                        COURT OF APPEALS OF VIRGINIA


Present: Judge Humphreys, Senior Judges Hodges and Overton
Argued at Chesapeake, Virginia


MICHAEL CHARLES COOKE
                                          MEMORANDUM OPINION * BY
v.   Record No. 1603-99-1                 JUDGE WILLIAM H. HODGES
                                                MAY 30, 2000
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                    Wilford Taylor, Jr., Judge

          Stephen K. Smith for appellant.

          Shelly R. James, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Michael Charles Cooke (appellant) appeals his convictions for

grand larceny and theft of a firearm in violation of Code

§ 18.2-108.1.   Appellant contends that the trial court's error in

admitting evidence of a statement made to police by a

non-testifying alleged accomplice did not constitute harmless

error beyond a reasonable doubt.    We disagree and, therefore,

affirm appellant's convictions.

     The Commonwealth conceded and we agree that in light of the

United States Supreme Court's holding in Lilly v. Virginia, 527

U.S. 116 (1999), the trial court erred in admitting into evidence

against appellant the non-testifying alleged accomplice's

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
statement to the police.    However, we find that such error was

harmless beyond a reasonable doubt.

        "A federal constitutional error is harmless, and thus

excusable, only if it appears 'beyond a reasonable doubt that

the error complained of did not contribute to the verdict

obtained.'"     Quinn v. Commonwealth, 25 Va. App. 702, 719, 492

S.E.2d 470, 479 (1997) (citations omitted).    Here, in finding

appellant guilty, the trial judge specifically stated that he

did not consider the non-testifying accomplice's statement.

        Taking the evidence in the light most favorable to the

Commonwealth, it established that on May 21, 1998, several

persons including appellant visited Michelle Wiltshire at her

home.    While there, appellant saw a person named "Jamal" steal a

pager.    Immediately thereafter, appellant left Wiltshire's house

and went across the street to Chris Ru's house.     Ru told

appellant that he was going to call Wiltshire and ask her to

come over to his house so that the others could steal a gun from

Wiltshire's house.

        Wiltshire received a telephone call from Ru, and, as a

result, she left her house and went across the street to Ru's

house.    Wiltshire asked appellant, who was still at Ru's house,

"to watch them" while she was at Ru's house.    Appellant agreed

to do so and returned to Wiltshire's house.    Appellant knew at

that time that Wiltshire's friends intended to steal property

from her house while she was gone and did not tell her.

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     While Wiltshire was at Ru's house, Justin Sanchez, Curtis

Williams, and Chad McSweeny took property from Wiltshire's

mother's bedroom while appellant watched.   The items taken

included jewelry, a cell phone, two pagers, a stun gun, and a

.357 Magnum Smith & Wesson revolver, having a total value in

excess of $6,000.   Some of the jewelry was later recovered from

the Sanchez home.

     Appellant did not tell Wiltshire about the theft.   However,

when questioned by the police several days later, appellant was

able to identify where several of the stolen items were located.

               "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."
          . . . The defendant's conduct must consist
          of "inciting, encouraging, advising or
          assisting in the [crime]." It must be shown
          that the defendant procured, encouraged,
          countenanced, or approved commission of the
          crime. "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."

Rollston v. Commonwealth, 11 Va. App. 535, 539, 399 S.E.2d 823,

825 (1991) (citations omitted); see Code § 18.2-18 (in felony

cases, except most capital murders, principal in second degree

may be indicted, tried, convicted and punished in all respects

as if principal in first degree).

     Appellant admitted knowing the plan to steal items from

Wiltshire's home when he returned to her house, yet he failed to

tell Wiltshire about it.   In addition, he admitted he was

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present and watched while the others took the items, thereby

approving of the principals' actions and sharing in their

criminal intent.   In addition, he was aware of the location of

some of the stolen items after the theft.   Based upon this

evidence, without taking the accomplice's statement into

consideration, the trial court could conclude beyond a

reasonable doubt that appellant was guilty of grand larceny and

theft of a firearm as a principal in the second degree.

     Accordingly, because the trial court's admission of the

accomplice's statement did not contribute to the verdict

obtained, it was harmless error, and we find that the evidence

was sufficient to prove beyond a reasonable doubt that appellant

was guilty of grand larceny and theft of a firearm.   Therefore,

we affirm appellant's convictions.

                                                           Affirmed.




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