Yellardy v. Com., Record No. 0172-01-2.

• Decision Date: 02 April 2002
• Docket Number: Record No. 0172-01-2.
• Citation: 38 Va. App. 19,561 S.E.2d 739
• Parties: Ricky Lee YELLARDY v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

561 S.E.2d 739

38 Va. App. 19

Ricky Lee YELLARDY v. COMMONWEALTH of Virginia.

Record No. 0172-01-2.

Court of Appeals of Virginia, Richmond.

April 2, 2002.

Gregory W. Franklin, Assistant Public Defender, for appellant.

Michael T. Judge, Assistant Attorney General (Randolph A. Beales, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., and ANNUNZIATA, J., and COLEMAN, Senior Judge.

COLEMAN, Senior Judge.

Ricky Lee Yellardy, appellant, appeals his felony conviction of robbery in violation of Code § 18.2-58. Appellant contends: (1) the trial court erred by denying his motion to sever the original two counts of robbery, and (2) the trial court erred by refusing to instruct the jury on a lesser-included offense of petit larceny. We hold that because the two robbery counts arose out of two acts or transactions that constituted parts of a common scheme or plan, the trial court did not err by refusing to sever the two charges. We also hold that because the evidence and the defendant's theory of the case did not support the lesser-included offense of petit larceny, the trial court did not err by refusing to instruct on petit larceny. Therefore, we affirm the judgment of the trial court.

BACKGROUND

"On appeal, `we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.'" Archer v. Commonwealth, 26 Va.App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted). "The credibility of the witnesses and the weight accorded the evidence are matters solely for the fact finder who has the opportunity to see and hear that evidence as it is presented." Sandoval v. Commonwealth, 20 Va.App. 133, 138, 455 S.E.2d 730, 782 (1995). The trier of fact is not required to accept a party's evidence in its entirety, Barrett v. Commonwealth, 231 Va. 102, 107, 341 S.E.2d 190, 193 (1986), but is free to believe and disbelieve in part or in whole the testimony of any witness. Rollston v. Commonwealth, 11 Va.App. 535, 547, 399 S.E.2d 823, 830 (1991).

In this light, the evidence showed that on August 4, 2000, at approximately 1:30 p.m., Shawn Cumfer was walking alone on a path in the James River Park. From behind, two men approached Cumfer and asked him for a cigarette. Cumfer did not have a cigarette and continued walking. One of the men, later identified as appellant, turned Cumfer around and demanded his money. Cumfer complied and gave appellant twenty-three dollars. Appellant insisted Cumfer had more money and would not leave until Cumfer gave him more. Appellant appeared agitated and threatening and held a rock in his hand. Within minutes the confrontation ended. Cumfer walked home and reported the incident to police. A week later, from a photographic display, Cumfer identified appellant as the person who robbed him. In the photograph, appellant was wearing the same clothing he wore the day of the robbery.

Appellant testified that he did not rob Cumfer but instead Cumfer approached him at the park and inquired about appellant performing sexual acts. Appellant said they agreed to a price of twenty dollars for oral sex. Appellant stated Cumfer then suggested having anal intercourse, but Cumfer did not have a condom and, therefore, appellant refused to engage in any sexual acts. Appellant denied threatening Cumfer with a rock.

As to the second robbery charge, the evidence showed that four days later, on August 8, 2000, at approximately 1:00 p.m., William Halsey was parked in his car eating his lunch alone in a parking lot at the James River Park. As Halsey sat eating and reading a newspaper, appellant approached Halsey's car and punched Halsey through the open window and stated, "I'm going to fuck you up." Halsey exited his car to find appellant confronting him holding a large rock in his hand. Appellant demanded Halsey's money. Halsey handed appellant four dollars. Appellant demanded more money and asked for Halsey's wallet. When Halsey refused to relinquish his wallet, appellant threw the rock at Halsey, striking him in the arm. Halsey then picked up the rock and appellant fled.

Halsey immediately reported the incident to a citizen and two park employees who had entered the parking lot just after the robbery. One of the employees called the police and drove in the direction where appellant reportedly fled. The employee found appellant and spoke with him until the police arrived. As the police car approached, appellant attempted to hide behind a parked truck. Appellant told the police officer he was just walking to work. He made no statement about having seen or confronted Halsey.

At trial, appellant testified he encountered Halsey as he walked through the park and had entered Halsey's car at Halsey's request. Appellant stated they discussed how much it would cost for Halsey to fondle appellant. Appellant said he asked for twenty dollars, but Halsey only gave him four dollars. Appellant testified that, because Halsey did not give him the agreed price, he got out of the car and left. Appellant said he kept the four dollars Halsey had given him.

Before trial, appellant made a motion to sever the two robbery charges, which motion the trial court denied. Appellant also requested a jury instruction on petit larceny, which the trial court refused. The jury convicted appellant of the August 8, 2000 robbery, but acquitted him of the August 4, 2000 charge.

ANALYSIS

Joinder of Offenses

As pertinent here, Rule 3A:10(c) provides that all offenses pending against an accused may be tried at one time "if justice does not require separate trials and... the offenses meet the requirements of Rule 3A:6(b)...." Under Rule 3A:6(b), joinder of offenses is permissible if they "are based on the same act or transaction, or on two or more acts or transactions that are connected or constitute parts of a common scheme or plan."

Satcher v. Commonwealth, 244 Va. 220, 229, 421 S.E.2d 821, 827 (1992). "`Whether different offenses should be tried separately is a matter that rests within the sound discretion of a trial court. Thus, a trial court's ruling on the matter will not be reversed absent a showing that the court abused its discretion.'" "Traish v. Commonwealth, 36 Va. App. 114, 129, 549 S.E.2d 5, 12 (2001) (quoting Ferrell v. Commonwealth, 11 Va.App. 380, 386, 399 S.E.2d 614, 617 (1990)).

The two robberies occurred on separate dates and involved separate victims. Nothing in the record suggests that the offenses were based on the same act or transaction. However, two offenses may be tried together if the two offenses are connected or constitute parts of a common scheme or plan.

"To meet the `connected' test, the crimes should be `so intimately connected and blended with the main facts adduced in evidence, that they cannot be departed from with propriety.'" Spence v. Commonwealth, 12 Va.App. 1040, 1044, 407 S.E.2d 916, 918 (1991) (quoting Kirkpatrick v. Commonwealth, 211 Va. 269, 273, 176 S.E.2d 802, 806 (1970)). A reviewing court must look to whether the transactions were "closely connected in time, place, and means of commission, all of which supports the use of a single trial." Satcher, 244 Va. at 229, 421 S.E.2d at 827; see Cook v. Commonwealth, 7 Va.App. 225, 229, 372 S.E.2d 780, 782 (1988) (robberies connected when "committed by the same persons, one immediately after the other, in close geographical proximity to each other[; t]hey were connected in time, place, method and perpetrators").

Although these acts occurred four days apart, they both transpired in the same area of the same park. Appellant targeted single males in the park at lunchtime. In each robbery, the method of intimidation by appellant was identical. Appellant first demanded money and then continued to demand more money once the victims complied. In both instances appellant used a rock to threaten his victims, a weapon not commonly used in the commission of robbery. Such facts connect the two events in time, place, and manner of commission. Although the two events are not so inextricably connected such that the proof of one requires proof of the other, the proof of the identical methods...