COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Coleman and Frank 

Argued at Salem, Virginia 

COREY WENDELL HAMPTON 

 OPINION BY 

v. Record No. 1283-99-3 JUDGE ROBERT P. FRANK 

 JUNE 20, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE 

Charles M. Stone, Judge 

 Christopher G. Armstrong (Armstrong & 

Reynolds, on brief), for appellant. 

 Donald E. Jeffrey, III, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Corey Wendell Hampton (appellant) was convicted in a bench 

trial of grand larceny of an automobile in violation of 

Code § 18.2-95. On appeal, he contends the evidence was 

insufficient to support the conviction. We agree and reverse the 

judgment of the trial court. 

I. BACKGROUND 

 William Bruce, III, testified that he drove Troy Tarpley, 

Jose Piggott, and appellant to Rivermont Apartments on July 22, 

1998. Tarpley and appellant exited the vehicle while Piggott 

remained in the car with Bruce. A group of people approached the 

car. Someone approached the passenger side and argued with 

Piggott. Bruce got out and told the group to move away from his 

car. Then, Bruce "was knocked out." When he regained 
consciousness, someone told him that "some guys had took off with 

[his] car." 

 Piggott testified that he witnessed a group of people attack 

Bruce. Suspecting that the crowd might damage the vehicle, 

Piggott drove it to a safer location. At that time, he saw no 

one else in the car. When Piggott attempted to drive to another 

location, Tarpley grabbed Piggott and began to hit him. At that 

time, Piggott realized that Tarpley and appellant were in the 

back seat of the car. Tarpley "was choking" Piggott and 

"somebody was hitting him" in his head. The evidence does not 

establish whether it was Tarpley or appellant who was hitting 

Piggott. Then, someone pulled Piggott from the car. Tarpley 

drove off in the car. 

 Eric Hardy heard Bruce's car crash into a tree a short 

distance from the Rivermont Apartments. He testified that he 

pulled Tarpley and appellant out of the car. Tarpley was in the 

driver's seat, and appellant was in the front passenger seat. As 

appellant was pulled from the car, his shoes came off. 

 Investigator R. A. Turner investigated the reported larceny 

of Bruce's car. He found appellant's shoes in the front 

passenger compartment "wedged in the car where the dash[board] 

and everything had been pushed back." 

 Appellant moved to strike the evidence on the basis that he 

was a "mere passenger" and did not participate in the attack on 

Piggott or in the taking of the car. The trial court overruled 

the motion, stating, 

In the case we've got here, we've got the 

owner of the vehicle being attacked by a mob 

and knocked unconscious. Then Mr. Piggott 

 - 2 - 
trying to get the vehicle away from the mob, 

and then the principal thief, Mr. Tarpley, 

grabbing him from behind and dragging him out 

of the vehicle at the same time that Mr. 

Hampton is in the back seat. If he had 

remained in the back seat and Tarpley drove 

the car off, I think I'd wonder. I'd have a 

reasonable doubt as to whether or not he had 

some participation in the crime, but rather 

than remaining in the back seat and doing 

nothing, or getting out of the vehicle and 

having nothing to do with its asportation, he 

got out and got in the front seat with the 

thief and drove away with him. It seems to 

me, under the circumstances of this case, 

with the violence and the getting out of the 

back seat and getting into the front, the 

inference to me is inescapable that he was 

countenancing the theft. 

 The trial court did not find that appellant assaulted or 

directly participated in the assault on Piggott. Instead, the 

court based the conviction on the fact that appellant got into 

the front passenger seat of the stolen vehicle with knowledge of 

the attack and theft, thereby countenancing and approving 

Tarpley's theft. 

II. ANALYSIS 

 Appellant contends that the evidence was insufficient to 

support the conviction for grand larceny of the automobile. 

 The Commonwealth argues that because appellant was present 

at the commission of a crime without disapproving or opposing it, 

he was a principal in the second degree. In support of its 

argument, the Commonwealth asserts that no evidence established 

that appellant attempted to stop Tarpley from attacking Piggott, 

who was ultimately pulled out of the car. At some point, both 

Tarpley and appellant moved from the back seat into the front 

seat, then drove away with Tarpley at the wheel. Appellant did 

not attempt to leave the scene. 

