                  COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Coleman and Bumgardner
Argued at Salem, Virginia


WARREN LEE BROGGIN, JR.
                                               MEMORANDUM OPINION * BY
v.   Record No. 0131-98-3                     JUDGE SAM W. COLEMAN III
                                                   OCTOBER 5, 1999
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
                    Richard S. Miller, Judge

          B. Leigh Drewry, Jr., for appellant.

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


     Warren Lee Broggin was convicted in a bench trial of robbery

and use of a firearm in the commission of a felony in violation of

Code §§ 18.2-58 and 18.2-53.1.    On appeal, Broggin contends that

the trial court erroneously admitted hearsay evidence and that the

evidence was insufficient to support the convictions.       We affirm.

                            I.   BACKGROUND

     On review of a challenge to the sufficiency of the evidence,

we view the evidence in the light most favorable to the prevailing

party and grant to it all reasonable inferences fairly deducible




     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
therefrom.    See Commonwealth v. Jenkins, 255 Va. 516, 521, 499

S.E.2d 263, 265 (1998).

       Vachel Pollard, Tyshon Reeves, and Warren Broggin hired a

cab.   The cab company dispatched Stanley Williams to transport the

three.    At some point during the evening, Pollard gave Reeves a

pistol.    After making several trips by cab, the three directed the

driver to take them to Pollard's grandmother's house.   While the

cab driver waited, the three decided to rob him.   After discussing

the plan, Broggin said, "all right . . . we'll do that."

       The three men then directed the driver to a dead-end street.

When there, Reeves told the driver to stop the car, and with

pistol in hand, told the driver to "Give it up."   The three took

$25 in bills, some change, a utility knife, a pager, and a scanner

from the driver.   Reeves testified that Broggin took the scanner.

       Pollard, who testified for the Commonwealth, stated that

Broggin had agreed to rob the driver and that Broggin knew about

the gun.   Reeves also testified that Broggin was aware of the plan

to rob the driver and that he agreed to it.

       On direct examination, when the Commonwealth's attorney asked

Pollard if he was testifying because "he wanted to," he responded,

"I ain't -- no, I was supposed to testify."   On cross-examination,

defense counsel asked whether Pollard had arranged through his

counsel to benefit from testifying against Broggin.




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          [Defense Counsel]: Now Mr. Pollard, of
          course you're charged in this as well; is
          this right?

          [Pollard]:   Yes, sir.

          [Defense Counsel]: And you've talked to
          your lawyer, Mr. Light, about this haven't
          you?

          [Pollard]:   Yes, sir.

          [Defense Counsel]: And you've also -- you
          realize –- you're testifying today because
          you're hoping your testimony is going to
          help you, aren't you?

          [Pollard]:   Yes, sir.

          [Defense Counsel]: And you want to do or
          say anything that's going to help you, don't
          you?

          [Pollard]:   Yes, sir.

          [Defense Counsel]: If that means that
          you've got to point the finger at somebody
          else you're going to do that; isn't that
          right?

          [Pollard]:   No, sir.

     Over Broggin's hearsay objection, the Commonwealth

introduced a statement that Pollard earlier had made to

Detective Viar soon after Pollard's arrest.   The trial court

admitted the evidence as a prior consistent statement that

Pollard had made before he had an opportunity to meet with

counsel and make arrangements to benefit from his testimony.

Pollard's prior statement made immediately after the arrest also

implicated Broggin as part of the scheme.   However, in some




                             - 3 -
respects Pollard's prior statement contradicted his trial

testimony.

                             II.   ANALYSIS

     The trial court did not err by allowing the Commonwealth to

introduce Pollard's hearsay statement made to Detective Viar

soon after Pollard's arrest. 1

             [E]vidence of a prior consistent
             out-of-court statement is admissible when
             the opposing party: (1) suggests that the
             declarant had a motive to falsify his
             testimony and the consistent statement was
             made prior to the existence of that motive,
             (2) alleges that the declarant, due to his
             relationship to the matter or to an involved
             party, had a design to misrepresent his
             testimony and the prior consistent statement
             was made before the existence of that
             relationship, (3) alleges that the
             declarant's testimony is a fabrication of
             recent date and the prior consistent
             statement was made at a time when its
             ultimate effect could not have been
             foreseen, or (4) impeaches the declarant
             with a prior inconsistent statement.

Mitchell v. Commonwealth, 25 Va. App. 81, 84-85, 486 S.E.2d 551,

552-53 (1997); see Faison v. Hudson, 243 Va. 397, 404-05, 417



     1
       Despite the Commonwealth's claim that Broggin failed to
state adequate grounds for his objection, Broggin preserved the
issue for appeal. See Rule 5A:18. Without prompting, the
Commonwealth offered specific grounds for admitting the hearsay
as a prior consistent statement. Broggin objected to the
statement and objected to the grounds on which it was offered.
The trial court considered and ruled on the specific issue. The
trial court was fully aware of the nature of Broggin's
objection. Accordingly, appellant preserved the issue for
appeal.


                                 - 4 -
S.E.2d 305, 309-10 (1992) (noting exceptions to rule barring

admission of prior consistent statements).

