COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Annunziata and Senior Judge Cole 

Argued at Richmond, Virginia 

ROBERT MATHEW LYNE 

v. Record No. 2428-94-2 MEMORANDUM OPINION* BY 

 JUDGE MARVIN F. COLE 

 COMMONWEALTH OF VIRGINIA MARCH 26, 1996 

 FROM THE CIRCUIT COURT OF 

HENRICO COUNTY 

James E. Kulp, Judge 

 Mark K. Tyndall (Christopher C. Booberg; 

Morchower, Luxton and Whaley, on brief), 

for appellant. 

 Thomas C. Daniel, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 The appellant, Robert Mathew Lyne, was convicted in a bench 

trial of credit card theft in violation of Code § 18.2-192(1)(a). 

 He contends that the evidence is insufficient to support his 

conviction. We disagree and affirm. 

 "On appeal, we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom. The judgment of a trial 

court sitting without a jury is entitled to the same weight as a 

jury verdict and will not be set aside unless it appears from the 

evidence that the judgment is plainly wrong or without evidence 

to support it." Martin v. Commonwealth, 4 Va. App. 438, 443, 358 

 

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

designated for publication. 
 2 

S.E.2d 415, 418 (1987). "'The finding of the judge, upon the 

credibility of the witnesses and the weight to be given their 

evidence, stands on the same footing as the verdict of a jury, 

and unless that finding is plainly wrong, or without evidence to 

support it, it cannot be disturbed.'" Speight v. Commonwealth, 4 

Va. App. 83, 88, 354 S.E.2d 95, 98 (1987) (citation omitted). 

 Guided by these standards of review, the record discloses 

that at about 1:45 a.m. on January 7, 1994, Karen Crawford parked 

her car on the street in front of her house. She locked the car, 

but inadvertently left her purse in it. At 7:50 a.m. she saw 

that the right rear window of the car had been smashed. Her 

purse had been stolen. The purse contained her wallet, ninetyseven dollars in cash, her credit cards, a First Virginia Bank 

ATM card, her checkbook and other items. Crawford had written 

her personal identification number for the ATM card on a page in 

the checkbook. When the First Virginia Bank opened at 9:00 a.m., 

she reported the theft of the ATM card. 

 At 3:01 a.m. on January 7, 1994, seventy-five dollars were 

withdrawn from Crawford's bank account by use of her First 

Virginia Bank ATM card from a Central Fidelity Bank branch. 

Camera equipment at the bank photographed Lyne at the ATM 

machine. 

 At 3:07 a.m. on January 7, 1994, one hundred and forty 

dollars were withdrawn from Crawford's bank account by use of her 

First Virginia Bank ATM card from a Crestar Bank branch located 
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about two miles, or five minutes, from the Central Fidelity Bank 

branch. Camera equipment at Crestar Bank showed a person with a 

jacket pulled over his head covering his entire face and head 

standing in front of the machine. The Crestar photographs showed 

the arm of another person standing to the right of the person 

with the jacket covering his head. 

 Henrico County Police Investigator Michael L. Wade testified 

that he investigated the theft of the ATM card from Crawford 

after he was provided with the pictures from Central Fidelity 

Bank and Crestar Bank. He first spoke with Lyne on March 16, 

1994. Lyne admitted to the officer that he was the person shown 

in the Central Fidelity pictures, but he stated that he did not 

use the ATM card. Lyne was shown the Crestar Bank pictures, but 

he was reluctant to tell the officer who the person was under the 

coat. However, through his mother, he gave the officer the name 

of Jason Meeks. He did not say who the person was in the 

picture. 

 Later in the day, Lyne telephoned the officer at his office 

and gave him the following information: 

 [H]e said that they used to go to the machine 

to get money to go to Taco Bell. He doesn't 

know who used the card that day. He said 

that Jason, who is Jason Meeks, used the card 

a lot at the machine and that he'd also been 

to ATM Machines before with Danny Proffit. 

