COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bumgardner and Agee
Argued at Salem, Virginia
THOMAS LEWIS BRADNER
MEMORANDUM OPINION * BY
v. Record No. 2640-00-3 JUDGE RUDOLPH BUMGARDNER, III
OCTOBER 23, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
Jon Ian Davey (Law Office of Jon I. Davey, on
brief), for appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
The trial court convicted Thomas Lewis Bradner of robbery
as a principal in the second degree in violation of Code
§§ 18.2-58 and -18. On appeal he challenges the sufficiency of
the evidence by contending he did not aid, abet, or act in
concert nor do anything in furtherance of or to assist in the
commission of the robbery. Finding no error, we affirm.
Two armed men robbed Mama Possum's restaurant of $500 cash
and fled on foot behind an adjacent shopping center. They left
the area in a purple, four-door Ford. The police stopped a car
matching that description shortly thereafter. The perpetrators,
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Linberg Wilson and Willie Woods, Jr., fled on foot, but were
quickly apprehended.
The defendant sat in the front passenger seat with his
cousin, the driver. Two loaded pistols were on the rear
floorboard behind the driver. A blue jersey, two skullcaps, and
sunglasses, which matched items worn by the robbers, were either
in the glove compartment or on the floorboard in front of the
defendant.
The defendant gave two irreconcilable, written statements
to the police. First, he stated he did not know the
perpetrators who were sweaty, out-of-breath hitchhikers that he
and his cousin picked up shortly before the police stopped them.
A few hours later, the defendant volunteered a different story.
He stated that he was driving around with his cousin and Wilson,
and they picked up Woods. The defendant knew Woods and Wilson
were armed and intended to commit a robbery somewhere. Wilson
and Woods asked the defendant and his cousin to stop the car and
to wait for them. The defendant and his cousin waited for
fifteen minutes behind a nearby strip shopping center. The
defendant claimed he was scared but did not feel he could leave.
The perpetrators ran to the car, jumped in pulling money from
their pockets, and shouted, "Let's go."
It is well settled that "'"[a] principal in the second
degree is one not the perpetrator, but present, aiding and
abetting the act done."'" Foster v. Commonwealth, 179 Va. 96,
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99, 18 S.E.2d 314, 315-16 (1942) (citations omitted). Mere
presence at the scene of a crime is insufficient. However, when
the person present at the scene of a crime is "'"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."'" Id. at 99, 18 S.E.2d at 316 (emphasis added)
(citations omitted). See Jones v. Commonwealth, 208 Va. 370,
373, 157 S.E.2d 907, 909 (1967).
The facts of the present case parallel in all crucial
respects those of Whitbeck v. Commonwealth, 210 Va. 324, 170
S.E.2d 776 (1969). Whitbeck claimed he was present at, but did
not assist in, the robbery. His two companions robbed a service
station, returned to the car with two boxes, and put them on the
front floorboard. The defendant claimed he slept on the
backseat and never left the car, and he denied being a lookout.
The trial court characterized Whitbeck's testimony as a
"fantastic story," found that he was "present lending support,"
and convicted him as a principal. In affirming, the Supreme
Court noted the defendant was at the scene of the crime, with
others was found in possession of the tools and fruits of the
crime, and gave an explanation of his presence and detachment
from the crime that the trial court termed fantastic. Id. at
326, 170 S.E.2d at 778.
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The facts of Whitbeck contrast with those in Webb v.
Commonwealth, 214 Va. 377, 200 S.E.2d 518 (1973). In Webb, the
defendant was driving the get-away car when stopped shortly
after a robbery. The defendant claimed he joined the
perpetrators after the robbery but before being stopped, and he
maintained he was not with them during the robbery. No evidence
placed him at the scene of the robbery. The Supreme Court held
his presence with the robbers as the driver of a vehicle seen at
the robbery was suspicious, but the circumstances did not
eliminate the defendant's claim he was not at the scene and not
the get-away driver.
In the present case, the defendant was with the
perpetrators before and after the robbery. He knew their
intentions, and at their request, he and his cousin waited out
of sight but nearby while the robbery took place. Nothing
suggests the defendant tried to dissuade the perpetrators from
committing the crime, or tried to get out of the car during the
fifteen minutes he waited for their return. The defendant drove
off with the perpetrators and helped discard or conceal their
identifying clothing.
The defendant gave conflicting stories initially saying he
did not know the perpetrators then acknowledging that he knew
them, that they intended to rob some place, and that he waited
for them during the robbery. The fact finder may accept or
reject in whole or in part either party's account of the facts.
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Pugliese v. Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24
(1993). The defendant maintains he did nothing to aid the
perpetrators and did not share their intent to commit a robbery,
but "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) (citation omitted).
The defendant was not "merely present" as he maintains.
When a defendant does nothing to discourage the commission of a
crime, but is present with full knowledge of the perpetrator's
intent, he "bolsters the perpetrator's resolve, lends
countenance to the perpetrator's criminal intentions, and
thereby aids and abets the actual perpetrator in the commission
of the crime." Pugliese, 16 Va. App. at 94, 428 S.E.2d at 25.
See Grant v. Commonwealth, 216 Va. 166, 168-69, 217 S.E.2d 806,
808 (1975).
The defendant knew the perpetrators were going to commit a
robbery, he waited for them in the get-away vehicle to
facilitate their escape, and during the escape he tried to hide
the clothing worn during the robbery by placing it in the glove
compartment or at his feet. A reasonable person could conclude
the defendant shared the intent to commit a robbery. We
conclude the evidence is sufficient to prove beyond a reasonable
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doubt the defendant aided and abetted in the commission of a
robbery. Accordingly, we affirm his conviction.
Affirmed.
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