                     COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Bray and Bumgardner
Argued at Richmond, Virginia


MELVIN WAYNE BLANKENSHIP, JR.
                                          MEMORANDUM OPINION * BY
v.   Record No. 1112-99-3                  JUDGE LARRY G. ELDER
                                               APRIL 25, 2000
COMMONWEALTH OF VIRGINIA


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

          Randy V. Cargill (Philip B. Baker; Magee,
          Foster, Goldstein & Sayers, P.C.; Sanzone &
          Baker, P.C., on brief), for appellant.

          Kathleen B. Martin, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Melvin Wayne Blankenship, Jr. (appellant) was convicted in

a jury trial for robbery, three counts of abduction and three

related counts of use of a firearm.   The Commonwealth's theory

of the case was that appellant was a principal in the second

degree to these offenses, which were committed by appellant's

brother, his codefendant at trial.    The indictments on which

appellant was tried alleged that he committed the offenses

"together with [his brother,] Brian Keith Blankenship."    On

appeal, appellant contends the evidence necessarily was

insufficient to sustain his conviction because the jury, by


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
acquitting Brian Blankenship, found the evidence insufficient to

prove commission of the offenses by the principal and, in any

event, because the evidence established merely that appellant

was present near the crime scene without proving he aided and

abetted the principal in the commission of the crimes.    In

addition, he contends the acquittal of the principal resulted in

a fatal variance between the indictments and the proof where the

indictments alleged that appellant committed the crimes

"together with [his brother]."    We assume without deciding that

appellant properly preserved these issues for appeal.    We hold

the evidence was sufficient to establish that appellant's

brother was the principal, despite his acquittal, such that no

fatal variance existed between the indictments and the proof.

Because the jury had the power to render inconsistent verdicts,

we affirm appellant's convictions.

     On appellate review, we examine the evidence in the light

most favorable to the Commonwealth, and we may not disturb the

jury's verdict unless it is plainly wrong or without evidence to

support it.     See Traverso v. Commonwealth, 6 Va. App. 172, 176,

366 S.E.2d 719, 721 (1988).    On issues of witness credibility,

we defer to the conclusions of "the fact finder[,] who has the

opportunity of seeing and hearing the witnesses."     Schneider v.

Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736-37 (1985).

Any element of an offense may be proved by circumstantial

evidence.     See Coleman v. Commonwealth, 226 Va. 31, 53, 307

                                 - 2 -
S.E.2d 864, 876 (1983).   "Circumstantial evidence is as

competent and is entitled to as much weight as direct evidence,

provided it is sufficiently convincing to exclude every

reasonable hypothesis except that of guilt."      Id.   Intent may,

and usually must, be proven by circumstantial evidence, see

Servis v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165

(1988), such as a person's conduct and statements, see Long v.

Commonwealth, 8 Va. App. 194, 198, 379 S.E.2d 473, 476 (1989).

     The Commonwealth's theory of the case was that appellant

was a principal in the second degree.    A principal in the second

degree is one who is "present, aiding and abetting, and

intend[s] his or her words, gestures, signals, or actions to

. . . encourage, advise, urge, or in some way help the person

committing the crime to commit it."     McGill v. Commonwealth, 24

Va. App. 728, 733, 485 S.E.2d 173, 175 (1997).     "[M]ere presence

and consent are not sufficient to constitute one an aider and

abettor in the commission of a crime."     Jones v. Commonwealth,

208 Va. 370, 373, 157 S.E.2d 907, 909 (1967).     To be a principal

in the second degree, one must "share the criminal intent of the

. . . party who committed the offense."     Id.   Finally, a

principal in the second degree is liable for the same punishment

as the person who commits the crime.     See Code § 18.2-18.   At

appellant's trial, the jury was instructed in keeping with these

principles.



                               - 3 -
       Appellant contends the jury's acquittal of his brother

Brian Blankenship necessarily established the evidence was

insufficient to prove him guilty as a principal in the second

degree.      We disagree for two reasons. 1

       First, although the Commonwealth must prove a principal in

the first degree committed the underlying offense, see Sult v.

Commonwealth, 221 Va. 915, 918, 275 S.E.2d 608, 609 (1981),

"conviction of [the] principal in the first degree is not a

condition precedent" to convicting the accessory, Dusenbery v.

Commonwealth, 220 Va. 770, 771-72, 263 S.E.2d 392, 393 (1980).

Here, the evidence was sufficient to support a finding by the

jury that Brian Blankenship committed the charged offenses as a

principal in the first degree.       Appellant told Jonathan Smith

that he and his brother robbed the Winn Dixie store on

Timberlake.      Appellant reported that his brother held a bandana

to his face, carried a pellet gun, and ordered the three

occupants of the store into the cooler.       The manager of the Winn

Dixie store, Tate Easter, testified to these same events,

including the description of the bandana.      He also said the

robber displayed a handgun and ordered him and the other two

employees into the cooler.      Easter said the robber looked like

appellant's brother but that he could not positively identify

him.       The clothing appellant's brother was wearing that day and


       1
       As set out above, we assume without deciding that
appellant properly preserved this issue for appeal.

                                   - 4 -
his tanned appearance also matched Easter's description of the

robber.   This evidence was sufficient to support a finding that

Brian Blankenship committed the charged offenses as a principal

in the first degree.