He also said that he was more than likely 

drunk and don't remember going to the two 

places, but that he would have remembered if 

he had broke into a car. And he also told me 

three places that they went to late at night. 

 The Amoco, the Taco Bell, and the Waffle 

House. 
 4 

 Lyne was arrested on May 12, 1994, and he furnished Officer 

Wade additional information at that time: 

 He said that he didn't, speaking of himself, 

didn't receive any of the money, that he 

didn't know where the card came from, that 

Jason was standing beside the machine, that 

he had no idea prior to going to the machine, 

what was going on. He said that Jason said 

he stood beside the machine because they take 

pictures of people, and he said he didn't 

know anything about the machine but that they 

probably went to Taco Bell after that. 

Wade also said that Lyne did not say who paid at Taco Bell. 

 Lyne testified in his own behalf. He said he lived with 

Jason Meeks. When shown the pictures taken at Central Fidelity 

Bank, he recognized his photograph. He stated that it was about 

fifty feet from the curb to the machine and that he was ten to 

twenty feet back from the machine. 

 Lyne admitted being present at the Central Fidelity Bank 

machine, but could not recall being dropped off during the six 

minutes between 3:01 a.m. and 3:07 a.m. which elapsed during the 

trip from Central Fidelity Bank to the Crestar Bank. Lyne was 

asked what time he met Meeks on the night in question. He 

testified that his girlfriend, who lived across the street from 

him, always had to be home at midnight. He left there at 12:05 

a.m. and walked across the street. He remembered Meeks "coming 

and saying 'Let's go out to eat,' and there was a group of them, 

as we usually do. We always met back and went out to eat. We 

always went in separate directions most time at night." 

 Code § 18.2-192(1) provides that a person is guilty of 
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credit card theft when: 

 (a) He takes, obtains or withholds a credit 

card . . . from the person, possession, 

custody or control of another without the 

cardholder's consent or who, with knowledge 

that it has been so taken, obtained or 

withheld, receives the credit card . . . with 

intent to use it or sell it, or to transfer 

it to a person other than the issuer or the 

cardholder. 

 Lyne contends that under the first clause of Code 

§ 18.2-192(1)(a), the Commonwealth must prove that he took, 

obtained or withheld a credit card without consent. He asserts 

that there is no evidence in the record to show who stole the 

purse and certainly none to show that Lyne broke into the car and 

stole the purse. In order to decide this case, we do not have to 

determine who broke into the car and stole the purse. Therefore, 

we make no determination under the first clause of Code 

§ 18.2-192(1)(a) and proceed to the second clause. 

 The statute may be violated by proof that the accused was in 

receipt of the card knowing that it was taken from the 

possession, custody or control of the cardholder without her 

consent. In a prosecution under those circumstances, the 

Commonwealth does not have to prove that the accused was the 

thief; however, it does have to prove that he had knowing receipt 

of a card with intent to use, sell or transfer it. See Cheatham 

v. Commonwealth, 215 Va. 286, 290, 208 S.E.2d 760, 763 (1974); 

Sandoval v. Commonwealth, 20 Va. App. 133, 136, 455 S.E.2d 730, 

731 (1995). 
 6 

 The record establishes that Lyne and Jason Meeks were 

together at some point after 12:05 a.m. on January 7, 1994. Lyne 

testified, "I just remember him coming and saying 'Let's go out 

to eat.'" At 1:45 a.m. Crawford parked her car in front of her 

home and left her purse in the car with the ATM card in it. 

Between 1:45 a.m. and 3:01 a.m. (one hour and sixteen minutes) 

someone broke into the car and stole the purse and its contents, 

including the ATM card. At 3:01 a.m. Lyne was photographed at 

the Central Fidelity Bank ATM machine using the card. Lyne 

admitted his presence at the machine. He also admitted to the 

police officer that Jason Meeks was also present. The fact 

finder could reasonably infer that Lyne knew that the card was 

stolen from the facts that it was 3:01 a.m. and the manner in 

which they approached the machine. 

