Present: Hassell, C.J., Koontz, Kinser, Lemons, Goodwyn, and
Millette, JJ., and Russell, S.J.
WASEEM ALI
OPINION BY
v. Record No. 092461 SENIOR JUSTICE CHARLES S. RUSSELL
November 4, 2010
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
This is an appeal from convictions of robbery and grand
larceny from the person. It presents three questions: (1)
whether the evidence was sufficient to support the conviction
of robbery, (2) whether the defendant could properly be
convicted of both crimes when the evidence showed the
commission of a single act, and (3) whether the “ends of
justice” exception to Rule 5A:18 should have been invoked to
permit the defendant to raise question (2) for the first time
on appeal.
Facts and Proceedings
Applying familiar principles of appellate review, the
facts will be stated in the light most favorable to the
Commonwealth, the prevailing party at trial. On May 20, 2007,
at about 11:30 p.m., a man later identified as Waseem Ali
entered a convenience store located on Route 1 in Stafford
County. When Ali entered, the only others present were the
store manager, Pauline J. Kessler (Pauline), who was working
in the back office, Pauline’s 23-year-old daughter, Tara
Kessler (Tara), who was in the retail part of the store behind
the counter, near the cash register, and Timothy Gabel and his
wife, employees who were behind the cooler, stocking it with
cold drinks.
Ali approached Tara and asked for a cigar that was
displayed behind the counter. Tara retrieved the cigar, gave
it to Ali, and accepted a dollar bill from him in payment. As
she opened the cash register to deposit the dollar, Ali
reached across the counter into the cash register drawer and
attempted to grab a handful of currency. Tara tried to
prevent him from taking the money by holding on to it as best
she could. She testified that she was “scared” and “didn’t
know what was going to happen. I had never been robbed
before.” She held on to the money and the two struggled for
it. Tara “screamed” for her mother. Pauline looked at the
monitor that was connected to the store’s surveillance camera
and saw Ali “[p]hysically attacking [Tara].” Pauline ran out
into the store. Ali, seeing her coming, finally “yanked” the
money away from Tara and ran out of the store with it.
Photographs recorded by the surveillance camera, showing Ali
reaching toward the cash drawer and Tara and Ali struggling
over the money, were admitted in evidence.
Pauline, with Timothy Gabel, who had heard the commotion,
pursued Ali into the parking lot, where he escaped in a white
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station wagon. An emergency services (“911”) dispatcher later
informed Pauline that Ali had wrecked the station wagon within
minutes after leaving the scene and had been apprehended.
At a jury trial in the Circuit Court of Stafford County,
Ali was convicted of robbery, grand larceny from the person,
reckless driving, and driving while license revoked, third or
subsequent offense. In accordance with the jury's verdict, he
was sentenced to 12 years for robbery, five years for grand
larceny from the person, and 18 months for the two driving
offenses. Ali appealed the convictions to the Court of
Appeals, which affirmed the circuit court’s judgment by
memorandum opinion. Ali v. Commonwealth, Record No. 1650-08-4
(Nov. 10, 2009). Ali petitioned this Court for an appeal. We
awarded him an appeal limited to his convictions for robbery
and grand larceny from the person.
Analysis
Robbery is a common law crime in Virginia. It is defined
as “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.” Durham v. Commonwealth,
214 Va. 166, 168, 198 S.E.2d 603, 605 (1973). The element of
violence need only be slight. “[A]nything which calls out
resistance is sufficient.” Maxwell v. Commonwealth, 165 Va.
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860, 864, 183 S.E. 452, 454 (1936) (quoting Houston v.
Commonwealth, 87 Va. 257, 264, 12 S.E. 385, 387 (1890)).
We recently considered the circumstance in which the
victim engaged in a struggle with a would-be thief to prevent
a taking or asportation of property. We explained that
[w]here the owner of personal property, or another
having custody or constructive possession of the
same, interposes himself to prevent a thief from
taking the property, and the force and violence used
to overcome the opposition to the taking is
concurrent or concomitant with the taking, the
thief's action constitutes robbery.
Commonwealth v. Jones, 267 Va. 284, 289, 591 S.E.2d 68, 71
(2004).
In the present case, there was sufficient evidence to
support the jury’s conclusion that the taking of money was
accomplished by intimidation as well as by violence.
Accordingly, we hold that the evidence was sufficient to
support the conviction of robbery.
Ali contends that he cannot lawfully be found guilty of
both robbery and grand larceny from the person because both
are based upon the same conduct. Ali concedes that robbery
and grand larceny from the person are distinct offenses for
the purposes of analysis under the Blockburger test. That
test, expressed in Blockburger v. United States, 284 U.S. 299
(1932), provides that when a single act violates two separate
criminal statutory provisions, convictions for both crimes
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will not offend the constitutional guarantees against double
jeopardy if each crime requires proof of an element that the
other does not. Id. at 304.
