Bernice Lynn Murphy v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Annunziata
Argued at Richmond, Virginia
BERNICE LYNN MURPHY
v. Record No. 0799-94-2 MEMORANDUM OPINION * BY
JUDGE ROSEMARIE ANNUNZIATA
COMMONWEALTH OF VIRGINIA NOVEMBER 27, 1995
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
Samuel M. Hairston, Judge Designate
Alan T. Gravitt (Gravitt & Gravitt, P.C., on
briefs), for appellant.
Kathleen B. Martin, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
The appellant, Bernice Lynn Murphy, was convicted of robbery
and the use of a firearm in the commission of a robbery following
a bench trial in the Halifax County Circuit Court. She was a
juvenile at the time of the alleged offense, and her case was
transferred to the circuit court from the juvenile court. At
trial, Murphy made timely motions to strike the Commonwealth's
evidence and now appeals her convictions alleging the
insufficiency of the Commonwealth's evidence.
On February 7, 1993, a clerk at the South Boston Mother
Hubbard's Convenience Store was shot and killed sometime before
10:45 p.m. in an apparent robbery attempt. Subsequently, the
police interviewed Murphy about the incident. She was seventeen
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
years old at the time. After initially denying any participation
in the incident, Murphy told the police that on the day of the
shooting she had visited her sister-in-law, Geraldine Fernandez,
at Fernandez's apartment in Halifax County. Lance Chandler, a
friend of Murphy, asked Fernandez to drive him, George Boyd, and
Dwight Wyatt to South Boston. Earlier that day, Murphy overheard
Chandler and Wyatt discussing the idea of getting a gun and
robbing a store, but she was not otherwise involved in this
conversation.
Fernandez drove Murphy, Chandler, Boyd, and Wyatt to South
Boston. Murphy told the police that she accompanied Fernandez
because Fernandez did not have a driver's license. Murphy
thought that, since she had a learner's permit, if she rode in
the passenger's seat Fernandez would avoid more serious trouble.
The three men, all clad in dark clothing, sat in the car's back
seat. Wyatt exited the car at a South Boston residence and
returned after a few minutes. Wyatt testified that the purpose
of the stop was to obtain a gun. Wyatt passed the gun to
Chandler in the back seat of Fernandez's car. There was no
testimony that Murphy either saw Wyatt give Chandler the gun or
was aware that the robbery previously discussed by Chandler and
Wyatt was then imminent.
The group drove past the Mother Hubbard Convenience Store
and Fernandez let the men out at the next intersection. Wyatt
wore a hood when he exited the car. The appellant overheard
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Chandler remark, "Just go on in and get out, don't waste no
time." Fernandez and Murphy drove around the neighborhood while
waiting for the men to return. Upon returning, Boyd carried a
case of beer. Chandler was "swearing and cussing" when he got
into the car and he kept saying, "why didn't the man open the
register?" and that "[h]e got shot over money that wasn't even
his." Later that night, the group of five consumed the beer,
Murphy drinking two of them.
In her statement to the police, Murphy stated that it was
Chandler's idea to rob the store and she felt if they got caught
she and Fernandez could be "accessories" to the crime. The
evidence does not establish whether she knew the legal definition
or significance of the term "accessory."
Wyatt testified that Chandler shot the clerk after he
refused to hand over any money, and that the men took the beer
because they were unable to open the register. The trial court
found Murphy guilty of robbery and the use of a firearm during a
robbery; she was acquitted of murder and a related firearms
charge.
On appeal, this Court must view the evidence in the light
most favorable to the Commonwealth and must accord to the
evidence all reasonable inferences fairly discernible therefrom.
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,
537 (1975). "The finding of the judge, upon the credibility of
the witnesses and the weight to be given their evidence, stands
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on the same footing as the verdict of a jury, and unless that
finding is plainly wrong, or without evidence to support it, it
cannot be disturbed." Speight v. Commonwealth, 4 Va. App. 83,
88, 354 S.E.2d 95, 98 (1987) (quoting Lane v. Lane, 184 Va. 603,
611, 35 S.E.2d 744, 752 (1945)).
