                     COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Agee and Kelsey
Argued at Salem, Virginia


WILLIAM WADE HENDERSON, III
                                              MEMORANDUM OPINION * BY
v.   Record No. 3363-01-3                      JUDGE G. STEVEN AGEE
                                                 JANUARY 14, 2003
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF HENRY COUNTY
                   Martin F. Clark, Jr., Judge

          S. Jane Chittom, Appellate Defender (Public
          Defender Commission, on briefs), for
          appellant.

          Linwood T. Wells, Jr., Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     William Wade Henderson, III (Henderson) was convicted in a

bench trial of attempted robbery and malicious wounding.        On

appeal, Henderson contends the trial court erred in finding the

evidence sufficient to establish his guilt on both charges.          He

also avers that the attempted robbery charge must be dismissed

because it is the result of an inconsistent verdict.        For the

following reasons we affirm the decision of the trial court.

                              I.   ANALYSIS

     When considering the sufficiency of the evidence on appeal

in a criminal case, this Court views the evidence in the light


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
most favorable to the Commonwealth, granting to it all

reasonable inferences fairly deducible therefrom.     See

Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,

537 (1975).   On review, this Court does not substitute its own

judgment for that of the trier of fact.     See Cable v.

Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218, 220 (1992).

Witness credibility, the weight accorded the testimony and the

inferences to be drawn from proven facts are matters to be

determined by the fact finder.     See Long v. Commonwealth, 8

Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).    The trial

court's judgment will not be set aside unless it appears that

the judgment is plainly wrong or without supporting evidence.

See Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415,

418 (1987).

                  A.    Sufficiency of the Evidence

     The trial court found that Henderson's companion, Gillis,

actually beat and attempted to rob the victim.    Henderson

acknowledges the trial court found him guilty on the charges of

malicious wounding and attempted robbery as a principal in the

second degree but asserts that the evidence was insufficient to

support that finding.    We disagree.

          "A principal in the second degree is one not
          the perpetrator, but present, aiding and
          abetting the act done, or keeping watch or
          guard at some convenient distance." Brown
          v. Commonwealth, 130 Va. 733, 736, 107 S.E.
          809, 810 (1921). . . . It must be shown
          that the defendant procured, encouraged,
                              - 2 -
           countenanced, or approved commission of the
           crime. Augustine v. Commonwealth, 226 Va.
           120, 124, 306 S.E.2d 886, 888-89 (1983).
           "To constitute one an aider and abettor, he
           must be guilty of some overt act, or he must
           share the criminal intent of the principal."
           Triplett v. Commonwealth, 141 Va. 577, 586,
           127 S.E. 486, 489 (1925); see also Moehring
           v. Commonwealth, 223 Va. 564, 567, 290
           S.E.2d 891, 892 (1982).

Rollston v. Commonwealth, 11 Va. App. 535, 539, 399 S.E.2d 823,

825 (1991).   In order to support its finding the trial court,

sitting without a jury, was thus required to determine that

Henderson committed some overt act to further the offenses.

     The trial court could reasonably determine, based on the

evidence, that Henderson took overt steps in support of the

crime.   Henderson provided his mother's car for transportation

of he and Gillis to the scene of the crime.   While Gillis left

the car to enter the nearby trailer to beat and attempt to rob

the victim, Henderson remained at the wheel of the car with an

unobstructed view of the trailer at a short distance with the

porch light on.   Concluding Henderson was thus keeping watch is

not unreasonable.

     When the crime was detected, Henderson fled in his mother's

car with Gillis when chased by the neighbors.   Henderson also

attempted to provide an alibi.    He reported, or had his mother

report, on the day after the crime that the car was stolen while

he knew, in fact, the car was not stolen.



                                 - 3 -
     These acts sufficiently demonstrate that Henderson took

multiple and separate overt steps in support of the crimes.

From this evidence, the trial court could conclude beyond a

reasonable doubt that Henderson was "present, aiding and

abetting the act done . . . keeping watch at a convenient

distance" and shared the criminal intent of the principal,

Gillis.

