COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Lemons 

Argued at Norfolk, Virginia 

MARKEITH ALAN TURNER 

 MEMORANDUM OPINION* BY 

v. Record No. 2117-97-1 JUDGE LARRY G. ELDER 

 OCTOBER 6, 1998 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS 

Randolph T. West, Judge 

 Jeffrey C. Rountree for appellant. 

 Eugene Murphy, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 Markeith Alan Turner (appellant) appeals his convictions of 

robbery and use of a firearm during the commission of robbery. 

He contends the evidence was insufficient to sustain his 

convictions. For the reasons that follow, we affirm. 

 I. 

 The evidence, viewed in the light most favorable to the 

Commonwealth, proved that, around 1:30 a.m. on July 11, 1996, 

appellant, Karlin Johnson, and Floyd Jones were sitting on the 

curb of a shopping center. At about this time, the victim was 

walking through the shopping center to some nearby apartments. 

As the victim approached, Johnson announced to appellant and 

Jones that he was "about to stick it." In a statement made later 

 

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

designated for publication. 
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to the police, appellant stated he knew Johnson was going to rob 

the victim. Johnson then pulled out what appeared to be a 

firearm, pointed it at the victim's head, and ordered the victim 

to lie face down on the ground. Appellant later stated that he, 

Johnson, and Jones "gathered around [the victim]" and "were 

standing right there by the man" as Johnson forced the victim to 

the ground with his gun. The victim testified that, as he lay on 

the ground, he felt a person other than Johnson pat him down and 

saw someone take his backpack. The victim could not identify any 

of his assailants and did not see whether appellant was the 

person who removed the change and cigarettes from his pockets or 

took his backpack. However, the victim did testify that all 

three of his assailants were talking to each other during the 

robbery and that they all walked away "together" after it was 

completed. When appellant spoke to Detective Williams on July 

22, he had knowledge of the specific items of property stolen 

from the victim. 

 II. 

 When considering the sufficiency of the evidence on appeal 

in a criminal case, this Court views the evidence in the light 

most favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom. See Higginbotham v. 

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). On 

review, this Court does not substitute its own judgment for that 

of the trier of fact. See Cable v. Commonwealth, 243 Va. 236, 
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239, 415 S.E.2d 218, 220 (1992). The trial court's judgment will 

not be set aside unless it appears that the judgment is plainly 

wrong or without supporting evidence. See Martin v. 

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

 "A conviction for robbery requires proof beyond a reasonable 

doubt that the defendant alone, or acting in concert with others, 

took property from the victim by force, threats, or violence, and 

that the intent to steal co-existed with the act of force." 

Pugliese v. Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24 

(1993). One who aids and abets a robbery is "liable as a 

principal." Pierce v. Commonwealth, 205 Va. 528, 534, 138 S.E.2d 

28, 32 (1964). While mere presence at the scene of a crime or 

knowledge that a crime is going to be committed does not 

constitute aiding and abetting, 

 proof that a person is present at the 

commission of a crime without disapproving or 

opposing it, is evidence from which, in 

connection with other circumstances, it is 

competent for the [fact finder] to infer that 

he assented thereto, lent to it his 

countenance and approval, and was thereby 

aiding and abetting the same. 

Pugliese, 16 Va. App. at 93-94, 428 S.E.2d at 25. 

 We hold that the evidence, when viewed in the light most 

favorable to the Commonwealth, was sufficient to prove that 

appellant aided and abetted the robbery of the victim. Although 

Johnson was apparently the only individual to physically threaten 

the victim and it is unclear whether appellant actually took any 

of the victim's property, the record indicates that appellant was 
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more than an innocent bystander. 

 Appellant encouraged and assisted Johnson and Jones by 

remaining at the scene after realizing Johnson was going to rob 

the victim and by adding his physical presence to the 

confrontation. Credible evidence in the record indicates 

Johnson, Jones, and appellant rose from the curb where they were 

sitting, gathered around the victim and "[stood] right there next 

to" him while the robbery was committed. This act assisted 

Johnson and Jones by increasing the number of persons by which 

the victim was outnumbered, thus boosting the intimidating nature 

of the confrontation. The victim's testimony that "all three of 

them were walking together" as they left the scene of the robbery 

supports the conclusion that appellant contributed his physical 

presence and approval throughout the duration of the robbery. 

