Principal in second degree convictions in Virginia require presence at the crime scene, and an over act in furtherance of the commission of the crime or sharing the first degree perpetrator’s intent

Principal in second degree (PSD) convictions cannot be obtained merely because the defendant was present at the time of the crime. As a Fairfax criminal lawyer, I know that such convictions require actual or constructive presence at the crime scene together with an over act in furtherance of the commission of the crime or else sharing the first degree perpetrator’s intent. Mahoney v. Virginia, Record No. 0454-24-3 (Va. App. 2025) (unpublished). Consequently, the Virginia Court of Appeals reversed Mahoney’s conviction for PSD to second-degree murder, use of a firearm in the commission of murder, and maliciously shooting at an occupied vehicle. Why this case did not simply get dismissed in the trial court for insufficient evidence probably means that Mahoney sat incarcerated for quite awhile while awaiting this victory. Too bad the Virginia Court of Appeals did not make this a published opinion. With one exception, “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.” Virginia Code § 18.2-18. 

Principal in the second degree convictions are not available even if one provides the car used for committing a crime, if the defendant did not share the intent of the first degree perpetrator

Video security camera footage supported the possibility that the driver of a white Chevrolet Lumina shot dead his relative Jaleel Tate, and that Mahoney shortly thereafter ran towards the parking lot where the Lumina was located, talked to the driver, and got into the Lumina, which drove away and was never to be found again. (Tate’s wife drove a Lumina.) The evidence pointed no further than that to Mahoney other than that his relationship had soured with Tate and that Tate had recently expressed the need not to be in the same area with Mahoney. Mahoney as follows sums up the applicable law necessitating reversing his conviction: “A principal in the second degree ‘is one who is present, actually or constructively’ and ‘assist[s] the perpetrator in the commission of the crime.’…  ‘Mere presence during the commission of a crime and subsequent flight do not constitute sufficient evidence to convict a person as a [PSD].’… Neither do mere presence and consent…. To be guilty as a [PSD], the defendant must be ‘guilty of some overt act done knowingly in furtherance of the commission of the crime’ or while sharing the principal’s criminal intent…  ‘[P]roof that a person is present at the commission of a crime without disapproving or opposing it’ is evidence that he was aiding and abetting the offense but is sufficient to convict only ‘in connection with other circumstances.’… ‘The test is whether or not [the defendant] was encouraging, inciting, or in some
manner offering aid in the commission of the crime.’” Mahoney (citations omitted).

Beware the adverse inferences that may be drawn by your presence at a crime scene

When I was in college, I saw for my first time people snorting cocaine. I was at once curious and repulsed by the scene, with images in my mind of the proverbial blood that may have been shed and misery imposed to get that cocaine grown, produced and smuggled into the United States. (None of that deters me from being delighted to defend those charged with drug offenses and other offenses, nor in my support of heavily decriminalizing drugs.)  In Thailand, I was only feet away when a few others in our group smoked opium in our hut. When I attended a hospitality suite arranged by an attendee at a NORML conference (before marijuana got partially legalized), it seemed as if a prosecutor and I were the only ones not toking. The stench of marijuana from that suite reached the elevators several doors down. I was foolish to have not walked away from all of those scenarios, because law enforcement will often dragnet-arrest people near contraband and who are present at the scenes of other crimes. Consequently, the Mahoney principal in the second degree case, and the rest of Virginia caselaw is no magic bullet for safeguarding so-called innocent bystanders at crime scenes.

Does your potential Virginia criminal lawyer remain current with developments in the law and criminal defense practice?

As a Fairfax criminal lawyer, I know that Virginia criminal defense is not only about skill and experience (which are crucial), but is also about remaining current with developments in the law — including the Mahoney principal in the second degree case — including reading relevant court opinions as they become available, knowing about changes in the Virginia Code and keeping abreast of essential science. You should feel free to ask your potential Virginia lawyer about the extent to which they follow that path.

Fairfax criminal lawyer Jonathan Katz devotes the vast majority of his law practice to defending against Virginia felony, misdemeanor and DUI prosecutions. You are bound to feel more confident and knowledgeable about your defenses by the time you conclude your free initial in-person confidential consultation with Jon Katz about your court-pending prosecution. We make the scheduling process responsively easy for you to meet with Jon, when you contacting us at 703-383-1100, Info@KatzJustice.com, and (text) 571-406-7268.