 - 3 - 
 As previously stated, appellant argues that he did not 

participate in the assault or theft and was a "mere passenger." 

 "When considering the sufficiency of the evidence on appeal 

of a criminal conviction, we consider the evidence in the light 

most favorable to the Commonwealth and grant all reasonable 

inferences fairly deducible therefrom." Ellis v. Commonwealth, 

29 Va. App. 548, 551, 513 S.E.2d 453, 455 (1999) (citing Brooks

v. Commonwealth, 15 Va. App. 407, 414, 424 S.E.2d 566, 571 

(1992)). "'An appellate court must discard all evidence of the 

accused that conflicts with that of the Commonwealth and regard 

as true all credible evidence favorable to the Commonwealth and 

all fair inferences reasonably deducible therefrom.'" Id.

(quoting Lea v. Commonwealth, 16 Va. App. 300, 303, 429 S.E.2d 

477, 479 (1993)). 

 "The credibility of the witnesses and the weight accorded 

the evidence are matters solely for the fact finder who has the 

opportunity to see and hear that evidence as it is presented." 

Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 

732 (1995) (citations omitted). 

 A principal in the second degree is one who is not only 

present at a crime's commission, but also commits some overt act, 

such as inciting, encouraging, advising, or assisting in the 

commission of the crime, or shares the perpetrator's criminal 

intent. See Murray v. Commonwealth, 210 Va. 282, 283, 170 S.E.2d 

3, 4 (1969) (citations omitted). 

 While mere presence during the commission of a crime is not 

sufficient to convict a person as a principal in the second 

degree, the Supreme Court of Virginia held: 

 - 4 - 
"it is certain that proof that a person is 

present at the commission of a crime without 

disapproving or opposing it, is evidence from 

which, in connection with other 

circumstances, it is competent for the jury 

to infer that he assented thereto, lent to it 

his countenance and approval, and was thereby 

aiding and abetting the same." 

 Foster v. Commonwealth, 179 Va. 96, 100, 18 S.E.2d 314, 316 

(1942) (citations omitted). 

 Because presence without disapproving or opposing the 

commission of a crime, in connection with other circumstances, is 

evidence that a defendant lent his countenance and approval to 

the crime, we must determine whether "other circumstances" were 

present in this case in addition to appellant's failure to 

disapprove or oppose the actions of the perpetrator. 

 In Foster, the defendant lived with his wife in a house of 

prostitution, knowing it to be such. See id. at 98, 18 S.E.2d at 

315. The Court concluded that the defendant benefited from the 

earnings of the prostitutes and contributed to the maintenance of 

the establishment. See id. at 100, 18 S.E.2d at 316. 

 In Pugliese v. Commonwealth, 16 Va. App. 82, 428 S.E.2d 16 

(1993), Davis shot and killed Beckmann in a van while the 

defendant was present. Prior to the shooting, the defendant knew 

Davis planned to cheat Beckmann out of some money, but contended 

he had no prior knowledge of Davis' intent to shoot Beckmann. 

See id. at 86, 428 S.E.2d at 20. In the van, Davis told the 

defendant he was going to shoot Beckmann. See id. The defendant 

remained in the van while Davis disposed of Beckmann's body. See

id. Later, the defendant received part of Beckmann's money and 

assisted Davis in disposing of the van. See id. at 86-87, 428 

 - 5 - 
S.E.2d at 20-21. The Court found that the defendant countenanced 

and lent his support to the commission of the murder and robbery 

by accompanying the perpetrator of the crime knowing of his 

announced intention to commit the crimes. 

Moehring v. Commonwealth, 223 Va. 564, 290 S.E.2d 891 

(1982), also is instructive. Faison and the defendant were 

hitchhiking. See id. at 566, 290 S.E.2d at 891. Keeling, 

leaving his keys in the ignition, went into a gas station to pay 

for gas he had just pumped. See id. Faison got into Keeling's 

vehicle and drove off. See id. The defendant was still across 

the road hitchhiking. See id. Faison drove north on Route 17 

and disappeared from sight. See id., 290 S.E.2d at 892. Several 

minutes later, Faison reappeared, driving south on Route 17. See

id. He stopped, picked up the defendant, and drove off again. 

