                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Lemons
Argued at Norfolk, Virginia


MARKEITH ALAN TURNER
                                         MEMORANDUM OPINION * BY
v.         Record No. 2117-97-1           JUDGE LARRY G. ELDER
                                             OCTOBER 6, 1998
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                       Randolph T. West, Judge
           Jeffrey C. Rountree for appellant.

           Eugene Murphy, Assistant Attorney General
           (Mark L. Earley, Attorney General, on brief),
           for appellee.



     Markeith Alan Turner (appellant) appeals his convictions of

robbery and use of a firearm during the commission of robbery.

He contends the evidence was insufficient to sustain his

convictions.   For the reasons that follow, we affirm.

                                  I.

     The evidence, viewed in the light most favorable to the

Commonwealth, proved that, around 1:30 a.m. on July 11, 1996,

appellant, Karlin Johnson, and Floyd Jones were sitting on the

curb of a shopping center.   At about this time, the victim was

walking through the shopping center to some nearby apartments.

As the victim approached, Johnson announced to appellant and

Jones that he was "about to stick it."   In a statement made later

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
to the police, appellant stated he knew Johnson was going to rob

the victim.   Johnson then pulled out what appeared to be a

firearm, pointed it at the victim's head, and ordered the victim

to lie face down on the ground.    Appellant later stated that he,

Johnson, and Jones "gathered around [the victim]" and "were

standing right there by the man" as Johnson forced the victim to

the ground with his gun.   The victim testified that, as he lay on

the ground, he felt a person other than Johnson pat him down and

saw someone take his backpack.    The victim could not identify any

of his assailants and did not see whether appellant was the

person who removed the change and cigarettes from his pockets or

took his backpack.   However, the victim did testify that all

three of his assailants were talking to each other during the

robbery and that they all walked away "together" after it was

completed.    When appellant spoke to Detective Williams on July

22, he had knowledge of the specific items of property stolen

from the victim.
                                  II.

     When considering the sufficiency of the evidence on appeal

in a criminal case, this Court views the evidence in the light

most favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.    See Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).     On

review, this Court does not substitute its own judgment for that

of the trier of fact.    See Cable v. Commonwealth, 243 Va. 236,




                                 - 2 -
239, 415 S.E.2d 218, 220 (1992).   The trial court's judgment will

not be set aside unless it appears that the judgment is plainly

wrong or without supporting evidence.   See Martin v.

Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).

     "A conviction for robbery requires proof beyond a reasonable

doubt that the defendant alone, or acting in concert with others,

took property from the victim by force, threats, or violence, and

that the intent to steal co-existed with the act of force."
Pugliese v. Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24

(1993).   One who aids and abets a robbery is "liable as a

principal."   Pierce v. Commonwealth, 205 Va. 528, 534, 138 S.E.2d

28, 32 (1964).   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,
          proof that a person is present at the
          commission of a crime without disapproving or
          opposing it, is evidence from which, in
          connection with other circumstances, it is
          competent for the [fact finder] to infer that
          he assented thereto, lent to it his
          countenance and approval, and was thereby
          aiding and abetting the same.

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

     We hold that the evidence, when viewed in the light most

favorable to the Commonwealth, was sufficient to prove that

appellant aided and abetted the robbery of the victim.    Although

Johnson was apparently the only individual to physically threaten

the victim and it is unclear whether appellant actually took any

of the victim's property, the record indicates that appellant was



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more than an innocent bystander.

     Appellant encouraged and assisted Johnson and Jones by

remaining at the scene after realizing Johnson was going to rob

the victim and by adding his physical presence to the

confrontation.   Credible evidence in the record indicates

Johnson, Jones, and appellant rose from the curb where they were

sitting, gathered around the victim and "[stood] right there next

to" him while the robbery was committed.   This act assisted

Johnson and Jones by increasing the number of persons by which

the victim was outnumbered, thus boosting the intimidating nature

of the confrontation.   The victim's testimony that "all three of

them were walking together" as they left the scene of the robbery

supports the conclusion that appellant contributed his physical

presence and approval throughout the duration of the robbery.