 Susan Brooks, Bank Card Security Manager at Central Fidelity 

Bank, testified that if you were standing directly in front of 

the machine and put the card in the machine, the picture would be 

centered. She testified that a person could approach from the 

side and push the button from the side and the camera would not 

take their picture. The photograph showed Lyne ten to twenty 

feet in front of the machine and located where he could reach the 

machine. Lyne testified that Meeks always approached the machine 

from the side because he knew his picture could not be taken 

there. We find that the fact finder could reasonably infer from 

this evidence guilty knowledge. The evidence demonstrates that 
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both Lyne and Meeks knew that the card was stolen. 

 Only six minutes elapsed between the withdrawals at Central 

Fidelity Bank and Crestar Bank. It can be inferred that the card 

did not change hands during this six minutes. Meeks had it at 

the Central Fidelity Bank. Meeks was present and the card was 

used six minutes later at Crestar Bank. Lyne identified the coat 

in the Crestar Bank photograph as belonging to Meeks. It can be 

inferred from the short period of time that elapsed that Lyne was 

still with him. Meeks and Lyne lived together. Lyne testified 

that he did not recall going to the second machine. When asked 

where he was dropped off during this six minutes, Lyne testified: 

 I'm not saying that he did. I'm not sure. 

Well, you say he was, he could have taken me 

home. I could have got back in the car and 

passed out. I know for sure, that whole 

time, right after Christmas I drank for a 

long, it could have been forty-some straight 

days that I was a complete drunk . . . . 

 The trial judge compared the coat in the accused's picture 

in the Central Fidelity Bank photograph with the arm shown in the 

Crestar Bank photograph and found that "the Court believes that 

the coat that's shown in there is very consistent with that being 

worn by the defendant in Commonwealth's Exhibit No. 1." The 

court further opined that "There cannot be any question in 

anybody's mind that Mr. Meeks in [the Crestar Bank photograph] is 

using a card that doesn't belong to him. He's covered his face 

up, he's covered over so nobody can see his face." The trial 

court found that Lyne was with Meeks at the time of the Crestar 
 8 

Bank theft and that he knew Meeks was using a card that did not 

belong to him. The court then found that Lyne was aiding and 

abetting Meeks in the credit card thefts. 

 It is well established that a "principal in the first degree 

is the actual perpetrator of the crime." Hall v. Commonwealth, 8 

Va. App. 526, 530, 383 S.E.2d 18, 21 (1989). A principal in the 

second degree is a person present at the scene of the offense, 

either actively or constructively, aiding or abetting its 

commission through "words, gestures, signals or actions to in 

some way encourage, advise, . . . urge, or . . . help" the 

primary actor. Ramsey v. Commonwealth, 2 Va. App. 265, 269, 343 

S.E.2d 465, 468 (1986). A principal in the second degree "may be 

indicted, tried, convicted and punished in all respects as if a 

principal in the first degree." Code § 18.2-18. 

 Aiders or abettors must either share the perpetrator's 

criminal intent or commit an overt act in furtherance of the 

crime, thereby making the offense "more likely" to occur. 

Rollston v. Commonwealth, 11 Va. App. 535, 539, 399 S.E.2d 823, 

826 (1991). Whether an accused aided and abetted in the 

commission of an offense is a question of fact to be determined 

from the circumstances of each case. Pugliese v. Commonwealth, 

16 Va. App. 82, 93, 428 S.E.2d 16, 25 (1993). 

 Under Code § 18.2-192(1)(a) the Commonwealth is required to 

prove "intent to use . . . or sell . . . or transfer" the card. 

There can be no question that the Commonwealth proved this 
 9 

element because Lyne and Meeks actually used the card and 

received money from it on two different occasions. 

 The evidence cited herein, when considered with the entire 

record, establishes Lyne's role as a confederate of Meeks, acting 

at least as an aider and abettor with him knowingly possessing a 

credit card without permission of the cardholder with intent to 

use it. We find credible evidence in the record to support the 

judgment of the trial court beyond a reasonable doubt. 

Therefore, we affirm the conviction. 

 Affirmed.