Clay v. Com.

• Decision Date: 27 July 1999
• Docket Number: Record No. 2227-97-1.
• Citation: 516 S.E.2d 684,30 Va. App. 254
• Parties: Phillip CLAY v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

516 S.E.2d 684

30 Va. App. 254

Phillip CLAY v. COMMONWEALTH of Virginia.

Record No. 2227-97-1.

Court of Appeals of Virginia, Richmond.

July 27, 1999.

Jeffrey A. Swartz (William L. Taliaferro, Jr.; Rabinowitz, Rafal, Swartz, Taliaferro & Gilbert, on brief), Norfolk, for appellant.

Daniel J. Munroe, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., and BENTON, COLEMAN, WILLIS, ELDER, ANNUNZIATA, BUMGARDNER, LEMONS and FRANK, JJ.

UPON A REHEARING EN BANC

LEMONS, Judge.

By opinion dated December 15, 1998, a divided panel of this Court reversed Phillip Clay's convictions of robbery and use of a firearm in the commission of robbery. On the Commonwealth's motion, we stayed the mandate of that decision and granted a rehearing en banc. Upon rehearing en banc, the Court's December 15, 1998 opinion is withdrawn, the mandate is vacated, and we affirm the judgment of the trial court for the reasons set forth below.

I. FACTS

On November 17, 1996, William Vandegrift and Jason Guise were walking from a grocery store to Vandegrift's house in the City of Virginia Beach when they heard a car approaching them from behind. Phillip Clay, appellant, and Khayree Darton exited the car, approached Vandegrift and Guise, and asked, "Don't we know you?"

Vandegrift continued walking toward his house. Guise stopped and began talking with Clay and Darton. Guise then called Vandegrift to come back. Vandegrift returned to where the three were standing. Vandegrift and Guise both testified that Clay pointed a small handgun at Guise's chest and said, "Just give me all your stuff." Clay removed Guise's coat from his body. Then Clay turned the gun toward Vandegrift as Darton patted Vandegrift down, but Vandegrift "didn't have nothing on [him]."

Both Vandegrift and Guise testified that, when Clay took Guise's coat, it contained two twenty-dollar bills belonging to Vandegrift, which Guise was holding for him. Vandegrift testified that when Clay pointed the pistol at Guise, Vandegrift and Guise were standing "almost shoulder to shoulder." Clay and Darton then returned to their car with Guise's jacket and drove away.

Detective John Mentus interviewed Clay three days later. Detective Mentus testified that Clay admitted he and several friends had approached Vandegrift and Guise with the intention of obtaining money and that he had used a gun to take Guise's coat.

At trial, Clay testified that he had been riding in a car with Darton and two other men. Clay denied having a gun or participating in the robbery of Vandegrift and Guise and said he did not make the statements that Detective Mentus attributed to him.

II. SUFFICIENCY OF THE EVIDENCE

"When the sufficiency of the evidence is an issue on appeal, an appellate court must view the evidence and all reasonable inferences fairly deducible therefrom in the light most favorable to the Commonwealth." Cheng v. Commonwealth, 240 Va. 26, 42, 393 S.E.2d 599, 608 (1990). On appeal, the decision of a trial court sitting without a jury is afforded the same weight as a jury's verdict and "will not be disturbed by us unless plainly wrong or without evidence to support it." King v. Commonwealth, 217 Va. 601, 604, 231 S.E.2d 312, 315 (1977).

Clay argues that the evidence was insufficient as a matter of law to sustain his convictions for robbery of Vandegrift and use of a firearm in the commission of that robbery. Specifically, Clay argues: (1) no threat of force or intimidation was used against Vandegrift; (2) no property was taken from Vandegrift's person or presence; and (3) because he did not know Vandegrift's money was contained in the jacket, he did not have the requisite criminal intent.

Robbery is a common law crime against the person, which is proscribed statutorily by Code § 18.2-58. See Hairston v. Commonwealth, 2 Va.App. 211, 214, 343 S.E.2d 355, 357 (1986). Robbery at common law is defined as,

the taking, with the intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation. The phrase, " . of the personal property of another, from his person or in his presence ..." has been broadly construed to include the taking of property from the custody of, or in the actual or constructive possession of, another.

Crawford v. Commonwealth, 217 Va. 595, 597, 231 S.E.2d 309, 310 (1977) (citations omitted).

Clay's contention that no threat of force or intimidation existed to support the conviction for robbery of Vandegrift, and the related charge of use of a firearm in the commission of that robbery, is belied by sufficient evidence in the record. Not only did Clay point a firearm at Guise while Vandegrift was standing "almost shoulder to shoulder," Clay also pointed the weapon at Vandegrift while Darton conducted a "pat down" of Vandegrift.

