Thomas Lewis Bradner v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: October 23, 2001
• Docket: 2640003
• Status: Unpublished

Opinion

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,

- 2 - 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.

- 3 - 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.

- 4 - 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

- 5 - doubt the defendant aided and abetted in the commission of a

robbery. Accordingly, we affirm his conviction.

Affirmed.

- 6 -