appeal.    See Commonwealth v.
Burns,  240 Va.  171,  174,  395 S.E.2d  456,  457  (1990).
In addition to proving the first degree murder and the
robbery, appellant contends the Commonwealth must also prove by
a preponderance of the evidence that the robbery was a
motivating factor for the killing.    She asserts that the murder
of Hanna was spawned by a "lover's quarrel" and that the robbery
of Hanna was purely incidental and in no way causally related or
1 Appellant does not challenge the sufficiency of the
evidence to prove this prong of the capital murder offense.
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connected to the murder.    She contends that in order to be
guilty of capital murder in the commission of a robbery, one
must intend to commit robbery before or at the same time he or
she intended to commit the killing.    Appellant asserts that,
under the facts of this case, she did not intend to kill Hanna
until after the completion of the robbery and that the murder
was committed with no regard to the robbery.    Therefore, argues
appellant, because the intent to kill did not occur before or
concomitant with the robbery, the capital murder conviction must
be reversed.
In support of her argument, appellant cites Branch v.
Commonwealth,  225 Va.  91,  300 S.E.2d  758  (1983), Bunch v.
Commonwealth,  225 Va.  423,  304 S.E.2d  271, cert. denied,  464
U.S.  977  (1983), and Edmonds v. Commonwealth,  229 Va.  303,  329
S.E.2d  807, cert. denied,  474 U.S.  975  (1985).
In Branch, witnesses saw Branch burn the contents of the
victim's wallet fifteen to twenty minutes after the fatal
shooting.    Branch and a friend drove the victim's corpse to
another location, where they left it.    See  225 Va. at  93,  300
S.E.2d at  759.    Branch attacked the robbery indictment, arguing
that "the evidence 'was insufficient  .  .  . to establish specific
intent to steal the wallet contemporaneous with the shooting.'"
Id. at  94,  300 S.E.2d at  759.    Branch asserted that "'[t]he
clear motive of removing the wallet and identification cards was
to thwart police efforts in identification of the corpse'  -- an
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intention not formulated until well after all violence against
the victim had been consummated and  [the victim] was dead."    Id.
The Supreme Court stated:
Here, as in Whitley[v. Commonwealth,  223 Va.
66,  286 S.E.2d  162  (1982),] and Wm.
Patterson[v. Commonwealth,  222 Va.  653,  283
S.E.2d  212  (1981)], the question is whether
robbery was the motive for the killing.
Branch's conduct, both before and after the
killing, negates any inference that he had
conceived an intent to rob at the time he
shot his victim.    Up to that point, Branch
had actually offered  [the victim] money in
an effort to resolve an argument and "to get
[the victim] out of my house."    The effort
failed, the argument continued, and the
killing occurred.    Branch's conduct
thereafter shows that he was motivated by no
other purpose than to cover up the crime he
had committed.    He personally supervised and
participated in the group's efforts to find
and destroy  [the victim's] identification
documents and to dispose of his body.    The
record shows that the violent killing and
the unlawful taking were two separate acts,
performed for entirely different reasons.
Because it is clear that Branch possessed no
intent to steal at the moment the shooting
occurred, we hold that the evidence was
insufficient as a matter of law to support
his conviction of robbery.
225 Va. at  95-96,  300 S.E.2d at  760.
In Bunch, the defendant was convicted of capital murder and
sentenced to death for robbing and murdering a woman with whom he
was having an intimate affair.    One of the issues raised by Bunch
was the sufficiency of the evidence of robbery to support his
capital murder conviction.    Bunch maintained "the evidence was
sufficient to make a prima facie case of homicide and larceny,
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but not of capital murder in the commission of robbery."               225 Va.
at  439,  304 S.E.2d at  280.    The Supreme Court found
that on January  31,  1982, Bunch went to  [the
victim's] home with the intent to kill her
and steal her property, that he did kill her
as planned, and that he did steal property
from her person.    She may or may not have
been alive at the time he stole her property,
and she may even have been dead for some time
when he accomplished the theft.    Neither of
these eventualities is material, however; the
important considerations are that robbery was
the motive for the killing and that Bunch had
the intent to rob when he killed  [the
victim].    Nor does it make any difference
whether, as Bunch asserts, "the items
[stolen] could have been taken from parts of
the residence away from where the victim was
shot."
Id. at  440,  304 S.E.2d at  280-81  (emphasis added).    The issue
addressed in Bunch was whether a robbery was committed.
In Edmonds, a witness, Clark, saw appellant walking toward
a small grocery store.    See  229 Va. at  305,  329 S.E.2d at  809.
Ten minutes later, another witness, McDaniel, found the store
owner dead inside the store.    See id.    That witness "saw Edmonds
and another man standing at the front door."    Id.    Edmonds left
the scene when he heard the police sirens.    See id. at  306,  329
S.E.2d at  810.    Although a witness noticed "a stack of ones in
the register" shortly before the murder, the police found no
currency when they arrived.    Id.    A twelve-year-old witness
looked through the store window just before McDaniel discovered
the body and "saw a man he later identified as Edmonds 'stooping
below the cash register.'"    Id.    Witnesses saw Edmonds with
dollar bills after the murder.    See id.    Another witness
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testified that the victim "had told her that Edmonds had stolen
some watches from his store and was no longer welcome as a
customer."    Id.    Another witness testified that Edmonds told her
that the victim accused him of stealing the watches and "'said
he was going to get  [the victim].'"    Id.
After providing authorities with two earlier accounts
incriminating someone else, Edmonds said he went to the store to
buy a soft drink, at which time the victim aimed a pistol at him
and asked about the stolen watches.    See id.    Edmonds told the
victim he paid for the watches, but the victim cursed him and
threatened to shoot him, so Edmonds threw a brick at the victim,
striking him on the head.    The victim dropped the gun
momentarily, and, when he picked it up again, Edmonds grabbed a
"butcher knife and '[t]he man got cut.'"    Id. at  308,  329 S.E.2d
at  811.    Edmonds claimed the victim was alive and calling for
help when he left the store; on the way out, Edmonds said he
"picked up a handkerchief and a bag of candy."    Id.    Edmonds
denied taking the gun or the money.    See id.
Relying on Bunch, "Edmonds argue[d] that  .  .  . the homicide
offense d[id] not rise to the level of capital murder in the
commission of robbery" because "the larceny occurred only after
the killing was consummated and that the evidence  [wa]s
insufficient to prove that robbery was the motive for the
killing."    Id. at  309-10,  329 S.E.2d at  812  (emphasis added).
Despite Edmonds' statement to police that the sole purpose
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for going to the store was to buy a cold drink, the court found
it unlikely that one accused of shoplifting would return to the
shop to make a purchase.    See id. at  310,  329 S.E.2d at  812.
The Court explained:
Rejecting Edmonds' claim, the trial judge
was justified in relying on the sworn
testimony and the physical evidence adduced
at trial.    All the offenses  -- the initial
assault, the fatal stabbing, and the larceny
-- were committed at some point within the
ten-minute interval between the time
Margaret Clark saw Edmonds on his way to the
store and the time Leonard McDaniel arrived.
Death from the neck wound was not
instantaneous.                                                      [The victim] was calling for
help as Edmonds was crouching behind the
cash register, and it is reasonable to
believe that the gag was applied to stifle
further outcry and to facilitate the theft.
In light of the inferences raised by
this sequence of events and the time factor
involved, we are of opinion that the
evidence supports the conclusion that the
killing and the theft were interdependent
objects of a common criminal design, and we
will affirm the conviction of capital murder
in the commission of robbery.
Id. at  310,  329 S.E.2d at  812-13  (emphasis added).
In Edmonds, the Supreme Court did not use language
requiring the Commonwealth to prove that the robbery was a
motivating cause for the killing.    Instead, it found a
sufficient causal connection between the murder and robbery to
affirm the capital murder conviction by concluding "that the
killing and the theft were interdependent objects of a common
criminal design."    Id. at  310,  329 S.E.2d at  813.
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In addition to these three cases cited by appellant, many
other Supreme Court cases have interpreted the language used in
Code  §  18.2-31(4), "killing of any person in the commission of a
robbery or attempted robbery," and have discussed the requisite
relationship and causal connection between the murder and the
robbery in order to sustain a capital murder conviction.    We
will analyze some of those cases in order to interpret further
the statute and determine its proper application.
In Briley v. Commonwealth,  221 Va.  532,  273 S.E.2d  48
(1980), cert. denied,  451 U.S.  1031  (1981), Linwood Briley was
convicted of capital murder in the commission of robbery.
Briley and three accomplices accosted the victim outside a
restaurant, robbed him at gunpoint of his wallet, ordered him
into the victim's car, and transported the victim to an isolated
location.    See id. at  534-35,  273 S.E.2d at  50.    When the victim
"'started struggling'" at that location, Briley shot him.    Id.
at  535,  273 S.E.2d at  50.    Fifteen to twenty minutes elapsed
from the time the victim was robbed and seized until he was
killed.    See id.    After driving around in the victim's car,
Briley and his accomplices eventually stripped it of its parts.
See id. at  536,  273 S.E.2d at  50.    Briley's "major contention"
on appeal was "that the trial court erred in refusing a defense
instruction which would have permitted the jury to find that the
robbery of  [the victim] terminated at the  .  .  . restaurant and,
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therefore, that the defendant was guilty only of the non-capital
offense of first degree murder in the subsequent killing."    Id.
at  540,  273 S.E.2d at  53.    The Supreme Court found that the
victim's car "was a fruit of the robbery" showing "conclusively
that the violence against  [the victim] and the trespass to his
automobile combined and continued unabated" from the initial
taking until the murder.    Id. at  544,  273 S.E.2d at  55.
Adapting language from Haskell v. Commonwealth,  218 Va.  1033,
243 S.E.2d  477  (1978), a felony-murder case, the Court ruled
"that the killing involved here was so closely related in time,
place, and causal connection as to make the killing, as a matter
of law, a part of the same criminal enterprise."    Id. at  544,
273 S.E.2d at  55-56  (emphasis added).
In Pope v. Commonwealth,  234 Va.  114,  116-17,  360 S.E.2d
352,  354  (1987), cert. denied,  485 U.S.  1015  (1988), Pope was
convicted of capital murder under former Code  §  18.2-31(d), now
Code  §  18.2-31(4), malicious wounding, attempted robbery and
four counts of using a firearm.    Pope contended "that the
evidence was insufficient to support his conviction of robbery,
and was consequently insufficient to establish the predicate for
capital murder under Code  §  18.2-31(d), which classifies as
capital murder those killings which are perpetrated 'in the
commission of robbery.'"    Id. at  124,  360 S.E.2d at  359.    He
contended:                                                            (1) someone else stole the murder victim's purse
after appellant fled the scene and while the murder victim's
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sister, who Pope also shot, ran into the hospital and left the
murder victim in the car unattended for less than thirty
seconds; and  (2) he removed the murder victim's "purse
surreptitiously before the shooting and concealed it on his
person" so as to break any temporal and causal connection
between the murder and robbery.    Id.    The Supreme Court found
that the first contention "framed a factual issue" that the jury
was entitled to conclude "was neither reasonable nor persuasive"
and that, under Briley, Pope's second contention was "fallacious
as matter of law."    Id. at  124-25,  360 S.E.2d at  359.
The Court explained:
We decided in Linwood Earl Briley v.
Commonwealth,  .  .  . that when a killing and
a taking of property are so closely related
in time, place, and causal connection as to
make them parts of the same criminal
enterprise, the predicates for capital
murder under Code  §  18.2-31(d) are
established.    Further, these relationships
need not necessarily be jury questions.
They may, in a proper case, be determined as
a matter of law.
Id. at  125,  360 S.E.2d at  359  (citation omitted).
In LeVasseur v. Commonwealth,  225 Va.  564,  304 S.E.2d  644
(1983), the Supreme Court employed the above-quoted language
from Briley and then said:
Applying these principles to the
evidence before us, it is manifest that the
robbery and the murder of Pamela Benner are
even more inextricably connected than the
crimes in Briley.    The victim was, in the
absence of her family, the custodian of the
home and its contents.    The property was
-  18  -