The fact that appellant acted in this manner after learning of 

Johnson's intent to rob the victim supports the conclusion that 

appellant shared this intent. 

 In his statement to Detective Williams, appellant 

acknowledged that he, along with his two companions, gathered 

around the victim and that he was aware of the contents of the 

stolen backpack. Furthermore, the trial court could infer from 

the portions of appellant's testimony that conflicted with the 

other evidence presented, including his own statement to 

Detective Williams, that appellant was lying to conceal his 

guilt. See Carter v. Commonwealth, 223 Va. 528, 532, 290 S.E.2d 
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865, 867 (1982). Because the evidence proved that appellant, at 

a minimum, aided and abetted Johnson and Jones during the 

commission of the robbery, the trial court correctly concluded he 

was liable for the crime as if he were the principal perpetrator. 

Cf. Pierce, 205 Va. at 534, 138 S.E.2d at 32 (affirming 

conviction of robbery when evidence proved defendant was an aider 

and abettor). 

 We also hold that the evidence was sufficient to support 

appellant's conviction of using a firearm in the commission of 

robbery. By aiding and abetting Johnson, who used the gun during 

the robbery, appellant "effectively 'used' [the firearm Johnson 

was using] and was thereby subject to the terms of Code 

§ 18.2-53.1." Cortner v. Commonwealth, 222 Va. 557, 563, 281 

S.E.2d 908, 911 (1981). 

 For the foregoing reasons, we affirm the convictions. 

Affirmed. 
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Benton, J., dissenting. 

 The robbery victim testified that as he approached the three 

young men, one of them pointed a gun at him and told him to get 

on the ground. The victim knew that a person other than the 

robber searched him; however, he could not account for the 

presence or conduct of the third person. He testified as 

follows: 

 Q And I believe from the preliminary 

hearing, you said you didn't know where the 

third person was during this time; is that 

correct? 

 A I did not. All I saw was the feet in 

front of me. All I knew, somebody was 

searching me, but I did catch out of the 

corner of my eye them taking my backpack and 

I did hear somebody else moving towards me, 

but at the preliminary hearing, I did not 

know where this third person was and I still 

do not know. 

 Q All right. 

 A But, anyway, somebody was patting me 

down and I heard somebody else -- 

 Q Somebody was patting you down and 

somebody was grabbing your backpack. At 

preliminary hearing, I asked you, "Do you 

know whether or not that was the same 

person?" You said, "No." 

 A I said, "No," because I do not know. 

 Q All right. So there is certainly a 

possibility that there is a third individual 

who you can't account for their whereabouts; 

isn't that correct? 

 A Well, yes, because I could not see them. 

 This testimony is not inconsistent with the statement 
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Markeith Alan Turner gave to the police shortly after his arrest. 

 [OFFICER]: Okay tell me what happened? 

 TURNER: Alright it was a dude walking by 

from ah Burger King, soon as we got by the 

video place, Karlin was like Floyd get up, 

I'm about to stick it. 

* * * * * * * 

 TURNER: And so as Floyd got up Karlin pulled 

the gun out, said give me all your shit, I 

was just standing there I was s[h]ocked and 

while Floyd was going all in his pockets, so 

I started walking off slowly, at a slowly 

place and dude was still on the ground. 

 [OFFICER]: When did you search his pockets? 

 TURNER: No I didn't search his pockets. 

 [OFFICER]: Did you touch him at all? 

 TURNER: I did not touch him. 

 [OFFICER]: But you knew what was going to 

happen? 

 TURNER: Yes I knew what was going to happen. 

 [OFFICER]: And when ah Karlin put the gun to 

his head and made him lay down on the ground 

all three of you'll were right there by the 

man? 

 TURNER: Yes, sir. 

 [OFFICER]: Okay and after the robbery was 

over with or every Karlin got the property 

from the man you'll walked away but you were 

kind of a little bit ahead of them? 

