Present: Koontz, Kinser, Lemons, Goodwyn, and Millette, JJ.,
and Carrico and Russell, S.JJ.
DEKOTA WILLIAMS
v. Record No. 082477 OPINION BY JUSTICE DONALD W. LEMONS
November 5, 2009
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
Dekota Williams (“Williams”) was convicted of robbery in
violation of Code § 18.2-58 in a bench trial in the Circuit
Court of the City of Newport News and was sentenced to 15
years in prison with 10 years suspended. In this appeal, we
consider the sufficiency of the evidence to convict Williams
of robbery.
I. Facts and Proceedings Below
On January 15, 2007, James Fox (“Fox”), who was 15 years
old at the time of trial, and three of his friends, including
17 year old Robert Brown (“Brown”), Nick Nance (“Nance”), and
another boy identified only as “Julius,” were skateboarding in
the parking lot of an abandoned automobile dealership in
Newport News. Brown was using his digital camera to film his
friends while they were skateboarding.
The boys stopped to eat lunch and were subsequently
approached by three young men, one who wore a “black hoodie,”
another who wore a “red hoodie,” and Williams who was
identified as wearing a “green and black plaid jacket.” One
of the men took Nance’s bike and began riding it. Fox and his
friends directed the man to get off the bike. In the ensuing
moments, the man in the “red hoodie” ran behind Brown and
“snatched” his camera from where Brown had laid it. The man
in the “red hoodie” ran at “full sprint” away from the scene.
Fox pursued him for approximately 150 feet before giving up
the chase.
Fox had placed his cellular telephone (“cell phone”) on a
“ledge” a few feet away from where the boys had been eating
lunch. As Fox was returning, his friend, Brown, told him that
he saw Williams take his cell phone. Williams admitted that
he was using the cell phone when Fox and Brown confronted him.
Fox demanded that Williams return the cell phone to him.
Williams refused and stated, “[t]his is not yours. How do you
know this is yours?” As Fox and Brown approached Williams,
Williams put the cell phone in his pants pocket. Fox demanded
that Williams return the cell phone to him. At that time,
Williams reached into the waistband of his pants and,
according to Brown, appeared to be retrieving a “flat, black
object” that Fox thought was a gun. Brown testified that when
Williams pulled the “flat, black object” out of his pants he
asked Brown and Fox if they “had a problem.” The boys
abandoned their attempt to retrieve Fox’s cell phone and ran
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away. Brown used his cell phone to call his mother, who, in
turn, called police.
Approximately four minutes later, Fox’s cell phone was
returned to him by Julius. Fox testified, “[m]y friend Julius
had walked back and, I guess, talked to them and had gotten it
back for me.” Brown testified and corroborated Fox’s
testimony in every significant aspect.
Police Sergeant Frank Novack (“Novack”) apprehended
Williams, who spontaneously exclaimed, “I know what this is
about . . . It’s us f**king with those skateboarders.”
Williams was subjected to a pat down search and a pair of
black pliers was found in the waistband of his pants.
Williams admitted to Detective W. T. Filer (“Filer”) that
although Fox’s cell phone had been returned, Williams had
pawned Fox’s cell phone charger at a nearby pawnshop. Also,
Filer testified that he recovered Brown’s camera that had been
“pawned along with a cellular phone charger by Mr. Williams.”
At trial, Williams testified that he did take the cell
phone from the “ledge” and used it to make a telephone call.
He admitted responding to Fox’s demand for the return of the
cell phone by saying, “[t]his is not yours. How do you know
this is yours?” Williams’ version of what happened next was
quite different from the testimony of Fox and Brown. Williams
testified that he passed the cell phone to his brother who
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handed the phone to Fox. Williams stated that Fox had the
cell phone when he walked away. Williams was impeached at
trial and admitted having been convicted of “a crime involving
lying, cheating or stealing.” Williams’ brother, Dion
Williams (“Dion”), testified at trial that even though
Williams used the cell phone, Williams gave it to Dion and he
“gave it to the boy.”
The trial court found Williams guilty of robbery.
Williams appealed to the Court of Appeals, which denied his
petition by per curiam order on the grounds that the evidence
was sufficient to sustain the judgment. Williams v.
Commonwealth, Record No. 0041-08-1 (Sept. 30, 2008). A three-
judge panel of the Court of Appeals thereafter denied
Williams’ petition for the reasons stated in the per curiam
order. Williams v. Commonwealth, Record No. 0041-08-1 (Nov.
17, 2008). We granted Williams an appeal on the following
assignments of error:
1. The Court of Appeals erred in affirming appellant’s
conviction of robbery as the taking did not occur in the
presence of the victim, who was one hundred and fifty feet
away from the telephone when the taking occurred.
2. The Court of Appeals erred in affirming appellant’s
conviction of robbery as no threat nor intimidation occurred
prior to or concomitant with the taking.
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3. The Court of Appeals erred in affirming the
appellant’s conviction of robbery as no asportation occurred
as the appellant never moved from the site from which he had
picked up the cell phone from the ledge.
4. The Court of Appeals erred in affirming the
appellant’s conviction of robbery as appellant never left the
site from which he had taken the cell phone prior to returning
the cell phone to its owner, thus he had no intent to deprive
the owner of his property.
II. Analysis
A. Standard of Review
On appeal, “[w]e must view the evidence and all
reasonable inferences drawn therefrom in the light most
favorable to the Commonwealth, the prevailing party at trial.”
Commonwealth v. Jones, 267 Va. 284, 286, 591 S.E.2d 68, 69
(2004). Furthermore, “[w]hen reviewing the sufficiency of the
evidence to support a conviction, the Court will affirm the
judgment unless the judgment is plainly wrong or without
evidence to support it.” Bolden v. Commonwealth, 275 Va. 144,
148, 654 S.E.2d 584, 586 (2008).
