                   COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Lemons and Frank
Argued at Norfolk, Virginia


LARRY BECKER
                                           MEMORANDUM OPINION * BY
v.   Record No. 2230-98-1                   JUDGE ROBERT P. FRANK
                                              DECEMBER 28, 1999
COMMONWEALTH OF VIRGINIA


       FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                       John K. Moore, Judge

          Ray W. King (Richard J. Tavss; Tavss,
          Fletcher, Maiden & King, P.C., on briefs),
          for appellant.

          Linwood T. Wells, Jr., Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Larry Becker (appellant) appeals from a bench trial his

conviction for operating a vehicle in violation of the terms of a

state hauling permit under Code § 46.2-1139.   On appeal, he

contends that:   (1) only the actual operator of the vehicle can be

guilty of this offense and (2) since the driver of the vehicle was

acquitted of the offense, appellant cannot be convicted as an

accessory before the fact.   We disagree and affirm the conviction.

                               FACTS

     Appellant is an account representative for W.O. Grubb Steel

Erection (Grubb), which, as part of its business, operates

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
self-propelled cranes.   At approximately 5:00 a.m. on November 11,

1997, appellant received a call from Dick Caddle of Atlantic

Industrial requesting a crane at the Norfolk International

Terminals (NIT).    Mr. Caddle contacted appellant on prior

occasions when he needed cranes.   On this occasion Mr. Caddle said

to appellant, "Larry, I got to have a crane right now; I got to

go; Bye."    Caddle did not offer further explanation.   In the past,

Mr. Caddle used these words, or similar words, when he needed a

crane for an emergency, and, in this instance, appellant believed

Caddle's request was for such an emergency situation.

     Robert Wyatt Belote drove a Grubb-owned Grove TM-9120

self-propelled crane to NIT.   The movement of this crane was

controlled by a permit issued to Grubb pursuant to Article 18 of

Chapter 10 of Title 46.2 of the Code of Virginia.   The permit

allowed non-emergency movement of the crane on public roads from

one-half hour after sunrise until one-half hour before sunset.        In

addition, travel was prohibited on certain sections of Interstate

64 between 7:00 a.m. and 9:00 a.m.

     At approximately 6:20 a.m., nineteen minutes before sunrise, 1

Officer Godwin of the Virginia Beach Police Department observed

the crane being driven by Belote traveling west on Interstate 64.

Officer Godwin had the crane stopped and escorted down Interstate

64 to the Northampton Boulevard exit by another officer.      After


     1
         Sunrise occurred at 6:39 a.m. on November 11, 1997.


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speaking with the driver/operator, Belote, and appellant by

telephone, Officer Godwin issued a summons to Belote for violating

Code § 46.2-1139 and a civil summons to Grubb for operating an

overweight vehicle without a permit for operation at that hour of

the morning.   On May 14, 1998, appellant also was indicted for

violating Code § 46.2-1139.

     Pursuant to Code § 46.2-1135, Grubb paid a civil penalty of

$6,512 for operating the crane on the public roads in a

non-emergency situation without having a permit for operation at

that time of the morning.   Belote, the driver of the crane, was

found not guilty of violating Code § 46.2-1139.

     Appellant was tried on September 17, 1998.   The court found

that the appellant, though not the operator of the crane, violated

or caused the violation of the permit.   The court stated "the fact

he wasn't the operator [does not] make any difference under this

statute."   The court indicated that the statute's violation did

not depend upon the "operation" of the vehicle but upon "the

violation of the terms" of the permit.   The court based this

finding on the statute's language discussing "violation of the

permit," not "operation of a vehicle in violation" of the permit.

                              ANALYSIS

                 The standard of review for determining
            the sufficiency of evidence on appeal is well
            established. We must examine the evidence in
            the light most favorable to the Commonwealth,
            the prevailing party at trial, and we will
            not disturb the trial court's judgment unless
            it is plainly wrong or without evidence to

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          support it. Goins [v. Commonwealth], 251 Va.
          [442,] 466, 470 S.E.2d [114,] 130 [(1996)];
          Beavers v. Commonwealth, 245 Va. 268, 281-82,
          427 S.E.2d 411, 421, cert. denied, 510 U.S.
          859, 114 S. Ct. 171, 126 L.Ed.2d 130 (1993);
          Code § 8.01-680.

Hedrick v. Commonwealth, 257 Va. 328, 340, 513 S.E.2d 634, 641

(1999).

