Clay v. Com.

• Decision Date: 15 December 1998
• Docket Number: Record No. 2227-97-1.
• Citation: 28 Va. App. 624,507 S.E.2d 655
• Court: Virginia Court of Appeals
• Parties: Phillip CLAY v. COMMONWEALTH of Virginia.

507 S.E.2d 655

28 Va. App. 624

Phillip CLAY v. COMMONWEALTH of Virginia.

Record No. 2227-97-1.

Court of Appeals of Virginia, Norfolk.

December 15, 1998.

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

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

Present: BENTON, ELDER and LEMONS, JJ.

ELDER, Judge.

Phillip Clay (appellant) was convicted in a bench trial of two counts of robbery and two counts of the related use of a firearm in the commission of robbery. On appeal, he contends that the evidence was insufficient to prove he committed two robberies rather than one and that the second firearm conviction, contingent upon the second robbery conviction, therefore also must fail. For the reasons that follow, we agree and reverse the challenged robbery and related firearm convictions.

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. 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 appellant and Darton. Guise then called Vandegrift to come back. Vandegrift returned to where the three were standing. Vandegrift and Guise both testified that appellant pointed a small handgun at Guise's chest and said, "Just give me all your stuff." Appellant removed Guise's coat from his body. Then appellant 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 appellant took Guise's coat, it contained two twenty-dollar bills belonging to Vandegrift, which Guise was holding for him. Vandegrift testified that when appellant pointed the pistol at Guise, Vandegrift and Guise were standing "almost shoulder to shoulder." Appellant and Darton then returned to their car with Guise's jacket and drove away.

Detective John Mentus interviewed appellant three days later. Detective Mentus testified that appellant 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, appellant testified that he had been riding in a car with Darton and two other men. Appellant 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. ANALYSIS

When considering the sufficiency of the evidence on appeal in a criminal case, we view the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. See Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975)

.

The weight which should be given to evidence and whether the testimony of a witness is credible are questions which the fact finder must decide. However, whether a criminal conviction is supported by evidence sufficient to prove guilt beyond a reasonable doubt is not a question of fact but one of law.

Bridgeman v. Commonwealth, 3 Va.App. 523, 528, 351 S.E.2d 598, 601-02 (1986).

Robbery is a larceny from the person accomplished by violence or intimidation. See Butts v. Commonwealth, 145 Va. 800, 811, 133 S.E. 764, 766 (1926); Nelson v. Commonwealth, 12 Va.App. 268, 270, 403 S.E.2d 384, 386 (1991) (defining larceny); see also Graves v. Commonwealth, 21 Va.App. 161, 167, 462 S.E.2d 902, 905 (1995),

aff'd on reh'g en banc, 22 Va.App. 262, 468 S.E.2d 710 (1996) (holding that simple larceny is a lesser-included offense of robbery). The common law defines robbery as "`[1] the taking, with intent to steal, [2] of the personal property of another, [3] from his person or in his presence, [4] against his will, by violence or intimidation.'" Jordan v. Commonwealth, 2 Va.App. 590, 595, 347 S.E.2d 152, 155 (1986) (quoting Johnson v. Commonwealth, 215 Va. 495, 496, 211 S.E.2d 71, 72 (1975)). In order to constitute robbery, the property taken need not belong to the possessor, as long as the possessor has a claim of right to the property that is superior to that of the robber. See Johnson, 215 Va. at 496,

211 S.E.2d at 72.

Appellant does not challenge the sufficiency of the evidence to prove he robbed Guise of his jacket and its contents. Rather, he challenges the separate conviction for robbing Vandegrift, which was based on the presence of the forty dollars of Vandegrift's money in Guise's coat at the time of the robbery. Appellant contends the evidence was insufficient to prove he (1) took property from Vandegrift's person or presence; (2) used the threat of force or intimidation to effect the taking; and (3) acted with the requisite intent because he did not know Vandegrift's money was in Guise's jacket.

We agree with appellant's third contention—that the evidence failed to prove he intended to rob Vandegrift by taking Guise's jacket.

To constitute robbery, the act must be done with a specific criminal intent existing at the time of the commission of the act.... If the criminal intent did not exist when the alleged offense was committed, the crime has not been established. The intent subsequent to the taking is immaterial.

