Jay v. Com.

Present: All the Justices

ROBERT LEE JAY

v. Record No. 071432

COMMONWEALTH OF VIRGINIA

OPINION BY JUSTICE CYNTHIA D. KINSER
April 18, 2008
DARIUS TREMAYNE JAMES

v. Record No. 071599

COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

These appeals involve a common question regarding the

Court of Appeals’ use of Rule 5A:20(e) to dismiss a

petition for appeal, or a portion thereof, when an

appellant does not comply with the rule’s requirements.

Because the provisions of Rule 5A:20(e) do not impose

jurisdictional requirements, we conclude that the Court of

Appeals erred in its application of the rule.

In the appeal by Darius Tremayne James, we also

conclude that the evidence was insufficient to sustain his

convictions for attempted robbery and attempted use of a

firearm during the commission of attempted robbery.

We will first summarize the relevant facts and

proceedings of each case that pertain to the Court of

Appeals’ application of Rule 5A:20(e) and then analyze that
issue. In a separate section of the opinion, we will

address the facts pertinent to James’ challenge to the

sufficiency of the evidence and resolve that question.

I. RULE 5A:20(e)

A. Relevant Facts and Proceedings

1. Jay v. Commonwealth

At a bench trial in the Circuit Court for the City of

Colonial Heights, Robert Lee Jay was found guilty of

breaking and entering a dwelling in the daytime with the

intent to commit larceny, in violation of Code § 18.2-91,

and grand larceny, in violation of Code § 18.2-95. The

trial court sentenced Jay to 20 years of incarceration for

the grand larceny conviction. The court suspended that

sentence and also suspended imposition of the sentence for

the breaking and entering conviction for 20 years on the

condition that Jay, among other things, serve 12 months of

incarceration in a regional jail.

Jay appealed his convictions to the Court of Appeals

of Virginia. He presented two questions in his petition

for appeal in the Court of Appeals, only one of which is

pertinent to the issue before us: “Whether the trial court

erred in finding sufficient factual evidence that the

defendant committed the breaking and entering given that

2
there was a complete lack of direct evidence linking the

defendant to the actual breaking and entering.”

In the “Principles of Law and Argument” section of his

petition for appeal, Jay addressed that specific question

presented in two paragraphs. In the first paragraph, Jay

quoted from the trial court’s holding with regard to the

breaking and entering charge and then argued “there was no

direct evidence linking the defendant to the breaking and

entering,” i.e., no boot prints associated with Jay, no

fingerprints, no DNA evidence, no eyewitnesses, and no

confession by Jay to the breaking and entering. In the

second paragraph, Jay stated:

The Commonwealth is required to exclude all
reasonable hypotheses of innocence. The
undersigned presented a reasonable hypothesis at
trial. That argument was that there could have
easily been a co-conspirator in this case,
assuming that the defendant was involved in the
first place. That person could have committed
the breaking and entering and the defendant could
have come into possession of said property after
the breaking and entering. Given the complete
lack of direct evidence linking the defendant to
the breaking and entering, the [trial c]ourt
improperly convicted the defendant of breaking
and entering.

In a per curiam order, the Court of Appeals held that,

with regard to Jay’s challenge to the sufficiency of the

evidence to sustain his breaking and entering conviction,

Jay’s petition for appeal failed to comply with Rules

3
5A:12(c) and 5A:20(e). Jay v. Commonwealth, Record No.

3170-06-2 (June 8, 2007). The Court of Appeals explained

that “Rule 5A:20(e), in conjunction with Rule 5A:12(c),

mandates that the petition for appeal include ‘[t]he

principles of law, the argument, and the authorities

relating to each question presented . . . .’ ” Id., slip

op. at 3. Citing its decisions in Buchanan v. Buchanan, 14

Va. App. 53, 415 S.E.2d 237 (1992), and Theismann v.

Theismann, 22 Va. App. 557, 572, 471 S.E.2d 809, 816, aff’d

on reh’g en banc, 23 Va. App. 697, 479 S.E.2d 534 (1996),

the Court of Appeals concluded that Jay “did not comply

with Rule 5A:20(e); the petition for appeal does not

contain sufficient principles of law, argument, or citation

to legal authorities or the record to fully develop” the

argument regarding the breaking and entering conviction.

