COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Frank
Argued at Salem, Virginia
COREY WENDELL HAMPTON
OPINION BY
v. Record No. 1283-99-3 JUDGE ROBERT P. FRANK
JUNE 20, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE
Charles M. Stone, Judge
Christopher G. Armstrong (Armstrong &
Reynolds, on brief), for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Corey Wendell Hampton (appellant) was convicted in a bench
trial of grand larceny of an automobile in violation of
Code § 18.2-95. On appeal, he contends the evidence was
insufficient to support the conviction. We agree and reverse the
judgment of the trial court.
I. BACKGROUND
William Bruce, III, testified that he drove Troy Tarpley,
Jose Piggott, and appellant to Rivermont Apartments on July 22,
1998. Tarpley and appellant exited the vehicle while Piggott
remained in the car with Bruce. A group of people approached the
car. Someone approached the passenger side and argued with
Piggott. Bruce got out and told the group to move away from his
car. Then, Bruce "was knocked out." When he regained
consciousness, someone told him that "some guys had took off with
[his] car."
Piggott testified that he witnessed a group of people attack
Bruce. Suspecting that the crowd might damage the vehicle,
Piggott drove it to a safer location. At that time, he saw no
one else in the car. When Piggott attempted to drive to another
location, Tarpley grabbed Piggott and began to hit him. At that
time, Piggott realized that Tarpley and appellant were in the
back seat of the car. Tarpley "was choking" Piggott and
"somebody was hitting him" in his head. The evidence does not
establish whether it was Tarpley or appellant who was hitting
Piggott. Then, someone pulled Piggott from the car. Tarpley
drove off in the car.
Eric Hardy heard Bruce's car crash into a tree a short
distance from the Rivermont Apartments. He testified that he
pulled Tarpley and appellant out of the car. Tarpley was in the
driver's seat, and appellant was in the front passenger seat. As
appellant was pulled from the car, his shoes came off.
Investigator R. A. Turner investigated the reported larceny
of Bruce's car. He found appellant's shoes in the front
passenger compartment "wedged in the car where the dash[board]
and everything had been pushed back."
Appellant moved to strike the evidence on the basis that he
was a "mere passenger" and did not participate in the attack on
Piggott or in the taking of the car. The trial court overruled
the motion, stating,
In the case we've got here, we've got the
owner of the vehicle being attacked by a mob
and knocked unconscious. Then Mr. Piggott
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trying to get the vehicle away from the mob,
and then the principal thief, Mr. Tarpley,
grabbing him from behind and dragging him out
of the vehicle at the same time that Mr.
Hampton is in the back seat. If he had
remained in the back seat and Tarpley drove
the car off, I think I'd wonder. I'd have a
reasonable doubt as to whether or not he had
some participation in the crime, but rather
than remaining in the back seat and doing
nothing, or getting out of the vehicle and
having nothing to do with its asportation, he
got out and got in the front seat with the
thief and drove away with him. It seems to
me, under the circumstances of this case,
with the violence and the getting out of the
back seat and getting into the front, the
inference to me is inescapable that he was
countenancing the theft.
The trial court did not find that appellant assaulted or
directly participated in the assault on Piggott. Instead, the
court based the conviction on the fact that appellant got into
the front passenger seat of the stolen vehicle with knowledge of
the attack and theft, thereby countenancing and approving
Tarpley's theft.
II. ANALYSIS
Appellant contends that the evidence was insufficient to
support the conviction for grand larceny of the automobile.
The Commonwealth argues that because appellant was present
at the commission of a crime without disapproving or opposing it,
he was a principal in the second degree. In support of its
argument, the Commonwealth asserts that no evidence established
that appellant attempted to stop Tarpley from attacking Piggott,
who was ultimately pulled out of the car. At some point, both
Tarpley and appellant moved from the back seat into the front
seat, then drove away with Tarpley at the wheel. Appellant did
not attempt to leave the scene.
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As previously stated, appellant argues that he did not
participate in the assault or theft and was a "mere passenger."
"When considering the sufficiency of the evidence on appeal
of a criminal conviction, we consider the evidence in the light
most favorable to the Commonwealth and grant all reasonable
inferences fairly deducible therefrom." Ellis v. Commonwealth,
29 Va. App. 548, 551, 513 S.E.2d 453, 455 (1999) (citing Brooks
v. Commonwealth, 15 Va. App. 407, 414, 424 S.E.2d 566, 571
(1992)). "'An appellate court must discard all evidence of the
accused that conflicts with that of the Commonwealth and regard
as true all credible evidence favorable to the Commonwealth and
all fair inferences reasonably deducible therefrom.'" Id.
(quoting Lea v. Commonwealth, 16 Va. App. 300, 303, 429 S.E.2d
477, 479 (1993)).
"The credibility of the witnesses and the weight accorded
the evidence are matters solely for the fact finder who has the
opportunity to see and hear that evidence as it is presented."
Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730,
732 (1995) (citations omitted).
A principal in the second degree is one who is not only
present at a crime's commission, but 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. See Murray v. Commonwealth, 210 Va. 282, 283, 170 S.E.2d
3, 4 (1969) (citations omitted).
While mere presence during the commission of a crime is not
sufficient to convict a person as a principal in the second
degree, the Supreme Court of Virginia held:
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"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."
Foster v. Commonwealth, 179 Va. 96, 100, 18 S.E.2d 314, 316
(1942) (citations omitted).
