                       COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Senior Judge Overton ∗
Argued at Norfolk, Virginia


ERIC R. COOKE, S/K/A
 ERIC RODNEY COOKE
                                          MEMORANDUM OPINION ∗∗ BY
v.   Record No. 2206-97-1               JUDGE JAMES W. BENTON, JR.
                                              MARCH 23, 1999
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                     Johnny E. Morrison, Judge

           (J. Edgar Demps, on brief), for appellant.
           Appellant submitting on brief.

           (Mark L. Earley, Attorney General; Ruth Ann
           Morken, Assistant Attorney General, on
           brief), for appellee. Appellee submitting on
           brief.


     A jury convicted Eric R. Cooke of attempted second degree

murder, use of a firearm while attempting to commit murder, and

accessory after the fact of attempted robbery.   Although Cooke

was also charged with attempted robbery, the jury acquitted him

of that charge.   The issue on appeal is limited to whether the

evidence was sufficient to prove beyond a reasonable doubt the

offenses of attempted second degree murder and use of a firearm

     ∗
      Judge Overton participated in the hearing and decision of
this case prior to the effective date of his retirement on
January 31, 1999 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401, recodifying Code
§ 17-116.01:1.
     ∗∗
      Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
while attempting to commit murder.       For the reasons that follow,

we affirm those convictions.

                                  I.

     In reviewing the sufficiency of the evidence, "we must view

all the evidence in the light most favorable to the Commonwealth

and accord to the evidence all reasonable inferences fairly

deducible therefrom."     Traverso v. Commonwealth, 6 Va. App. 172,

176, 366 S.E.2d 719, 721 (1988).       Whether the evidence so viewed

is sufficient to prove guilt beyond a reasonable doubt is a

question of law, not fact.     Bridgeman v. Commonwealth, 3 Va.

App. 523, 528, 351 S.E.2d 598, 601 (1986).

     Viewed in the light most favorable to the Commonwealth, the

evidence proved that at 9:00 a.m. Cooke's brother approached a

bank in Portsmouth, pulled a mask over his face, and attempted

to enter the bank.   A teller saw him approaching the bank with a

gun and locked the front doors before he could enter.      Cooke's

brother then ran across the street, through a wooded field, and

toward a parking lot behind another building.      The teller lost

sight of Cooke's brother as he passed behind the building.

However, a man outside the bank saw these events, drove to a

street behind the other building, and saw Cooke's brother enter

a burgundy colored car.    When the car sped away, the man

returned to the bank and notified one of the bank's employees of

the car's license plate number.



                                 - 2 -
       A few minutes later, Officer Ciccone, who was in uniform

and driving a marked police vehicle, saw Cooke's car and noted

that it matched the description given by the man who reported

the car's license number.   When the officer activated his

emergency lights, the car stopped.      Cooke was the driver, and

his brother was the only passenger.     The officer stepped out of

his vehicle, drew his gun, and ordered Cooke and his brother to

place their hands on top of their heads.     However, Cooke

speedily drove away through a parking lot and into an adjacent

field.   As the officer pursued them, Cooke lost control of the

car in the field and crashed into a fallen tree.

       Cooke's brother first exited the car.    He crouched and

fired at the officer several times with a revolver.     As this was

occurring, Cooke came out the driver's side window.     The officer

testified "I'm not at this point certain if [Cooke] had a gun at

all.   In my mind I saw two guns, but I just trained on the one

[Cooke's brother] had, because he was the one firing at me."

The officer took cover, concentrated on Cooke's brother, and

fired his gun four times.

       Cooke and his brother ran across the field pursued by the

officer.   Cooke's brother, who was running approximately five

feet from Cooke, turned and again pointed his gun at the

officer. The officer fired his gun two times, striking Cooke's

brother in the leg.   Cooke's brother dropped his gun and



                                - 3 -
continued to run.   At the end of the field, Cooke and his

brother ran in different directions.   The officer lost sight of

Cooke's brother and continued to chase Cooke.

     Cooke ran through the backyards of several residences.     As

the officer followed Cooke around a corner, he saw Cooke turn

and point something at him.   The officer testified that he "felt

threatened [and] . . . thought [he] saw a gun in his hand

again."   The officer fired his gun twice at Cooke, who ran away.

Other officers captured Cooke in a nearby neighborhood.   Cooke

was not armed when the officers seized him.   The officers

recovered the gun Cooke's brother dropped in the field.

     The jury acquitted Cooke of the robbery charge but

convicted him of being an accessory after the fact of attempted

robbery, attempted second degree murder, and use of a firearm

while attempting to commit murder.

                                II.

