COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Agee and Kelsey
Argued at Salem, Virginia
WILLIAM WADE HENDERSON, III
MEMORANDUM OPINION * BY
v. Record No. 3363-01-3 JUDGE G. STEVEN AGEE
JANUARY 14, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRY COUNTY
Martin F. Clark, Jr., Judge
S. Jane Chittom, Appellate Defender (Public
Defender Commission, on briefs), for
appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
William Wade Henderson, III (Henderson) was convicted in a
bench trial of attempted robbery and malicious wounding. On
appeal, Henderson contends the trial court erred in finding the
evidence sufficient to establish his guilt on both charges. He
also avers that the attempted robbery charge must be dismissed
because it is the result of an inconsistent verdict. For the
following reasons we affirm the decision of the trial court.
I. ANALYSIS
When considering the sufficiency of the evidence on appeal
in a criminal case, this Court views the evidence in the light
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
most favorable to the Commonwealth, granting to it all
reasonable inferences fairly deducible therefrom. See
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,
537 (1975). On review, this Court does not substitute its own
judgment for that of the trier of fact. See Cable v.
Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218, 220 (1992).
Witness credibility, the weight accorded the testimony and the
inferences to be drawn from proven facts are matters to be
determined by the fact finder. See Long v. Commonwealth, 8
Va. App. 194, 199, 379 S.E.2d 473, 476 (1989). The trial
court's judgment will not be set aside unless it appears that
the judgment is plainly wrong or without supporting evidence.
See Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415,
418 (1987).
A. Sufficiency of the Evidence
The trial court found that Henderson's companion, Gillis,
actually beat and attempted to rob the victim. Henderson
acknowledges the trial court found him guilty on the charges of
malicious wounding and attempted robbery as a principal in the
second degree but asserts that the evidence was insufficient to
support that finding. We disagree.
"A principal in the second degree is one not
the perpetrator, but present, aiding and
abetting the act done, or keeping watch or
guard at some convenient distance." Brown
v. Commonwealth, 130 Va. 733, 736, 107 S.E.
809, 810 (1921). . . . It must be shown
that the defendant procured, encouraged,
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countenanced, or approved commission of the
crime. Augustine v. Commonwealth, 226 Va.
120, 124, 306 S.E.2d 886, 888-89 (1983).
"To constitute one an aider and abettor, he
must be guilty of some overt act, or he must
share the criminal intent of the principal."
Triplett v. Commonwealth, 141 Va. 577, 586,
127 S.E. 486, 489 (1925); see also Moehring
v. Commonwealth, 223 Va. 564, 567, 290
S.E.2d 891, 892 (1982).
Rollston v. Commonwealth, 11 Va. App. 535, 539, 399 S.E.2d 823,
825 (1991). In order to support its finding the trial court,
sitting without a jury, was thus required to determine that
Henderson committed some overt act to further the offenses.
The trial court could reasonably determine, based on the
evidence, that Henderson took overt steps in support of the
crime. Henderson provided his mother's car for transportation
of he and Gillis to the scene of the crime. While Gillis left
the car to enter the nearby trailer to beat and attempt to rob
the victim, Henderson remained at the wheel of the car with an
unobstructed view of the trailer at a short distance with the
porch light on. Concluding Henderson was thus keeping watch is
not unreasonable.
When the crime was detected, Henderson fled in his mother's
car with Gillis when chased by the neighbors. Henderson also
attempted to provide an alibi. He reported, or had his mother
report, on the day after the crime that the car was stolen while
he knew, in fact, the car was not stolen.
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These acts sufficiently demonstrate that Henderson took
multiple and separate overt steps in support of the crimes.
From this evidence, the trial court could conclude beyond a
reasonable doubt that Henderson was "present, aiding and
abetting the act done . . . keeping watch at a convenient
distance" and shared the criminal intent of the principal,
Gillis.
The trial court could also properly disregard any of
Henderson's testimony to the contrary. "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." Marable v.
Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235
(1998) (citing Speight v. Commonwealth, 4 Va. App. 83, 88, 354
S.E.2d 95, 98 (1987) (en banc)).
The evidence showed that Henderson lied to police on
multiple occasions. He initially told police investigators he
was home all day but subsequently admitted to being at the
scene. At first he denied ever having gotten out of the car but
later recanted this statement as well. Finally, he asked his
girlfriend to lie about his whereabouts on the date of the
crime, as well as the time she picked him up on the night of the
assault.
The evidence in the record is clearly sufficient to support
Henderson's conviction on both charges.
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B. Inconsistent Verdicts
Henderson also argues that the trial court rendered
inconsistent verdicts by convicting him of attempted robbery but
dismissing the charge of use of a firearm in that attempted
robbery. Henderson asserts that Akers v. Commonwealth, 31
Va. App. 521, 525 S.E.2d 13 (2000), supports his contention.
We did hold in Akers that inconsistent verdicts in a bench
trial are prohibited. However, it is this Court's more recent
holding in Cleveland v. Commonwealth, 38 Va. App. 199, 562
S.E.2d 696 (2002), that governs the case at bar.
In deciding Akers, this Court relied on Shell v. State, 512
A.2d 358 (Md. 1986), a decision by Maryland's highest court.
However, we noted in Akers that the Maryland court had
previously held in Johnson v. State, 209 A.2d 765 (Md. 1965),
that an inconsistent bench verdict would be sustained "where a
trial judge on the record explains an apparent inconsistency in
the verdicts, and where the explanation shows that the trial
court's action was 'proper' and that there was no unfairness."
Akers, 31 Va. App. at 532 n.5, 525 S.E.2d at 18 n.5. Although
we didn't reach this particular issue in Akers, we squarely
adopted the Maryland rationale in Cleveland.
In Cleveland we assumed that the trial court's verdicts in
a bench trial were inconsistent. Nevertheless, we affirmed the
verdicts because the trial court offered a valid explanation on
the record for rendering its decision and apparently considered
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the ruling to be an act of lenity. The trial court's
explanation in Cleveland demonstrated the ruling was not the
result of confusion or a method of resolving doubts – the
primary evils Akers sought to avoid.
We find the trial court's explanation in this case for
conviction in the case of attempted robbery, but acquittal of
use of a firearm during attempted robbery, to be adequately
explained under Cleveland. The trial judge originally expressed
misgivings on the record as to whether Henderson could be
convicted of the firearms charge if he did not, in fact, ever
possess or use the gun. The case was continued for sentencing,
at which time the trial judge stated on the record that his
earlier legal conclusion on the firearms charge was "wrong" and
that "the Court of Appeals . . . would uphold the conviction" on
that charge. Nonetheless, the trial court determined that
dropping the firearms charge was the fair thing to do because it
had "strongly intimated" it would do so in the earlier
proceeding.
The record is thus crystal clear the trial judge was not
confused as to the facts and explicitly did not reject the
evidence regarding Henderson's knowledge, planning,
participation and involvement in the crime of attempted robbery.
The trial court acknowledged that evidence was sufficient to
convict Henderson on the firearms charge. The record reflects
the trial judge's explanation that dismissing the firearms
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charge was not a product of confusion or a method of resolving
doubt, but an act of lenity. There was no unfairness to
Henderson, in fact, he got "a break."
II. CONCLUSION
For the reasons set forth above, we hold the evidence was
sufficient to sustain Henderson's convictions. We also find
that the trial court adequately explained its reasons for
dismissing the firearms charge and there are not inconsistent
verdicts. The judgment of the trial court is therefore
affirmed.
Affirmed.
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