Reaux-King v. Commonwealth, Record No. 0734-14-2
| Decision Date | 28 April 2015 |
| Docket Number | Record No. 0734-14-2 |
| Court | Virginia Court of Appeals |
| Parties | DE'JOUR DAVONTE REAUX-KING, S/K/A DE'JOUR DEVANTE REAUX-KING v. COMMONWEALTH OF VIRGINIA |
UNPUBLISHED
Present: Judges Humphreys, Beales and Decker
Argued by teleconference
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
1
(Mark E. Englisby; Englisby, Vaughn & Slone, on brief), for appellant. Appellant submitting on brief.
Victoria Johnson, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
De'Jour Davonte Reaux-King appeals from his conviction in a bench trial for attempted robbery, in violation of Code §§ 18.2-58 and 18.2-26. Specifically, he contends that the Commonwealth failed to establish that he committed a direct, overt act to accomplish a robbery and therefore, did not prove the offense of attempted robbery. The Court holds that the evidence was sufficient to support the conviction and affirms the judgment of the trial court.
On July 22, 2012, Cynthia Morris was working the 11:00 p.m. to 7:00 a.m. shift at a Wawa convenience store in Chesterfield County. Sometime between 3:00 a.m. and 4:00 a.m. she received a call on the store phone from the appellant. He was a regular customer in the store and identified himself to Morris. The appellant asked her if she was busy and if she could step outside and speak with him if he came to the store. She told him that she was not busy and could go outside to meet with him when he arrived.
The appellant arrived within fifteen minutes of his call to Morris, and she went outside to meet him. The appellant told Morris that he had a plan to rob her in her capacity as a store employee. He said that "he had been contemplating and planning this for a while [and] that he was glad [she] was working overnight." He explained that "[h]e had a machete." He specifically told her that "[h]e was going to put it to [her] throat and rob Wawa." He showed her the machete that he had hidden behind the ice machine outside the store. The appellant said that he expected her to "[g]ive him all of the money." He added that he would split it with her once she finished her shift.
Morris responded by telling him "no," suggesting that she had no desire to steal from her place of employment. Morris made an effort to "help him" by trying to convince the appellant to change his mind. She told the appellant that he would not get much money because they did not keep more than $100 in the cash drawer. However, the appellant was persistent about his plan to rob her of the store's money. He told her that his rent was overdue, he was about to be evicted fromhis apartment, "and he was doing what he had to do." The appellant explained to her that regardless of the amount of money, he was going to commit the robbery. In response, Morris "constantly told him, no." She ultimately went back inside the store because she felt "[v]ery uncomfortable." The entire conversation lasted about twenty minutes.
Once she returned to the store, Morris saw the appellant "pacing back and forth . . . watching [her] every move to make sure [she] didn't hit any buttons or wasn't on [her] cell phone or anything." The appellant walked into the store twice. Each time he looked around and then left. On the first occasion, he remained in the store for about two minutes. The appellant entered right by the ice machine, walked "far back toward the drink area to the door," and got a cup of water. He did not buy anything or use the bathroom. When he left the store, he began pacing again and "watching who was going in and out to see when the security guard at [Morris'] register was leaving." He then entered the store a second time, staying about three minutes. That time, the appellant did not do anything except "walk[] back to the bar where the coffee [was] and walk[] back outside."
Morris contacted her manager using her store headset that enabled employees to communicate with one another. She told the manager to call 9-1-1 because she believed a robbery was imminent. Morris saw the appellant "when he was getting ready to go for the machete." She observed him lean behind the ice machine where the machete was hidden.
The manager contacted the police. A police officer arrived at the store approximately three minutes after the 9-1-1 call. Officer Teaman of the Chesterfield County Police Department assisted officers at the Wawa. Teaman spoke with an employee and found the machete behind the ice machine. Officer Diman, also with Chesterfield police, identified a photograph of the sheath that the appellant was wearing around his waist as well as a photograph of the machete. The machete "matched" the appellant's sheath.
Police arrested the appellant at the scene. Officer Diman questioned him. The appellant admitted to speaking with Morris about "robbing the Wawa." He also said that he told her "no one would get hurt." According to the appellant, he offered Morris money for her cooperation. He also mentioned to the officer that he needed the money to pay his rent. The appellant denied having the machete and threatening Morris. He told Diman that if he "was going to rob the store [he] would use a gun."