It is well settled that mere presence and consent will not
suffice to make one an accomplice. Pugliese v. Commonwealth, 16
Va. App. 82, 93-94, 428 S.E.2d 16, 24-25 (1993); Ramsey v.
Commonwealth, 2 Va. App. 265, 269, 343 S.E.2d 465, 468 (1986).
It must be shown that the alleged accomplice, by words, gestures,
signals or actions intended, in some way, to encourage, advise,
urge, or help the person committing the crime to commit it.
Ginanni v. Commonwealth, 13 Va. App. 1, 3-4, 408 S.E.2d 767, 768
(1991); Rollston v. Commonwealth, 11 Va. App. 535, 540, 399
S.E.2d 823, 826 (1991); Ramsey, 2 Va. App. at 269, 343 S.E.2d at
468.
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. . . .
Every person who is present at the commission
of a crime, 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 abetter, and is liable as a
principal. . . . To constitute one an aider
or abettor, he must be guilty of some overt
act, or he must share the criminal intent of
the principal or party who commits the
crime. . . .
Pugliese, 16 Va. App. at 93, 428 S.E.2d at 24-25.
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Overt acts constitute evidence that the alleged accomplice
shares the criminal intent of the principal. See Pugliese, 16
Va. App. at 93, 428 S.E.2d at 25; Triplett v. Commonwealth, 141
Va. 577, 586, 127 S.E. 486, 489 (1925); Rollston, 11 Va. App. at
539, 399 S.E.2d at 825; Murray v. Commonwealth, 210 Va. 282, 283,
170 S.E.2d 3, 4 (1969). When no overt acts have been performed
by the alleged accomplice, he is still a principal in the second
degree if he is present during the commission of the crime and
has previously communicated to the perpetrator that he shares the
perpetrator's criminal purpose, since such a communication of
shared intent makes the perpetrator more likely to act.
Rollston, 11 Va. App. at 539, 399 S.E.2d at 826 (citing Groot,
Criminal Offenses and Defenses in Virginia 183 (1984)).
Whether a person does in fact aid or abet another in the
commission of a crime is a question which may be determined by
circumstances as well as by direct evidence. Harrison v.
Commonwealth, 210 Va. 168, 171-72, 169 S.E.2d 461, 464; Pugliese,
16 Va. App. at 93-94, 428 S.E.2d at 25.
In this case, there is no evidence that Murphy previously
communicated to the perpetrator that she shared his criminal
purpose. Furthermore, there is no evidence of overt acts which
establish beyond a reasonable doubt such criminal intent on her
part or which establish that she contributed in any way to the
commission of the crime.
The evidence shows no more than knowledge of and presence
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during the commission of the crime. The only acts Murphy
performed which arguably relate to the commission of the crime
are the following: 1) she failed to disapprove or object; 2) she
consumed some of the beer stolen from the convenience store; and
3) she characterized herself as a possible "accessory."
However, an individual's failure to dissuade or to interfere
with criminal activities while accompanying the perpetrators to
the scene is insufficient to constitute aiding and abetting. See
Smith v. Commonwealth, 185 Va. 800, 818-20, 40 S.E.2d 273, 281-82
(1946); Moehring v. Commonwealth, 223 Va. 564, 567-68, 290 S.E.2d
892-93 (1982); Jones v. Commonwealth, 208 Va. 370, 373-74, 157
S.E.2d 909-10 (1967); Pugliese, 16 Va. App. at 93-94, 428 S.E.2d
at 25 (While presence at the commission of the crime without
disapproving or opposing it is a circumstance which may be
considered by the trier of fact in determining whether the
accused is an aider and abettor, without more, these
circumstances are insufficient to sustain a conviction). And,
while Murphy's statement that she could be an "accessory" to the
crime and her consummation of some of the stolen beer create a
suspicion of guilt, the acts are too equivocal to support a
finding of guilt.
Absent other evidence in the case, these two acts fail to
establish that Murphy shared the perpetrator's criminal intent.
Nor do they establish beyond a reasonable doubt that she
encouraged, approved, or countenanced the crime. The convictions
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are accordingly reversed and the case is remanded to the trial
court for further proceedings on lesser-included offenses, if the
Commonwealth be so advised.
Reversed and remanded.
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