                                  COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Beales and Senior Judge Coleman
Argued at Chesapeake, Virginia


JOHN HENRY HAYES
                                                              MEMORANDUM OPINION * BY
v.     Record No. 2953-07-1                                  JUDGE ROBERT J. HUMPHREYS
                                                                   MARCH 24, 2009
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                               A. Bonwill Shockley, Judge

                 Afshin Farashahi for appellant.

                 Karen Misbach, Assistant Attorney General II (Robert F.
                 McDonnell, Attorney General, on brief), for appellee.


       John Henry Hayes (“Hayes”) appeals his convictions for robbery, in violation of

Code § 18.2-58, and the use of a firearm in the commission of a felony, in violation of

Code § 18.2-53.1. Hayes was convicted of both crimes as a principal in the second degree. On

appeal, he argues that the Commonwealth’s evidence was only sufficient to convict him as an

accessory after the fact. For the following reasons, we disagree and affirm his convictions.

                                           I. ANALYSIS

       When considering a challenge that the evidence presented at trial is insufficient, we

“presume the judgment of the trial court to be correct” and reverse only if the trial court’s

decision is “plainly wrong or without evidence to support it.” Davis v. Commonwealth, 39

Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002). We do not “substitute our judgment for that of

the trier of fact.” Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002).


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
“Instead, the relevant question is whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). “This familiar

standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts.” Id.

        The trial court convicted Hayes as a principal in the second degree for the robbery and

use of a firearm by Horton. A principal in the second degree “is one who is present, actually or

constructively, assisting the perpetrator in the commission of the crime.” Jones v.

Commonwealth, 208 Va. 370, 372, 157 S.E.2d 907, 909 (1967). “In order to make a person a

principal in the second degree actual participation in the commission of the crime is not

necessary. The test is whether or not he was encouraging, inciting, or in some manner offering

aid in the commission of the crime.” Id. at 372-73, 157 S.E.2d at 909. “[M]ere presence and

consent are not sufficient to constitute one an aider and abettor in the commission of a crime.

There must be something done or said by him showing (a) his consent to the felonious purpose

and (b) his contribution to its execution.” Id. at 373, 157 S.E.2d at 909. As the “getaway”

driver, Hayes clearly contributed to the execution of the robbery. See, e.g., Whitbeck v.

Commonwealth, 210 Va. 324, 327, 170 S.E.2d 776, 778 (1969) (affirming a conviction for

burglary as principal in the second degree where the accused waited in getaway car); Dickerson

v. Commonwealth, 36 Va. App. 8, 15, 548 S.E.2d 230, 233 (2001) (affirming a conviction for

robbery as principal in the second degree where the accused waited in the getaway car).

        Hayes argues that the Commonwealth failed to prove that he consented to the robbery.

He claims that, although he drove Horton to and from the robbery, he did not know that Horton

intended to rob Mitchell, the victim. We disagree. Hayes’ actions belie the notion that he was

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merely an innocent bystander who knew nothing of Horton’s intent to rob Mitchell. Hayes had

spent the afternoon with Horton. He had held Horton’s gun. Hayes drove Horton to the parking

lot where Mitchell was standing, and Hayes stopped the car “directly” in front of Mitchell. 1

Hayes remained in the car, in the driver’s seat, and watched Horton get out of the car while

carrying a gun. From that evidence, a fact finder could reasonably conclude that Hayes knew

what Horton intended to do and assisted him by driving him directly in front of Mitchell and

waiting in the driver’s seat until Horton returned.

       Hayes claims that the Supreme Court’s decision in Jones mandates a different result.

However, we believe that Jones is distinguishable from this case. In Jones, Jones and another

man walked up onto the porch of a house. Jones, 208 Va. at 372, 157 S.E.2d at 908. The other

man knocked on the door. Id. When the owner of the house answered the door, the man

assaulted her. Id. A police officer waiting just inside the house stepped in and subdued the

assailant as Jones fled the scene. Id. The Supreme Court held that evidence was insufficient to

convict Jones as a principal in the second degree because there was no evidence that he shared

the other man’s criminal intent. 2 Id. at 374, 157 S.E.2d at 910.

       In this case, there is evidence that Hayes shared Horton’s criminal intent. Unlike Jones,

Hayes was not merely present. Hayes drove Horton to the scene of the crime. Hayes knew that

Horton had a gun. Hayes parked directly in front of Mitchell, who was standing between two

cars. Hayes saw Horton get out of the car with a gun and waited in the driver’s seat with the


       1
          Hayes told Detective Tucker that he had stopped the car “a few cars down” from where
Mitchell was standing. However, Mitchell contradicted that statement when he testified that
Hayes stopped the car “directly” in front of him. Under our standard of review, we must assume
that the trial court resolved that conflict in the evidence in favor of the Commonwealth,
concluding that Hayes was lying to conceal his guilt.
       2
         The absence of evidence regarding Jones’ intent was not the only reason that the
Supreme Court reversed his conviction. The Court also held that Jones did not commit an overt
act aiding or encouraging the perpetrator in the felony. Jones, 208 Va. at 374, 157 S.E.2d at 910.
                                                -3-
passenger door open. Hayes then further demonstrated his complicity in the robbery by driving

Horton away. Unlike Jones, Hayes did more than merely accompany the perpetrator to the scene

of the crime.

                                        II. CONCLUSION

       For the foregoing reasons, we hold that the evidence was sufficient to convict Hayes as a

principal in the second degree. We, therefore, affirm the decision of the trial court.

                                                                                         Affirmed.




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