Jay, slip op. at 3. Consequently, the Court of Appeals

dismissed the appeal with regard to that one question

presented. 1 Id.

2. James v. Commonwealth

1
In his other question presented, Jay stated: “Whether
the trial court erred in applying the presumption of
possession of recently stolen property to all of the
property that was stolen from the residence when the
evidence only showed that the defendant was in possession
of a small portion of the stolen property.” The Court of
Appeals addressed the merits of this question presented and

4
 Darius Tremayne James was convicted in a bench trial

in the Circuit Court of the City of Virginia Beach of

attempted robbery in violation of Code §§ 18.2-58 and 18.2-

26; conspiracy to commit robbery in violation of Code

§§ 18.2-22 and 18.2-58; and attempted use of a firearm

during the commission of attempted robbery in violation of

Code § 18.2-53.1. The trial court sentenced James to five

years of incarceration on the attempted robbery conviction,

five years on the conspiracy conviction, and three years on

the conviction for attempted use of a firearm. The trial

court suspended both of the five-year sentences.

In his petition for appeal to the Court of Appeals,

James challenged the sufficiency of the evidence on all

three convictions in the following question presented:

“Whether there was sufficient evidence to convict the

defendant of attempted robbery, conspiracy to commit

robbery and use of a firearm during the commission of an

attempted robbery?” As pertinent to the issue before us,

James, in the “Argument” section of his petition for

appeal, first recited several general principles of law,

with citations to supporting authority, such as the

principle that the Commonwealth must prove each element of

denied the petition for appeal on that issue. Jay, slip
op. at 1-2.

5
a crime beyond a reasonable doubt. With regard to his

challenge to the sufficiency of the evidence to sustain his

conviction for conspiracy, James summarized, in a single

paragraph, the relevant evidence adduced at trial

concerning the conspiracy to commit robbery and then

stated:

One’s assumption or hope that another will
participate or help, with no discussion or plan
in place, is not an agreement; thus there was no
conspiracy. With the evidence only consisting of
[the accomplice’s] presence and testimony
regarding what [the accomplice] may or may not
have known, that is insufficient to convict the
defendant of conspiracy to commit robbery.

In a per curiam order, the Court of Appeals dismissed

the portion of James’ petition for appeal challenging the

sufficiency of the evidence to sustain the conviction for

conspiracy. James v. Commonwealth, Record No. 2335-06-1,

slip op. at 1 (March 21, 2007). The Court of Appeals

explained that James’ “petition for appeal did not comply

with Rule 5A:20(e); the petition for appeal does not

contain sufficient principles of law, or citation to legal

authorities to fully develop [James’] conspiracy argument.” 2

Id. James demanded consideration by a three-judge panel of

2
The Court of Appeals addressed the merits of James’
challenges to the sufficiency of the evidence to sustain
his convictions for attempted robbery and attempted use of
a firearm during the commission of attempted robbery and

6
the Court of Appeals, which concluded: “For the reasons

previously stated in the order entered by this [c]ourt on

March 21, 2007, the petition for appeal in this case hereby

is denied in part and dismissed in part.” James v.

Commonwealth, Record No. 2335-06-1, slip op. at 1 (July 5,

2007).

B. Analysis

On appeal to this Court, both Jay and James assert

that the Court of Appeals erred by dismissing a portion of

their respective petitions for appeal based on their

failure to comply with the requirements of Rule 5A:20(e).

The Commonwealth, however, argues that the Court of Appeals

did not err because each defendant failed to cite any

authority in support of the questions presented to which

Rule 5A:20(e) was applied. According to the Commonwealth,

the Court of Appeals has routinely applied the provisions

of Rule 5A:20(e) for more than a decade in the same manner

as the court did in these two cases.

The provisions of Rule 5A:12(c) require “[t]he form

and contents of the petition for appeal [to] conform in all

respects to the requirements of the opening brief of

appellant” as set forth in Rule 5A:20. Pursuant to Rule

denied his petition for appeal on those issues. James,
slip op. at 2-4.

