Opinion
Record No. 1197-91-1
January 19, 1993
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH L. CLEAVES MANNING, JUDGE
William R. Brown for appellant.
John H. McLees, Jr., Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Judges Baker, Barrow and Bray
Argued at Norfolk, Virginia
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Charles Napoleon Hawkins (appellant) appeals his bench trial convictions by the Circuit Court of the City of Portsmouth (trial court) for two counts of attempted robbery. The issues for our consideration are whether the trial court erred in determining that appellant had an intent to commit robbery and whether there was a direct, ineffectual act toward the commission of a robbery by the appellant.
Upon familiar principles, we view the evidence "in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom." Evans v. Commonwealth, 215 Va. 609, 612, 212 S.E.2d 268, 271 (1975). Stated in that light, the record discloses that on November 28, 1990, Keith Jordan and Jeff Cox were standing and talking on the sidewalk in front of the London Oaks Apartments in Portsmouth. Morris Benton walked up and asked Jordan for drugs. When Jordan denied having drugs, Benton pulled a gun from his jacket, pointed it at Jordan and Cox and made a second demand for drugs. As Benton held his gun against Jordan's head, Melvin Bell and appellant walked up. As Bell drew a gun, appellant walked over and leaned against a car located approximately twenty-two feet away. Other people were in the immediate area but all except the victims, Benton, Bell and appellant left the scene. The victims were ordered to the middle of the street, near the car on which appellant leaned, and directed to disrobe so that the robbers could search for drugs and money. As the two victims passed the car, they were within an arm's length from appellant.
During the robbery, appellant twice said something to Benton and Bell but the victims could not discern what was said. Appellant observed the robbery and did nothing either to discourage, disapprove or oppose it. Thereafter, appellant, Benton and Bell left the scene and shortly thereafter were found together in a nearby motel.
"Every person who is present at the commission of a trespass, 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).
[P]roof 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.
Id. at 100, 18 S.E.2d at 316. Here, at various times during the approximate five minutes that the robbery took place, appellant was as close as arm's length, to within twenty-two feet of the victims as he leaned against the car. He came to the scene with one of the robbers and casually observed, without voicing or otherwise indicating disapproval or opposition, as the victims were robbed and made to disrobe. He left with the robbers and shared a motel room with them immediately thereafter.
Jones v. Commonwealth, 208 Va. 370, 157 S.E.2d 907 (1967), relied on by appellant, is distinguishable from the case before us. In Jones, evidence showed only that Jones walked on the victim's porch while his companion forced his way into the victim's house and then the two separately fled. The Court said whereas flight shows a consciousness of guilt, it does not raise a presumption of guilt, and that except for flight, the evidence showed only presence which is insufficient to prove that Jones was an aider and abettor. Id. at 374, 157 S.E.2d at 910.
In the case before us, appellant arrived with Bell as Benton held a gun on the victims, and he remained without voicing opposition or disapproval as Bell produced his gun and joined the robbery. Moreover, appellant joined the robbers and left together for the motel room they shared.
We find that the evidence in the record before us is sufficient for the jury to have inferred that appellant assented to the robbery, lent his countenance and approval, and was thereby an aider and abettor.
For the reasons stated, the judgments of the trial court are affirmed.
Affirmed.