The fact that appellant acted in this manner after learning of

Johnson's intent to rob the victim supports the conclusion that

appellant shared this intent.
     In his statement to Detective Williams, appellant

acknowledged that he, along with his two companions, gathered

around the victim and that he was aware of the contents of the

stolen backpack.   Furthermore, the trial court could infer from

the portions of appellant's testimony that conflicted with the

other evidence presented, including his own statement to

Detective Williams, that appellant was lying to conceal his

guilt.   See Carter v. Commonwealth, 223 Va. 528, 532, 290 S.E.2d




                                - 4 -
865, 867 (1982).   Because the evidence proved that appellant, at

a minimum, aided and abetted Johnson and Jones during the

commission of the robbery, the trial court correctly concluded he

was liable for the crime as if he were the principal perpetrator.

 Cf. Pierce, 205 Va. at 534, 138 S.E.2d at 32 (affirming

conviction of robbery when evidence proved defendant was an aider

and abettor).

     We also hold that the evidence was sufficient to support

appellant's conviction of using a firearm in the commission of

robbery.   By aiding and abetting Johnson, who used the gun during

the robbery, appellant "effectively 'used' [the firearm Johnson

was using] and was thereby subject to the terms of Code

§ 18.2-53.1."   Cortner v. Commonwealth, 222 Va. 557, 563, 281

S.E.2d 908, 911 (1981).

     For the foregoing reasons, we affirm the convictions.

                                                           Affirmed.




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Benton, J., dissenting.


     The robbery victim testified that as he approached the three

young men, one of them pointed a gun at him and told him to get

on the ground.   The victim knew that a person other than the

robber searched him; however, he could not account for the

presence or conduct of the third person.   He testified as

follows:
           Q    And I believe from the preliminary
           hearing, you said you didn't know where the
           third person was during this time; is that
           correct?
           A    I did not. All I saw was the feet in
           front of me. All I knew, somebody was
           searching me, but I did catch out of the
           corner of my eye them taking my backpack and
           I did hear somebody else moving towards me,
           but at the preliminary hearing, I did not
           know where this third person was and I still
           do not know.

           Q     All right.

           A    But, anyway, somebody was patting me
           down and I heard somebody else --

           Q    Somebody was patting you down and
           somebody was grabbing your backpack. At
           preliminary hearing, I asked you, "Do you
           know whether or not that was the same
           person?" You said, "No."

           A     I said, "No," because I do not know.

           Q    All right. So there is certainly a
           possibility that there is a third individual
           who you can't account for their whereabouts;
           isn't that correct?

           A     Well, yes, because I could not see them.


     This testimony is not inconsistent with the statement




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Markeith Alan Turner gave to the police shortly after his arrest.
          [OFFICER]: Okay tell me what happened?

          TURNER: Alright it was a dude walking by
          from ah Burger King, soon as we got by the
          video place, Karlin was like Floyd get up,
          I'm about to stick it.

           *        *      *      *        *    *        *

          TURNER: And so as Floyd got up Karlin pulled
          the gun out, said give me all your shit, I
          was just standing there I was s[h]ocked and
          while Floyd was going all in his pockets, so
          I started walking off slowly, at a slowly
          place and dude was still on the ground.
          [OFFICER]:    When did you search his pockets?

          TURNER:   No I didn't search his pockets.

          [OFFICER]:    Did you touch him at all?

          TURNER:   I did not touch him.

          [OFFICER]:    But you knew what was going to
          happen?

          TURNER:   Yes I knew what was going to happen.

          [OFFICER]: And when ah Karlin put the gun to
          his head and made him lay down on the ground
          all three of you'll were right there by the
          man?

          TURNER:   Yes, sir.