stolen through the exercise of violence
against her.    The bloodstains on the
splintered doors to the locked bedrooms in
which the stolen property was kept are
circumstantial evidence that her ability to
protect the property had been subdued by
overwhelming violence before the theft
occurred.    While it is impossible to
ascertain the precise time of her death, in
relation to the taking of the property, the
Commonwealth's evidence shows that the
defendant, having gone there to rob her,
bound and beat her with a poker, before he
went upstairs to the kitchen, leaving traces
of blood and hair, to secure the ice pick
and carving fork with which he then stabbed
her repeatedly.
The defendant's evidence does nothing
to separate the crimes as to time, place, or
causal connection.    Indeed, his version, if
believed, makes it unmistakably clear that
the robbery and the murder were a part of
the same criminal enterprise.
Id. at  591,  304 S.E.2d at  658-59.
Similar language to that used in Pope and LeVasseur has
been used in other Supreme Court cases to define capital murder
"in the commission of robbery or attempted robbery" under Code
§  18.2-31(4).    See George v. Commonwealth,  242 Va.  264,  277-78,
411 S.E.2d  12,  20  (1991), cert. denied,  503 U.S.  973  (1992);
Quesinberry v. Commonwealth,  241 Va.  364,  368,  402 S.E.2d  218,
221  (1991); Poyner v. Commonwealth,  229 Va.  401,  405,  329 S.E.2d
815,  820  (1985); Whitley v. Commonwealth,  223 Va.  66,  73,  286
S.E.2d  162,  166, cert. denied,  459 U.S.  882  (1982); Patterson v.
Commonwealth,  222 Va.  653,  656,  283 S.E.2d  212,  214  (1981).    All
of these cases involved capital murder in the commission of
-  19  -




