                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Annunziata
Argued at Richmond, Virginia


BERNICE LYNN MURPHY

v.       Record No. 0799-94-2          MEMORANDUM OPINION * BY
                                     JUDGE ROSEMARIE ANNUNZIATA
COMMONWEALTH OF VIRGINIA                  NOVEMBER 27, 1995


             FROM THE CIRCUIT COURT OF HALIFAX COUNTY
                Samuel M. Hairston, Judge Designate

           Alan T. Gravitt (Gravitt & Gravitt, P.C., on
           briefs), for appellant.

           Kathleen B. Martin, Assistant Attorney
           General (James S. Gilmore, III, Attorney
           General, on brief), for appellee.



     The appellant, Bernice Lynn Murphy, was convicted of robbery

and the use of a firearm in the commission of a robbery following

a bench trial in the Halifax County Circuit Court.    She was a

juvenile at the time of the alleged offense, and her case was

transferred to the circuit court from the juvenile court.    At

trial, Murphy made timely motions to strike the Commonwealth's

evidence and now appeals her convictions alleging the

insufficiency of the Commonwealth's evidence.

     On February 7, 1993, a clerk at the South Boston Mother

Hubbard's Convenience Store was shot and killed sometime before

10:45 p.m. in an apparent robbery attempt.   Subsequently, the

police interviewed Murphy about the incident.     She was seventeen
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
years old at the time.    After initially denying any participation

in the incident, Murphy told the police that on the day of the

shooting she had visited her sister-in-law, Geraldine Fernandez,

at Fernandez's apartment in Halifax County.     Lance Chandler, a

friend of Murphy, asked Fernandez to drive him, George Boyd, and

Dwight Wyatt to South Boston.    Earlier that day, Murphy overheard

Chandler and Wyatt discussing the idea of getting a gun and

robbing a store, but she was not otherwise involved in this

conversation.
        Fernandez drove Murphy, Chandler, Boyd, and Wyatt to South

Boston.    Murphy told the police that she accompanied Fernandez

because Fernandez did not have a driver's license.     Murphy

thought that, since she had a learner's permit, if she rode in

the passenger's seat Fernandez would avoid more serious trouble.

The three men, all clad in dark clothing, sat in the car's back

seat.    Wyatt exited the car at a South Boston residence and

returned after a few minutes.    Wyatt testified that the purpose

of the stop was to obtain a gun.    Wyatt passed the gun to

Chandler in the back seat of Fernandez's car.     There was no

testimony that Murphy either saw Wyatt give Chandler the gun or

was aware that the robbery previously discussed by Chandler and

Wyatt was then imminent.

        The group drove past the Mother Hubbard Convenience Store

and Fernandez let the men out at the next intersection.     Wyatt

wore a hood when he exited the car.      The appellant overheard




                                 - 2 -
Chandler remark, "Just go on in and get out, don't waste no

time."    Fernandez and Murphy drove around the neighborhood while

waiting for the men to return.    Upon returning, Boyd carried a

case of beer.    Chandler was "swearing and cussing" when he got

into the car and he kept saying, "why didn't the man open the

register?" and that "[h]e got shot over money that wasn't even

his."    Later that night, the group of five consumed the beer,

Murphy drinking two of them.
        In her statement to the police, Murphy stated that it was

Chandler's idea to rob the store and she felt if they got caught

she and Fernandez could be "accessories" to the crime.    The

evidence does not establish whether she knew the legal definition

or significance of the term "accessory."

        Wyatt testified that Chandler shot the clerk after he

refused to hand over any money, and that the men took the beer

because they were unable to open the register.    The trial court

found Murphy guilty of robbery and the use of a firearm during a

robbery; she was acquitted of murder and a related firearms

charge.

        On appeal, this Court must view the evidence in the light

most favorable to the Commonwealth and must accord to the

evidence all reasonable inferences fairly discernible therefrom.

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

537 (1975).    "The finding of the judge, upon the credibility of

the witnesses and the weight to be given their evidence, stands



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on the same footing as the verdict of a jury, and unless that

finding is plainly wrong, or without evidence to support it, it

cannot be disturbed."    Speight v. Commonwealth, 4 Va. App. 83,

88, 354 S.E.2d 95, 98 (1987) (quoting Lane v. Lane, 184 Va. 603,

611, 35 S.E.2d 744, 752 (1945)).

