COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Annunziata 

Argued at Richmond, Virginia 

BERNICE LYNN MURPHY 

v. Record No. 0799-94-2 MEMORANDUM OPINION* BY 

 JUDGE ROSEMARIE ANNUNZIATA 

COMMONWEALTH OF VIRGINIA NOVEMBER 27, 1995 

FROM THE CIRCUIT COURT OF HALIFAX COUNTY 

Samuel M. Hairston, Judge Designate 

 Alan T. Gravitt (Gravitt & Gravitt, P.C., on 

briefs), for appellant. 

 Kathleen B. Martin, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 The appellant, Bernice Lynn Murphy, was convicted of robbery 

and the use of a firearm in the commission of a robbery following 

a bench trial in the Halifax County Circuit Court. She was a 

juvenile at the time of the alleged offense, and her case was 

transferred to the circuit court from the juvenile court. At 

trial, Murphy made timely motions to strike the Commonwealth's 

evidence and now appeals her convictions alleging the 

insufficiency of the Commonwealth's evidence. 

 On February 7, 1993, a clerk at the South Boston Mother 

Hubbard's Convenience Store was shot and killed sometime before 

10:45 p.m. in an apparent robbery attempt. Subsequently, the 

police interviewed Murphy about the incident. She was seventeen 

 

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

designated for publication. 
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years old at the time. After initially denying any participation 

in the incident, Murphy told the police that on the day of the 

shooting she had visited her sister-in-law, Geraldine Fernandez, 

at Fernandez's apartment in Halifax County. Lance Chandler, a 

friend of Murphy, asked Fernandez to drive him, George Boyd, and 

Dwight Wyatt to South Boston. Earlier that day, Murphy overheard 

Chandler and Wyatt discussing the idea of getting a gun and 

robbing a store, but she was not otherwise involved in this 

conversation. 

 Fernandez drove Murphy, Chandler, Boyd, and Wyatt to South 

Boston. Murphy told the police that she accompanied Fernandez 

because Fernandez did not have a driver's license. Murphy 

thought that, since she had a learner's permit, if she rode in 

the passenger's seat Fernandez would avoid more serious trouble. 

The three men, all clad in dark clothing, sat in the car's back 

seat. Wyatt exited the car at a South Boston residence and 

returned after a few minutes. Wyatt testified that the purpose 

of the stop was to obtain a gun. Wyatt passed the gun to 

Chandler in the back seat of Fernandez's car. There was no 

testimony that Murphy either saw Wyatt give Chandler the gun or 

was aware that the robbery previously discussed by Chandler and 

Wyatt was then imminent. 

 The group drove past the Mother Hubbard Convenience Store 

and Fernandez let the men out at the next intersection. Wyatt 

wore a hood when he exited the car. The appellant overheard 
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Chandler remark, "Just go on in and get out, don't waste no 

time." Fernandez and Murphy drove around the neighborhood while 

waiting for the men to return. Upon returning, Boyd carried a 

case of beer. Chandler was "swearing and cussing" when he got 

into the car and he kept saying, "why didn't the man open the 

register?" and that "[h]e got shot over money that wasn't even 

his." Later that night, the group of five consumed the beer, 

Murphy drinking two of them. 

 In her statement to the police, Murphy stated that it was 

Chandler's idea to rob the store and she felt if they got caught 

she and Fernandez could be "accessories" to the crime. The 

evidence does not establish whether she knew the legal definition 

or significance of the term "accessory." 

 Wyatt testified that Chandler shot the clerk after he 

refused to hand over any money, and that the men took the beer 

because they were unable to open the register. The trial court 

found Murphy guilty of robbery and the use of a firearm during a 

robbery; she was acquitted of murder and a related firearms 

charge. 

 On appeal, this Court must view the evidence in the light 

most favorable to the Commonwealth and must accord to the 

evidence all reasonable inferences fairly discernible therefrom. 

Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 

537 (1975). "The finding of the judge, upon the credibility of 

the witnesses and the weight to be given their evidence, stands 
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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) (quoting Lane v. Lane, 184 Va. 603, 

611, 35 S.E.2d 744, 752 (1945)). 

 It is well settled that mere presence and consent will not 

suffice to make one an accomplice. Pugliese v. Commonwealth, 16 

Va. App. 82, 93-94, 428 S.E.2d 16, 24-25 (1993); Ramsey v. 