The appellant made a motion to strike the evidence, which the trial court denied.3 The court found the appellant guilty of attempted robbery and sentenced him to ten years in prison with nine years and six months suspended.
The appellant contends that the trial court erred by finding the evidence sufficient to convict him of attempted robbery. Specifically, he suggests that the Commonwealth failed to prove that he committed a direct, overt act calculated to accomplish the offense.
The appellant was tried by the circuit court, sitting without a jury. Consequently, that court was the fact finder and its judgment is afforded the same weight as a jury verdict. Preston v. Commonwealth, 281 Va. 52, 57, 704 S.E.2d 127, 129 (2011). The trial court's decision will not be reversed "unless it is 'plainly wrong or without evidence to support it.'" Id. (quoting Code § 8.01-680). The law is also clear that determining the credibility of the witnesses and the weight afforded the testimony of those witnesses are matters left to the trier of fact, who has the ability to hear and see them as they testify. Redmond v. Commonwealth, 57 Va. App. 254, 265, 701 S.E.2d 81, 86 (2010). Further, the fact finder is responsible for "'determin[ing] what inferences are to bedrawn from proved facts, provided that the inferences'" reasonably flow from those facts. See Burton v. Commonwealth, 58 Va. App. 274, 283, 708 S.E.2d 444, 449 (2011) (quoting Beck v. Commonwealth, 2 Va. App. 170, 176, 342 S.E.2d 642, 645 (1986)). Finally, if the evidence is sufficient to support the conviction, the reviewing appellate court will not "substitute its own judgment for that of the trier of fact, even if its opinion might differ from the conclusions reached by the [fact finder]." Jordan v. Commonwealth, 286 Va. 153, 156-57, 747 S.E.2d 799, 800 (2013); see Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc). We review the challenge to the sufficiency of the evidence under these well-established legal principles.
Robbery is the "'taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation.'" Jay v. Commonwealth, 275 Va. 510, 524, 659 S.E.2d 311, 319 (2008) (quoting Pierce v. Commonwealth, 205 Va. 528, 532, 138 S.E.2d 28, 31 (1964)). Attempted robbery requires proof that the defendant intended to commit a robbery. Id. at 524-25, 659 S.E.2d at 319. Further, the Commonwealth must prove that the defendant "'committed a direct, but ineffectual, act to accomplish the crime.'" Id. at 525, 659 S.E.2d at 319 (quoting Pitt v. Commonwealth, 260 Va. 692, 695, 539 S.E.2d 55, 79 (2000)). In other words, "an attempt to commit" offense requires both the intent and "'a direct act done towards its commission, but falling short of the execution of the ultimate design.'" Id. . The direct act is also referred to as an "overt act." Id. at 525, 659 S.E.2d at 320.
The body of law relating to the "overt act" element is also well established, as is the rationale for the necessity to prove it in each case. "An overt act is required to prove an attempted offense because without it, there is too much uncertainty as to the accused's actual intent." Tharrington v. Commonwealth, 2 Va. App. 491, 494, 346 S.E.2d 337, 339 (1986). "However, if 'the design of a person to commit a crime is clearly shown, slight acts done infurtherance of this design will constitute an attempt'" to commit the underlying crime. Id. (quoting State v. Bell, 316 S.E.2d 611, 616 (N.C. 1984)); see Martin v. Commonwealth, 195 Va. 1107, 1112, 81 S.E.2d 574, 577 (1954); Fortune v. Commonwealth, 14 Va. App. 225, 229, 416 S.E.2d 25, 28 (1992) ().
Application of this area of the law is very fact specific, and each case is determined by its unique circumstances as presented through the evidence. Consequently, whether something is an overt or direct act must be determined by the facts of each case. Jay, 275 Va. at 525, 659 S.E.2d at 320. In order to be an overt act, the act must be "'well calculated to accomplish the result intended.'" Id. at 526, 659 S.E.2d at 320 (quoting Granberry v. Commonwealth, 184 Va. 674, 678, 36 S.E.2d 547, 548 (1946)). Although the act must be more than mere preparation, it need not be the last act necessary to accomplishing the crime. Id.; Tharrington, 2 Va. App. at 494, 346 S.E.2d at 339. The act must be a "'step in a direct movement towards the commission of the offence after the preparations are made.'" Jay, 275 Va. at 526, 659 S.E.2d at 320 ...
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