                     COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia


ROBERT MATHEW LYNE

v.   Record No. 2428-94-2                   MEMORANDUM OPINION * BY
                                             JUDGE MARVIN F. COLE
 COMMONWEALTH OF VIRGINIA                        MARCH 26, 1996


                                           FROM THE CIRCUIT COURT OF
HENRICO COUNTY
                         James E. Kulp, Judge
              Mark K. Tyndall (Christopher C. Booberg;
              Morchower, Luxton and Whaley, on brief),
              for appellant.

              Thomas C. Daniel, Assistant Attorney
              General (James S. Gilmore, III, Attorney
              General, on brief), for appellee.



     The appellant, Robert Mathew Lyne, was convicted in a bench

trial of credit card theft in violation of Code § 18.2-192(1)(a).

 He contends that the evidence is insufficient to support his

conviction.    We disagree and affirm.

     "On appeal, we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.    The judgment of a trial

court sitting without a jury is entitled to the same weight as a

jury verdict and will not be set aside unless it appears from the

evidence that the judgment is plainly wrong or without evidence

to support it."     Martin v. Commonwealth, 4 Va. App. 438, 443, 358
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
S.E.2d 415, 418 (1987).   "'The finding of the judge, upon the

credibility of the witnesses and the weight to be given their

evidence, stands on the same footing as the verdict of a jury,

and unless that finding is plainly wrong, or without evidence to

support it, it cannot be disturbed.'"     Speight v. Commonwealth, 4

Va. App. 83, 88, 354 S.E.2d 95, 98 (1987) (citation omitted).

     Guided by these standards of review, the record discloses

that at about 1:45 a.m. on January 7, 1994, Karen Crawford parked

her car on the street in front of her house.    She locked the car,

but inadvertently left her purse in it.    At 7:50 a.m. she saw

that the right rear window of the car had been smashed.    Her

purse had been stolen.    The purse contained her wallet, ninety-

seven dollars in cash, her credit cards, a First Virginia Bank

ATM card, her checkbook and other items.    Crawford had written

her personal identification number for the ATM card on a page in

the checkbook.   When the First Virginia Bank opened at 9:00 a.m.,

she reported the theft of the ATM card.
     At 3:01 a.m. on January 7, 1994, seventy-five dollars were

withdrawn from Crawford's bank account by use of her First

Virginia Bank ATM card from a Central Fidelity Bank branch.

Camera equipment at the bank photographed Lyne at the ATM

machine.

     At 3:07 a.m. on January 7, 1994, one hundred and forty

dollars were withdrawn from Crawford's bank account by use of her

First Virginia Bank ATM card from a Crestar Bank branch located



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about two miles, or five minutes, from the Central Fidelity Bank

branch.    Camera equipment at Crestar Bank showed a person with a

jacket pulled over his head covering his entire face and head

standing in front of the machine.      The Crestar photographs showed

the arm of another person standing to the right of the person

with the jacket covering his head.

        Henrico County Police Investigator Michael L. Wade testified

that he investigated the theft of the ATM card from Crawford

after he was provided with the pictures from Central Fidelity

Bank and Crestar Bank.    He first spoke with Lyne on March 16,

1994.    Lyne admitted to the officer that he was the person shown

in the Central Fidelity pictures, but he stated that he did not

use the ATM card.    Lyne was shown the Crestar Bank pictures, but

he was reluctant to tell the officer who the person was under the

coat.    However, through his mother, he gave the officer the name

of Jason Meeks.    He did not say who the person was in the

picture.
        Later in the day, Lyne telephoned the officer at his office

and gave him the following information:
          [H]e said that they used to go to the machine
          to get money to go to Taco Bell. He doesn't
          know who used the card that day. He said
          that Jason, who is Jason Meeks, used the card
          a lot at the machine and that he'd also been
          to ATM Machines before with Danny Proffit.
          He also said that he was more than likely
          drunk and don't remember going to the two
          places, but that he would have remembered if
          he had broke into a car. And he also told me
          three places that they went to late at night.
           The Amoco, the Taco Bell, and the Waffle
          House.



