PRESENT: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, 

Agee,∗ and Goodwyn, JJ. 

RASHAD TYRIE MCMORRIS 

v. Record No. 072247 OPINION BY 

JUSTICE S. BERNARD GOODWYN 

COMMONWEALTH OF VIRGINIA September 12, 2008 

FROM THE COURT OF APPEALS OF VIRGINIA

 In this appeal, we consider whether the Court of 

Appeals erred in affirming the conviction of Rashad Tyrie 

McMorris (“McMorris”) of robbery as a principal in the 

second degree. 

 McMorris was charged, in the Circuit Court for the City 

of Hampton, with one count of robbery in violation of Code 

§ 18.2-58. McMorris pled not guilty to the charge. After a 

bench trial, McMorris was found guilty and sentenced to 

serve a term of 20 years in prison, with 11 years suspended. 

McMorris appealed his conviction to the Court of Appeals; 

the Court of Appeals denied his petition for appeal. This 

Court granted his appeal. 

FACTS

 On September 22, 2006, Darrin Ottey (“Ottey”) rode the 

bus to a friend’s apartment in Hampton. He exited the bus 

 ∗

 Justice Agee participated in the hearing and decision 

of this case prior to his retirement from the Court on June 

30, 2008. 
and immediately noticed a group of approximately fifteen 

young men gathered in between buildings across the street. 

As Ottey walked past the group of young men, including 

McMorris, one of them said, “[T]hat’s the guy from Zooms.” 

 The comment referred to an altercation the night before 

when Ottey was working with a female employee at Zooms, a 

convenience store. Three young men, including McMorris, 

banged on the locked door of Zooms, causing a disturbance. 

The female employee attempted to call the police, but Ottey 

told her “don’t worry about it.” The three men left, and 

Ottey did not see them again until the next day. 

As Ottey was walking towards his friend’s apartment, 

some of the young men followed Ottey, asking him why he 

called the police. Ottey attempted to ignore them and 

knocked on his friend’s front door. His friend did not 

answer the door, so Ottey attempted to leave the apartment 

complex. Thereafter, one of the young men hit Ottey; four 

others joined in the attack, McMorris being the last to do 

so. 

As this group was attacking Ottey, his wallet, 

containing identification cards and two dollars, and his 

cellular telephone, worth $300, fell to the ground. Because 

he was being attacked, Ottey was unable to retrieve his 

telephone. He saw one of the young men involved in the 

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attack, other than McMorris, “grab[] the phone, look[] at it 

and [run] towards the crowd where the other boys were at.” 

Ottey did not see what happened to his wallet, but it was 

not on the ground when the fight ended. 

Ottey testified that no one demanded that he “hand 

over” his telephone or wallet, and that no one attempted to 

“go through” his pockets during the fight. McMorris did not 

take Ottey’s property nor did McMorris leave the scene with 

the person who took Ottey’s property. 

The trial court found McMorris guilty of robbery as a 

principal in the second degree. See Code § 18.2-18. The 

trial court stated, “While [McMorris and others] were 

attacking Mr. Ottey, another one of the assailants was 

taking his property. This was all contemporaneous. 

Therefore[,] the robbery statute applies.” In refusing 

McMorris’ petition for appeal, the Court of Appeals 

concluded that the evidence established that McMorris shared 

the criminal intent of those who did steal Ottey’s telephone 

and other items. McMorris v. Commonwealth, Record No. 0630-

07-1, slip op. at 2-3 (Aug. 17, 2007). 

ANALYSIS

On appeal, the facts are viewed in the light most 

favorable to the prevailing party at trial. Porter v. 

Commonwealth, 276 Va. 203, 215-16, 661 S.E.2d 415, 419 

3
(2008); Juniper v. Commonwealth, 271 Va. 362, 376, 626 

S.E.2d 383, 393 (2006). However, this Court will reverse a 

judgment of the trial court that is plainly wrong or without 

evidence to support it. Jay v. Commonwealth, 275 Va. 510, 

524, 659 S.E.2d 311, 319 (2008); Viney v. Commonwealth, 269 

Va. 296, 299, 609 S.E.2d 26, 28 (2005). 