       It is well settled that mere presence and consent will not

suffice to make one an accomplice.      Pugliese v. Commonwealth, 16

Va. App. 82, 93-94, 428 S.E.2d 16, 24-25 (1993); Ramsey v.
Commonwealth, 2 Va. App. 265, 269, 343 S.E.2d 465, 468 (1986).

It must be shown that the alleged accomplice, by words, gestures,

signals or actions intended, in some way, to encourage, advise,

urge, or help the person committing the crime to commit it.

Ginanni v. Commonwealth, 13 Va. App. 1, 3-4, 408 S.E.2d 767, 768

(1991); Rollston v. Commonwealth, 11 Va. App. 535, 540, 399

S.E.2d 823, 826 (1991); Ramsey, 2 Va. App. at 269, 343 S.E.2d at

468.
            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. . . .
            Every person who is present at the commission
            of a crime, encouraging or inciting the same
            by words, gestures, looks, or signs, or who
            in any way, or by any means, countenances or
            approves the same is, in law, assumed to be
            an aider and abetter, and is liable as a
            principal. . . . To constitute one an aider
            or abettor, he must be guilty of some overt
            act, or he must share the criminal intent of
            the principal or party who commits the
              crime. . . .

Pugliese, 16 Va. App. at 93, 428 S.E.2d at 24-25.




                                - 4 -
     Overt acts constitute evidence that the alleged accomplice

shares the criminal intent of the principal.    See Pugliese, 16

Va. App. at 93, 428 S.E.2d at 25; Triplett v. Commonwealth, 141

Va. 577, 586, 127 S.E. 486, 489 (1925); Rollston, 11 Va. App. at

539, 399 S.E.2d at 825; Murray v. Commonwealth, 210 Va. 282, 283,

170 S.E.2d 3, 4 (1969).    When no overt acts have been performed

by the alleged accomplice, he is still a principal in the second

degree if he is present during the commission of the crime and

has previously communicated to the perpetrator that he shares the

perpetrator's criminal purpose, since such a communication of

shared intent makes the perpetrator more likely to act.
Rollston, 11 Va. App. at 539, 399 S.E.2d at 826 (citing Groot,

Criminal Offenses and Defenses in Virginia 183 (1984)).

     Whether a person does in fact aid or abet another in the

commission of a crime is a question which may be determined by

circumstances as well as by direct evidence.    Harrison v.

Commonwealth, 210 Va. 168, 171-72, 169 S.E.2d 461, 464; Pugliese,

16 Va. App. at 93-94, 428 S.E.2d at 25.

     In this case, there is no evidence that Murphy previously

communicated to the perpetrator that she shared his criminal

purpose.   Furthermore, there is no evidence of overt acts which

establish beyond a reasonable doubt such criminal intent on her

part or which establish that she contributed in any way to the

commission of the crime.

     The evidence shows no more than knowledge of and presence



                                - 5 -
during the commission of the crime.   The only acts Murphy

performed which arguably relate to the commission of the crime

are the following: 1) she failed to disapprove or object; 2) she

consumed some of the beer stolen from the convenience store; and

3) she characterized herself as a possible "accessory."

     However, an individual's failure to dissuade or to interfere

with criminal activities while accompanying the perpetrators to

the scene is insufficient to constitute aiding and abetting.        See
Smith v. Commonwealth, 185 Va. 800, 818-20, 40 S.E.2d 273, 281-82

(1946); Moehring v. Commonwealth, 223 Va. 564, 567-68, 290 S.E.2d

892-93 (1982); Jones v. Commonwealth, 208 Va. 370, 373-74, 157

S.E.2d 909-10 (1967); Pugliese, 16 Va. App. at 93-94, 428 S.E.2d

at 25 (While presence at the commission of the crime without

disapproving or opposing it is a circumstance which may be

considered by the trier of fact in determining whether the

accused is an aider and abettor, without more, these

circumstances are insufficient to sustain a conviction).     And,

while Murphy's statement that she could be an "accessory" to the

crime and her consummation of some of the stolen beer create a

suspicion of guilt, the acts are too equivocal to support a

finding of guilt.

     Absent other evidence in the case, these two acts fail to

establish that Murphy shared the perpetrator's criminal intent.

Nor do they establish beyond a reasonable doubt that she

encouraged, approved, or countenanced the crime.   The convictions



                              - 6 -
are accordingly reversed and the case is remanded to the trial

court for further proceedings on lesser-included offenses, if the

Commonwealth be so advised.

                                           Reversed and remanded.




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