                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Senior Judge Overton ∗
Argued at Norfolk, Virginia


ARTHUR LYDELL McDONALD
                                           MEMORANDUM OPINION ∗∗ BY
v.         Record No. 3001-97-1           JUDGE NELSON T. OVERTON
                                             FEBRUARY 16, 1999
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                       Verbena M. Askew, Judge

           Bryan L. Saunders for appellant.

           Michael T. Judge, Assistant Attorney General
           (Mark L. Earley, Attorney General, on brief),
           for appellant.


     Arthur Lydell McDonald (defendant) appeals his conviction

for bank robbery, in violation of Code § 18.2-58.    He contends

that the evidence was insufficient to support the conviction.

Because we hold that the evidence was sufficient, we affirm.

     When the sufficiency of the evidence is challenged on

appeal, we review the evidence in the light most favorable to the

Commonwealth and grant to it all reasonable inferences fairly

deducible therefrom.     See Higginbotham v. Commonwealth, 216 Va.

349, 352, 218 S.E.2d 534, 537 (1975).    We may not disturb the

conviction unless it is plainly wrong or unsupported by the


     ∗
      Judge Overton participated in the hearing and decision of
this case prior to the effective date of his retirement on
January 31, 1999 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401, recodifying Code
§ 17-116.01:1.
     ∗∗Pursuantto Code § 17.1-413, recodifying Code § 17-
116.010, this opinion in not designated for publication.
evidence.    See Traverso v. Commonwealth, 6 Va. App. 172, 176, 366

S.E.2d 719, 721 (1988).    Viewed in this light, we cannot say that

defendant's robbery conviction was erroneous.

     Defendant presented his identification card and deposit slip

at a bank teller's window.   Written upon the slip were the words

"I have a gun, don't panic, don't make me use it, act casual."

The teller gave him some money and a dye pack before he exited

the bank, leaving his slip and card behind.   Both items bore his

fingerprints.   A bank surveillance camera recorded the robbery.

Defendant was apprehended near the bank shortly after the

robbery.    While he claimed he had not robbed the bank, he was

aware the bank had been robbed and knew that the color of the dye

in the dye pack was red.

     The trial court had before it all the evidence, including

the bank camera's pictures of defendant.   The trial court

implicitly found that defendant was the man recorded by the

camera and this, combined with the other evidence, proved his

guilt.   Because this finding is supported by the evidence, we

shall not disturb it on appeal.

     We hold that the evidence was sufficient to support

defendant's conviction.    Therefore, the conviction is affirmed.
                                                         Affirmed.




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Benton, J., concurring.

       I do not agree that the evidence proved Arthur Lydell

McDonald was the man who actually robbed the bank teller.      At

trial, the teller testified that shortly after the robbery, the

police took her outside the bank to view McDonald and another

man.   At that time, she could not identify either McDonald or the

other man as the person who robbed her.   During the teller's

testimony, the Commonwealth entered into evidence photographs

taken by the bank's surveillance camera while the robbery was

occurring.    Although the teller identified the person in the

photographs as the person who robbed her, she did not identify

McDonald as the person in the photographs.   Furthermore, the

teller conceded that she did not know whether McDonald, who was

present in the courtroom when she testified, was the person who

robbed her.

       The Commonwealth's evidence establishes that:   (1) the

robber was wearing "dark clothes," (2) McDonald's fingerprints

were on both the withdrawal form and the identification card left

by the robber, (3) the identification card was McDonald's, (4)

the teller gave the robber money containing a dye pack, (5) the

dye pack exploded across the street from the bank, leaving red

dye on the sidewalk, (6) shortly after the robbery, McDonald was

found by the police hiding under a bridge a quarter of a mile

from the bank, (7) McDonald was wearing "white clothing covered

in mud," (8) no red dye was on McDonald or his clothing, and (9)

McDonald made several statements to the arresting officers which



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indicated McDonald knew that a bank had been robbed and that a

dye pack had discharged red ink.

     This evidence does not prove beyond a reasonable doubt that

McDonald was the person who actually robbed the teller.   In fact,

some of the evidence tends to disprove that hypothesis.   Minutes

after the robbery, the teller viewed McDonald and could not

identify him as the robber.   When he was detained immediately

after the robbery, McDonald was wearing clothes of a different

color than the clothes the robber wore.   Although the dye pack

exploded, no dye was found on McDonald or his clothes.    The

withdrawal slip that contained McDonald's fingerprints contained

other prints that the police were unable to test.   In addition,

no evidence proved that McDonald's fingerprints were recovered

from the money wrapper that the robber discarded within the bank.

I believe these factors raise a reasonable doubt whether McDonald

was the actual robber.

     The lack of evidence linking McDonald directly to the person

in the photographs likely explains why the Commonwealth's

attorney did not argue before the trial judge that McDonald was

the person in the photograph.   Rather, the Commonwealth's

attorney argued that "[a]s far as this case is concerned, . . .

it comes down to the evidence as to the credibility of . . .

McDonald."   The trial judge found that McDonald's testimony of

events was not credible.
     Giving an elaborate explanation of his activities the day of

the robbery, McDonald testified that he took several valium and



                                - 4 -
later met men known to him as Black and Black's cousin, Earl.

During conversation with them, McDonald showed Earl how to make a

bank withdrawal using the bank's withdrawal form that McDonald

had earlier obtained.    McDonald wrote on the form and gave Earl

another withdrawal form.    According to McDonald, Earl obtained

McDonald's identification and offered to drive McDonald to a

hospital for treatment.    As McDonald slept in the car, Earl

awakened McDonald, said he robbed the teller, and forced McDonald

and Black to leave the car.    McDonald said he fled to a marsh

after he learned of the robbery and was arrested by the police.

     Although the trial judge expressly rejected McDonald's

"creative . . . accounting of what took place," he was not

required to reject the incriminating circumstances flowing from

that testimony.   See Rollston v. Commonwealth, 11 Va. App. 535,

547, 399 S.E.2d 823, 830 (1991) (noting that the trier of fact

"is not required to accept in toto an accused's statement, but

may rely on it in whole, in part, or reject it completely").

What the evidence does establish, and the reason why I concur

with the decision to affirm, is McDonald's guilt as a principal

in the second degree.    The trial judge could have found that

McDonald was aware of the robbery and had participated in the

planning and execution of the robbery.    If so, then it was proper

for him to convict and punish McDonald as though he actually

committed the offense.     See Code § 18.2-18.

     To convict McDonald as a principal in the second degree, the

evidence "must prove [that McDonald] was present at the scene and



                                 - 5 -
'"share[d] the criminal intent of the party who actually

committed the [crime] or [was] guilty of some overt act in

furtherance thereof."'"   Allard v. Commonwealth, 24 Va. App. 57,

62, 480 S.E.2d 139, 141 (1997) (citation omitted).    McDonald's

testimony proved that he knew the robber, that he wrote parts of

the withdrawal form for the robber, and that he was present near

the bank when the robbery occurred.     McDonald was arrested a

quarter of a mile from the bank immediately following the

robbery.   His fingerprints were on the identification card and

the withdrawal form.   He knew that the robbery had occurred and

that a dye pack had exploded.   He was hiding to avoid detection

and gave a statement that did not acknowledge that he knew the

robber.

     I believe that this direct and circumstantial evidence

proved beyond a reasonable doubt that McDonald was a principal in

the second degree to the robbery.   Therefore, I would also affirm

the conviction.




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