The Commonwealth has the burden of proving beyond a 

reasonable doubt that the defendant is guilty of the charged 

crime. See Baldwin v. Commonwealth, 274 Va. 276, 280, 645 

S.E.2d 433, 435 (2007); Rogers v. Commonwealth, 242 Va. 307, 

317, 410 S.E.2d 621, 627 (1991). “ ‘Suspicion of guilt, 

however strong, or even the probability of guilt, is 

insufficient to support a conviction.’ ” Rogers, 242 Va. at 

317, 410 S.E.2d at 627 (quoting Cheng v. Commonwealth, 240 

Va. 26, 42, 393 S.E.2d 599, 608 (1990)). 

McMorris was found guilty of robbery as a principal in 

the second degree. Robbery is “ ‘the taking, with intent to 

steal, of the personal property of another, from his person 

or in his presence, against his will, by violence or 

intimidation.’ ” Pritchard v. Commonwealth, 225 Va. 559, 

561, 303 S.E.2d 911, 912 (1983) (quoting Mason v. 

Commonwealth, 200 Va. 253, 254, 105 S.E.2d 149, 150 (1958)). 

To find a defendant guilty as a principal in the second 

degree, the Commonwealth must establish that the defendant 

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procured, encouraged, countenanced, or approved the criminal 

act. Augustine v. Commonwealth, 226 Va. 120, 124, 306 

S.E.2d 886, 888-89 (1983); Spradlin v. Commonwealth, 195 Va. 

523, 526-27, 79 S.E.2d 443, 445 (1954); Brown v. 

Commonwealth, 130 Va. 733, 736-37, 107 S.E. 809, 810-11 

(1921). 

Mere presence is not sufficient to convict a defendant 

as a principal in the second degree. Augustine, 226 Va. at 

124, 306 S.E.2d at 888; Brown, 130 Va. at 736, 107 S.E. at 

810; Spradlin, 195 Va. at 527, 79 S.E.2d at 445. The 

Commonwealth must prove that the defendant consented to the 

felonious purpose and the defendant contributed to its 

execution. Hall v. Commonwealth, 225 Va. 533, 537, 303 

S.E.2d 903, 905 (1983); Jones v. Commonwealth, 208 Va. 370, 

373, 157 S.E.2d 907, 909 (1967). It is essential that the 

Commonwealth establish that the defendant shared in the 

criminal intent of the principal who committed the crime. 

Jones, 208 Va. at 373, 157 S.E.2d at 909. 

It is a well-settled rule that a defendant is guilty as 

a principal in the second degree if he is guilty of some 

overt act done knowingly in furtherance of the commission of 

the crime, or if he shared in the criminal intent of the 

principal committing the crime. See Augustine, 226 Va. at 

124, 306 S.E.2d at 889; Hall, 225 Va. at 537, 303 S.E.2d at 

5
905; Zirkle v. Commonwealth, 189 Va. 862, 876, 55 S.E.2d 24, 

32 (1949); Code § 18.2-18. This rule cannot be interpreted 

to mean that any overt act that is advantageous to the 

principal’s criminal plan is sufficient; the defendant must 

also share in the principal’s criminal intent. The overt 

act must be “knowingly in furtherance of the commission of 

the crime.” Therefore, lack of intent is usually a defense 

to a conviction as a principal in the second degree. See

Jones, 208 Va. at 373-74, 157 S.E.2d at 909; Spradlin, 195 

Va. at 528, 79 S.E.2d at 446. The one exception exists when 

there was concert of action and the resulting crime, whether 

such crime was originally contemplated or not, is a natural 

and probable consequence of the intended wrongful act. 

Spradlin, 195 Va. at 528, 79 S.E.2d at 445. 

In this case, the trial court found McMorris guilty as 

a principal in the second degree based on the fact that he 

was attacking Ottey while someone else contemporaneously 

stole his telephone and wallet. The Commonwealth presented 

no evidence of a common plan to steal Ottey’s property. 

Neither McMorris nor any of the other assailants demanded 

Ottey’s money or attempted to “go through” his pockets. 

McMorris did not leave the scene of the crime with the 

principal actor, nor is there evidence he benefited from the 

theft. In fact, no direct evidence was introduced showing 

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that McMorris was aware that Ottey’s property had fallen on 

the ground or that a co-assailant took it. McMorris could 

not have procured, encouraged, countenanced, approved or 

knowingly committed an overt act in furtherance of the 

robbery without the knowledge that the crime was occurring. 

The Commonwealth insists that such knowledge can be 

inferred through the circumstantial evidence presented. In 

particular, the Commonwealth argues that the trial court 

could have properly concluded that McMorris observed the 

robber steal the telephone based on McMorris’ proximity to 

the victim and the robber. 