robbery, and all used substantially the same language used in
Pope and LeVasseur to define capital murder.
ANALYSIS
Appellant's sufficiency argument is two-fold:                        (1) whether
robbery must be one of the motivating factors to convict someone
of capital murder under Code  §  18.2-31(4), and, if so,  (2)
whether the Commonwealth proved the robbery was a motivating
factor for the murder.    According to appellant, the robbery was
incidental to the murder and a mere afterthought.
Motive is not an essential element of murder.    See Ward v.
Commonwealth,  205 Va.  564,  570,  138 S.E.2d  293,  297  (1964).
However, motive is generally a relevant circumstance to
establish intent when a conviction is based on circumstantial
evidence.    See Smith v. Commonwealth,  220 Va.  696,  702,  261
S.E.2d  550,  554  (1980).
Intent  .  .  . is a requisite element in many
crimes, but motive is not.    Motive is merely
a circumstance tending to prove the guilt of
the alleged perpetrator, as its absence may
tend to show his innocence.    It is relevant
and probative on the issue of identity of
the criminal agent, but it is not an element
of any crime.    "Motive and intent are not
synonymous.    Motive is the inducing cause,
while intent is the mental state with which
the criminal act is committed  .  .  .                               .    The
prosecution is never required to prove
motive, although it may do so."    Motive has
never been a requisite element of the crime
of murder in Virginia or in any other
jurisdiction of which we are aware.
-  20  -