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     Lyne was arrested on May 12, 1994, and he furnished Officer

Wade additional information at that time:
          He said that he didn't, speaking of himself,
          didn't receive any of the money, that he
          didn't know where the card came from, that
          Jason was standing beside the machine, that
          he had no idea prior to going to the machine,
          what was going on. He said that Jason said
          he stood beside the machine because they take
          pictures of people, and he said he didn't
          know anything about the machine but that they
          probably went to Taco Bell after that.

Wade also said that Lyne did not say who paid at Taco Bell.

     Lyne testified in his own behalf.    He said he lived with

Jason Meeks.   When shown the pictures taken at Central Fidelity

Bank, he recognized his photograph.   He stated that it was about

fifty feet from the curb to the machine and that he was ten to

twenty feet back from the machine.

     Lyne admitted being present at the Central Fidelity Bank

machine, but could not recall being dropped off during the six

minutes between 3:01 a.m. and 3:07 a.m. which elapsed during the

trip from Central Fidelity Bank to the Crestar Bank.   Lyne was

asked what time he met Meeks on the night in question.    He

testified that his girlfriend, who lived across the street from

him, always had to be home at midnight.   He left there at 12:05

a.m. and walked across the street.    He remembered Meeks "coming

and saying 'Let's go out to eat,' and there was a group of them,

as we usually do.   We always met back and went out to eat.    We

always went in separate directions most time at night."

     Code § 18.2-192(1) provides that a person is guilty of



                                 4
credit card theft when:
          (a) He takes, obtains or withholds a credit
          card . . . from the person, possession,
          custody or control of another without the
          cardholder's consent or who, with knowledge
          that it has been so taken, obtained or
          withheld, receives the credit card . . . with
          intent to use it or sell it, or to transfer
          it to a person other than the issuer or the
          cardholder.


     Lyne contends that under the first clause of Code

§ 18.2-192(1)(a), the Commonwealth must prove that he took,

obtained or withheld a credit card without consent.   He asserts

that there is no evidence in the record to show who stole the

purse and certainly none to show that Lyne broke into the car and
stole the purse.   In order to decide this case, we do not have to

determine who broke into the car and stole the purse.    Therefore,

we make no determination under the first clause of Code

§ 18.2-192(1)(a) and proceed to the second clause.

     The statute may be violated by proof that the accused was in

receipt of the card knowing that it was taken from the

possession, custody or control of the cardholder without her

consent.   In a prosecution under those circumstances, the

Commonwealth does not have to prove that the accused was the

thief; however, it does have to prove that he had knowing receipt

of a card with intent to use, sell or transfer it.    See Cheatham

v. Commonwealth, 215 Va. 286, 290, 208 S.E.2d 760, 763 (1974);

Sandoval v. Commonwealth, 20 Va. App. 133, 136, 455 S.E.2d 730,

731 (1995).



                                 5
     The record establishes that Lyne and Jason Meeks were

together at some point after 12:05 a.m. on January 7, 1994.    Lyne

testified, "I just remember him coming and saying 'Let's go out

to eat.'"   At 1:45 a.m. Crawford parked her car in front of her

home and left her purse in the car with the ATM card in it.

Between 1:45 a.m. and 3:01 a.m. (one hour and sixteen minutes)

someone broke into the car and stole the purse and its contents,

including the ATM card.   At 3:01 a.m. Lyne was photographed at

the Central Fidelity Bank ATM machine using the card.   Lyne

admitted his presence at the machine.   He also admitted to the

police officer that Jason Meeks was also present.   The fact

finder could reasonably infer that Lyne knew that the card was

stolen from the facts that it was 3:01 a.m. and the manner in

which they approached the machine.
     Susan Brooks, Bank Card Security Manager at Central Fidelity

Bank, testified that if you were standing directly in front of

the machine and put the card in the machine, the picture would be

centered.   She testified that a person could approach from the

side and push the button from the side and the camera would not

take their picture.   The photograph showed Lyne ten to twenty

feet in front of the machine and located where he could reach the

machine.    Lyne testified that Meeks always approached the machine

from the side because he knew his picture could not be taken

there.   We find that the fact finder could reasonably infer from

this evidence guilty knowledge.   The evidence demonstrates that




                                  6
both Lyne and Meeks knew that the card was stolen.