Jones v. Commonwealth, 172 Va. 615, 618-19, 1 S.E.2d 300, 301 (1939) (emphasis added). "When a criminal offense consists of an act and a particular [intent], both the act and [intent] are independent and necessary elements of the crime that the Commonwealth must prove beyond a reasonable doubt." Hunter v. Commonwealth, 15 Va.App. 717, 721, 427 S.E.2d 197, 200 (1993) (en banc).

Proving intent by direct evidence is often impossible. See Servis v. Commonwealth, 6 Va.App. 507, 524, 371 S.E.2d 156, 165 (1988)

. Like any other element of a crime, it may be proved by circumstantial evidence, as long as such evidence excludes all reasonable hypotheses of innocence flowing from it. See Rice v. Commonwealth, 16 Va.App. 370, 372, 429 S.E.2d 879, 880 (1993). Circumstantial evidence of intent may include the conduct and statements of the alleged offender, and "[t]he finder of fact may infer that [he] intends the natural and probable consequences of his acts." Campbell v. Commonwealth, 12 Va.App. 476, 484, 405 S.E.2d 1, 4 (1991) (en banc). In addition, whether an accused has knowledge of particular facts when he engages in certain conduct or a motive to engage in that conduct may be relevant in determining intent, even where knowledge and motive are not elements of the offense. See Charles E. Friend, The Law of Evidence in Virginia § 12-6 (4th ed. 1993); see also Robinson v. Commonwealth, 228 Va. 554, 558, 322 S.E.2d 841, 843 (1984) ("`[B]efore a fact or circumstance is admissible in evidence against a party to show motive, such fact or circumstance must be shown to have probably been known to him, otherwise it could not have influenced him, for a man cannot be influenced or moved to act by a fact or circumstance of which he is ignorant.'" (quoting Mullins v. Commonwealth, 113 Va. 787, 789-90, 75 S.E. 193, 195 (1912)).

Because robbery requires proof of a simple larceny in addition to other elements, see Graves, 21 Va.App. at 167,

462 S.E.2d at 905, principles of law relevant to larceny find equal application here. Ordinarily, in proving a larceny, proof of "the wrongful taking of property in itself imports the animus furandi" or the intent to steal, Skeeter v. Commonwealth, 217 Va. 722, 725, 232 S.E.2d 756, 758 (1977), and the fact finder "may infer the [criminal] intent from the immediate asportation and conversion of the property in the absence of satisfactory countervailing evidence by the ... [defendant]." Pierce v. Commonwealth, 205 Va. 528, 533, 138 S.E.2d 28, 31 (1964). This principle is based on the inference, set out above, that one intends the natural and probable consequences of his acts.

However, under the facts of this case, we hold that the inference of intent to steal that arises from the wrongful taking of property establishes only a single, wrongful intent co-existing with the taking. To hold that the taking of a single item from the actual possession of a single victim—which item, unbeknownst to the robber, happens to contain property that is owned by some other person present at the scene and that remains constructively in that other person's possession—also implies the animus furandi to support a second robbery conviction would improperly relieve the Commonwealth of its burden of proving intent to steal from the second victim.

Here, the record contains no evidence permitting the inference that appellant intended to take property belonging to more than one person by the single act of taking Guise's jacket. The evidence showed that appellant and Darton had discussed obtaining money from Guise and Vandegrift before approaching them on the street and that Darton patted Vandegrift down while appellant held both victims at gunpoint, permitting the inference that appellant and Darton may have intended to rob Vandegrift directly.¹ However, the pat down of Vandegrift yielded nothing. Although Vandegrift retained constructive possession of the money, it was in Guise's actual possession, inside his coat, at the time of the taking. Therefore, the mere fact of its taking does not permit the inference that appellant intended to rob Vandegrift by taking Guise's jacket. Evidence that appellant knew Vandegrift's property was in Guise's jacket may have supported the inference that appellant intended to rob Vandegrift as well as Guise when he took Guise's jacket. However, the record here is devoid of any evidence that appellant had such knowledge. Therefore, the evidence is insufficient to prove appellant intended to rob Vandegrift when he took Guise's...