Cantrell v. Commonwealth,  229 Va.  387,  397,  329 S.E.2d  22,  28-29
(1985)  (citations omitted); see also Brown v. Commonwealth,  238
Va.  213,  221,  381 S.E.2d  225,  230  (1989).
Based on language used by the Supreme Court and our
analysis of extant case law, we believe that whether the robbery
was a "motivating factor" for the murder is a circumstance that
may be considered in proving whether the "killing and a taking
of property are so closely related in time, place, and causal
connection as to make them parts of the same criminal
enterprise," Pope,  234 Va. at  125,  360 S.E.2d  359, and,
therefore, "were interdependent objects of a common criminal
design."    Quesinberry,  241 Va. at  374,  402 S.E.2d at  224.
However, we decline to hold that robbery as a motivating factor
is a sine quo non to support a capital murder conviction under
Code  §  18.2-31(4).    Evidence of motivation goes to a person's
intent and can help prove that a robbery actually was committed
or attempted, see George,  242 Va. at  279-80,  411 S.E.2d at  21-22
(evidence established that defendant "harbored intention" and,
therefore, "was motivated" both to molest and to rob victim;
holding that such evidence established murder "so closely
related in time, place and causal connection to the robbery that
the killing became part of the same criminal enterprise as the
robbery"), or it may be employed to show that a possible
post-murder robbery was sufficiently connected to the murder.
Compare Whitley,  223 Va. at  72-74,  286 S.E.2d at  166-67  (where
-  21  -