     Only six minutes elapsed between the withdrawals at Central

Fidelity Bank and Crestar Bank.   It can be inferred that the card

did not change hands during this six minutes.   Meeks had it at

the Central Fidelity Bank.   Meeks was present and the card was

used six minutes later at Crestar Bank.    Lyne identified the coat

in the Crestar Bank photograph as belonging to Meeks.   It can be

inferred from the short period of time that elapsed that Lyne was

still with him.   Meeks and Lyne lived together.   Lyne testified

that he did not recall going to the second machine.   When asked

where he was dropped off during this six minutes, Lyne testified:
          I'm not saying that he did. I'm not sure.
          Well, you say he was, he could have taken me
          home. I could have got back in the car and
          passed out. I know for sure, that whole
          time, right after Christmas I drank for a
          long, it could have been forty-some straight
          days that I was a complete drunk . . . .


     The trial judge compared the coat in the accused's picture

in the Central Fidelity Bank photograph with the arm shown in the

Crestar Bank photograph and found that "the Court believes that

the coat that's shown in there is very consistent with that being

worn by the defendant in Commonwealth's Exhibit No. 1."   The

court further opined that "There cannot be any question in

anybody's mind that Mr. Meeks in [the Crestar Bank photograph] is

using a card that doesn't belong to him.   He's covered his face

up, he's covered over so nobody can see his face."    The trial

court found that Lyne was with Meeks at the time of the Crestar




                                  7
Bank theft and that he knew Meeks was using a card that did not

belong to him.   The court then found that Lyne was aiding and

abetting Meeks in the credit card thefts.

     It is well established that a "principal in the first degree

is the actual perpetrator of the crime."    Hall v. Commonwealth, 8

Va. App. 526, 530, 383 S.E.2d 18, 21 (1989).    A principal in the

second degree is a person present at the scene of the offense,

either actively or constructively, aiding or abetting its

commission through "words, gestures, signals or actions to in

some way encourage, advise, . . . urge, or . . . help" the

primary actor.   Ramsey v. Commonwealth, 2 Va. App. 265, 269, 343

S.E.2d 465, 468 (1986).   A principal in the second degree "may be

indicted, tried, convicted and punished in all respects as if a

principal in the first degree."   Code § 18.2-18.

     Aiders or abettors must either share the perpetrator's

criminal intent or commit an overt act in furtherance of the

crime, thereby making the offense "more likely" to occur.
Rollston v. Commonwealth, 11 Va. App. 535, 539, 399 S.E.2d 823,

826 (1991).   Whether an accused aided and abetted in the

commission of an offense is a question of fact to be determined

from the circumstances of each case.   Pugliese v. Commonwealth,

16 Va. App. 82, 93, 428 S.E.2d 16, 25 (1993).

     Under Code § 18.2-192(1)(a) the Commonwealth is required to

prove "intent to use . . . or sell . . . or transfer" the card.

There can be no question that the Commonwealth proved this




                                  8
element because Lyne and Meeks actually used the card and

received money from it on two different occasions.

     The evidence cited herein, when considered with the entire

record, establishes Lyne's role as a confederate of Meeks, acting

at least as an aider and abettor with him knowingly possessing a

credit card without permission of the cardholder with intent to

use it.   We find credible evidence in the record to support the

judgment of the trial court beyond a reasonable doubt.

Therefore, we affirm the conviction.

                                         Affirmed.




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