7
5A:20, an appellant’s opening brief, and likewise a

petition for appeal, must contain eight items. The

relevant provisions of subsection (e), which are at issue

in these appeals, require a petition for appeal to contain:

The principles of law, the argument, and the
authorities relating to each question presented.
. . . With respect to each question, the
principles, the argument, and the authorities
shall be stated in one place and not scattered
through the brief.

The Court of Appeals’ interpretation of Rule 5A:20(e),

like the interpretation of a statute, presents a question

of law that we review de novo. See Washington v.

Commonwealth, 272 Va. 449, 455, 634 S.E.2d 310, 313 (2006)

(statutory interpretation raises a question of law that

this Court reviews de novo); Ainslie v. Inman, 265 Va. 347,

352, 577 S.E.2d 246, 248 (2003) (same).

In the cases before us, the Court of Appeals dismissed

portions of the petitions for appeal for failure to cite

authorities in support of certain questions presented as

required by Rule 5A:20(e). By dismissing rather than

denying the appeals, the Court of Appeals rendered the

requirements of Rule 5A:20(e) jurisdictional. The Court of

Appeals, however, erred in doing so, and in fact, has taken

a different position in prior cases. In Riner v.

Commonwealth, 40 Va. App. 440, 579 S.E.2d 671 (2003), aff’d

8
on other grounds, 268 Va. 296, 601 S.E.2d 555 (2004), the

Court of Appeals stated:

The filing of a timely petition for appeal
under Rule 5A:3(a), like the filing of a timely
notice of appeal under that same rule, is
jurisdictional. Nevertheless, the provisions of
Rule 5A:12(c) [and its concomitant, Rule
5A:20(e)] stating what the petition “shall
contain,” like the provisions of Rule 5A:6(a)
stating that “[n]o appeal shall be allowed”
unless a copy of the notice of appeal is mailed
or delivered to the clerk of the Court of
Appeals, are not jurisdictional.

Id. at 454, 579 S.E.2d at 678 (emphasis in original). In

many instances, the Court of Appeals has adhered to this

distinction between jurisdictional and non-jurisdictional

rule requirements by holding that an appellant’s failure to

comply with the provisions of Rule 5A:20(e) resulted in a

waiver of the question presented and supporting argument

and/or a denial of the appeal, but not a dismissal of the

appeal. See, e.g., Stokes v. Commonwealth, 49 Va. App.

401, 409-10, 641 S.E.2d 780, 784 (2007) (declining to

address argument because the appellant cited no authority

to support the argument and affirming trial court); Mason

v. Commonwealth, 49 Va. App. 39, 46 n.2, 636 S.E.2d 480,

483 n.2 (2006) (affirming trial court and declining to

consider certain of the appellant’s arguments because she

failed to provide argument or citation to authority); Epps

v. Commonwealth, 47 Va. App. 687, 718, 626 S.E.2d 912, 926-

9
27 (2006) (reversing trial court but declining to address

an argument because the appellant did not cite any

authority in support of the argument), aff’d on other

grounds, 273 Va. 410, 641 S.E.2d 77 (2007); Jeter v.

Commonwealth, 44 Va. App. 733, 739-41, 607 S.E.2d 734, 737

(2005) (holding that appellant’s failure to cite any

authority in his opening brief on a particular question

presented constituted a waiver of an issue); Littlejohn v.

Commonwealth, 24 Va. App. 401, 409, 482 S.E.2d 853, 857

(1997) (holding that the appellant waived a change of venue

issue by failing “to submit a written argument on the issue

in her [opening] brief.”).

Likewise, in Buchanan and Theismann, cited in the per

curiam orders in the cases before us, the Court of Appeals

did not dismiss the appeals for failure to comply with Rule

5A:20(e). In Buchanan, the appellant did not fully develop

an argument in his brief. 14 Va. App. at 56, 415 S.E.2d at

239. The Court of Appeals did not address that question on

the basis that “[s]tatements unsupported by argument,

authority, or citations to the record do not merit

appellate consideration.” Id. The Court of Appeals

affirmed, in part, and reversed, in part, the decree of the

trial court; the Court of Appeals did not dismiss any part

of the appeal. Similarly, in Theismann, the appellant, in

10
her brief, did not develop the argument or provide

citations to the record in support of certain claims. 22

Va. App. at 572, 471 S.E.2d at 816. The Court of Appeals

did not dismiss that portion of the appeal but merely

concluded that “the trial court did not commit reversible

error.” Id.