 TURNER: Yes, sir. 

 [OFFICER]: Okay and were you'll walking 

fast, were you just casually walking or where 

you running? 

 TURNER: They was walking I was speed 

walking. 
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* * * * * * * 

 [OFFICER]: Okay and [your] basic part in 

this robbery was just being there when it 

went down? 

 TURNER: Yes, sir. 

 At trial, Turner's testimony varied from this statement. 

Turner testified that he began to walk away after Karlin 

announced his intention to commit the robbery and reached for his 

gun. 

 The guiding principles governing these facts are well 

established. 

 It is, of course, well settled that mere 

presence and consent are not sufficient to 

constitute one an aider and abettor in the 

commission of a crime. "There must be 

something done or said by him showing (a) his 

consent to the felonious purpose and (b) his 

contribution to its execution. To make him 

an aider or abettor, he must be shown to have 

procured, encouraged, countenanced, or 

approved the commission of the crime. * * * 

 To constitute one an aider and abettor, it 

is essential that he share the criminal 

intent of the principal or party who 

committed the offense." 

 . . . "To constitute one an aider and 

abettor, he must be guilty of some overt act, 

or he must share the criminal intent of the 

principal or party who commits the crime." 

Jones v. Commonwealth, 208 Va. 370, 373, 157 S.E.2d 907, 909 

(1967) (citations omitted). See also Hall v. Commonwealth, 225 

Va. 533, 536, 303 S.E.2d 903, 904 (1983). The Commonwealth's 

evidence falls short of these requirements. First, no evidence 

proved any overt act by Turner which indicated his participation 
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in the robbery. Second, no evidence proved that Turner shared 

the criminal intent of the robbers. 

 Aside from the victim's testimony, the Commonwealth relies 

upon the statement Turner made to the police following the 

robbery. While it is the responsibility of the finder of fact to 

weigh Turner's statements with other evidence provided at trial, 

it is our role to determine whether as a matter of law the 

evidence sufficiently proves Turner's guilt beyond a reasonable 

doubt. See Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 

S.E.2d 598, 601-02 (1986). I believe it does not. 

 Turner's statement indicates that once Karlin spoke of the 

robbery, Turner knew what the outcome would be. Turner walked 

away because he did not want to associate himself with the crime. 

 Furthermore, Turner's knowledge of the items stolen is 

insufficient circumstantial evidence to prove his guilt. The 

burden lies with the Commonwealth to "exclude every reasonable 

hypothesis of innocence." Williams v. Commonwealth, 14 Va. App. 

666, 670, 418 S.E.2d 346, 348 (1992) (citation omitted). Nothing 

in the evidence is inconsistent with Turner's testimony that he 

did not know what was stolen until the next day when Karlin told 

him. In light of Turner's detailed statement that he walked away 

when the gun was drawn and the victim's inability to say that 

Turner was a participant, sufficient doubt is raised whether 

Turner participated in the robbery. 

 As the Supreme Court noted in Jones: 

 The evidence on behalf of the Commonwealth 
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amounts to this: [the accused was] in 

company with . . . the actual perpetrator of 

the crimes, was present during the commission 

of the offenses, and fled the scene in order 

to escape arrest. While these related 

circumstances create a strong suspicion that 

[the accused] was an aider and abettor in the 

commission of the offenses, they do not 

support such a conclusion beyond a reasonable 

doubt. . . . [M]ere presence at the 

perpetration of a crime and flight from the 

scene are not sufficient to prove particeps

criminis beyond a reasonable doubt. 

208 Va. at 374, 157 S.E.2d at 910. Where, as in this case, there 

is no showing except mere presence to connect the accused to the 

robbery, the evidence only proves "highly suspicious 

circumstances [that may] demonstrate an exceedingly strong 

probability of guilt." Hall, 225 Va. at 536, 303 S.E.2d at 905. 

 Yet, the principle is well established that "suspicion even 

though strong, is insufficient to sustain a criminal conviction." 

Id. at 537, 303 S.E.2d at 905. 

 For these reasons, I would reverse the convictions. 

Accordingly, I respectfully dissent.