                  COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Coleman and Elder
Argued at Salem, Virginia


JOSEPH WILLIAM LAMONT DAVIS
                                         MEMORANDUM OPINION * BY
v.        Record No. 1959-95-3            JUDGE LARRY G. ELDER
                                            OCTOBER 1, 1996
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
                   Mosby G. Perrow, III, Judge

          Wade Allen Bowie (Richard P. Cunningham &
          Associates, P.C., on briefs), for appellant.

          Margaret Ann B. Walker, Assistant Attorney
          General (James S. Gilmore, III, Attorney
          General, on brief), for appellee.



     Joseph William Lamont Davis (appellant) appeals his

conviction for malicious wounding, in violation of Code

§ 18.2-51, and use of a firearm in the commission of malicious

wounding, in violation of Code § 18.2-53.1.   Appellant contends

that the Commonwealth failed to present sufficient evidence to

support the convictions.   We disagree and affirm appellant's

convictions.

                                  I.

                                 FACTS

     On February 20, 1995, Troy Roberson and a group of people

gathered outside Roberson's residence in Lynchburg.    A car

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
carrying appellant, Darrell Morgan, and Damien Saunders pulled up

in front of a neighbor's house.    The three men exited the car,

approached Roberson, and demanded that he return some car rims

that appellant believed that Roberson possessed.   Appellant

became angry when Roberson denied having knowledge of the rims.

Appellant and Morgan each pulled out a gun and placed them

against Roberson's head, while Saunders took forty dollars from

Roberson's pants pocket.
     Roberson then began to run toward his residence.    As

Roberson ran, he looked back at appellant and Morgan and saw

appellant "shooting at [him]."    Roberson testified that he saw

appellant fire the first gunshot, which missed him and hit his

house.   Appellant conceded that the evidence proved that he fired

the first gunshot.   Roberson did not look back to see who fired

the additional six gunshots.   Roberson testified that he

believed, but was not sure, that the second shot fired was the

one that hit him in his arm.   A witness testified that he saw

shots fired from the vicinity of where appellant and Morgan were

standing, but he could not say whether either, or both, of the

men fired shots at Roberson.

     Police found six bullet holes in Roberson's residence.

Appellant gave a statement after his arrest denying his presence

when the shooting occurred.    Evidence also showed that appellant

sent Roberson several letters denying involvement in the shooting

and offering Roberson $2,000 to "drop it."




                                  -2-
        Appellant and Morgan were tried at a bench trial on July 10,

1995.    The trial court struck the evidence against Morgan, but

found appellant guilty of the charged offenses.     Appellant now

appeals to this Court.

                                  II.

                      SUFFICIENCY OF THE EVIDENCE

        When the sufficiency of the evidence is challenged on

appeal, we must construe the evidence in the light most favorable

to the Commonwealth, granting to it all reasonable inferences

fairly deducible therefrom.     Higginbotham v. Commonwealth, 216

Va. 349, 352, 218 S.E.2d 534, 537 (1975).    Even where evidence is

entirely circumstantial, the inferences drawn from the

circumstantial evidence are within the province of the fact

finder and not the appellate court so long as the inferences are

reasonable and justified.     O'Brien v. Commonwealth, 4 Va. App.

261, 263-64, 356 S.E.2d 449, 450 (1987).    "[C]ircumstantial

evidence alone is sufficient to sustain a conviction."      Johnson
v. Commonwealth, 2 Va. App. 598, 604-05, 347 S.E.2d 163, 167

(1986).    However, "all necessary circumstances proved must be

consistent with guilt and inconsistent with innocence and exclude

every reasonable hypothesis of innocence."     Moran v.

Commonwealth, 4 Va. App. 310, 314, 357 S.E.2d 551, 553 (1987).

        Viewing the evidence in the light most favorable to the

Commonwealth, we hold that the Commonwealth presented sufficient

evidence to convict appellant of the charged crimes.      Appellant




                                  -3-
admits that he fired the first gunshot which missed Roberson but

hit Roberson's house.   The trial court reasonably inferred from

the credible evidence that the remaining six gunshots originated

from the guns fired by appellant and/or Morgan.      The one gunshot

wounding Roberson therefore originated from either appellant's

gun or Morgan's gun.    Assuming that the gunshot which wounded

Roberson originated from Morgan's gun, appellant would be

responsible as a principal in the second degree, under the

"concert of action" theory.
     Concert of action has been defined as "action that has been

planned, arranged, adjusted, agreed on and settled between the

parties acting together pursuant to some design or scheme."

Berkeley v. Commonwealth, 19 Va. App. 279, 283, 451 S.E.2d 41, 43

(1994).   "All participants in such planned enterprises may be

held accountable for incidental crimes committed by another

participant during the enterprise even though not originally or

specifically designed."    Id. 1   In this case, Morgan and appellant
     1
        In Carter v. Commonwealth, 232 Va. 122, 126-27, 348
S.E.2d 265, 268 (1986), the Supreme Court of Virginia stated:

           All those who assemble themselves together
           with an intent to commit a wrongful act, the
           execution whereof makes probable, in the
           nature of things, a crime not specifically
           designed, but incidental to that which was
           the object of the confederacy, are
           responsible for such incidental crime.
           Hence, it is not necessary that the crime
           should be a part of the original design; it
           is enough if it be one of the incidental
           probable consequences of the execution of
           that design, and should appear at the moment
           to one of the participants to be expedient



                                   -4-
acted together in demanding that Roberson return the rims and in

holding guns to his head while Saunders took money from

Roberson's pocket in place of the rims.    The evidence supported

the reasonable inference that when Roberson fled toward his

residence, Morgan and appellant pointed their weapons at him in a

joint and concerted effort to stop him from fleeing or to

retaliate.    Assuming that appellant did not fire the wounding

shot, appellant was nonetheless criminally responsible for

Morgan's acts, as a principal in the second degree, under the

concert of action theory. 2   Riddick v. Commonwealth, 226 Va. 244,

248, 308 S.E.2d 117, 119 (1983)(holding that "even if

[defendant's cohort] killed the victim, defendant was criminally

responsible for the acts of the gunman . . . as a principal in

the second degree").     See also Washington v. Commonwealth, 216

Va. 185, 191, 217 S.E.2d 815, 821-22 (1975)(holding that where

             for the common purpose.

See also Ascher v. Commonwealth, 12 Va. App. 1105, 1128, 408
S.E.2d 906, 920 (1991), cert. denied, 506 U.S. 865 (1992);
Rollston v. Commonwealth, 11 Va. App. 535, 541-42, 399 S.E.2d
823, 827 (1991).
     2
        We recognize that "[b]efore a person may be convicted as
a principal in the second degree, the Commonwealth bears the
burden of proving that a principal in the first degree committed
the underlying substantive offense." Fleming v. Commonwealth, 13
Va. App. 349, 353, 412 S.E.2d 180, 182 (1991). Appellant argues
that because the trial court struck all charges against Morgan,
the trial court could not have held appellant liable as a
principal in the second degree. Under the facts of this case, we
disagree. If appellant did not fire the wounding shot, as he
maintains, then the credible evidence proves only one other
theory: that Morgan, as the principal in the first degree, fired
the wounding shot.




                                  -5-
the defendant acted in concert with his cohort in killing a

prison guard, the Commonwealth did not have to establish which of

the two men fired the fatal shots).




                               -6-
For these reasons, we affirm appellant's convictions.

                                                   Affirmed.




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