However, in the cases before us and in other

instances, the Court of Appeals has treated the

requirements of Rule 5A:20(e) as jurisdictional by

dismissing all or portions of appeals. See, e.g., Cash v.

Clark, Record No. 0170-07-3 (November 13, 2007) (dismissing

appeal as to certain issues because the appellant did not

cite principles of law, argument, or citation to legal

authorities as required by Rule 5A:20(e)); Kidd v.

Commonwealth, Record No. 0348-07-2 (September 14, 2007)

(dismissing question presented in petition for appeal

because the appellant did not cite legal authority in

support of his contention, thereby violating Rule

5A:20(e)); Parrish v. Commonwealth, Record No. 2812-06-4

(July 11, 2007) (same); Ware v. Commonwealth, Record No.

2350-06-1 (May 1, 2007) (same); Motley v. Motley, Record

No. 2551-06-2 (April 3, 2007) (dismissing appeal in part

due to the appellant’s failure to comply with Rule

5A:20(e)); Klein v. Klein, 49 Va. App. 478, 482, 642 S.E.2d

11
313, 315-16 (2007) (dismissing appeal for several reasons,

including fact that appellant did not comply with Rule

5A:20(e)); Nolan v. Virginia Dep’t of Corrections, Record

No. 2868-05-3 (October 17, 2006) (dismissing appeal because

appellant, among other things, cited no legal authority in

support of the first question presented).

The provisions of Rule 5:17(c)(4) parallel the

requirements of Rule 5A:20(e) by requiring a petition for

appeal to this Court to contain “[t]he principles of law,

the argument, and the authorities relating to each

assignment of error.” Rule 5:17(c)(4). And, the

provisions of Rule 5:27 require an appellant’s opening

brief to conform to the requirements for a petition for

appeal set forth in Rule 5:17(c). When an appellant fails

to comply with Rule 5:17(c)(4), this Court generally treats

the argument as waived. See, e.g., Atkins v. Commonwealth,

272 Va. 144, 149, 631 S.E.2d 93, 95 (2006) (failure to

brief an assignment of error constitutes a waiver of the

issue); Muhammad v. Commonwealth, 269 Va. 451, 477, 619

S.E.2d 16, 30 (2005) (same); Elliott v. Commonwealth, 267

Va. 396, 422, 593 S.E.2d 270, 286 (2004) (same); Burns v.

Commonwealth, 261 Va. 307, 318, 541 S.E.2d 872, 880 (2001)

(same); Kasi v. Commonwealth, 256 Va. 407, 413, 508 S.E.2d

57, 60 (1998) (same); Jenkins v. Commonwealth, 244 Va. 445,

12
451, 423 S.E.2d 360, 364 (1992) (same); Quesinberry v.

Commonwealth, 241 Va. 364, 370, 402 S.E.2d 218, 222 (1991)

(same). 3

Our conclusion that the Court of Appeals erred by

treating the provisions of Rule 5A:20(e) as jurisdictional

requirements mandating a dismissal of an appeal when an

appellant does not comply with the rule does not leave the

Court of Appeals without appropriate remedies. Certainly,

the Court of Appeals may, among other things, require an

appellant to re-submit the petition for appeal or opening

brief, or it may treat a question presented as waived. The

Court of Appeals should, however, consider whether any

failure to strictly adhere to the requirements of Rule

5A:20(e) is insignificant, thus allowing the court to

address the merits of a question presented. By our

decision today, we in no way condone an appellant’s failure

to comply with Rule 5A:20(e) or any other rule. But, to

hold otherwise would mean that, if an appellant did not

list cases alphabetically in the table of citations as

required by Rule 5A:20(a), dismissal of the appeal would be

mandated as a jurisdictional matter.