defendant took victim's property after murder, Supreme Court
rejected defendant's argument that intent to steal was formed
after murder resulting in mere larceny and found sufficient
evidence for jury to conclude that "murder was committed with
intent to rob" to fit within capital murder statute), with
Branch,  225 Va. at  95-96,  300 S.E.2d at  760  (no evidence of
intent to rob where idea to take and destroy victim's
identification from his wallet occurred only after alleged
accidental murder; holding evidence insufficient as a matter of
law to support robbery conviction).
Accordingly, we hold that in order for a murder to be
committed "in the commission of robbery or attempted robbery"
the killing must be "so closely related in time, place, and
causal connection as to make the killing  .  .  . a part of the
same criminal enterprise."    Briley,  221 Va. at  544,  273 S.E.2d
at  56.    In establishing this relationship, sufficient evidence
must be presented from which the fact finder can conclude that
the killing and robbery were "interdependent objects of a common
criminal design."    Edmonds,  229 Va. at  310,  329 S.E.2d at  813.
In some situations, such as a post-murder theft of property,
proof that robbery was the motive for the killing may help
establish the requisite causal connection to support a verdict
that a murder occurred in the commission of robbery.    See Bunch,
225 Va. at  440,  304 S.E.2d at  280-81  (addressing defendant's
argument that taking occurred one to two hours after murder and,
-  22  -




thus, was larceny rather than robbery and affirming based on
evidence that robbery was motive for killing).    Therefore,
motivation may be a factor subsumed in the more encompassing and
comprehensive requirement that the murder and robbery be a part
of the same criminal enterprise and interdependent objects of a
common criminal design.
For example, where a murder follows a robbery closely in
time and circumstances, it is reasonable to infer that the
motive for the murder was to escape detection and/or eliminate
witnesses.    See Poyner,  229 Va. at  423,  329 S.E.2d at  836.    In
other words, where the predicate crime occurs first, it is
enough if the murder and robbery share enough of a relationship
or connection in time and purpose such that a fact finder can
reasonably conclude a sufficient causal nexus exists between
them.
Based on our interpretation of extant case law and the
facts of this case, we need not rely on or limit our analysis
merely to motivation.    Here, the robbery occurred before the
murder;2  therefore, the question is whether the murder and
robbery were part of the same criminal enterprise and
interdependent objects of a common criminal design.
Where  [a] defendant challenges the
sufficiency of the evidence, it is our duty
under familiar principles "to look to that
evidence which tends to support the verdict
2 Because the robbery preceded the murder, it cannot, as
argued by appellant, be regarded an afterthought.
-  23  -




and to permit the verdict to stand unless
plainly wrong.    If there is evidence to
sustain the verdict, this court should not
overrule it and substitute its own judgment,
even if its opinion might differ from that
of the jury."
George,  242 Va. at  278,  411 S.E.2d at  20  (citation omitted).
Thus, we look at the evidence before the jury, sitting as fact
finder, and the reasonable inferences drawn from the evidence to
determine whether sufficient evidence was before the jury from
which it could find appellant guilty beyond a reasonable doubt.
On Saturday night, July  26,  1997, when Tibbs, Winckler,
Cull and Bitner began discussing a plan to teach Hanna a lesson
in the form of an "ass whipping," they may not have intended
that the affair would end up in murder, robbery, and abduction.
However, they entered into an enterprise known as concert of
action, which is defined as "'action that has been planned,
arranged, adjusted, agreed on and settled between parties acting
together pursuant to some design or scheme.'"    Rollston v.
Commonwealth,  11 Va. App.  532,  542,  399 S.E.2d  823,  827  (1991).
In Spradlin v. Commonwealth,  195 Va.  523,  79 S.E.2d  443
(1954), the Supreme Court said:
If there is concert of action with the
resulting crime one of its incidental
probable consequences, then whether such
crime was originally contemplated or not,
all who participate in any way in bringing
it about are equally answerable and are
bound by the acts of every other person
connected with the consummation of such
resulting crime.    The question of whether
the offense is the natural and probable
-  24  -