          [OFFICER]: Okay and after the robbery was
          over with or every Karlin got the property
          from the man you'll walked away but you were
          kind of a little bit ahead of them?

          TURNER:   Yes, sir.

          [OFFICER]: Okay and were you'll walking
          fast, were you just casually walking or where
          you running?

          TURNER: They was walking I was speed
          walking.



                                - 7 -
             *        *     *       *      *      *      *

            [OFFICER]: Okay and [your] basic part in
            this robbery was just being there when it
            went down?

            TURNER:   Yes, sir.


       At trial, Turner's testimony varied from this statement.

Turner testified that he began to walk away after Karlin

announced his intention to commit the robbery and reached for his

gun.
       The guiding principles governing these facts are well

established.
          It is, of course, well settled that mere
          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. To make him
          an aider or abettor, he must be shown to have
          procured, encouraged, countenanced, or
          approved the commission of the crime. * * *
           To constitute one an aider and abettor, it
          is essential that he share the criminal
          intent of the principal or party who
          committed the offense."

                 . . . "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 or party who commits the crime."


Jones v. Commonwealth, 208 Va. 370, 373, 157 S.E.2d 907, 909

(1967) (citations omitted).       See also Hall v. Commonwealth, 225

Va. 533, 536, 303 S.E.2d 903, 904 (1983).      The Commonwealth's

evidence falls short of these requirements.      First, no evidence

proved any overt act by Turner which indicated his participation



                                   - 8 -
in the robbery.    Second, no evidence proved that Turner shared

the criminal intent of the robbers.

       Aside from the victim's testimony, the Commonwealth relies

upon the statement Turner made to the police following the

robbery.    While it is the responsibility of the finder of fact to

weigh Turner's statements with other evidence provided at trial,

it is our role to determine whether as a matter of law the

evidence sufficiently proves Turner's guilt beyond a reasonable

doubt.     See Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351

S.E.2d 598, 601-02 (1986).    I believe it does not.

       Turner's statement indicates that once Karlin spoke of the

robbery, Turner knew what the outcome would be.    Turner walked

away because he did not want to associate himself with the crime.

Furthermore, Turner's knowledge of the items stolen is

insufficient circumstantial evidence to prove his guilt.    The

burden lies with the Commonwealth to "exclude every reasonable

hypothesis of innocence."     Williams v. Commonwealth, 14 Va. App.

666, 670, 418 S.E.2d 346, 348 (1992) (citation omitted).    Nothing

in the evidence is inconsistent with Turner's testimony that he

did not know what was stolen until the next day when Karlin told

him.   In light of Turner's detailed statement that he walked away

when the gun was drawn and the victim's inability to say that

Turner was a participant, sufficient doubt is raised whether

Turner participated in the robbery.

       As the Supreme Court noted in Jones:
            The evidence on behalf of the Commonwealth



                                 - 9 -
          amounts to this: [the accused was] in
          company with . . . the actual perpetrator of
          the crimes, was present during the commission
          of the offenses, and fled the scene in order
          to escape arrest. While these related
          circumstances create a strong suspicion that
          [the accused] was an aider and abettor in the
          commission of the offenses, they do not
          support such a conclusion beyond a reasonable
          doubt. . . . [M]ere presence at the
          perpetration of a crime and flight from the
          scene are not sufficient to prove particeps
          criminis beyond a reasonable doubt.


208 Va. at 374, 157 S.E.2d at 910.     Where, as in this case, there

is no showing except mere presence to connect the accused to the

robbery, the evidence only proves "highly suspicious

circumstances [that may] demonstrate an exceedingly strong

probability of guilt."   Hall, 225 Va. at 536, 303 S.E.2d at 905.

Yet, the principle is well established that "suspicion even

though strong, is insufficient to sustain a criminal conviction."

 Id. at 537, 303 S.E.2d at 905.

     For these reasons, I would reverse the convictions.

Accordingly, I respectfully dissent.




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