See id. Faison testified at trial that the defendant knew 

nothing of the theft and that the defendant implored him to stop 

for the police. See id. at 567, 290 S.E.2d at 892. The trial 

court convicted the defendant because he saw the vehicle being 

taken and then left the scene in the stolen vehicle. See id.

 The Supreme Court reversed the conviction, stating: 

 The Commonwealth's evidence and the 

reasonable inferences deducible from that 

evidence do not establish that Moehring aided 

Faison in the theft or that he shared 

Faison's intent to deprive Keeling of his 

truck. All that the prosecution proved was 

that two men were observed walking south 

along Route 17 in the early morning hours of 

March 23, 1980; that each was attempting to 

"thumb" a ride from passing motorists; that 

one of the men, Faison, apparently despaired 

of success, left his fellow hitchhiker and 

went across the highway and stole a truck; 

that the other man, Moehring, continued 

walking and "thumbing"; and that some minutes 

 - 6 - 
later Moehring was given a ride in the stolen 

truck. 

 When Faison committed his larceny of the 

truck, Moehring was across a double-lane 

highway some distance from the scene. Under 

such circumstances, it is difficult to regard 

him as a "lookout," or an accessory before 

the fact. And the mere acceptance by 

Moehring of a ride in the stolen vehicle (and 

like acceptance by another hitchhiker who was 

acquitted of the larceny of the truck) did 

not in any way aid Faison. Taken in the 

light most favorable to the Commonwealth, the 

evidence fails to meet either the overt act 

or shared intent requirements of Triplett and 

Murray, supra. 

 Because larceny is a continuing offense, 

anyone who knows that personal property is 

stolen and assists in its transportation or 

disposition is guilty of larceny. Dunlavey 

v. Commonwealth, 184 Va. 521, 35 S.E.2d 763 

(1945). However, in the instant case there 

is no evidence that Moehring assisted in any 

way in the transportation or disposition of 

the truck he knew to be stolen. On the 

contrary, Faison testified it was the 

defendant who finally convinced him to 

abandon his flight and surrender to the 

police. The arresting officer noticed the 

exchange between Moehring and Faison prior to 

the time Faison stopped. The officer said 

"he [Moehring] reached over once and grabbed 

him or poked him or something to that 

effect." . . . 

Neither do we find evidence that established 

beyond a reasonable doubt that Moehring 

countenanced or approved the theft of the 

truck by Faison, or wished the venture to 

succeed. The most that can be said with 

reasonable certainty is that this 

defendant-hitchhiker accepted a ride from the 

first person who stopped and that he knew 

that person was driving a stolen vehicle. 

This conduct does raise a suspicion of guilt. 

However, it is not sufficient to establish 

beyond a reasonable doubt that the defendant 

committed grand larceny. 

Id. at 567-68, 290 S.E.2d at 892-93. 

 Clearly, in Foster and Pugliese, "other circumstances" were 

present in addition to the defendant simply being present and not 

 - 7 - 
opposing the criminal act. In Moehring, there were no "other 

circumstances." 

 In this case, no "other circumstances" are present. The 

trial court's ruling limits our analysis to whether appellant's 

conduct in not leaving the vehicle and moving into the front seat 

"countenanced" Tarpley's criminal act. 

 No evidence proved appellant participated in the theft or 

aided and abetted Tarpley by inciting, encouraging, advising or 

assisting him. No evidence proved appellant was a "look-out." 

No evidence proved appellant shared Tarpley's criminal intent. 

While larceny is a continuing offense, appellant did nothing to 

aid Tarpley in stealing the car or in driving it away. 

Appellant's conduct in remaining in the vehicle and moving into 

the front passenger seat is consistent with the hypothesis that 

he did so for his own comfort and convenience. 

 For the reasons stated, we reverse the judgment of the trial 

court and dismiss the indictment. 

Reversed and dismissed.

 - 8 -