COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Senior Judge Cole 

Argued at Richmond, Virginia 

GERALD EDWARD BAKER, JR. 

 MEMORANDUM OPINION* BY 

v. Record No. 0555-96-2 JUDGE JAMES W. BENTON, JR. 

 FEBRUARY 18, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

Lee A. Harris, Jr., Judge 

 Steven D. Benjamin (Betty Layne DesPortes; 

Steven D. Benjamin and Associates, on 

briefs), for appellant. 

 Leah A. Darron, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Gerald Edward Baker, Jr., was convicted of statutory 

burglary. He contends that the conviction should be reversed 

because (1) evidence of his prior misconduct was improperly 

considered as probative of concert of action, and (2) proof of 

his presence at the scene and knowledge that his companions 

intended to commit burglary was insufficient to prove that he 

acted in concert with his companions. We affirm the conviction. 

 I. 

 At trial, police investigator Cecil Mayton testified that he 

interviewed Baker in connection with an investigation of 

break-ins at several churches. During the interview, Baker said 

he was riding in an automobile with two acquaintances when they 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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passed a church on Warner Road. One of Baker's companions said, 

"We have to do this one." The driver then turned the automobile 

into the church parking lot and stopped. Baker stated that when 

they went onto the church property, he had an "idea [of what his 

companions planned to do] because he had been with them before 

 . . . when they had taken other items from other churches." He 

said that his companions wanted to take equipment such as 

televisions and video recorders. 

 Baker's counsel objected when the investigator testified as 

follows: 

 [INVESTIGATOR]: [Baker] stated the purpose 

for taking the items [was] to purchase or to 

trade for drugs. And he indicated to me that 

on several occasions he had, in fact, 

obtained drugs and used drugs as a result of 

other larcenies. 

 [BAKER'S COUNSEL]: Objection to that. 

 [TRIAL JUDGE]: Well I think it goes to 

intent and that's the only reason I take it. 

 [BAKER'S COUNSEL]: I understand. 

 [TRIAL JUDGE]: And I don't take it for 

anything else. But I do think it's relative 

as far as intent is concerned. 

 The investigator further testified that Baker said his two 

companions got out of the automobile, broke a window in the 

church, and went inside. A few seconds later, a loud alarm 

sounded. His companions ran back to the automobile, and they 

drove away at a high speed. Baker said he did not believe his 

companions removed anything from the church because they were in 
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the church for a very short period of time. 

 When the Commonwealth completed its case-in-chief, Baker's 

counsel stipulated that the burglary occurred. However, he moved 

to strike the evidence on the ground that the evidence was 

insufficient to convict Baker of burglary because it proved only 

Baker's presence and knowledge of his companions' intended 

conduct. The trial judge responded as follows: 

 I would agree with you if this was the only 

time. But what you've got here from his own 

statement is he's been with them before, 

they've been in churches, they took the items 

to buy drugs, and he shared in the drugs, and 

that was the same thing that was going to 

happen here. And I think what that amounts 

to is a concert of action. 

The trial judge then convicted Baker of burglary. 

 II. 

 "It is, of course, well settled that mere presence and 

consent are not sufficient to constitute one an aider and abettor 

[i.e., principal in the second degree] in the commission of a 

crime." Jones v. Commonwealth, 208 Va. 370, 373, 157 S.E.2d 907, 

909 (1967). "A person can be convicted as a principal in the 

second degree, however, upon evidence that [the person] not only 

was present, but also committed some overt act -- such as 

inciting, encouraging, advising or assisting in the commission of 

the crime -- or shared the prime actor's criminal intent." 

Murray v. Commonwealth, 210 Va. 282, 283, 170 S.E.2d 3, 4 (1969). 

 Indeed, the rule is well settled that "'[t]o constitute one an 

aider and abettor, it is essential that [the person] share the 
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criminal intent of the . . . party who committed the offense.'" 

Jones, 208 Va. at 370, 157 S.E.2d at 909 (citation omitted). 

 The trial judge did not err in admitting evidence to prove 

Baker's knowledge of his companions' plan and to prove intent. 

Evidence of other offenses "is permissible in cases where the 

motive, intent, or knowledge of the accused is involved." 

Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 

805 (1970). Furthermore, when the trial judge admitted the 

evidence for the purpose of proving intent, he did not narrowly 

confine the use of the evidence as now urged by Baker, to 

establish only the intent of Baker's companions. Indeed, when 

Baker's counsel argued in support of his motion to strike that 

the evidence was limited in its purpose, the trial judge 

disagreed. 

 The evidence was sufficient to prove beyond a reasonable 

doubt that Baker had accompanied his companions on other 

occasions when they committed burglaries at churches, that Baker 

had shared in and used the proceeds of those burglaries to 

purchase drugs, and that Baker "knew of the other [men's] 

criminal intent" when he accompanied them to the church. Murray, 

210 Va. at 284, 170 S.E.2d at 5. Thus, the evidence proved 

additional elements, beyond mere presence and consent, and was 

sufficient to prove beyond a reasonable doubt that Baker was a 

principal in the second degree to the burglary. Accordingly, we 

affirm the conviction. 

 Affirmed.