3
To the extent that this Court has dismissed
petitions for appeal in whole or in part for failure to
comply with the requirements of Rule 5:17(c)(4), we will
discontinue such practice in light of today’s holding.

13
 Therefore, we will reverse the judgments of the Court

of Appeals in both appeals and remand both cases for the

Court of Appeals to address the questions presented and/or

issues erroneously dismissed in each. In Jay’s appeal,

that question challenged his conviction for breaking and

entering, and in James’ appeal, the question related to his

conviction for conspiracy to commit robbery.

II. SUFFICIENCY OF EVIDENCE

A. James v. Commonwealth Relevant Facts

As previously stated, James was convicted of attempted

robbery, conspiracy to commit robbery, and attempted use of

a firearm during the commission of attempted robbery. On

appeal to this Court, he challenges the sufficiency of the

evidence to sustain the convictions. In light of our

remand of his conspiracy conviction to the Court of

Appeals, only the issue relating to the sufficiency of the

evidence to sustain the other two convictions remains

before us.

The facts adduced at trial, viewed in the light most

favorable to the Commonwealth as the prevailing party in

the trial court, see Commonwealth v. Hudson, 265 Va. 505,

514, 578 S.E.2d 781, 786 (2003), show that this case arose

out of a failed undercover narcotics purchase in which

James purportedly intended to rob the supposed buyer

14
instead of selling contraband. Riya N. Sloan, an

undercover narcotics detective with the City of Virginia

Beach Police Department, testified about her arrangements,

made via three telephone calls to an individual known only

at that time as “Diz,” to meet at a particular retail store

located in the City of Virginia Beach for the purpose of

purchasing 1/2 pound of marijuana for the price of $950.

“Diz” was later identified as James. 4

When James arrived at the meeting site, he parked his

vehicle in the third space over from the passenger side of

Sloan’s unmarked vehicle. Sloan rolled down the passenger-

side window and “waved” for James to come over to her

vehicle. James refused and indicated that he wanted Sloan

to come up to his vehicle. According to Sloan, they “went

back and forth a few times” about which one of them was

going to get out of his or her respective vehicle.

Finally, Sloan decided to approach James’ vehicle and asked

to see the marijuana. James, however, wanted Sloan first

4
Sloan audio-taped two of the three telephone
conversations with James, and the Commonwealth introduced
those tapes into evidence at trial. During the meeting
with James, Sloan wore an open microphone so that nearby
police officers could monitor the transaction. The
Commonwealth introduced into evidence at trial the audio-
tape of Sloan’s conversation with James during their
meeting.

15
to get into his vehicle. Sloan testified at trial about

the ensuing events:

I asked him to see the marijuana that he was
supposed to bring. He told me to get in the car.
I indicated that I was not going to get in the
car. He started indicating more forcibly, Just
get in the car. You know, Things are hot. And I
said, I’m not getting in the car. I don’t know
you. You don’t know me. You’re making me
nervous. Just show me the product. I’ll give
you the money, and I’ll get out of here. He
continued on and on and on that he wasn’t going
to – he wasn’t going to go and show it to [me]
and he wasn’t going to give it to me unless I got
in the car. I continuously asked him – I told
him that I was nervous, that I was scared. I
wasn’t going to get in the car, that I wasn’t
stupid, you know, I was a female. And I said,
you know, It’s just the two of us. Just give me
the product, and I’ll be gone. He said that he
wouldn’t. At that time I went over to the
passenger side of the vehicle. I opened the
passenger door and wound down the passenger
window so I can put a little distance in between
the two of us to talk to him. He kept indicating
that he wanted me to get in the vehicle. I kept
telling him that I wasn’t. All I wanted to do
was see the marijuana and give him the money and
leave. And at that time the rest of the members
of the special investigations came up and placed
him under arrest.

When Jesus Averilla, a narcotics investigator with the

City of Virginia Beach Police Department, was placing James

on the ground in order to handcuff him, a handgun slipped

out from under James’ waist belt. 5 The handgun did not have

a magazine in it.

