COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Elder and Senior Judge Cole 

Argued at Salem, Virginia 

SHERWOOD ANTANIO CHARLTON 

 OPINION BY 

v. Record No. 2989-98-3 JUDGE MARVIN F. COLE 

 MARCH 21, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG 

Richard S. Miller, Judge 

 Michael T. Garrett (Pendleton, Garrett & 

Henderson, P.C., on brief), for appellant. 

 Marla Graff Decker, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Sherwood Antanio Charlton, appellant, was convicted of use of 

a firearm in the commission of robbery. On appeal, he contends 

the trial court erred in denying his motion to dismiss the use of 

a firearm charge because he was an accessory before the fact to 

robbery and did not know the principals would use a firearm in the 

commission of the robbery. Finding no error, we affirm the 

conviction. 

 Viewing the evidence in the light most favorable to the 

Commonwealth, see Archer v. Commonwealth, 26 Va. App. 1, 11, 492 

S.E.2d 826, 831 (1997), the evidence showed that appellant worked 

at a fast-food restaurant. Three men approached him and told him 

they intended to rob the restaurant. They offered him money to 
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allow them to "rough him up" as they "forced" their way into the 

restaurant to rob it. Instead, appellant proposed, and they all 

agreed, that appellant would leave the back door ajar during a 

certain week so the three men could enter without confrontation. 

 On the night of the robbery, appellant worked with Nicholas 

Balasic, the assistant manager. Appellant advised Balasic that he 

was going outside to break down some boxes for trash removal. 

Appellant left the back door propped open according to the plan. 

Balasic testified that it was restaurant policy that employees 

going out the back door should shut it. Because the door locked 

when shut, no one could enter unannounced or without permission. 

While appellant worked outside, the three men entered the 

restaurant and robbed the manager at gunpoint. Appellant did not 

know the robbery occurred until after it was committed and the men 

were gone. The principals later gave appellant $270 to $300 from 

the proceeds of the robbery. 

 A month later, appellant spoke with Lynchburg Police 

Investigator Booth about the robbery. Appellant told Booth about 

the three men who offered him money to assist in the robbery and 

how he suggested leaving the back door open. He told Booth he did 

not know a specific night when the robbery would occur, so for "a 

span of about five days . . . he propped the door open." He 

stated he did not know the robbers would use a firearm to commit 

the robbery. 
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 Appellant concedes he acted as an accessory before the fact 

to robbery. "To be guilty of accessory before the fact, the 

accused must either know or have reason to know of the principal's 

criminal intention and must intend to encourage, incite, or aid 

the principal's commission of the crime." McGhee v. Commonwealth, 

221 Va. 422, 427, 270 S.E.2d 729, 732 (1980). Here, appellant 

encouraged and aided the principals in the commission of the 

robbery by planning the robbery of the restaurant, by propping the 

rear door open in order to permit entrance, and by sharing in the 

money that was stolen. 

 Appellant, however, argues he did not know when or how the 

principals would carry out the robbery and, therefore, he should 

not be accountable for their use of a firearm during the 

commission of the robbery. Code § 18.2-18 states that "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 . . . ." (Emphasis added.) In 

Carter v. Commonwealth, 232 Va. 122, 348 S.E.2d 265 (1986), 

involving a robbery, murder, and use of a firearm, the Court held 

that 

each co-actor is criminally responsible for 

the shooting, even those who did not intend 

it or anticipate that it would occur. 

Because they shared the common intent to rob, 

they shared the common intent to commit all 

the elements of robbery, including the use of 

such force, violence, or intimidation as 

would be expedient for the accomplishment of 

their purpose. . . . [E]ach co-actor is 
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responsible for the acts of the others and 

may not interpose his personal lack of intent 

as a defense. 

Id. at 126, 348 S.E.2d at 267-68. 

 Appellant attempts to distinguish Carter because Carter was a 

principal in the second degree and was present during the 

commission of the crimes, whereas appellant was an accessory 

before the fact and, therefore, was not present. Appellant claims 

he was not a "co-actor" or one who acted in concert with the 

principals. 

 "Concerted action is defined as '[a]ction that has been 

planned, adjusted, agreed on and settled between parties acting 

together pursuant to some design or scheme." Rollston v. 

Commonwealth, 11 Va. App. 535, 542, 399 S.E.2d 823, 827 (1991) 

(citation omitted). Here, appellant rejected the principals' 

original plan to "rough him up" upon their entrance. Appellant 

offered the alternative plan of leaving the back door open to 

allow the principals easy access to the restaurant. Further, he 

left the door open for several days in anticipation that the 

robbery would occur. After the robbery, appellant met with the 

principals and received a portion of the proceeds of the robbery 

in payment for his participation. Appellant acted in concert with 

the principals by planning, adjusting and agreeing on a course of 

action and performing his role to consummate the crime. 

 That appellant was not present inside the restaurant during 

the commission of the robbery, and did not concern himself with 
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the details of the robbery, does not relieve him of responsibility 

for the actions taken by his confederates to consummate the crime. 

The Supreme Court of Virginia has not distinguished between 

accessories before the fact and principals in the second degree in 

assigning criminal responsibility. In Rollston this Court stated 

that 

"[a]ll those who assemble themselves together 

with an intent to commit a wrongful act, the 

execution whereof make probable, in the 

nature of things, a crime not specifically 

designed, but incidental to that which was 

the object of the confederacy, are 

responsible for such incidental crime . . . . 

Hence, it is not necessary that the crime 

should be a part of the original design; it 

is enough if it be one of the incidental 

probable consequences of the execution of 

that design, and should appear at the moment 

to one of the participants to be expedient 

for the common purpose." 

Id. at 542, 399 S.E.2d at 827 (quoting Brown v. Commonwealth, 130 

Va. 733, 738, 107 S.E. 809, 811 (1921)). See also Carter, 232 Va. 

at 126-27, 348 S.E.2d at 268; Boggs v. Commonwealth, 153 Va. 828, 

836, 149 S.E. 445, 447 (1929) ("'[E]veryone connected with 

carrying out a common design to commit a criminal act is . . . 

bound by the act of any member of the combination, perpetrated in 

the prosecution of the common design. But it is not necessary 

that the crime committed shall have been originally intended.'" 

(citation omitted)). 

 In Spradlin v. Commonwealth, 195 Va. 523, 79 S.E.2d 443 

(1954), the Court stated that 
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[i]f 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 bound by the 

acts of every other person connected with the 

consummation of such resulting crime. 

Id. at 527, 79 S.E.2d at 445. 

 When imposing responsibility for the intended crime and any 

incidental and probable crimes that result from the consummation 

of the intended crime, the Supreme Court has consistently referred 

to all the participants in a crime without distinguishing between 

principals in the first degree, principals in the second degree, 

and accessories before the fact. Here, appellant helped plan the 

robbery by deciding on the means of entry, participated in the 

crime by leaving the door open, and received a portion of the 

proceeds for his role in the robbery. He knew some force, 

violence or intimidation was necessary to accomplish the robbery, 

and the principals' use of a firearm was a natural and probable 

consequence of performing a robbery. 

 Code § 18.2-18 makes no exception for those who plan a crime, 

do not involve themselves with the details of its execution, and 

are not present for its consummation. The statute and the cases 

direct that an accessory before the fact is accountable in all 

respects as the principal who carries out the intended crime, as 

well as any of its natural, probable, and incidental crimes. 
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 For the foregoing reasons, we affirm the judgment of the 

trial court. 

 Affirmed.