     After being apprehended, accomplices frequently have a

tendency and incentive to shift blame.   See Lilly v. Virginia,

119 S. Ct. 1887, 1904 (1999) (Rehnquist, C.J., concurring)

(noting that a codefendant's custodial confession is viewed with

"'strong suspicion'" given his "'strong motivation to implicate

the defendant and exonerate himself'" (quoting Lee v. Illinois,

476 U.S. 530, 541 (1986))).   Here, Broggin's counsel suggested

that Pollard had a reason to fabricate by implicating Broggin.

Broggin implied that Pollard had reached agreements with the

assistance of his counsel from which, Pollard stood to gain by

incriminating Broggin.   Because Broggin implied that Pollard had

a recent motive to incriminate him, Pollard's prior consistent

statement, made at a time before Pollard had an opportunity to

meet with counsel or arrange to benefit from his testimony, was

relevant to corroborate Pollard's trial testimony.

     However, as Broggin points out, Pollard's prior statement

conflicted in some respects with his trial testimony.   In the

prior statement, Pollard had said that the three decided to rob

the driver before the cab ride and that the idea was originally

Broggin's.   Also, Pollard had said that Broggin took cash from

the driver, but at trial he stated that Broggin was present and




                              - 5 -
supported the robbery, but he did not take any items from the

cab driver.

     The fact that Pollard's prior statement differed in some

respects from his trial testimony did not render it inadmissible

as a prior consistent statement.       The statement was materially

consistent with Pollard's trial testimony insofar as it

implicated Broggin as having knowledge of and agreeing to rob

the driver at gunpoint.   Whether evidence is admissible lies

within the sound discretion of the trial court and will not be

disturbed on appeal absent an abuse of discretion.       See Blain v.

Commonwealth, 7 Va. App. 10, 16-17, 371 S.E.2d 838, 842 (1988).

The prior statement was relevant to disprove Broggin's assertion

of recent fabrication.    To the extent that the statement

contained evidence in addition to the prior consistent

statement, the trial court is presumed to have disregarded those

portions of the statement that did not serve the purpose for

which the court admitted it.    See Yarborough v. Commonwealth,

217 Va. 971, 978, 234 S.E.2d 286, 291 (1977) (holding that trial

court is presumed to know and properly apply the law); Hall v.

Commonwealth, 14 Va. App. 892, 902, 421 S.E.2d 455, 462 (1992)

(en banc) (holding that the trial court is presumed to disregard

prejudicial or inadmissible evidence).

     As to the sufficiency of the evidence, the evidence is

sufficient to support Broggin's convictions for robbery and use


                               - 6 -
of a firearm in the commission of a felony.   When the

sufficiency of the evidence is challenged on appeal, we review

the evidence to determine whether the elements of the offense

are proven beyond a reasonable doubt, and we uphold the

conviction unless it is plainly wrong or lacks evidentiary

support.   See Jenkins, 255 Va. at 520, 499 S.E.2d at 265.   Mere

conflicts in the evidence or the fact that there is evidence,

which if believed would not support a conviction, do not render

the evidence insufficient.   See Lewis v. Commonwealth, 8 Va.

App. 574, 582, 383 S.E.2d 736, 741 (1989) (en banc).

           "When the alleged accomplice is actually
           present and performs overt acts of
           assistance or encouragement, he has
           communicated to the perpetrator his
           willingness to have the crime proceed and
           has demonstrated that he shares the criminal
           intent of the perpetrator. When the alleged
           accomplice is actually present, but performs
           no overt act, he is nonetheless a principal
           in the second degree if he has previously
           communicated to the perpetrator that he
           shares the perpetrator's criminal purpose."

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

825-26 (1991) (quoting Roger D. Groot, Criminal Offenses and

Defenses in Virginia 183 (1984)).

     Here, the evidence, viewed in the light most favorable to

the Commonwealth, showed that Broggin was aware of, and agreed

to, a plan to rob the driver.   Reeves testified that Broggin

took the scanner from the driver.    Thus, Broggin committed an

overt act in furtherance of the robbery and communicated his

                             - 7 -
approval and intent to participate prior to the robbery.

Accordingly, the evidence was sufficient to convict him of

robbery as a principal in the second degree.

     Because the evidence was sufficient to convict Broggin of

robbery as a principal in the second degree, so too is it

sufficient to convict him of use of a firearm in the commission

of a felony.    With the exception of certain capital murder

charges, every felony principal in the second degree may be

indicted, tried, convicted, and punished as a principal in the

first degree.    See Code § 18.2-18.   Although Broggin did not

personally possess the weapon, by acting in concert with Reeves

and Pollard to commit the robbery, Broggin is criminally

accountable for use of the weapon in the commission of a felony.

See Carter v. Commonwealth, 232 Va. 122, 125-26, 348 S.E.2d 265,

267-68 (1986); Cortner v. Commonwealth, 222 Va. 557, 562-63, 281

S.E.2d 908, 911 (1981).   Thus, the evidence is sufficient to

convict him of using a firearm in the commission of a felony in

violation of Code § 18.2-53.1.

     Accordingly, the trial court did not err by admitting

Pollard's prior consistent statement to rebut allegations of

recent fabrication.   Furthermore, the evidence is sufficient to

support the convictions of robbery and use of a firearm in the

commission of a felony.   We affirm the convictions.

                                                           Affirmed.


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