The Commonwealth can, and most often must, present 

circumstantial evidence to prove that a defendant aided or 

abetted in the commission of a crime. See Augustine, 226 

Va. at 123, 306 S.E.2d at 888; Spradlin, 195 Va. at 527, 79 

S.E.2d at 445. However, when the Commonwealth relies on 

circumstantial evidence, all circumstances proved must be 

consistent with guilt and inconsistent with innocence and 

exclude all reasonable conclusions inconsistent with guilt. 

Rogers, 242 Va. at 317, 410 S.E.2d at 627; Augustine, 226 

Va. at 123, 306 S.E.2d at 888. 

 Here, there was no evidence showing the relative 

vantage point of McMorris to the property when it fell and 

was taken. McMorris’ proximity may have created a suspicion 

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that McMorris observed the property fall to the ground. 

However, to sustain a criminal conviction, the Commonwealth 

is required to prove more than a suspicion of guilt or 

probability of guilt. Rogers, 242 Va. at 317, 320, 410 

S.E.2d at 627, 629. 

 Furthermore, because the evidence offered against 

McMorris is wholly circumstantial, such evidence must 

exclude all reasonable conclusions inconsistent with that of 

guilt. See id. The circumstantial evidence presented is 

insufficient to prove that McMorris had actual knowledge of 

his co-assailants’ theft of Ottey’s property. Even though 

McMorris was one of the five men involved in the attack and 

he was near the proximate area where Ottey’s telephone fell 

to the ground, the circumstances of McMorris’ conduct do not 

exclude the reasonable conclusion that McMorris did not 

observe Ottey’s property fall to the ground and that he did 

not have knowledge of the principal’s intent to commit the 

robbery. Therefore, the Commonwealth failed to prove beyond 

a reasonable doubt that McMorris shared the criminal intent 

of the principal to commit the robbery. 

 The Commonwealth also contends that McMorris’ concert 

of action with Ottey’s other assailants is sufficient to 

support a finding that McMorris is guilty of robbery as a 

principal in the second degree. Lack of intent cannot be 

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used as a defense when there was concert of action and the 

resulting crime was a natural and probable consequence of 

the intended wrongful act. Spradlin, 195 Va. at 528, 79 

S.E.2d at 445. McMorris was among the five young men who 

surrounded and attacked Ottey. The apparent reason for the 

attack was an incident the previous night. McMorris had the 

shared intent to wrongfully assault Ottey. The issue raised 

is whether robbery is a natural and probable consequence of 

an assault. 

When someone harbors ill feelings toward another and 

the situation escalates into a fight, there is no reasonable 

probability that the aggressor will steal the victim’s 

property. See Brown, 130 Va. at 737-38, 107 S.E. at 811. 

We discussed similar facts in a hypothetical situation 

described in Kemp v. Commonwealth, 80 Va. 443, 450-51 (1885) 

(quoting 1 Joel P. Bishop, Commentaries on the Criminal Law 

§ 634, at 384 (7th ed. 1882)): 

“Even when persons are unlawfully together, and by 

concurrent understanding are in the actual 

perpetration of some crime, if one of them, of his 

sole volition, and not in pursuance of the main 

purpose, does a criminal thing in no way connected 

with what was mutually contemplated, he only is 

liable." "Thus, . . . if in England, poachers 

join in an attack on the game-keeper, and leave 

him senseless, – then, if one of them returns and 

steals his money, this one alone can be convicted 

of the robbery.” 

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Robbery is not an incidental, probable consequence of an 

assault; robbery requires a completely different type of 

wrongdoing: stealing. Therefore, McMorris’ conviction for 

robbery as a principal in the second degree cannot be 

affirmed based on the robbery being a natural and probable 

consequence of the concerted assault. 

The evidence presented by the Commonwealth was 

insufficient to prove that McMorris knowingly committed an 

overt act in furtherance of the robbery, shared in the 

criminal intent of the principal committing the robbery, or 

that the robbery was a natural and probable consequence of 

the wrongful assaults. Thus, the trial court erred in 

finding McMorris guilty of robbery as a principal in the 

second degree. 

Accordingly, we will reverse the judgment of the Court 

of Appeals affirming McMorris’ conviction of robbery as a 

principal in the second degree, vacate McMorris’ conviction 

of robbery, and dismiss the indictment against him. 

Reversed, vacated, and dismissed.

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