     Second degree murder "is defined simply as a malicious

killing."   Turner v. Commonwealth, 23 Va. App. 270, 274, 476

S.E.2d 504, 506 (1996).   To convict an accused of attempted

second degree murder, the Commonwealth must prove that the

accused (1) specifically intended to kill and (2) performed an

overt but ineffectual act toward the killing's commission.      See

Nobles v. Commonwealth, 218 Va. 548, 551, 238 S.E.2d 808, 810

(1977); Barrett v. Commonwealth, 210 Va. 153, 156, 169 S.E.2d



                               - 4 -
449, 451 (1969).   This act "'must be some appreciable fragment

of the crime committed, it must be in such progress that [the

crime] will be consummated unless interrupted by circumstances

independent of the will of the attempter.'"   Lewis v.

Commonwealth, 15 Va. App. 337, 340, 423 S.E.2d 371, 373 (1992)

(citation omitted).   The Commonwealth argues on brief that

Cooke's guilt was established either as a principal in the first

degree or as a principal in the second degree.

     Cooke contends the evidence failed to prove he had a gun.

The Commonwealth first argues the evidence proved Cooke had a

gun and aimed it at the officer.   In support of that position,

the Commonwealth notes that the officer fired his gun at Cooke

because he believed that Cooke pointed a gun at him.     The

Commonwealth also points to evidence that proved the officer was

prohibited, pursuant to police policy, from using deadly force

except in self-defense or in defense of another person.    The

Commonwealth argues that the "jury was entitled to infer from

this evidence that [Cooke] had a gun."   We disagree.

             Where the Commonwealth, in a criminal
          case, undertakes to prove the guilt of the
          accused by circumstantial evidence, as it
          did in the present case, not only must it
          prove the circumstances, but it must
          overcome the presumption of innocence and
          establish his [or her] guilt beyond a
          reasonable doubt. All necessary
          circumstances proved must be consistent with
          guilt and inconsistent with innocence. It
          is not sufficient that the evidence create a



                               - 5 -
            suspicion of guilt, however strong, or even
            a probability of guilt, but must exclude
            every reasonable hypothesis save that of
            guilt. To accomplish that the chain of
            circumstances must be unbroken and the
            evidence as a whole must be sufficient to
            satisfy the guarded judgment that both the
            corpus delicti and the criminal agency of
            the accused have been proved to the
            exclusion of any other reasonable hypothesis
            and to a moral certainty.

Webb v. Commonwealth, 204 Va. 24, 34, 129 S.E.2d 22, 29 (1963).

     The officer testified that when Cooke and his brother first

exited their vehicle, he focused on Cooke's brother who had a

gun in his hand.   The officer testified "I saw the gun in

[Cooke's brother's] hand.   I'm not at this point certain if

[Cooke] had a gun at all.   In my mind I saw two guns, but I just

trained on the one [Cooke's brother] had, because he was the one

firing at me at that time."   In the following testimony on

cross-examination, the officer confirmed his doubt:

            Q And you're not telling us, the jury,
            under oath that you actually saw a gun in
            his hand?

            A No. Like I say, I don't recall seeing
            one, but in the back of my mind, I saw two
            weapons, but I couldn't swear that [Cooke]
            had one.

     Later, when the officer had lost sight of Cooke's brother

and was chasing Cooke, he turned the corner near an apartment

and saw Cooke pointing "something."     The officer then shot twice

at Cooke.   The officer testified however that he was not "able




                                - 6 -
to determine what [Cooke] pointed at [him]" and shot because he

"thought [he] saw a gun."    No gun, other than the one dropped by

Cooke's brother, was ever recovered.

     The Commonwealth's proof cannot rise above the officer's

uncertainty.   "[T]he fact that [the officer] merely thought or

perceived that [Cooke] was armed is insufficient to prove that

[Cooke] actually possessed a firearm."     Yarborough v.

Commonwealth, 247 Va. 215, 219, 441 S.E.2d 342, 344 (1994)

(footnote omitted).   "'It is, of course, a truism of the

criminal law that evidence is not sufficient to support a

conviction if it engenders only a suspicion or even a

probability of guilt.   Conviction cannot rest upon conjecture.

The evidence must be such that it excludes every reasonable

hypothesis of innocence.'"    Foster v. Commonwealth, 209 Va. 326,

330-31, 163 S.E.2d 601, 604 (1968).     In view of the officer's

uncertainty, the jury could not have concluded that Cooke

pointed a gun at the officer.   Thus, the Commonwealth has failed

to prove that Cooke pointed a gun and thereby performed an overt

act necessary to consummate the crime of attempted second degree

murder.

     The Commonwealth next argues that Cooke may be held liable

as a principal in the second degree.

          "A principal in the second degree is one not
          the perpetrator, but present, aiding and
          abetting the act done, or keeping watch or



                                - 7 -
             guard at some convenient distance." As for
             what constitutes "aiding and abetting," it
             is clear that mere presence and consent will
             not suffice. The defendant's conduct must
             consist of "inciting, encouraging, advising
             or assisting in the murder." It must be
             shown that the defendant procured,
             encouraged, countenanced, or approved
             commission of the crime. "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."

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

825 (1991) (citations omitted).    The Commonwealth argues that

because the evidence was sufficient to support the conviction of

Cooke as an accessory after the fact of attempted robbery, the

evidence was therefore sufficient to convict Cooke of attempted

second degree murder based on the actions of his brother.   We

agree.