Clay argues that when he removed Guise's jacket he did not rob Vandegrift because he did not take property from Vandegrift's person or presence. For common law robbery, "the taking must be from what " is technically called the `person'; the meaning of which is, not that it must be from . actual contact ... [with] the person, but it is sufficient if it is from ... [that person's] personal protection and presence." Falden v. Commonwealth, 167 Va. 542, 546, 189 S.E. 326, 328 (1937) (quoting Houston v. Commonwealth, 87 Va. 257, 264, 12 S.E. 385, 387 (1890)). The term "in the presence" is "not so much a matter of eyesight as it is one of proximity and control: the property taken in the robbery must be close enough to the victim and sufficiently under his control that, had the latter not been subjected to violence or intimidation by the robber, he could have prevented the taking." Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law § 8.11, at 780 (2d ed. 1986).

Clay argues that because he did not know the jacket contained Vandegrift's money, he lacked the criminal intent to rob Vandegrift. In Jordan v. Commonwealth, 2 Va.App. 590, 347 S.E.2d 152 (1986), we upheld the defendant's convictions of two counts of robbery and two counts of the use of a firearm in the commission of a felony. In Jordan, the defendant forced several employees of a fastfood restaurant to turn over their employer's money. We held that although the money taken belonged to the restaurant, the defendant's multiple robbery convictions arising from this incident did not violate the double jeopardy prohibition. We further held that the appropriate "unit of prosecution" was determined by the number of persons from whose possession property is taken separately by force or intimidation. Id. at 596, 347 S.E.2d at 156. Similarly, we found that the firearm convictions were "separate and distinct offenses." Id. at 596, 347 S.E.2d at 156.

In Sullivan v. Commonwealth, 16 Va.App. 844, 433 S.E.2d 508 (1993), we upheld the defendant's convictions of two counts of robbery and two counts of the use of a firearm in the commission of robbery where two employees of a video store were held at gun-point but only one employee gathered the money and delivered it to the defendant. We found that both employees were "custodians of the store's money and jointly possessed it." Id. at 848, 433 S.E.2d at 510. Additionally, in Pritchard v. Commonwealth, 225 Va. 559, 562, 303 S.E.2d 911, 913 (1983), the Supreme Court of Virginia affirmed a robbery conviction stating, "[t]he owner of personal property may deliver it to another upon conditions, or in circumstances, which give the recipient bare custody of the property. Constructive possession remains in the owner."

Larceny is a lesser-included offense of robbery. See Harris v. Commonwealth, 23 Va.App. 311, 477 S.E.2d 3 (1996)

. Larceny is defined as "the wrongful or fraudulent taking of personal goods of some intrinsic value belonging to another, without his assent and with the intention to deprive the owner thereof permanently." Cullen, v. Commonwealth, 13 Va.App. 182, 186, 409 S.E.2d 487, 489 (1991). The animus furandi, or the intent to steal, "is an essential element in the crime of larceny." Black's Law Dictionary 88 (6th ed. 1990).

In Virginia, "the wrongful taking of property in itself imports the animus furandi." Skeeter v. Commonwealth, 217 Va. 722, 725, 232 S.E.2d 756, 758 (1977)

. Under the common law, animus furandi means "an intent to feloniously deprive the owner permanently of his property ... [b]ut `feloniously' in this [context] simply means `with criminal intent.'" Pierce v. Commonwealth, 205 Va. 528, 533, 138 S.E.2d 28, 31 (1964). The fact finder "may infer the felonious intent from the immediate asportation and conversion of the property, in the absence of satisfactory countervailing evidence by the ... [defendant]." Id. at 533, 138 S.E.2d at 31,

Clay argues that there was only one taking; consequently, there can be only one robbery. He is wrong; two takings occurred. The taking of the jacket from Guise was the first taking. The taking of Vandegrift's money in the jacket pocket was the second taking. In the second taking, Guise had bare custody of the money; Vandegrift retained constructive possession. Additionally, the animus furandi in the second robbery is provided by Clay's clearly demonstrated intent to take items from both Guise and Vandegrift and is further supported by Clay's demand "[j]ust give me all your stuff" followed by a "pat down" of Vandegrift. Finally, the animus furandi is provided by inference from the asportation and conversion of the property, in the absence of satisfactory countervailing evidence introduced by the defendant.

Clay further argues that the taking and the required mental state for that taking were not contemporaneous. The issue is not whether the mens rea and the actus rea are contemporaneous; rather, it is whether the mens rea and the actus rea concur. However, "concurrence in time ... is neither required nor sufficient; the true meaning of the requirement that the mental fault...