     The trial court could also properly disregard any of

Henderson's testimony to the contrary.    "In its role of judging

witness credibility, the fact finder is entitled to disbelieve

the self-serving testimony of the accused and to conclude that

the accused is lying to conceal his guilt."    Marable v.

Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235

(1998) (citing Speight v. Commonwealth, 4 Va. App. 83, 88, 354

S.E.2d 95, 98 (1987) (en banc)).

     The evidence showed that Henderson lied to police on

multiple occasions.   He initially told police investigators he

was home all day but subsequently admitted to being at the

scene.    At first he denied ever having gotten out of the car but

later recanted this statement as well.    Finally, he asked his

girlfriend to lie about his whereabouts on the date of the

crime, as well as the time she picked him up on the night of the

assault.

     The evidence in the record is clearly sufficient to support

Henderson's conviction on both charges.
                              - 4 -
                     B.    Inconsistent Verdicts

     Henderson also argues that the trial court rendered

inconsistent verdicts by convicting him of attempted robbery but

dismissing the charge of use of a firearm in that attempted

robbery.   Henderson asserts that Akers v. Commonwealth, 31

Va. App. 521, 525 S.E.2d 13 (2000), supports his contention.

     We did hold in Akers that inconsistent verdicts in a bench

trial are prohibited.     However, it is this Court's more recent

holding in Cleveland v. Commonwealth, 38 Va. App. 199, 562

S.E.2d 696 (2002), that governs the case at bar.

     In deciding Akers, this Court relied on Shell v. State, 512

A.2d 358 (Md. 1986), a decision by Maryland's highest court.

However, we noted in Akers that the Maryland court had

previously held in Johnson v. State, 209 A.2d 765 (Md. 1965),

that an inconsistent bench verdict would be sustained "where a

trial judge on the record explains an apparent inconsistency in

the verdicts, and where the explanation shows that the trial

court's action was 'proper' and that there was no unfairness."

Akers, 31 Va. App. at 532 n.5, 525 S.E.2d at 18 n.5.     Although

we didn't reach this particular issue in Akers, we squarely

adopted the Maryland rationale in Cleveland.

     In Cleveland we assumed that the trial court's verdicts in

a bench trial were inconsistent.    Nevertheless, we affirmed the

verdicts because the trial court offered a valid explanation on

the record for rendering its decision and apparently considered
                              - 5 -
the ruling to be an act of lenity.   The trial court's

explanation in Cleveland demonstrated the ruling was not the

result of confusion or a method of resolving doubts – the

primary evils Akers sought to avoid.

     We find the trial court's explanation in this case for

conviction in the case of attempted robbery, but acquittal of

use of a firearm during attempted robbery, to be adequately

explained under Cleveland.   The trial judge originally expressed

misgivings on the record as to whether Henderson could be

convicted of the firearms charge if he did not, in fact, ever

possess or use the gun.   The case was continued for sentencing,

at which time the trial judge stated on the record that his

earlier legal conclusion on the firearms charge was "wrong" and

that "the Court of Appeals . . . would uphold the conviction" on

that charge.   Nonetheless, the trial court determined that

dropping the firearms charge was the fair thing to do because it

had "strongly intimated" it would do so in the earlier

proceeding.

     The record is thus crystal clear the trial judge was not

confused as to the facts and explicitly did not reject the

evidence regarding Henderson's knowledge, planning,

participation and involvement in the crime of attempted robbery.

The trial court acknowledged that evidence was sufficient to

convict Henderson on the firearms charge.   The record reflects

the trial judge's explanation that dismissing the firearms
                              - 6 -
charge was not a product of confusion or a method of resolving

doubt, but an act of lenity.    There was no unfairness to

Henderson, in fact, he got "a break."

                          II.   CONCLUSION

     For the reasons set forth above, we hold the evidence was

sufficient to sustain Henderson's convictions.   We also find

that the trial court adequately explained its reasons for

dismissing the firearms charge and there are not inconsistent

verdicts.   The judgment of the trial court is therefore

affirmed.

                                                             Affirmed.




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