5
Detective Averilla admitted on cross-examination that
he assumed that the firearm fell from James’ waistband but

16
 Another police officer working as part of the arrest

team searched James’ vehicle and discovered an individual

lying underneath a pile of clothes in the cargo area of

James’ sports utility vehicle. 6 The individual, who was

identified as Joshua Mitchell, told the detective he was

trying to sleep. The detective also found a magazine

containing bullets underneath Mitchell’s body. The

magazine fit the handgun that Detective Averilla had

recovered. No marijuana or other narcotics were found in

James’ vehicle or on his person.

Johnathan Grover, another narcotics detective with the

City of Virginia Beach Police Department who participated

in James’ arrest, testified about his interview of James

after James was transported to police headquarters. Upon

reading James his Miranda rights, Detective Grover informed

James that Sloan, the woman with whom he had been dealing,

was a police officer. James advised Grover that he

understood his Miranda rights and that he did not sell

that he did not actually see from where it fell. Detective
Averilla heard a noise that drew his attention to the
handgun on the ground as he was pulling James out of the
vehicle and taking him down to the ground.
6
During the time when Detective Sloan was standing at
the driver and passenger sides of James’ vehicle, she never
observed anyone other than James in his vehicle. Sloan and
James had agreed that both would come alone to the meeting.
Another detective, however, accompanied Sloan in her
vehicle.

17
“weed” and did not have any. During further questioning,

James said, “I was going to take her money and then tell

her to get out.” James told Detective Grover that he was

going to give Detective Sloan “a bag” (even though no bag

was found in James’ vehicle), and insisted that he was not

going to apply any force in order to obtain the money.

When asked why Mitchell was hiding in the cargo area

of the vehicle, James responded, “[w]ell, she was going to

see two dudes and be scared and she thought that [I] had

some weed.” According to Detective Grover, James admitted

that “the game plan” was to scare Detective Sloan, and if

he got the money, Mitchell was to stay hidden, but, if

James did not get the money, Mitchell was to scare

Detective Sloan. To explain why he brought a gun if he was

just planning to meet a girl by herself and had no “weed”

to sell, James responded, “[y]ou got to be safe.” At one

point during the interview, James admitted that the plan

was to show the handgun but not to use it. He then

recanted, stating that he did not intend to display the

firearm.

James also testified at trial. He denied having any

discussions with Mitchell about what was going to occur

when James went to the retail store supposedly to sell

marijuana, but he admitted that he told Detective Grover

18
that he (James) assumed Mitchell thought James was going to

show the firearm and that Mitchell would jump out if

something went wrong during the meeting. James also

acknowledged that Mitchell was in the room when he was

talking with Detective Sloan on the telephone to set up the

marijuana buy and that Mitchell knew, however, that James

did not have any marijuana. In James’ words, “I had no

type of discussion with [Mitchell], but I assume that he

knew fully what was going on.”

On cross-examination, James admitted the details of

his plan to rob Detective Sloan. He acknowledged that he

arranged to meet Detective Sloan for the purported purpose

of selling her 1/2 pound of marijuana and that he

instructed her to bring $950. James further admitted that

he lied to Detective Sloan about having marijuana to sell

and that his intention all along was to rob her.

James also testified during cross-examination that,

while en route to the arranged meeting location, he told

Mitchell to hide in the back of the vehicle. When asked if

he assumed Mitchell would jump out if Detective Sloan was

not cooperative, James said: “Assumed. I thought. I’m not

saying that he would.” Finally, James acknowledged that

the handgun was initially loaded but that he removed the

19
magazine on the way to the meeting and threw it to his

“partner” in the back of the vehicle.

The trial court denied James’ motions to strike the

Commonwealth’s evidence both at the close of the

Commonwealth’s case in chief and at the close of all the

evidence and found James guilty of all charges. On appeal

to the Court of Appeals, James challenged the sufficiency

of the evidence to sustain each of his convictions. In a

per curiam order, the Court of Appeals concluded that the

evidence was competent, not inherently incredible and

sufficient to prove beyond a reasonable doubt that James

attempted to rob Detective Sloan by force and attempted to

use a firearm while attempting to commit robbery. James,

slip op. at 3-4 (March 21, 2007). A three-judge panel of

the Court of Appeals affirmed that judgment in its

entirety. James, slip op. at 1 (July 5, 2007).

