COURT OF APPEALS OF VIRGINIA

Present: Judg es Willis, Bray and Humphreys Argued by te leconference

JAMIE MAURIC E STOKES MEMORANDUM OPINION * BY v. Record No. 2738-01-2 JUDGE ROBERT J. HUMPHREYS JULY 2, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF HENRICO COUNTY George F. Ti dey, Judge Christopher J. Collins for appellant. H. Elizabeth Shaffe r, Assistan t Attorney General (Jerry W. Kilgore, Atto rney General, on brief), for appellee.

Jamie Maurice Stokes appeals his conv ictions, after a bench trial, for robbery an d using a firear m in the comm ission of a robbery. Stokes contends the trial cour t erred in finding the evidence sufficient as a matter of law to sustain th e robbery conviction. Instead, Stokes argues the evid ence was sufficient to establish noth ing more than th at he was an accessory-afte r-the-fact. We disagree.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Further, because this memorandum opinion has no precedential value, we recite only those facts necessary to our holding."'The distinct ive elements of ro bbery are (1) the use of violence, or the threat thereof, against the vi ctim, and (2) the theft of property from hi s person or in his presence.'" 1 In order for a person to be a principal in the second degree to a felony, [such as robbery,] the individual must "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) []. The person must be " present , aiding and abetting the act done, or keeping watch or guard at some convenient distance." 2 Brown v. Commonwealth , 130 Va. 733, 736, 107 S.E. 809, 810 (1921). "[M]ere presence and consent will not suffice." Underwood v. Commonwealth , 218 Va. 1045, 1048, 243 S.E.2d 231, 233 (1978). 3 Further, any element of an offense may be prov ed by circ umstantial evidence. 4 "Circumstantial evidence is as competent and is entitled to as much weight as direct evid ence, provid ed it is

1 Quesinberry v. Commonwealth , 241 Va. 364, 373, 402 S.E.2d 218, 224 (1991) (quoting Briley v. Commonwealth , 221 Va. 532, 543, 273 S.E.2d 48, 55 (1980), cert. denied , 451 U.S. 1031 (1981)).

2 This is opposed to an accessory, which is defined as "one not present at the commission of the offense, but who is in some way concerned therein, either before or after, as contriver, instigator or advisor, or as a receiver or protector of the perpetrator . . . ." Foster v. Commonwealth , 179 Va. 96, 99, 18 S.E.2d 314, 315 (1942); Hitt v. Commonwealth , 131 Va. 752, 759, 109 S.E. 597, 600 (1921) (emphasis added).

3 Jones v. Commonwealth , 15 Va. App. 384, 387, 424 S.E.2d 563, 565 (1992) (emphases added).

4 See Coleman v. Commonwealth , 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983).

- 2 -sufficiently convincing to exclude every re asonable hypothesis except that of guilt." 5 In fact, intent may, and usuall y must, be proven by circumst antial evidence. 6 "[T]he fact finder may infer that a person intend s the immediat e, direct, an d necessary consequences of his voluntary acts . [Additionally] , when the fact finder draws such infe rences reasonably, no t arbitrarily, they will be upheld." 7 Here, Stokes' ow n statement to police pr oved that: 1) he had spent most of th e day with Antoine Smith; 2) he knew Joseph Phillips, the robb er; 3) he drove Smith and Phillips to the scene; 4) he was presen t when the robber y occurred; 5) he drove himself, Smith and Philli ps away afte r the robbery; 8 6) he voluntarily shared in the ro bbery proceeds; an d 7) he drove both Smith and Phillips to thei r intended destinations af ter the incide nt. Thus, the direct evidence, as well as the corroborating ci rcumstantial

5 Id.

6 See Servis v. Commonwealth , 6 Va. App. 507, 524, 371 S.E.2d 156, 165 (1988); see also Long v. Commonwealth , 8 Va. App. 194, 198, 379 S.E.2d 473, 476 (1989).

7 Moody v. Commonwealth , 28 Va. App. 702, 706-07, 508 S.E.2d 354, 356 (1998) (citations omitted).

8 We note that the fact finder rejected Stokes' contention that he drove away under duress, because Phillips had a gun and he "told us to pull off." See Sheppard v. Commonwealth , 250 Va. 379, 387, 464 S.E.2d 131, 136 (1995) ("[W]hen conducting appellate review on . . . question[s] of fact, considering the evidence in the light most favorable to the Commonwealth, we must grant the Commonwealth all reasonable inferences from the facts proven, and the trial court's judgment must be affirmed unless it is plainly wrong or without evidence to support it.")

- 3 -evidence, perm its the reasonable inference that Stokes shared Phillips' and Smit h's criminal intent, prov ing beyond a reasonable

doubt that Stokes was a principal in the se cond degree to the robbery. Moreover, as the le gal standard defining a principal in the second degree make s clear, it was no t necessar y for the

Commonwealth to prove Stokes shared in the criminal intent to commit the robbery. Th e standard is defined in the disjunctive. Thus, if the evidence established that Stokes aided in, or in some way countenanc ed, the principal' s commission of the crime, he could be convicted as a prin cipal in the second degree. 9 Here, Smith himself conc eded that he aided in the commissi on of the robbery, by driv ing the men from the sc ene and shar ing in the robbery pr oceeds. For the foregoin g reasons, the judgment of the trial court is Affirmed.

9 See Augustine v. Commonwealth , 226 Va. 120, 124, 306 S.E.2d 886, 888-89 (1983) ("Mere presence, however, is insufficient to establish that [an accused] is a principal in the second degree. To prove [an accused] was an aider and abettor, the evidence must show that [he] was not only present but that [he] procured, encouraged, countenanced, or approved commission of the crime. In other words, [he] must share the criminal intent of the party who actually committed the [crime] or be guilty of some overt act in furtherance thereof.") (emphasis added); see also Rollston v. Commonwealth , 11 Va. App. 535, 540, 399 S.E.2d 823, 826 (1991) ("Specific intent is not required to convict the defendant as a principal in the second degree.").

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