result of the intended wrongful act is
usually for the jury.
Id. at  558,  79 S.E.2d at  445.
The jury as fact finder knew that Hanna was alive when the
group made its last stop at Nash Road.    Prior to that time,
there was conversation about taking Hanna to a hospital, but
this was rejected for fear of disclosure.    Bitner "suggested
that we cut out her tongue so she couldn't talk," and Winckler
"said that we need to cut off her fingers so she couldn't
write."    Cull, Bitner, Winckler and Tibbs got out of the car and
went to the trunk.    Winckler forced a badly beaten Hanna to
relinquish her rings and watch.    The rings and watch were
delivered pursuant to demand, after which Hanna was taken down a
dirt road.    At first, Hanna walked, but when unable to do so,
the group carried her.    En route down the dirt road, Bitner,
Tibbs and Winckler were in possession of box cutter razor knives
which they used to cut Hanna from time to time.    Bitner
testified that Hanna was bleeding "really, really bad" as she
was carried down the dirt road.    When the group arrived at a mud
puddle, they stopped, and Tibbs and Winckler removed Hanna's
clothing because it allegedly belonged to Tibbs.    Bitner
testified that Hanna "was pushed in the mud."    Bitner further
testified as follows during direct examination:
Q.    What happened, she went down in the mud?
A.    Uh huh.
-  25  -




Q.    Was she on her back or on her stomach?
A.    She was on her stomach.
Q.    What happened when she went down
in the mud on her stomach?
A.    Domica  [Winckler] stabbed her in
the chest a couple of times with
the box cutter.
Q.    What did Kelley Tibbs do?
A.    Just punched her and stuff.
Q.    What did you do?
*                                                                  *   *   *   *   *   *
A.    I cut her on her throat.
*                                                                  *   *   *   *   *   *
Q.    What did you see Ms. Tibbs do at
that point?
A.    Choke her.
As the group and Hanna proceeded down the dirt road, Vaughn
was in the car, unable to see them.    Vaughn "heard a cry and
then  [she] heard another cry and then  [she] heard the cry get
muffled, something, and that was it."    The dastardly deed was
accomplished.
This case involved four codefendants who inflicted two
beatings on the victim in two locations removed from each other.
After the first attack, the codefendants transported Hanna to
the second location and robbed her of her watch and jewelry.
Immediately thereafter, appellant, Bitner and Winckler
forcefully accompanied Hanna down the Nash Road path and
-  26  -




actively participated in causing her death.    The killing of
Hanna immediately after she was robbed and taken from the trunk
"was so closely related in time, place, and causal connection as
to make the killing, as a matter of law, a part of the same
criminal enterprise."    Briley,  221 Va. at  544,  273 S.E.2d at
55-56.    This temporal relationship established "that the killing
and the theft were interdependent objects of a common criminal
design."    Edmonds,  229 Va. at  310,  329 S.E.2d at  813.
Moreover, the jury could reasonably infer that Winckler,
acting in concert with appellant in committing the murder, took
Hanna's watch and participated with appellant in murdering Hanna
so she could keep the watch and silence Hanna.    After the crime,
Winckler kept the watch and was wearing it when the police
arrested her.    Furthermore, two of Hanna's rings were never
recovered, providing the jury with evidence that one of the
other co-actors in the murder may have desired and retained
Hanna's property.    From this evidence, the jury could have
concluded that co-actor Winckler, at least, coveted Hanna's
property and that appellant acted for the dual purpose of
silencing Hanna and furthering Winckler's acquisition of Hanna's
property.
The Commonwealth's evidence was competent, was not
inherently incredible and was sufficient to prove beyond a
reasonable doubt that appellant committed a murder in the
-  27  -




commission of robbery.    Accordingly, we affirm appellant's
capital murder conviction.
Affirmed.
-  28  -




