                   COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Bray and Humphreys
Argued by teleconference

JAMIE MAURICE STOKES
                                             MEMORANDUM OPINION * BY
v.   Record No. 2738-01-2                  JUDGE ROBERT J. HUMPHREYS
                                                  JULY 2, 2002
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF HENRICO COUNTY
                       George F. Tidey, Judge

           Christopher J. Collins for appellant.

           H. Elizabeth Shaffer, Assistant Attorney
           General (Jerry W. Kilgore, Attorney General,
           on brief), for appellee.


     Jamie Maurice Stokes appeals his convictions, after a bench

trial, for robbery and using a firearm in the commission of a

robbery.   Stokes contends the trial court erred in finding the

evidence sufficient as a matter of law to sustain the robbery

conviction.   Instead, Stokes argues the evidence was sufficient

to establish nothing more than that he was an

accessory-after-the-fact.   We disagree.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication. Further, because this memorandum
opinion has no precedential value, we recite only those facts
necessary to our holding.
"'The distinctive elements of robbery are (1) the use of violence,

or the threat thereof, against the victim, and (2) the theft of

property from his person or in his presence.'" 1

              In order for a person to be a principal in
              the second degree to a felony, [such as
              robbery,] the individual must "know or have
              reason to know of the principal's criminal
              intention and must intend to encourage,
              incite, or aid the principal's commission of
              the crime." McGhee v. Commonwealth, 221 Va.
              422, 427, 270 S.E.2d 729, 732 (1980) [].
              The person must be "present, aiding and
              abetting the act done, or keeping watch or
              guard at some convenient distance." 2 Brown
              v. Commonwealth, 130 Va. 733, 736, 107 S.E.
              809, 810 (1921). "[M]ere presence and
              consent will not suffice." Underwood v.
              Commonwealth, 218 Va. 1045, 1048, 243 S.E.2d
              231, 233 (1978). 3

Further, any element of an offense may be proved by circumstantial

evidence. 4    "Circumstantial evidence is as competent and is

entitled to as much weight as direct evidence, provided it is


     1
       Quesinberry v. Commonwealth, 241 Va. 364, 373, 402 S.E.2d
218, 224 (1991) (quoting Briley v. Commonwealth, 221 Va. 532,
543, 273 S.E.2d 48, 55 (1980), cert. denied, 451 U.S. 1031
(1981)).
     2
       This is opposed to an accessory, which is defined as "one
not present at the commission of the offense, but who is in some
way concerned therein, either before or after, as contriver,
instigator or advisor, or as a receiver or protector of the
perpetrator . . . ." Foster v. Commonwealth, 179 Va. 96, 99, 18
S.E.2d 314, 315 (1942); Hitt v. Commonwealth, 131 Va. 752, 759,
109 S.E. 597, 600 (1921) (emphasis added).
     3
       Jones v. Commonwealth, 15 Va. App. 384, 387, 424 S.E.2d
563, 565 (1992) (emphases added).
     4
       See Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d
864, 876 (1983).


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sufficiently convincing to exclude every reasonable hypothesis

except that of guilt." 5   In fact, intent may, and usually must, be

proven by circumstantial evidence. 6    "[T]he fact finder may infer

that a person intends the immediate, direct, and necessary

consequences of his voluntary acts.     [Additionally], when the fact

finder draws such inferences reasonably, not arbitrarily, they

will be upheld." 7

     Here, Stokes' own statement to police proved that:     1) he had

spent most of the day with Antoine Smith; 2) he knew Joseph

Phillips, the robber; 3) he drove Smith and Phillips to the scene;

4) he was present when the robbery occurred; 5) he drove himself,

Smith and Phillips away after the robbery; 8 6) he voluntarily

shared in the robbery proceeds; and 7) he drove both Smith and

Phillips to their intended destinations after the incident.      Thus,

the direct evidence, as well as the corroborating circumstantial

     5
         Id.
     6
       See Servis v. Commonwealth, 6 Va. App. 507, 524, 371
S.E.2d 156, 165 (1988); see also Long v. Commonwealth, 8
Va. App. 194, 198, 379 S.E.2d 473, 476 (1989).
     7
       Moody v. Commonwealth, 28 Va. App. 702, 706-07, 508 S.E.2d
354, 356 (1998) (citations omitted).
     8
       We note that the fact finder rejected Stokes' contention
that he drove away under duress, because Phillips had a gun and
he "told us to pull off." See Sheppard v. Commonwealth, 250 Va.
379, 387, 464 S.E.2d 131, 136 (1995) ("[W]hen conducting
appellate review on . . . question[s] of fact, considering the
evidence in the light most favorable to the Commonwealth, we
must grant the Commonwealth all reasonable inferences from the
facts proven, and the trial court's judgment must be affirmed
unless it is plainly wrong or without evidence to support it.")

                                - 3 -
evidence, permits the reasonable inference that Stokes shared

Phillips' and Smith's criminal intent, proving beyond a reasonable

doubt that Stokes was a principal in the second degree to the

robbery.

     Moreover, as the legal standard defining a principal in the

second degree makes clear, it was not necessary for the

Commonwealth to prove Stokes shared in the criminal intent to

commit the robbery.   The standard is defined in the disjunctive.

Thus, if the evidence established that Stokes aided in, or in some

way countenanced, the principal's commission of the crime, he

could be convicted as a principal in the second degree. 9    Here,

Smith himself conceded that he aided in the commission of the

robbery, by driving the men from the scene and sharing in the

robbery proceeds.

     For the foregoing reasons, the judgment of the trial court is

                                                            Affirmed.




     9
       See Augustine v. Commonwealth, 226 Va. 120, 124, 306
S.E.2d 886, 888-89 (1983) ("Mere presence, however, is
insufficient to establish that [an accused] is a principal in
the second degree. To prove [an accused] was an aider and
abettor, the evidence must show that [he] was not only present
but that [he] procured, encouraged, countenanced, or approved
commission of the crime. In other words, [he] must share the
criminal intent of the party who actually committed the [crime]
or be guilty of some overt act in furtherance thereof.")
(emphasis added); see also Rollston v. Commonwealth, 11 Va. App.
535, 540, 399 S.E.2d 823, 826 (1991) ("Specific intent is not
required to convict the defendant as a principal in the second
degree.").

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