                       COURT OF APPEALS OF VIRGINIA


Present: Judges Felton, Kelsey and Senior Judge Willis
Argued by teleconference


JOSEPH LAMONT NELSON
                                          MEMORANDUM OPINION * BY
v.   Record No. 1868-02-2               JUDGE WALTER S. FELTON, JR.
                                               JUNE 24, 2003
COMMONWEALTH OF VIRGINIA


      FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
                    Edward L. Hogshire, Judge

          Bonnie J. Lepold (Snook & Haughey, P.C., on
          brief), for appellant.

          Leah A. Darron, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General, on
          brief), for appellee.


     Joseph Nelson was convicted in a bench trial of robbery, in

violation of Code § 18.2-58, and use of a firearm in the

commission of a felony, in violation of Code § 18.2-53.1.     On

appeal, Nelson contends that the evidence is insufficient to

establish the conviction for use of a firearm in the commission

of a felony when there was neither evidence to show he possessed

a gun nor that he was acting in concert with another who did.

We affirm the judgment of the trial court.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                           I.   BACKGROUND

     At approximately nine or ten o'clock, on the evening of

November 25, 1999, Floyd Hearns left his brother-in-law's home

to purchase beer at a nearby gas station.      As he walked alone to

the gas station, Hearns passed a crowd of people seated on the

porch of a duplex.   One of the individuals on the porch, later

identified as Joseph Nelson, approached him and asked if he was

looking for drugs.   Hearns responded, no.     Nelson then stated he

was going to rob Hearns.

     Almost immediately thereafter, Hearns' attention was drawn

to a second individual, later identified as Latrelle Gray, who

walked up behind and pointed a gun at him.      Hearns' attention

was diverted to the gunman.     Nelson then reached around Hearns'

neck with his right arm and began choking him with enough force

that he became weak and fell down.       With Hearns on the ground,

Nelson forcefully removed a $100 bill and ripped his pants

pocket.

     After Nelson took the money, Hearns got up from the ground

and proceeded to the gas station where he called the police.

Officer L. A. Durrette responded to the call and proceeded to

the gas station.   There, he took a report from Hearns who gave a

description of the two men who robbed him.      He and Hearns then

drove by the duplex where the robbery occurred.      Hearns

identified Nelson as they twice drove by the duplex.      Nelson was

sitting on the front porch.

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     Officer Durrette stopped the police car and exited the

vehicle.   Nelson stood up and turned to go inside the house.

Officer Durrette drew his weapon, called out to Nelson by name,

and ordered him to get down on the ground. 1   Nelson was then

taken into custody.   Once in custody, Nelson was patted down for

weapons.   When other officers arrived, Nelson was then searched

and photographed.   The search of Nelson yielded a one hundred

dollar bill, one twenty dollar bill, four one dollar bills, and

a one dollar food stamp.   No gun was recovered.   Latrelle Gray

was not at the duplex when Nelson was arrested.    However, he was

later identified and arrested in the courthouse on one of

Nelson's court dates.

     Nelson was charged with robbery, in violation of Code

§ 18.2-58, and use of a firearm in the commission of a felony,

in violation of Code § 18.2-53.1.    At trial, Nelson argued that

he did not rob Hearns, that neither he nor Gray had a gun that

evening, and that the one hundred dollar bill found in his

pocket was money he received after selling his Sony

Playstation 2.   Furthermore, he contended that he did not plan

or call out to anyone to help him.

     The trial court found Nelson guilty on both charges.    It

stated:



     1
       Officer Durrette testified that he personally knew Nelson
and at the time of these events Nelson had outstanding warrants
on other charges.

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          [I]t's clearly a case in which the victim
          was accosted by both the defendant, who
          strong armed him, and another person unknown
          to the victim, who was later identified,
          without knowing the name, as the wheeler
          [sic] of the gun.

          And as I've already indicated, it seems to
          me it's too much of a coincidence to say
          that the wheeler [sic] of the gun was acting
          independently. I find there is a concert of
          action by reasonable inference in this case.
          Identification of the defendant was made on
          the scene almost, very shortly thereafter at
          the same location. And I don't put a great
          deal of credence in the defendant's
          justification for having had the money.

Nelson appeals his conviction.

                           II.     ANALYSIS

     Nelson contends that the evidence was insufficient to prove

beyond a reasonable doubt the charge of using a firearm in the

commission of a felony.   He argues the evidence neither showed

that he possessed a gun or that he was acting in concert with

another who did.   We disagree.

          When the sufficiency of the evidence is
          challenged on appeal, it is well established
          that we must view the evidence in the light
          most favorable to the Commonwealth, granting
          to it all reasonable inferences fairly
          deducible therefrom. The conviction will be
          disturbed only if plainly wrong or without
          evidence to support it.

Jones v. Commonwealth, 13 Va. App. 566, 572, 414 S.E.2d 193, 196

(1992).

     "It is well settled in Virginia that whenever a witness

testifies, his or her credibility becomes an issue."     Hughes v.



                                  - 4 -
Commonwealth, 39 Va. App. 448, 462, 573 S.E.2d 324, 330 (2002)

(quoting Tatum v. Commonwealth, 17 Va. App. 585, 592, 440 S.E.2d

133, 137 (1994)).    "The credibility of the witnesses and the

weight accorded the evidence are matters solely for the fact

finder who has the opportunity to see and hear that evidence as

it is presented."     Id. (quoting Sandoval v. Commonwealth, 20

Va. App. 133, 138, 455 S.E.2d 730, 732 (1995)).    At trial, the

judge discounted Nelson's testimony and accepted Hearns' account

of events.    As a result, we are bound by the factual findings of

the lower court.     See Campbell v. Commonwealth, 39 Va. App. 180,

186, 571 S.E.2d 906, 909 (2002).

     Code § 18.2-53.1 states:

             It shall be unlawful for any person to use
             or attempt to use any pistol, shotgun,
             rifle, or other firearm or display such
             weapon in a threatening manner while
             committing or attempting to commit . . .
             robbery, carjacking, burglary, malicious
             wounding as defined in [Code]
             § 18.2-51 . . . .

Code § 18.2-18 permits "[i]n the case of every felony, every

principal in the second degree and every accessory before the

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

respects as if a principal in the first degree . . . ."

See also Cortner v. Commonwealth, 222 Va. 557, 562-63, 281

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


                                 - 5 -
means, countenances or approves the same is, in law, assumed to

be an aider and abettor, and is liable as principle."       Foster v.

Commonwealth, 179 Va. 96, 99, 18 S.E.2d 314, 315-16 (1942).

     Although Nelson never actually possessed the gun used

during the robbery, he acted in concert with Gray, who did

display the weapon.   In confronting Hearns, Nelson expressed his

intent to rob him.    Nelson subsequently used the distraction of

Gray pointing a gun at Hearns to put Hearns in a choke hold,

wrestle him to the ground, and to forcefully remove a one

hundred dollar bill from Hearns' pocket.      That Nelson did not

call out to anyone else prior to or during the course of the

robbery is of no consequence.   Presence without disapproving or

opposing the commission of a crime, in connection with other

circumstances, is evidence that a defendant lent his countenance

and approval to the crime.    Hampton v. Commonwealth, 32 Va. App.

644, 649, 529 S.E.2d 843, 845 (2000).

     The evidence was sufficient to prove beyond a reasonable

doubt that Nelson, by acting in concert with Gray, used a firearm

during the commission of a felony.      The judgment of the trial

court is affirmed.

                                                            Affirmed.




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