                       COURT OF APPEALS OF VIRGINIA


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


NORMAN JOSEPH TAYLOR
                                          MEMORANDUM OPINION * BY
v.   Record No. 2367-02-1                  JUDGE ROBERT P. FRANK
                                               JUNE 24, 2003
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF ACCOMACK COUNTY
                      Glen A. Tyler, Judge

          A. Theresa Bliss for appellant.

          Richard B. Smith, Senior Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     Norman Joseph Taylor (appellant) was convicted in a bench

trial of grand larceny, in violation of Code § 18.2-95.    On

appeal, he contends the trial court erred in finding the evidence

was sufficient.   Specifically, he maintains the evidence only

proved he was physically present during the larceny.    For the

reasons stated herein, we affirm the conviction.

                             BACKGROUND

     Gerald Alms and George Tripp went fishing under the Cockle

Creek Bridge.   They parked Alms's Suburban near the bridge, took

their gear, and proceeded to the water.   After some time, Alms

heard another vehicle on the bridge.   He then heard what he


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
recognized as his car door shutting, so he went to the top of the

bridge to "check it out."

     "When [Alms] got to the top and looked over the guard rail,

[he] could see a man in the back of [his] pickup grabbing stuff."

A second vehicle was parked five feet from his Suburban.    Alms

walked towards the back of his truck.

     The man who had been rummaging in Alms's vehicle, identified

at trial as Robert Cherrix, got into the other car's front

passenger seat and locked the door.     Another man, Sammy Cherrix,

was passed out in the backseat.   Appellant was driving the car.

     Alms approached the other car and saw his toolbox, jigsaw and

hydraulic ram inside.   His toolbox and hydraulic unit "[were] in

between the driver and the passenger."    "The jigsaw was on the

passenger's side front on the floor board and the cord was hanging

out the door."

     Alms told the two men that he "wanted [his] tools back

. . . ."    In response, "[t]hey just kind of snickered and smiled

at each other.    They wouldn't look at [Alms].   They just kept

looking forward out the windshield."

     To prevent the vehicle from leaving, Alms "popped" two tires

with his knife.    The men in the car continued "snickering."   Alms

yelled at them and smashed the car's windshield with the back of

his knife.    At this point, Cherrix "rolled down the window about

six inches and handed back the hydraulic sleeve and the green

toolbox."    Alms told them they had to open the door so he could

                                - 2 -
get the jigsaw, as its cord was stuck.      When Cherrix did so, Alms

"stuck the knife in there."   Cherrix "put his arms up and [Alms]

got [his] saw back and [Cherrix] gets cut."      Appellant then drove

off toward Queens Creek Bridge.

     Chincoteague Police Officer Gary Fox was called to the Queens

Sound Bridge, where he found appellant and Cherrix with an

ambulance crew.   Cherrix had a cut on his right arm.     He told Fox

that "he fell on the shells on Queens Sound Bridge." 1     When

Officer Fox asked appellant what had happened, appellant "said

that they had stopped there at Cockle Creek to help somebody and

the man went ballistic and cut both tires and knocked the

windshield out and cut Bobby."    Both Cherrix and appellant were

intoxicated.   Appellant said nothing to Officer Fox about a theft.

     At trial, Cherrix admitted he took a circular saw and either

a grinder or sander from Alms's Suburban, yet he denied taking the

toolbox.   Other than this inconsistency, Cherrix confirmed Alms's

version of the events.   According to Cherrix, he and appellant did

not discuss stealing the property.       He claimed not to know why he

did it, other than that he was drunk.

     Appellant, a convicted felon, denied any prior knowledge of

the larceny.   He testified he did see Cherrix take some items

from the Suburban.   He claimed he "hollered, 'Put it back.'"       He


     1
       Cherrix, a convicted felon, denied making this statement
to the officer.



                                 - 3 -
then saw Alms "come around."    Appellant testified Cherrix handed

the items to Alms before returning to the car.   He also claimed

Cherrix asked him to stop the car on the bridge to see if anyone

in the truck needed help.

     On cross-examination, appellant reiterated, "I never got of

the car.   Had no idea what was going on."   However, he admitted

turning off the motor "as soon as I got out."    Appellant also

claimed he "never laugh[ed] at nobody.    Mr. Alms is not telling

the truth if he says I laughed or snickered."    He also claimed

Alms lied when he said his property was in appellant's car, next

to appellant.

     At the conclusion of the Commonwealth's case-in-chief,

appellant moved to strike the evidence, maintaining no evidence

indicated appellant participated in the theft.   The trial court

denied the motion.   Upon the conclusion of appellant's case,

appellant renewed his motion to strike.   Again, the trial court

denied the motion.

                               ANALYSIS

     Appellant contends the evidence only reveals he was present

during Cherrix's theft of Alms's property, not that he

participated in the theft.   He argues no evidence indicated that

he had prior knowledge of Cherrix's larcenous intent or that he

had any intent to take Alms's property.