Because presence without disapproving or opposing the
commission of a crime, in connection with other circumstances, is
evidence that a defendant lent his countenance and approval to
the crime, we must determine whether "other circumstances" were
present in this case in addition to appellant's failure to
disapprove or oppose the actions of the perpetrator.
In Foster, the defendant lived with his wife in a house of
prostitution, knowing it to be such. See id. at 98, 18 S.E.2d at
315. The Court concluded that the defendant benefited from the
earnings of the prostitutes and contributed to the maintenance of
the establishment. See id. at 100, 18 S.E.2d at 316.
In Pugliese v. Commonwealth, 16 Va. App. 82, 428 S.E.2d 16
(1993), Davis shot and killed Beckmann in a van while the
defendant was present. Prior to the shooting, the defendant knew
Davis planned to cheat Beckmann out of some money, but contended
he had no prior knowledge of Davis' intent to shoot Beckmann.
See id. at 86, 428 S.E.2d at 20. In the van, Davis told the
defendant he was going to shoot Beckmann. See id. The defendant
remained in the van while Davis disposed of Beckmann's body. See
id. Later, the defendant received part of Beckmann's money and
assisted Davis in disposing of the van. See id. at 86-87, 428
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S.E.2d at 20-21. The Court found that the defendant countenanced
and lent his support to the commission of the murder and robbery
by accompanying the perpetrator of the crime knowing of his
announced intention to commit the crimes.
Moehring v. Commonwealth, 223 Va. 564, 290 S.E.2d 891
(1982), also is instructive. Faison and the defendant were
hitchhiking. See id. at 566, 290 S.E.2d at 891. Keeling,
leaving his keys in the ignition, went into a gas station to pay
for gas he had just pumped. See id. Faison got into Keeling's
vehicle and drove off. See id. The defendant was still across
the road hitchhiking. See id. Faison drove north on Route 17
and disappeared from sight. See id., 290 S.E.2d at 892. Several
minutes later, Faison reappeared, driving south on Route 17. See
id. He stopped, picked up the defendant, and drove off again.
See id. Faison testified at trial that the defendant knew
nothing of the theft and that the defendant implored him to stop
for the police. See id. at 567, 290 S.E.2d at 892. The trial
court convicted the defendant because he saw the vehicle being
taken and then left the scene in the stolen vehicle. See id.
The Supreme Court reversed the conviction, stating:
The Commonwealth's evidence and the
reasonable inferences deducible from that
evidence do not establish that Moehring aided
Faison in the theft or that he shared
Faison's intent to deprive Keeling of his
truck. All that the prosecution proved was
that two men were observed walking south
along Route 17 in the early morning hours of
March 23, 1980; that each was attempting to
"thumb" a ride from passing motorists; that
one of the men, Faison, apparently despaired
of success, left his fellow hitchhiker and
went across the highway and stole a truck;
that the other man, Moehring, continued
walking and "thumbing"; and that some minutes
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later Moehring was given a ride in the stolen
truck.
When Faison committed his larceny of the
truck, Moehring was across a double-lane
highway some distance from the scene. Under
such circumstances, it is difficult to regard
him as a "lookout," or an accessory before
the fact. And the mere acceptance by
Moehring of a ride in the stolen vehicle (and
like acceptance by another hitchhiker who was
acquitted of the larceny of the truck) did
not in any way aid Faison. Taken in the
light most favorable to the Commonwealth, the
evidence fails to meet either the overt act
or shared intent requirements of Triplett and
Murray, supra.
Because larceny is a continuing offense,
anyone who knows that personal property is
stolen and assists in its transportation or
disposition is guilty of larceny. Dunlavey
v. Commonwealth, 184 Va. 521, 35 S.E.2d 763
(1945). However, in the instant case there
is no evidence that Moehring assisted in any
way in the transportation or disposition of
the truck he knew to be stolen. On the
contrary, Faison testified it was the
defendant who finally convinced him to
abandon his flight and surrender to the
police. The arresting officer noticed the
exchange between Moehring and Faison prior to
the time Faison stopped. The officer said
"he [Moehring] reached over once and grabbed
him or poked him or something to that
effect." . . .
Neither do we find evidence that established
beyond a reasonable doubt that Moehring
countenanced or approved the theft of the
truck by Faison, or wished the venture to
succeed. The most that can be said with
reasonable certainty is that this
defendant-hitchhiker accepted a ride from the
first person who stopped and that he knew
that person was driving a stolen vehicle.
This conduct does raise a suspicion of guilt.
However, it is not sufficient to establish
beyond a reasonable doubt that the defendant
committed grand larceny.
Id. at 567-68, 290 S.E.2d at 892-93.
Clearly, in Foster and Pugliese, "other circumstances" were
present in addition to the defendant simply being present and not
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opposing the criminal act. In Moehring, there were no "other
circumstances."
In this case, no "other circumstances" are present. The
trial court's ruling limits our analysis to whether appellant's
conduct in not leaving the vehicle and moving into the front seat
"countenanced" Tarpley's criminal act.
No evidence proved appellant participated in the theft or
aided and abetted Tarpley by inciting, encouraging, advising or
assisting him. No evidence proved appellant was a "look-out."
No evidence proved appellant shared Tarpley's criminal intent.
While larceny is a continuing offense, appellant did nothing to
aid Tarpley in stealing the car or in driving it away.
Appellant's conduct in remaining in the vehicle and moving into
the front passenger seat is consistent with the hypothesis that
he did so for his own comfort and convenience.
For the reasons stated, we reverse the judgment of the trial
court and dismiss the indictment.
Reversed and dismissed.
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