Williams v. Com.

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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