Sherwood Antanio Charlton v Commonwealth of VA

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COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Senior Judge Cole Argued at Salem, Virginia
SHERWOOD ANTANIO CHARLTON
v. Record No. 2989-98-3
COMMONWEALTH OF VIRGINIA
OPINION BY JUDGE MARVIN F. COLE MARCH 21, 2000
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG Richard S. Miller, Judge
Michael T. Garrett (Pendleton, Garrett & Henderson, P.C., on brief) , for appellant.
Marla Graff Decker, Assistant Attorney General (Mark L. Earley, Attorney General, on brief) , for appellee.
Sherwood Antanio Charlton, appellant, was convicted of use of a firearm in the commission of robbery. On appeal, he contends the trial court erred in denying his motion to dismiss the use of a firearm charge because he was an accessory before the fact to robbery and did not know the principals would use a firearm in the commission of the robbery. Finding no error, we affirm the conviction.
Viewing the evidence in the light most favorable to the Commonwealth, see Archer v. Commonwealth, 26 Va. App. 1, 11, 492 S. E.2d 826, 831 (1997), the evidence showed that appellant worked at a fast-food restaurant. Three men approached him and told him they intended to rob the restaurant. They offered him money to

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allow them to "rough him up" as they "forced" their way into the
restaurant to rob it. 	Instead, appellant proposed, and they all
agreed, that appellant would leave the back door ajar during a
certain week so the three men could enter without confrontation.
On the night of the robbery, appellant worked with Nicholas
Balasic, the assistant manager. 	Appellant advised Balasic that he
was going outside to break down some boxes for trash removal.
Appellant left the back door propped open according to the plan.
Balasic testified that it was restaurant policy that employees
going out the back door should shut it. 	Because the door locked
when shut, no one could enter unannounced or without permission.
While appellant worked outside, the three men entered the
restaurant and robbed the manager at gunpoint. 	Appellant did not
know the robbery occurred until after it was committed and the men
were gone. 	The principals later gave appellant $270 to $300 from
the proceeds of the robbery.
A month later, appellant spoke with Lynchburg Police
Investigator Booth about the robbery. 	Appellant told Booth about
the three men who offered him money to assist in the robbery and
how he suggested leaving the back door open. 	He told Booth he did
not know a specific night when the robbery would occur, so for "a
span of about five days . . . he propped the door open." 	He
stated he did not know the robbers would use a firearm to commit
the robbery.

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Appellant concedes he acted as an accessory before the fact
to robbery. 	"To be guilty of accessory before the fact, the
accused must either know or have reason to know of the principal's
criminal intention and must intend to encourage, incite, or aid
the principal's commission of the crime." 	McGhee v. Commonwealth,
221 Va. 422, 427, 270 S.E.2d 729, 732 (1980). 	Here, appellant
encouraged and aided the principals in the commission of the
robbery by planning the robbery of the restaurant, by propping the
rear door open in order to permit entrance, and by sharing in the
money that was stolen.
Appellant, however, argues he did not know when or how the
principals would carry out the robbery and, therefore, he should
not be accountable for their use of a firearm during the
commission of the robbery. 	Code § 18.2-18 states that "every
principal in the second degree and every accessory before the fact
may be indicted, tried, convicted and punished in all respects as
if a principal in the first degree . . . ." 	(Emphasis added.) 	In
Carter v. Commonwealth, 232 Va. 122, 348 S.E.2d 265 (1986),
involving a robbery, murder, and use of a firearm, the Court held
that
each co-actor is criminally responsible for
the shooting, even those who did not intend
it or anticipate that it would occur.
Because they shared the common intent to rob,
they shared the common intent to commit all
the elements of robbery, including the use of
such force, violence, or intimidation as
would be expedient for the accomplishment of
their purpose. . . . [E]ach co-actor is

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responsible for the acts of the others and
may not interpose his personal lack of intent
as a defense.
Id. at 126, 348 S.E.2d at 267-68.
Appellant attempts to distinguish Carter because Carter was a
principal in the second degree and was present during the
commission of the crimes, whereas appellant was an accessory
before the fact and, therefore, was not present. 	Appellant claims
he was not a "co-actor" or one who acted in concert with the
principals.
"Concerted action is defined as '[a]ction that has been
planned, adjusted, agreed on and settled between parties acting
together pursuant to some design or scheme." 	Rollston v.
Commonwealth, 11 Va. App. 535, 542, 399 S.E.2d 823, 827 (1991)
(citation omitted). 	Here, appellant rejected the principals'
original plan to "rough him up" upon their entrance. 	Appellant
offered the alternative plan of leaving the back door open to
allow the principals easy access to the restaurant. 	Further, he
left the door open for several days in anticipation that the
robbery would occur. 	After the robbery, appellant met with the
principals and received a portion of the proceeds of the robbery
in payment for his participation. 	Appellant acted in concert with
the principals by planning, adjusting and agreeing on a course of
action and performing his role to consummate the crime.
That appellant was not present inside the restaurant during
the commission of the robbery, and did not concern himself with

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the details of the robbery, does not relieve him of responsibility
for the actions taken by his confederates to consummate the crime.
The Supreme Court of Virginia has not distinguished between
accessories before the fact and principals in the second degree in
assigning criminal responsibility. 	In Rollston this Court stated
that
"[a]ll those who assemble themselves together
with an intent to commit a wrongful act, the
execution whereof make probable, in the
nature of things, a crime not specifically
designed, but incidental to that which was
the object of the confederacy, are
responsible for such incidental crime . . . .
Hence, it is not necessary that the crime
should be a part of the original design; it
is enough if it be one of the incidental
probable consequences of the execution of
that design, and should appear at the moment
to one of the participants to be expedient
for the common purpose."
Id. at 542, 399 S.E.2d at 827 (quoting Brown v. Commonwealth, 130
Va. 733, 738, 107 S.E. 809, 811 (1921)). 	See also Carter, 232 Va.
at 126-27, 348 S.E.2d at 268; Boggs v. Commonwealth, 153 Va. 828,
836, 149 S.E. 445, 447 (1929) ("'[E]veryone connected with
carrying out a common design to commit a criminal act is . . .
bound by the act of any member of the combination, perpetrated in
the prosecution of the common design. 	But it is not necessary
that the crime committed shall have been originally intended.'"
(citation omitted)).
In Spradlin v. Commonwealth, 195 Va. 523, 79 S.E.2d 443
(1954), the Court stated that

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[i]f there is concert of action with the
resulting crime one of its incidental
probable consequences, then whether such
crime was originally contemplated or not, all
who participate in any way in bringing it
about are equally answerable and bound by the
acts of every other person connected with the
consummation of such resulting crime.
Id. at 527, 79 S.E.2d at 445.
When imposing responsibility for the intended crime and any
incidental and probable crimes that result from the consummation
of the intended crime, the Supreme Court has consistently referred
to all the participants in a crime without distinguishing between
principals in the first degree, principals in the second degree,
and accessories before the fact. 	Here, appellant helped plan the
robbery by deciding on the means of entry, participated in the
crime by leaving the door open, and received a portion of the
proceeds for his role in the robbery. 	He knew some force,
violence or intimidation was necessary to accomplish the robbery,
and the principals' use of a firearm was a natural and probable
consequence of performing a robbery.
Code § 18.2-18 makes no exception for those who plan a crime,
do not involve themselves with the details of its execution, and
are not present for its consummation. 	The statute and the cases
direct that an accessory before the fact is accountable in all
respects as the principal who carries out the intended crime, as
well as any of its natural, probable, and incidental crimes.

For the foregoing reasons, we affirmthe j udgnent of the
trial court.

Af fi rned.