                        COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys
Argued at Richmond, Virginia


JONTE MIKELL HEMBRICK
                                           MEMORANDUM OPINION * BY
v.   Record No. 2231-01-2              JUDGE RUDOLPH BUMGARDNER, III
                                              DECEMBER 17, 2002
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      Thomas N. Nance, Judge

           Craig S. Cooley (Robin M. Morgan; Davis &
           Morgan, on brief), for appellant.

           Linwood T. Wells, Jr., Assistant Attorney
           General (Jerry W. Kilgore, Attorney General,
           on brief), for appellee.


     The trial court convicted Jonte Mikell Hembrick during a

bench trial of two counts of first degree murder.      He contends

the evidence was insufficient to support his convictions and the

trial court erred in rejecting his defense of duress.     Finding

no error, we affirm.

     We view the evidence and all reasonable inferences

therefrom in the light most favorable to the Commonwealth.

Commonwealth v. Taylor, 256 Va. 514, 516, 506 S.E.2d 312, 313

(1998).   The defendant, Tieonne Thomas, Nathaniel Robinson,

Bernell Lewis, and Eunice Carmon were at Sandra Dunn's house.


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
The murder victims, Christy Lucas and Heidi McGehee, were also

present but in a bedroom with Thomas.      Thomas's girlfriend,

Naquisha Silver, and a friend arrived and knocked on the door.

Dunn and the defendant delayed opening the door until Thomas had

come into the living room and he pretended to be asleep.

        Silver was angry at the delay.    Thomas pretended to be

angry at Lewis and the defendant for causing the delay in

opening the door.    While winking at them, Thomas pushed Lewis

and slapped the defendant.    The defendant left the house, but he

returned 15-30 minutes later.

        When Christy Lucas and Heidi McGehee came into the living

room from the bedroom, Silver accused them of having sex with

Thomas.    Thomas grabbed Christy Lucas by the throat and slammed

her against the wall.    Eunice Carmon ordered the two girls to

undress, get on the floor, and perform oral sex on each other.

She inserted a bottle into Heidi McGehee and hit her with a

belt.

        Thomas and Robinson began kicking Heidi McGehee.    Thomas

told the defendant to kick her, and he did.      The defendant

kicked her several times and at least once in the head.      He also

yelled an obscenity at her while kicking.      He then sat down and

watched as Thomas and Robinson continued kicking the two girls.

At some point, the defendant left.       Later Thomas and Robinson

also left, but all three returned together approximately fifteen

minutes later.

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        The defendant sat in the living room while Thomas and

Robinson resumed kicking Christy Lucas.     When Robinson put a hot

iron on the backs of the girls, Heidi McGehee did not move and

Christy Lucas only trembled and made a gurgling sound.     Thomas

and Robinson kicked Christy Lucas some more.     The violence then

focused on Sanda Dunn, although the defendant left before it

did.    Those remaining tied her to a chair, and after kicking

her, they poured gasoline around the house and burnt it down.

Heidi McGehee died from multiple blunt head injuries, and

Christy Lucas died from a combination of blunt head trauma and a

stab wound to her back.

        The defendant initially told the police he was not present

at all.    Later he admitted he was present but denied taking part

in the attacks.    He said Thomas "ain't make me do nothing.     [He]

made me sit down and shut up. . . .      And made me watch out the

door.    That what he made me do.   He ain't make me do nothing."

        The defendant testified that he fled the house because he

did not think Thomas was kidding when he slapped the defendant.

He acknowledged that Bernell Lewis warned him not to return to

the house the first time.    The defendant contended he only

returned the second time because Thomas and Robinson found him

and forced him back at gunpoint.    He maintained he only sat and

watched while the others kicked the victims.     The defendant

denied touching, kicking, or cursing the victims.     He testified

that the others would not let him leave and that he was afraid.

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        The trial court found:

             [t]his young man left . . . [and] [h]e came
             back up there on his own. He is a minor
             player, compared to the other folks in
             there, but I have no reason to believe that
             he did not participate. He was present,
             aiding and abetting in the stomping and
             kicking of these woman [sic], that they
             kicked . . . to death. He was part of the
             frenzy. He was part of the pack of animals
             that did that. He is guilty of murder.