Commonwealth, 2 Va. App. 265, 269, 343 S.E.2d 465, 468 (1986). 

It must be shown that the alleged accomplice, by words, gestures, 

signals or actions intended, in some way, to encourage, advise, 

urge, or help the person committing the crime to commit it. 

Ginanni v. Commonwealth, 13 Va. App. 1, 3-4, 408 S.E.2d 767, 768 

(1991); Rollston v. Commonwealth, 11 Va. App. 535, 540, 399 

S.E.2d 823, 826 (1991); Ramsey, 2 Va. App. at 269, 343 S.E.2d at 

468. 

 A principal in the second degree is one not 

the perpetrator, but present, aiding and 

abetting the act done, or keeping watch or 

guard at some convenient distance. . . . 

Every person who is present at the commission 

of a crime, encouraging or inciting the same 

by words, gestures, looks, or signs, or who 

in any way, or by any means, countenances or 

approves the same is, in law, assumed to be 

an aider and abetter, and is liable as a 

principal. . . . To constitute one an aider 

or 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. . . . 

Pugliese, 16 Va. App. at 93, 428 S.E.2d at 24-25. 
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 Overt acts constitute evidence that the alleged accomplice 

shares the criminal intent of the principal. See Pugliese, 16 

Va. App. at 93, 428 S.E.2d at 25; Triplett v. Commonwealth, 141 

Va. 577, 586, 127 S.E. 486, 489 (1925); Rollston, 11 Va. App. at 

539, 399 S.E.2d at 825; Murray v. Commonwealth, 210 Va. 282, 283, 

170 S.E.2d 3, 4 (1969). When no overt acts have been performed 

by the alleged accomplice, he is still a principal in the second 

degree if he is present during the commission of the crime and 

has previously communicated to the perpetrator that he shares the 

perpetrator's criminal purpose, since such a communication of 

shared intent makes the perpetrator more likely to act. 

Rollston, 11 Va. App. at 539, 399 S.E.2d at 826 (citing Groot, 

Criminal Offenses and Defenses in Virginia 183 (1984)). 

 Whether a person does in fact aid or abet another in the 

commission of a crime is a question which may be determined by 

circumstances as well as by direct evidence. Harrison v. 

Commonwealth, 210 Va. 168, 171-72, 169 S.E.2d 461, 464; Pugliese, 

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

 In this case, there is no evidence that Murphy previously 

communicated to the perpetrator that she shared his criminal 

purpose. Furthermore, there is no evidence of overt acts which 

establish beyond a reasonable doubt such criminal intent on her 

part or which establish that she contributed in any way to the 

commission of the crime. 

 The evidence shows no more than knowledge of and presence 
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during the commission of the crime. The only acts Murphy 

performed which arguably relate to the commission of the crime 

are the following: 1) she failed to disapprove or object; 2) she 

consumed some of the beer stolen from the convenience store; and 

3) she characterized herself as a possible "accessory." 

 However, an individual's failure to dissuade or to interfere 

with criminal activities while accompanying the perpetrators to 

the scene is insufficient to constitute aiding and abetting. See

Smith v. Commonwealth, 185 Va. 800, 818-20, 40 S.E.2d 273, 281-82 

(1946); Moehring v. Commonwealth, 223 Va. 564, 567-68, 290 S.E.2d 

892-93 (1982); Jones v. Commonwealth, 208 Va. 370, 373-74, 157 

S.E.2d 909-10 (1967); Pugliese, 16 Va. App. at 93-94, 428 S.E.2d 

at 25 (While presence at the commission of the crime without 

disapproving or opposing it is a circumstance which may be 

considered by the trier of fact in determining whether the 

accused is an aider and abettor, without more, these 

circumstances are insufficient to sustain a conviction). And, 

while Murphy's statement that she could be an "accessory" to the 

crime and her consummation of some of the stolen beer create a 

suspicion of guilt, the acts are too equivocal to support a 

finding of guilt. 

 Absent other evidence in the case, these two acts fail to 

establish that Murphy shared the perpetrator's criminal intent. 

Nor do they establish beyond a reasonable doubt that she 

encouraged, approved, or countenanced the crime. The convictions 
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are accordingly reversed and the case is remanded to the trial 

court for further proceedings on lesser-included offenses, if the 

Commonwealth be so advised. 

Reversed and remanded.