     Cooke testified that he was not aware that his brother had

attempted to rob a bank until after the officer stopped them.

When the officer approached with his gun drawn, Cooke's brother

told Cooke that he had done "something real stupid . . . tried

to rob a bank."    He told Cooke, "I'm not going to jail . . . I'm

going to bust," a phrase Cooke understood to mean "shoot

somebody."    Cooke testified that he drove away from the officer

so that his brother would not shoot the officer.

     The jury's finding of not guilty on the attempted robbery

indictment signifies that the jury believed Cooke was not aware




                                 - 8 -
of the robbery until his brother made the disclosure in the car.

However, Cooke's testimony was sufficient to prove his guilt as

a principal in the second degree because Cooke knowingly

assisted his brother to resist arrest.   While he may not have

shared the specific intent of his brother to shoot the officer,

the Commonwealth is not required to prove specific intent.    Id.

at 540, 399 S.E.2d at 826.   All the Commonwealth need prove was

that Cooke "'share[d] the criminal intent'" of his brother,

which "mean[s] that '[Cooke] must [have] either know[n] or ha[d]

reason to know of the principal's criminal intention and . . .

intend[ed] to encourage, incite, or aid the principal's

commission of the crime.'"   Id.

     Cooke was aware that his brother intended to resist arrest.

The jury's finding of guilt on the accessory after the fact

indictment indicates that they chose to disbelieve Cooke's

testimony that his actions justifiably arose out of a concern

for the safety of his brother and the officer.

          The jury is not required to accept, in toto,
          either the theory of the Commonwealth or
          that of an accused. They have the right to
          reject that part of the evidence believed by
          them to be untrue and to accept that found
          by them to be true. In so doing, they have
          broad discretion in applying the law to the
          facts and in fixing the degree of guilt, if
          any, of a person charged with a crime.




                               - 9 -
Belton v. Commonwealth, 200 Va. 5, 9, 104 S.E.2d 1, 4 (1958).

The jury chose to believe that Cooke's intent was to assist his

brother escape.

        As a principal in the second degree, Cooke's criminal

liability is not limited solely to acts committed by him in

furtherance of a criminal act.    It also encompasses "all crimes

committed by [his brother] in furtherance of the criminal

enterprise, even though [Cooke] may never have intended that the

[crimes committed by his brother] would be committed."     Jones v.

Commonwealth, 15 Va. App. 384, 387, 424 S.E.2d 563, 565 (1992).

After his arrest, Cooke told an officer that his brother had a

mask, gloves, and "a yellow towel that he used to wipe the gun

off."    That evidence and Cooke's testimony proved Cooke was

aware that his brother had a gun and intended to use it.

Therefore, not only did Cooke's actions further the criminal

acts of his brother, but his brother's use of a gun during the

criminal acts was "a probable consequence of the execution of

the originally intended criminal design."     Id. at 388, 424

S.E.2d at 565.

        Additionally, the jury was not required to accept Cooke's

explanation that he panicked and that his running away from the

officer after the crash was not intended to aid or abet his

brother.    Although Cooke's running "does not raise a presumption

of guilt[, it] . . . is . . . a circumstance to be considered by



                                - 10 -
the jury."     Jones v. Commonwealth, 208 Va. 370, 374, 157 S.E.2d

907, 910 (1967) (citation omitted).      The jury chose to

disbelieve Cooke's explanation.

             While mere presence at the scene of a crime
             or knowledge that a crime is going to be
             committed does not constitute aiding and
             abetting, accompanying a person with full
             knowledge that the person intends to commit
             a crime and doing nothing to discourage it
             bolsters the perpetrator's resolve, lends
             countenance to the perpetrator's criminal
             intentions, and thereby aids and abets the
             actual perpetrator in the commission of the
             crime.

Pugliese v. Commonwealth, 16 Va. App. 82, 94, 428 S.E.2d 16, 25

(1993).   The jury could have found that Cooke's actions

supported his brother's attempt to escape and the decision to

use a gun to effect the escape.    Thus, the evidence was

sufficient to support the jury's verdict on the attempted second

degree murder indictment.

     We likewise find the evidence sufficient to convict Cooke

of using a firearm in the commission of a felony.     The

Commonwealth correctly points out that an accused may be held

vicariously liable for the use of a firearm by another person if

the accused and the other person "'assemble[d] themselves

together with an intent to commit a wrongful act, the execution

whereof makes probable, in the nature of things, [the use of the

firearm.]'"     Carter v. Commonwealth, 232 Va. 122, 126-27, 348

S.E.2d 265, 268 (1986) (citation omitted).     It was foreseeable



                                - 11 -
that, during their attempt to escape, Cooke's brother would fire

his gun at the officer.   Cooke is therefore liable for his

brother's use of his gun during the escape.

     For these reasons, we affirm the convictions of attempted

second degree murder and use of a firearm while committing a

felony.

                                              Affirmed.




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