     The fact that the jury did not, in fact, convict Brian

Blankenship does not render its conviction of appellant

erroneous.    It is well established in Virginia law that

inconsistent verdicts rendered by a jury do not constitute

reversible error.     See, e.g., Tyler v. Commonwealth, 21 Va. App.

702, 707-09, 467 S.E.2d 294, 296-97 (1996).

             "'The most that can be said in such cases is
             that the verdict shows that either in the
             acquittal or the conviction the jury did not
             speak their real conclusions, but that does
             not show that they were not convinced of the
             defendant's guilt [on the charge for which
             they did convict]. We interpret the
             acquittal as no more than their assumption
             of a power which they had no right to
             exercise, but to which they were disposed
             through lenity.'" . . . [J]uries may reach
             inconsistent verdicts through mistake,
             compromise, or lenity, but in such instances
             it is "unclear whose ox has been gored," the
             government's or the [convicted] defendant's.
             For this reason and the fact that the
             government is precluded from appealing the
             acquittal verdict, the Court concluded that
             inconsistent verdicts should not provide the
             basis for an appeal by the [convicted]
             defendant.

Wolfe v. Commonwealth, 6 Va. App. 640, 647-48, 371 S.E.2d 314,

318 (1988) (quoting United States v. Powell, 469 U.S. 57, 63,

65, 66, 105 S. Ct. 471, 475, 477, 83 L. Ed. 2d 461 (1984)



                                 - 5 -
(quoting Dunn v. United States, 284 U.S. 390, 393, 52 S. Ct.

189, 190, 76 L. Ed. 2d 356 (1932))).

     The issue of inconsistent verdicts implicates no

constitutional guarantee.    See id. at 648, 371 S.E.2d at 318.

As long as the evidence supports both verdicts, they "will be

upheld, despite the apparent inconsistency."     Pugliese v.

Commonwealth, 16 Va. App. 82, 96, 428 S.E.2d 16, 26 (1993).     In

Virginia, these principles have heretofore been applied only to

inconsistent verdicts rendered against a single defendant.     We

hold that they apply equally to inconsistent verdicts involving

more than one defendant.    See Harris v. Rivera, 454 U.S. 339,

102 S. Ct. 460, 70 L. Ed. 2d 530 (1981) (in denying habeas

petition, holding that even inconsistent verdicts as against two

defendants in a nonjury criminal trial are constitutional but

noting that states may, if they so desire, set a higher standard

in direct appeals).

     Finally, we hold the evidence was sufficient to prove

appellant actively aided and abetted his brother's commission of

the offenses, thereby supporting appellant's convictions as a

principal in the second degree.   The evidence, viewed in the

light most favorable to the Commonwealth, included appellant's

admission to Jonathan Smith that he and his brother robbed the

Winn Dixie store, even though appellant remained outside the

store when his brother went inside.     This statement permits the

inference that appellant shared his brother's criminal intent,

                                - 6 -
even though he remained outside during the commission of the

offenses.   See Jones, 208 Va. at 373, 157 S.E.2d at 909.

     Other circumstantial evidence supported this finding.

Before the robbery, appellant was using drugs, owed back child

support and took money from his girlfriend without her

permission, establishing a motive for commission of the crimes.

Appellant, as a prior assistant manager of the Winn Dixie store,

knew the combination to the store's safe and the procedure for

opening the safe.   Just prior to the robbery, money had been

found missing from the safe and other locations following

appellant's shifts.   For this and other reasons, appellant was

moved to another position in the store which did not give him

access to the safe or other money sources in the ordinary course

of his work.   After the robbery, appellant took Jonathan Smith

to a location in the woods where the stolen money was later

found hidden, and appellant was able to pay over $1,000 in debts

he owed to his girlfriend and Smith.   These circumstances,

coupled with appellant's admission to Smith that he and his

brother had robbed the Winn Dixie, were sufficient to support

his convictions.

     Finally, we hold that no fatal variance occurred between

the language in the indictments and the proof offered at trial.

As set out with our discussion of inconsistent jury verdicts

above, the evidence was sufficient to support the conviction of

Brian Blankenship as a principal in the first degree, even

                               - 7 -
though he was not so convicted.   Because the proof conformed to

the allegations in the indictment, we need not decide whether

any of the language therein constituted surplusage.

     For these reasons, we hold that the evidence was sufficient

to support appellant's convictions for the charged offenses as a

principal in the second degree and that the jury's concomitant

decision to acquit appellant's brother did not render

appellant's convictions improper.   Therefore, we affirm

appellant's convictions.

                                                           Affirmed.




                              - 8 -