           Under familiar principles of appellate
           review, we examine the evidence in the light
           most favorable to the Commonwealth. See

                                - 4 -
          Martin v. Commonwealth, 4 Va. App. 438, 443,
          358 S.E.2d 415, 418 (1987). The credibility
          of a witness and the inferences to be drawn
          from proven facts are matters solely for the
          fact finder's determination. See Long v.
          Commonwealth, 8 Va. App. 194, 199, 379
          S.E.2d 473, 476 (1989). In its role of
          judging witness credibility, the fact finder
          is entitled to disbelieve the self-serving
          testimony of the accused and to conclude
          that the accused is lying to conceal his
          guilt. See Speight v. Commonwealth, 4
          Va. App. 83, 88, 354 S.E.2d 95, 98 (1987)
          (en banc).

          "Circumstantial evidence is as competent and
          is entitled to as much weight as direct
          evidence, provided it is sufficiently
          convincing to exclude every reasonable
          hypothesis except that of guilt." Coleman
          v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d
          864, 876 (1983). "[T]he Commonwealth need
          only exclude reasonable hypotheses of
          innocence that flow from the evidence, not
          those that spring from the imagination of
          the defendant." Hamilton v. Commonwealth,
          16 Va. App. 751, 755, 433 S.E.2d 27, 29
          (1993). Whether a hypothesis of innocence
          is reasonable is a question of fact. See
          Cantrell v. Commonwealth, 7 Va. App. 269,
          290, 373 S.E.2d 328, 339 (1988).

Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d

233, 235 (1998).

          A principal in the second degree is one who
          is not only present at a crime's commission,
          but one who also commits some overt act,
          such as inciting, encouraging, advising, or
          assisting in the commission of the crime or
          shares the perpetrator's criminal intent.
          Murray v. Commonwealth, 210 Va. 282, 170
          S.E.2d 3 (1969); Triplett v. Commonwealth,
          141 Va. 577, 127 S.E. 486 (1925); W. LaFave
          & A. Scott, Handbook on Criminal Law 497
          (1972). Mere presence during the commission
          of a crime and subsequent flight do not
          constitute sufficient evidence to convict a

                              - 5 -
          person as a principal in the second degree.
          Grant v. Commonwealth, 216 Va. 166, 217
          S.E.2d 806 (1975); Whitbeck v. Commonwealth,
          210 Va. 324, 170 S.E.2d 776 (1969).

Moehring v. Commonwealth, 223 Va. 564, 567, 290 S.E.2d 891, 892

(1982).

          "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
          means, countenances or approves the same is,
          in law, assumed to be an aider and abettor,
          and is liable as principal."

Foster v. Commonwealth, 179 Va. 96, 99, 18 S.E.2d 314, 315-16

(1942) (citing James v. Commonwealth, 178 Va. 28, 33, 16 S.E.2d

296, 298 (1941)).

          The rule has been generally adopted:
          "Notwithstanding these rules as to the
          nonliability of a passive spectator, it is
          certain that proof that a person is present
          at the commission of a crime without
          disapproving or opposing it, is evidence
          from which, in connection with other
          circumstances, it is competent for the jury
          to infer that he assented thereto, lent to
          it his countenance and approval, and was
          thereby aiding and abetting the same." 1
          R.C.L. 141. Cases cited from other States.

Id. at 100, 18 S.E.2d at 316.

     The issue here is whether appellant aided Cherrix in the

theft or intended to deprive Alms of his property.   The evidence

revealed that appellant was more than a "passive bystander."

Appellant snickered and smiled at Cherrix while ignoring Alms's

demands for his property.   This behavior could allow the fact




                                - 6 -
finder to conclude that appellant countenanced and encouraged

Cherrix's theft.

     Additionally, the stolen property was seen in appellant's

car with appellant immediately following the theft.      Alms

testified he saw his tools in appellant's car.      A presumption of

theft arises from the recent, unexplained, exclusive possession

of recently-stolen property, though such possession may be

joint.   Castle v. Commonwealth, 196 Va. 222, 226-27, 83 S.E.2d

360, 363 (1954).    Although appellant claimed he was never in

possession of the items, the fact finder could have concluded he

did possess them.    First, appellant lied to the officers and at

trial to conceal his involvement.       See Dunbar v. Commonwealth,

29 Va. App. 387, 394, 512 S.E.2d 823, 827 (1999).      Second, at

least one of the items was on the seat beside appellant, within

his reach and in plain view, placed in his car after he saw

Cherrix steal it from the truck.    See Albert v. Commonwealth, 2

Va. App. 734, 741-42, 347 S.E.2d 534, 538-39 (1986) (finding a

defendant consciously exercised dominion and control over drugs

found in a briefcase near his bed that contained his

identification).    The trial court was not obligated to accept

appellant's testimony that he was not in exclusive possession

with Cherrix of the recently-stolen goods.      The fact finder

could apply the presumption of theft in this case to conclude

appellant was a principal in the second degree.



                                - 7 -
     The evidence supports the trial court's finding that

appellant was a principal in the second degree.   We affirm his

conviction.

                                                         Affirmed.




                              - 8 -