Elder, J., dissenting.
I join generally in the majority's recitation of the facts
and the law, but I disagree with its application of the law to
the facts.    Therefore, I respectfully dissent.
The relevant version of Code  §  18.2-31 provided that "[t]he
willful, deliberate and premeditated killing of any person in
the commission of robbery or attempted robbery" constitutes
capital murder.    For a murder to be committed "in the commission
of robbery or attempted robbery," the killing must be "so
closely related in time, place, and causal connection as to make
the killing  .  .  . a part of the same criminal enterprise."
Briley v. Commonwealth,  221 Va.  532,  544,  273 S.E.2d  48,  56
(1980)  (emphasis added).    In establishing this relationship, the
record must contain sufficient evidence from which the fact
finder can conclude that the killing and robbery are
"interdependent objects of a common criminal design."    Edmonds
v. Commonwealth,  229 Va.  303,  310,  329 S.E.2d  807,  813  (1985).
As the majority acknowledges, determining whether the record
contains such evidence necessarily involves an examination of
the perpetrators' intent.    See slip op. at  21-22; Whitley v.
Commonwealth,  223 Va.  66,  72-74,  286 S.E.2d  162,  166-67  (1982)
(holding evidence sufficient to support finding that "murder was
committed with intent to rob" to fit within capital murder
statute but noting that proof of coexistence of intent to kill
and intent to steal may not be required under the statute when
-  29  -




the killing and robbery are part of a continuing criminal
enterprise).
Intent may and often must be proved by circumstantial
evidence.    See Whitley,  223 Va. at  73,  296 S.E.2d at  166.    A
perpetrator's motive in committing an offense, although not an
element of murder, is a circumstance relevant to establishing
intent.    See Smith v. Commonwealth,  220 Va.  696,  702,  261 S.E.2d
550,  554  (1980).    His conduct and statements also may be
relevant circumstantial evidence of motive and, thus, intent.
See Long v. Commonwealth,  8 Va. App.  194,  198,  379 S.E.2d  473,
476  (1989).    Circumstantial evidence "is as competent and is
entitled to as much weight as direct evidence, provided it is
sufficiently convincing to exclude every reasonable hypothesis
[flowing from the evidence] except that of guilt."    Coleman v.
Commonwealth,  226 Va.  31,  53,  307 S.E.2d  864,  876  (1983); see
Hamilton v. Commonwealth,  16 Va. App.  751,  755,  433 S.E.2d  27,
29  (1993).    Although an accused may try to prove his lack of
intent by testifying about it or offering evidence of his
statements to police or others, the trier of fact is entitled to
assess the credibility of the testimony or statements and to
reject them in whole or in part.    See Pugliese v. Commonwealth,
16 Va. App.  82,  92,  428 S.E.2d  16,  24  (1993).
The majority asserts that "where a murder follows a robbery
closely in time and circumstances, it is reasonable to infer
that the motive for the murder was to escape detection  [of the
-  30  -




robbery] and/or eliminate witnesses."    It cites Poyner v.
Commonwealth,  229 Va.  401,  432,  329 S.E.2d  815,  836  (1985), in
support of this proposition.    I agree that this inference is
appropriate where the only reasonable hypothesis flowing from
the evidence, viewed in the light most favorable to the
Commonwealth, is that the motive for the murder was, as stated,
to escape detection for the robbery.    In fact, this was the case
in Poyner, where the defendant robbed an ice cream store and
immediately shot the only witness.    See id.    The record provided
no evidence that the victim's body was "mutilated  .  .  .  [or]
raped" and, therefore, no evidence of any other motive or intent
for the murder.    See id.    Under those circumstances, the court
held the fact finder "could reasonably have concluded that  [the
defendant] killed  [the victim] to prevent her from calling for
help and to keep her from identifying him as the robber."    Id.
at  433,  329 S.E.2d at  836.
Similarly, in Whitley, the evidence, viewed in the light
most favorable to the Commonwealth, supported the jury's finding
that the defendant murdered the victim in order to steal her
car.    See Whitley,  223 Va. at  72-74,  286 S.E.2d at  166-67.    It
established that, on the night of the murder, the defendant's
car was "broken down," the defendant previously had expressed an
interest in buying a car from the victim's daughter, and the
defendant killed the victim, took her car keys and stole her
car.    See id. at  73-74,  286 S.E.2d at  166.    The defendant had
-  31  -