B. Sufficiency of the Evidence
“Robbery, a common-law offense, 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,
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by violence or intimidation.’ ” Jones, 267 Va. at 286, 591
S.E.2d at 70 (quoting George v. Commonwealth, 242 Va. 264,
277, 411 S.E.2d 12, 20 (1991) (quotation marks and citation
omitted)). Williams argues that the evidence was insufficient
to convict him of robbery because the taking was not from the
victim’s person, the perceived threat or intimidation occurred
after the taking, there was no proof of asportation, and the
Commonwealth failed to prove intent beyond a reasonable doubt.
We disagree and affirm the judgment of the Court of Appeals.
In Jones, the defendant entered a store, put a pair of
boots in his pants, and walked out of the store without paying
for the boots and without permission to take the boots. 267
Va. at 286, 591 S.E.2d at 69. The store manager, who was
watching Jones via video camera and recognized him as having
previously stolen items from the store, “walked down to the
floor to watch Jones” and saw Jones put the boots in his pants
and leave the premises. Id. The store manager “followed
Jones out of the store and approached him in ‘the [store’s]
parking lot’” when Jones “withdrew a firearm from a pocket of
his jacket, pointed it at [the store manager] and said, ‘You
better back . . . off me.’ ” Id. at 286, 591 S.E.2d at 69-70.
Jones “fled in a nearby car.” Id. at 286, 591 S.E.2d at 70.
The store manager “was frightened, and he ran and hid behind a
parked vehicle.” Id.
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In Jones we held that the defendant
originally intended to commit larceny. While
Jones was in the process of carrying out that
intention and the larceny was continuing, the
store manager interposed himself to prevent Jones
from taking the merchandise. At that time, Jones
produced the firearm to overcome the manager’s
opposition to the taking, and his crime became
robbery, not merely larceny.
Id. at 289, 591 S.E.2d at 71. We also stated that
[w]hen Jones seized and hid the boots, he had
custody of them, not possession. The store
manager, as he observed Jones, retained
constructive possession of the merchandise. As
Jones’ larceny was continuing, but before his
custody was converted into possession, the
manager interposed himself to prevent the
theft. When Jones introduced force and violence
by producing the firearm, his crime was
transformed into robbery.
Id. at 290, 591 S.E.2d at 72.
As in Jones, here, Williams’ actions started as a larceny
but became a robbery. When Williams took Fox’s cell phone
without permission from a “ledge” where Fox had left it,
Williams committed a larceny. Britt v. Commonwealth, 276 Va.
569, 574, 667 S.E.2d 763, 765 (2008) (Larceny is a common law
crime defined as “the wrongful or fraudulent taking of
another’s property without his permission and with the intent
to permanently deprive the owner of that property”). We have
held that larceny is a continuing crime. Jones, 267 Va. at
287, 591 S.E.2d at 70; Smolka v. Second Dist. Comm. of Va.
State Bar, 224 Va. 161, 165, 295 S.E.2d 267, 269 (1982);
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Dunlavey v. Commonwealth, 184 Va. 521, 525, 35 S.E.2d 763, 765
(1945). However, as Jones demonstrates, larceny may ripen
into robbery.
Here, Williams’ larceny became a robbery when Fox and
Brown confronted Williams, demanded return of the cell phone,
and Williams reached into his waistband and pulled out a
“flat, black object.” Brown testified that Williams asked
them if they “had a problem.” Fearing that Williams had a
gun, the boys quickly left and called Brown’s mother to tell
her they had just been robbed.
While Williams argues that he cannot be found guilty of
robbery because he did not take the cell phone from Fox’s
person or in Fox’s presence, his argument fails because he
first committed larceny, a crime that does not require the
element of taking from the victim’s person or presence.
Britt, 276 Va. at 574, 667 S.E.2d at 765. However, as in
Jones, Williams’ larceny was continuing, and before Williams’
custody of the cell phone converted into possession, Fox
interposed himself to prevent the theft. Further, when
Williams introduced the threat of force or violence by
reaching into his waistband, showing a “flat, black object”
and asking if Fox and Brown “had a problem,” his offense
matured into robbery.
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Williams also argues that there was insufficient evidence
to convict him because there was no evidence of asportation
and the Commonwealth failed to prove beyond a reasonable doubt
that Williams had the requisite intent to commit robbery.
Williams is correct that under Virginia law, “in robbery, as
in larceny, there must be an asportation.” Green v.
Commonwealth, 133 Va. 695, 699, 112 S.E. 562, 563 (1922).
Asportation is defined as “carrying away of the goods.
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). Here, the evidence demonstrates that
the cell phone was taken by Williams from a “ledge” and put
into Williams’ pocket. At this point the object was severed
from the owner and in the absolute control of Williams. This
act constituted asportation sufficient to satisfy this element
of the offense. Furthermore, the evidence taken in its
entirety, including the asportation of the object, was
sufficient to prove intent to deprive Fox of his property.
The record also reveals sufficient evidence of intent to
commit robbery. We have held that “‘an intent to commit
robbery does not have to exist for any particular length of
time. It may occur momentarily.’ ” Jones, 267 Va. at 289,
591 S.E.2d at 71 (quoting Durham v. Commonwealth, 214 Va. 166,
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169, 198 S.E.2d 603, 606 (1973)). Here, as in Jones, Williams
originally intended to commit larceny; however, as the larceny
was continuing and as the circumstances changed, his mens rea
changed to an intent to deprive Fox of his cell phone by
intimidation.
III. Conclusion
For the reasons stated, we hold that there was sufficient
evidence to support the trial court’s conviction of Williams
in the bench trial for the crime of robbery. Accordingly, we
will affirm the judgment of the Court of Appeals.
Affirmed.
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