COURT OF APPEAL S OF VIRGINIA

Present: Judg es Coleman, Elder an d 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 Char lton, appellant, was convicte d of use of a firearm in the commis sion of robber y. On appeal, he contends the trial court er red in denying hi s motion to dism iss the use of a firearm charge becaus e he was an accessory before the fact to robbery and did no t know the principals wo uld use a fire arm in the commission of th e robbery. Find ing no error, we affirm the conviction. Viewing the ev idence 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 eviden ce showed that appellant worked at a fast-food re staurant. Three men appr oached him and told him they intended to rob the restaurant. They offered him money to- 2 - allow them to "r ough him up" as they "for ced" their way into the

restaurant to ro b it. Instead, appellan t proposed, an d they all agreed, that appellant would leave the back door ajar during a certain week so th e three men could en ter without confro ntation. On the night of the robbery, appellant wo rked with Nicholas Balasic, the assistant manager. Appe llant advised Ba lasic that he was going outside to break down some boxe s for trash removal. Appellant left the back door propped open ac cording to the plan. Balasic testif ied that it was restaurant policy that employees going out the back door should shut it. Because the do or locked when shut, no one coul d enter unannoun ced or without permission. While appellant worked outside, the three men en tered the restaurant and robbed the manager at gunpoint . Appellan t did not know the robbery occurr ed until after it was committed an d the men were gone. The pr incipals later gave appell ant $270 to $300 from the proceeds of the robbery. A month later, appellant sp oke with Lynchburg Police Investigator Booth abou t the robbery. Appellant told Booth about the three men who offered him money to assist in the robbery and how he suggested le aving the back do or open. He to ld Booth he did not know a specific ni ght when the robbery wo uld occur, so for "a span of about fi ve days . . . he proppe d the door open." He stated he did no t know the robber s would use a fire arm to commit the robbery.- 3 - Appellant conced es he acted as an accessory be fore the fact to robbery. "T o be guilty of accessor y before the fact, the accused must either know or have reason to know of th e principal's criminal intention and must intend to encour age, incite, or aid the principal's commission of the crime." McGhee v. Commonwealth , 221 Va. 422, 427, 270 S.E.2d 729, 732 (198 0). Here, appellant encouraged and aided the principals in the commis sion of the robbery by planning th e robbery of the restau rant, by propping the rear door open in orde r 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 th e robbery. Code § 18.2-18 states that "every principal in the second degree and every acce ssory before the fact may be indicted, tried, convicte d and punished in all respects as if a principal in the fi rst degree . . . ." (Emphasis ad ded.) In Carter v. Commonwealth , 232 Va. 122, 348 S.E.2d 265 (1986), involving a robber y, murder, and us e of a firearm, the Court held that each co-actor is crim inally responsible for the shooting, ev en those who did not intend it or anticipate that it would occur. Because they shar ed the common intent to rob, they shared the common intent to commit all the elements of robbery, includ ing the use of such force, violence, or intimidation as would be expedient for the accompli shment of their purpose. . . . [E]ach co-actor is- 4 - responsible for the acts of th e others and may not interpose his personal la ck of intent as a defense. Id. at 126, 348 S. E.2d at 267-68. Appellant at tempts to distinguish Carter because Carter was a principal in the seco nd degree and was present during the commission of the crimes, whereas appellant wa s an accessory before the fact and, th erefore, was not presen t. Appell ant claims he was not a "co-acto r" or one who acted in concert with the principals. "Concerted action is define d as '[a]ction that has been planned, adjusted, agre ed on and settled be tween partie s acting together pursuant to some design or scheme." Rollston v. Commonwealth , 11 Va. App. 535, 542, 399 S.E.2d 823, 827 (1991) (citation omitte d). Here, appe llant rejected the principals' original plan to "rou gh him up" upon their entrance. Appellant offered the altern ative plan of le aving the back door open to allow the principa ls easy access to the restaurant . Further, he left the door open fo r several days in an ticipation that the robbery would occu r. After the ro bbery, appellan t met with the principals and receiveda portion of the proc eeds of th e robbery in payment for his part icipation. Ap pellant acted inconcert with the principals by planning, adjust ing and agreeing on a course of action and performing his role to consummate the crime. That appellant was not present insi de the restaurant during the commission of the robbery, and did no t concern hi mself with- 5 - the details of the robb ery, does not relieve him of responsibility for the actions taken by his confed erates to consumma te the crime. The Supreme Cour t of Virginia has not distinguishe d between accessories befo re the fact and pr incipals in the se cond degree in assigning crim inal responsi bility. In Rollstonthis Court stated that "[a]ll those who assemble themselves together with an intent to commit a wron gful act, the execution wher eof make probable, in the nature of thin gs, a crime not specifically designed, but in cidental to that which was the object of the confederacy, are responsible for such incidental crime . . . . Hence, it is not nece ssary 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 particip ants 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]very one connec ted with carrying out a common design to commit a criminal act is . . . bound by the act of an y member of th e combination, perpetrated in the prosecution of the common design. Bu t it is no t necessary that the crime committe d shall have been or iginally intended.'" (citation omit ted)).

In Spradlin v. Commonwealth , 195 Va. 523, 79 S.E.2d 443 (1954), the Cour t stated that- 6 - [i]f there is concert of action with the resulting crim e one of its incidental probable consequences , then whether such crime was original ly contemplatedor not, all who participate in any way in bringing it about are equall y answerable an d bound by the acts of every ot her person connected with the consummation of such resu lting crime. Id. at 527, 79 S. E.2d at 445. When imposing resp onsibility for the in tended crime and any incidental and probable crimes that result from the consummation of the intended crime, the Supreme Co urt has consiste ntly referred to all the partic ipants in a crim e without distingu ishing between principals in th e first degree, pr incipals in the second degree, and accessories be fore the fact. Here, ap pellant helped plan the robbery by deciding on the means of entry, participatedin the crime by leaving the door open, and receiv ed a portion of the proceeds for his role in the ro bbery. He knewsome force, violence or inti midation was necessary to accomplish the robbery, and the principals ' use of a firearm was a natural an d probable consequence of perfor ming a robbery. Code § 18.2-18 makes no exception for thos e who plan a crime, do not involve th emselves with th e details of its execution, and are not present fo r its consummati on. The statut e and the cases direct that an access ory before the fact is accountable in all respects as the principal who carr ies out the intend ed crime, as well as any of its natural, probable, an d incidental crimes.- 7 - For the forego ing reasons, we affirm the ju dgment of the trial court. Affirmed.