We held in Commonwealth v. Hudgins, 269 Va. 602, 611
S.E.2d 362 (2005), that the crimes of robbery and grand
larceny from the person were separate and distinct under the
Blockburger analysis because an essential element of robbery –
violence or intimidation – is not an element of grand larceny
from the person, while an essential element of grand larceny
from the person – proof of value – is not an element of
robbery. Id. at 606, 611 S.E.2d at 365. For the same reason,
we held that grand larceny from the person is not a lesser-
included offense of robbery. Id. at 608, 611 S.E.2d at 366.
Ali further concedes that under our holding in Phillips
v. Commonwealth, 257 Va. 548, 514 S.E.2d 340 (1999), the
“statutory double jeopardy" provisions of Code § 19.2-294 do
not preclude convictions of two crimes for a single act if the
prosecutions are simultaneous rather than successive.
Instead, he argues that his convictions for two crimes
resulting from a single act, under the facts of the present
case, arise entirely from the adoption by the Commonwealth of
two mutually inconsistent and contradictory theories: (A)
that Ali was guilty of robbery because he took the money by
force or intimidation and (B) that Ali was also guilty of
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grand larceny from the person because he took the money
without force or intimidation.
Ali cites Bradshaw v. Stumpf, 545 U.S. 175, 187-88
(2005), for the proposition that reliance by the prosecution
on an inconsistency “at the core” of the prosecution’s case
may, if prejudicial to the defendant, violate the defendant’s
due process guarantees. There is, of course, no question here
that Ali was prejudiced by an additional five-year sentence if
the Commonwealth is shown to have successfully relied on an
inconsistency at the core of its case.
In response, the Commonwealth argues that the record,
viewed in the light most favorable to the Commonwealth, showed
that Ali committed two offenses “seriatim, a larceny from the
person followed by a robbery.” The Commonwealth contends that
when Ali reached into the cash drawer, Tara was surprised and
did not immediately intervene. The argument continues that an
asportation then occurred, completing the crime of grand
larceny from the person. Thereafter, the Commonwealth
contends, Tara attempted to block Ali from taking any more
money, whereupon he exerted force, thus committing robbery.
Examining the record in the light most favorable to the
Commonwealth, we find no evidence that supports the
Commonwealth’s theory that two successive takings occurred.
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Asportation is an essential element of larceny.
Severance of the goods from the owner and absolute control of
the property by the taker, even for an instant, constitutes an
asportation. Mason v. Commonwealth, 200 Va. 253, 256, 105
S.E.2d 149, 151 (1958). Asportation requires some movement of
the seized goods, however slight, coupled with the intent to
steal. Britt v. Commonwealth, 276 Va. 569, 575, 667 S.E.2d
763, 766 (2008). We find no support in the record for the
Commonwealth’s contention that Ali removed, or otherwise moved
any cash from the drawer, or took control of any part of it,
until after Tara intervened. The evidence is consistent only
with the conclusion that Ali obtained all of the stolen money
by force. His asportation was complete only when he “yanked”
the money from Tara’s hands.
The opinion of the Court of Appeals noted that it was
“unclear” whether there were two crimes or only one. A
concurring opinion stated that it was questionable whether "a
reasonable fact finder could have concluded that there were
two separate and independent criminal acts herein.” Ali, slip
op. at 9 (Alston, J., concurring). The Court of Appeals,
however, noted that the issue had not been raised in the
circuit court and, refusing to apply the ends of justice
exception, held that the issue was barred on appeal by Rule
5A:18. Id., slip op. at 5-6.
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On appeal to this Court, Ali concedes that the issue
concerning the Commonwealth’s inconsistent theories was not
raised in the circuit court, but argues that this case is
appropriate for application of the ends of justice exception
and that the Court of Appeals erred in refusing to apply it.
As we view the record, the evidence clearly and
affirmatively shows that an element of one of the crimes of
which Ali was convicted did not occur. Accordingly, there was
error in the judgment appealed from and application of the
ends of justice exception is necessary to avoid a grave
injustice. See Charles v. Commonwealth, 270 Va. 14, 20, 613
S.E.2d 432, 435 (2005) (holding that the ends of justice
exception will be applied only if there is error in the
judgment of the trial court, and only if necessary to avoid a
grave injustice); Redman v. Commonwealth, 25 Va. App. 215,
221-22, 487 S.E.2d 269, 272-73 (1997) (holding that the
exception will not be invoked unless the record affirmatively
proves that the offense did not occur). We therefore hold
that the Court of Appeals erred in refusing to apply the ends
of justice exception of Rule 5A:18 and erred in affirming the
conviction of grand larceny from the person.
Conclusion
For the reasons stated, we will affirm the judgment of
the Court of Appeals with respect to the robbery conviction,
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reverse the judgments of the Court of Appeals and the circuit
court with respect to the conviction of grand larceny from the
person, vacate that conviction and enter final judgment here.
Affirmed in part,
reversed in part,
and final judgment.
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