The defendant contends the trial court erred in finding the

evidence sufficient to support his convictions of first degree

murder.

        Heidi McGehee died from blunt head trauma.    The defendant

took part in kicking her and kicked her in the head at least

once.    When "two or more persons take a direct part in

inflicting fatal injuries, each joint participant is an

'immediate perpetrator.'"        Strickler v. Commonwealth, 241 Va.

482, 495, 404 S.E.2d 227, 235 (1991) (quoting Coppola v.

Commonwealth, 220 Va. 243, 256-57, 257 S.E.2d 797, 806 (1979)).

As the trial court accurately portrayed the scene, the defendant

was "part of the pack of animals" that kicked Heidi McGehee to

death.    The evidence proves beyond a reasonable doubt that the

defendant was a joint participant and, as such, a principal in

the first degree to the murder of Heidi McGehee.

        Christy Lucas died from a combination of head trauma and a

stab wound.    The evidence does not indicate the defendant

inflicted any injuries directly to her, but it does show he was


                                    - 4 -
a principal in the second degree.    "A person who is present at

the commission of a crime, inciting, encouraging, advising or

assisting in the act done, is deemed to be an aider and abettor,

and is liable as principal [in the second degree]."       Taylor v.

Commonwealth, 260 Va. 683, 688, 537 S.E.2d 592, 594 (2000)

(citing Snyder v. Commonwealth, 202 Va. 1009, 1015, 121 S.E.2d

452, 457 (1961)).     Spradlin v. Commonwealth, 195 Va. 523, 528,

79 S.E.2d 443, 445 (1954), held:

             If there is concert of action with the
             resulting crime one of its incidental
             probable consequences, then whether such
             crime was originally contemplated or not,
             all who participate in any way in bringing
             it about are equally answerable and are
             bound by the acts of every other person
             connected with the consummation of such
             resulting crime.

        The defendant voluntarily returned to the house after being

advised not to.    He was within several feet of both helpless

victims.    His direct participation in the attack on Heidi

McGehee was active participation in the overall aggression

directed at both girls.    In addition, the trial court was not

required to believe the defendant's explanation that he took no

part.    If the trial court did not believe that explanation, it

could infer the defendant was lying to conceal his guilt.       Black

v. Commonwealth, 222 Va. 838, 842, 284 S.E.2d 608, 610 (1981);

Rollston v. Commonwealth, 11 Va. App. 535, 547, 399 S.E.2d 823,

830 (1991).    The evidence proves beyond a reasonable doubt that



                                 - 5 -
the defendant was a principal in the second degree to the murder

of Christy Lucas.

     The defendant contends the trial court failed to properly

consider his defense of duress.   Duress, however, is generally

not available as a defense to murder.     Arnold v. Commonwealth,

37 Va. App. 781, 787, 560 S.E.2d 915, 918 (2002).    One "'ought

rather to die himself than escape by the murder of an

innocent.'"   Rollin M. Perkins, Perkins on Criminal Law 951 (2d

ed. 1969) (quoting 4 Blackstone Commentaries 30).    Even if it

were available, it would not apply to the facts of this case.

     The trial court found the defendant voluntarily returned

and participated.   The defendant never claimed that threats

caused him to take part in the attacks.    The defense does not

apply when "the defendant 'fails to take advantage of a

reasonable opportunity to escape, or of a reasonable opportunity

to avoid doing the acts without being harmed . . . .'"     Graham

v. Commonwealth, 31 Va. App. 662, 674-75, 525 S.E.2d 567, 573

(2000) (quoting Pancoast v. Commonwealth, 2 Va. App. 28, 33, 340

S.E.2d 833, 836 (1986)).   The facts in this case permitted the

trial court to reject the defense of duress.

     The evidence was sufficient for the trial court to find

beyond a reasonable doubt that the defendant was guilty of each

count of first degree murder.   Accordingly, we affirm.

                                                          Affirmed.



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