     Section 46.2-1139 of the Code of Virginia provides, in part:

          Permits for excessive size and weight
          generally; penalty. -- A. The Commonwealth
          Transportation Commission and local
          authorities of cities and towns, in their
          respective jurisdictions, may upon written
          application and good cause being shown, issue
          a permit authorizing the applicant to operate
          on a highway a vehicle of a size or weight
          exceeding the maximum specified in this
          title. Any such permit may designate the
          route to be traveled and contain any other
          restrictions or conditions deemed necessary
          by the body granting the permit.

          *      *      *       *      *      *      *

          C. Every permit issued under this article
          for the operation of oversize or overweight
          vehicles shall be carried in the vehicle to
          which it refers and may be inspected by any
          officer. Violation of any term of any permit
          issued under this article shall constitute a
          Class 1 misdemeanor.

     Appellant contends that since the driver of the vehicle was

acquitted of the same charge, appellant cannot be convicted as an

accessory before the fact.   Appellant further argues that he

cannot be liable under Code § 46.2-1139 because he was not

"operating" the crane in violation of the permit.




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     At common law, there are no accessories in misdemeanors,

"'all concerned being principals.'"    Watts v. Commonwealth, 99 Va.

872, 880, 39 S.E. 706, 708 (1901) (citation omitted).   In other

words, actions that result in punishment as an accessory when the

crime is a felony result in punishment as a principal when the

crime is a misdemeanor.   The elements necessary to establish that

a person acted as an accessory before the fact are instructive in

determining whether appellant acted as a principal in this case.

          We have previously defined an accessory as
          "one not present at the commission of the
          offense, but who is in some way concerned
          therein, either before or after, as [a]
          contriver, instigator or advisor, or as a
          receiver or protector of the perpetrator."
          Tolley v. Commonwealth, 216 Va. 341, 348, 218
          S.E.2d 550, 555 (1975). See also 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). This
          definition mandates that in the trial of an
          accessory before the fact the Commonwealth
          establish the following elements beyond a
          reasonable doubt: the commission of the
          crime by the principal, the accessory's
          absence at the commission of the offense, and
          that before the commission of the crime, the
          accessory was "in some way concerned
          therein . . . as [a] contriver, instigator or
          advisor." Tolley, 216 Va. at 348, 218 S.E.2d
          at 555.

McGhee v. Commonwealth, 221 Va. 422, 425-26, 270 S.E.2d 729, 731

(1980).

     In Dusenberry v. Commonwealth, 220 Va. 770, 771-72, 263

S.E.2d 392, 393 (1980), the Supreme Court of Virginia wrote:

          [B]y definition, there can be no accessory
          without a principal. Although conviction of

                               - 5 -
             a principal in the first degree is not a
             condition precedent to conviction of an
             accessory, . . . , "before the accessory to a
             crime can be convicted as such, it must be
             shown that the crime has been committed by
             the principal." Snyder v. Commonwealth, 202
             Va. 1009, 1017, 121 S.E.2d 452, 458 (1961).

     Similarly, in Snyder, 202 Va. at 1015, 121 S.E.2d at 456-57,

the Court stated, "It is incumbent upon the Commonwealth, in

proving her case against the defendant as an aider and abettor, to

establish the commission of the substantive offense by . . . the

principal."

     The evidence is sufficient to show that the driver of the

vehicle, Belote, committed the offense.      The uncontroverted

evidence is that Belote violated the terms of the permit by

operating the vehicle before dawn.       It is further uncontroverted

that appellant was not present at the time of the offense.        The

third element of accessory before the fact is that the accused was

a contriver, instigator or advisor of the crime committed by the

principal.    Appellant, the dispatcher for Grubb, received a phone

call requiring the use of the crane vehicle.      Knowing the

limitations of the permit, appellant ordered the driver to drive

the crane on the highways prior to sunrise.      Appellant was in fact

the instigator who set the violation in motion.

     While appellant is correct in his argument that he cannot be

convicted as an accessory before the fact because the offense is a

misdemeanor, his actions in instigating the operation of the crane

on the highway resulted in a violation of the permit, even though

                                 - 6 -
he did not physically operate the crane.   We, therefore, find that

appellant violated Code § 46.2-1139 as a principal in the

commission of the offense.

     For these reasons, we affirm the judgment of the trial court.

                                                            Affirmed.




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