presented the hypothesis that his statements to police  (in which
he said that he entered the victim's house to use the phone and
that the victim said something which "provoked the fatal
attack") and the physical evidence  (which established that he
removed the victim's clothing and sexually assaulted her with
two umbrellas) required a finding that "the killing was the act
of a 'sexual psychopath' and that the larceny  [of the
automobile] was committed 'only as an after-thought.'"    Id. at
72-73,  286 S.E.2d at  166.    The Court held "the jury logically
could have concluded that both sex and robbery motivated  [the
defendant's] conduct," despite the fact that the taking may not
have occurred until after the victim's death and that the jury
was entitled to reject the defendant's statements about what
occurred and why.    Id. at  73-74,  286 S.E.2d at  166.    Once the
jury rejected the defendant's statements, the only hypothesis
flowing from the remaining evidence--viewed in the light most
favorable to the Commonwealth--was that the defendant's desire
to steal the victim's car was a motive for the murder, although
the physical evidence supported a finding that he had multiple
motives.
In appellant's case, in contrast to Whitley, the
Commonwealth's evidence established merely the possibility of
multiple intents.    The evidence did not exclude the reasonable
hypothesis that the perpetrators acted with only one intent in
killing the victim--to prevent her from identifying them as the
-  32  -




people who had viciously beaten and cut her--and that the
robbery was, as appellant argues, merely an afterthought, even
though it occurred before the killing.    The Commonwealth's
evidence makes clear that the perpetrators' original intent was
to "kick  [the victim's] ass" because she had lied to appellant.
After inflicting the beating, they expressed fear that the
victim "was going to tell," and they put her in the trunk of the
car and discussed how to keep her from doing so.    They then
drove to another location where they stood around the trunk and
told the victim to relinquish all of her jewelry.    After she did
so, they removed her from the trunk, walked her down a dirt
road, and removed most of her clothing.    They continued to kick,
beat, cut and stab her, and she eventually died.    Although two
of the victim's rings were abandoned and others were never
found, one of the perpetrators kept and wore the victim's watch.
Thus, the evidence, viewed in the light most favorable to
the Commonwealth, establishes that the perpetrators acted with
an intent to cover up the beating and that this was a motive for
the victim's murder.    Although they may also have acted with the
dual intent to cover up the robbery, no direct evidence supports
such a finding, and the circumstantial evidence that appellant
or any of her accomplices harbored such an intent is minimal;
the only such evidence is the fact of the robbery itself,
Winckler's keeping the victim's watch, and the subsequent
killing of the victim.
-  33  -




Another reasonable hypothesis flowing from the
circumstantial evidence, even viewed in the light most favorable
to the Commonwealth, is that appellant and her accomplices
intended to kill the victim solely to cover up the beating.
Thus, in contrast to Whitley, this hypothesis of innocence flows
from the Commonwealth's evidence and does not require acceptance
of the subsequent statements of appellant or her accomplices.
Therefore, although the evidence establishes that the
robbery and murder were "closely related in time  [and] place," I
would hold that it fails, as a matter of law, to establish the
"causal connection" necessary to support a finding that the
killing and robbery were "interdependent objects of a common
criminal design."    The evidence fails to prove that this offense
constituted murder "in the commission of robbery" and
established, at most, robbery in the commission of murder, which
does not meet the requirements of Code  §  18.2-31.    That
appellant and her accomplices may have acted in concert in
committing robbery and murder does not, without more, render the
murder an act of capital murder.
For these reasons, I would reverse appellant's conviction
for capital murder.    Therefore, I respectfully dissent.
-  34  -

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