B. Analysis

On appeal to this Court, James asserts that the Court

of Appeals erred by holding that the evidence was

sufficient to sustain his convictions for attempted robbery

and attempted use of a firearm during the commission of

attempted robbery. When a defendant challenges the

sufficiency of the evidence, we review the evidence and all

reasonable inferences flowing from that evidence in the

20
light most favorable to the Commonwealth, the prevailing

party in the trial court. Hudson, 265 Va. at 514, 578

S.E.2d at 786. “[W]e will not disturb the trial court’s

judgment unless it is plainly wrong or without evidence to

support it.” Hedrick v. Commonwealth, 257 Va. 328, 340,

513 S.E.2d 634, 641 (1999).

1. Attempted Robbery

In Virginia, robbery is a common law crime 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.” Pierce v.

Commonwealth, 205 Va. 528, 532, 138 S.E.2d 28, 31 (1964);

Commonwealth v. Jones, 267 Va. 284, 286, 591 S.E.2d 68, 70

(2004); George v. Commonwealth, 242 Va. 264, 277, 411

S.E.2d 12, 20 (1991). Attempted robbery, also a common law

offense, requires the Commonwealth “to prove beyond a

reasonable doubt that [the defendant] intended to steal

personal property from [the victim], against his will, by

force, violence, or intimidation. Additionally, the

Commonwealth must prove beyond a reasonable doubt that [the

defendant] committed a direct, but ineffectual, act to

21
accomplish the crime.” 7 Pitt v. Commonwealth, 260 Va. 692,

695, 539 S.E.2d 77, 78-79 (2000) (citing Johnson v.

Commonwealth, 209 Va. 291, 293, 163 S.E.2d 570, 572-73

(1968)). Stated differently, an attempt to commit a crime

consists of two elements: “(1) [t]he intent to commit a

crime; and (2) a direct act done towards its commission,

but falling short of the execution of the ultimate design.”

Glover v. Commonwealth, 86 Va. (11 Hans.) 382, 385, 10 S.E.

420, 421 (1889). This second element of the crime of

attempt is commonly referred to as an “overt act.” See,

e.g., Sizemore v. Commonwealth, 218 Va. 980, 984, 243

S.E.2d 212, 214 (1978). “The question as to what is [an

overt] act, is often a difficult one to determine, and no

general rule, which can be readily applied as a test to all

cases, can be laid down. . . . Each case must, therefore,

be determined upon its own facts.” Hicks v. Commonwealth,

86 Va. (11 Hans.) 223, 226, 9 S.E. 1024, 1025 (1889); see

also Sizemore, 218 Va. at 985, 243 S.E.2d at 215.

With regard to the requirement of an overt act, the

Commonwealth argues that “James . . . undertook numerous

direct acts toward the commission of the crime, including

arranging the meeting, agreeing to the location, setting

7
Code §§ 18.2-26 and 18.2–58 fix the punishment for an
attempt to commit a noncapital felony and for robbery,

22
the conditions, retrieving the pistol and having Mitchell

hide in the back.” The Commonwealth also points to the

evidence showing that James met with Detective Sloan,

refused to show her the “non-existent marijuana,” and

repeatedly tried to get her into his vehicle.

James argues, however, that “[b]ecause the scenario

was interrupted, it is an unwarranted assumption that he

was going to use force.” As an alternative interpretation

of the facts, James posits that it was not untenable that,

if Detective Sloan had given James the money, he would have

told her that he did not have any marijuana and did not

intend to return the money, and would have then directed

her to get out of the vehicle without ever using any force

or intimidation. According to James, the evidence thus

supported an attempt to obtain money by false pretenses but

not robbery. We agree with James.

In order to convict James for the crime of attempted

robbery, the Commonwealth had to prove beyond a reasonable

doubt not only that James intended to rob Detective Sloan

but also that he undertook some “direct, but ineffectual,

act” toward the consummation of taking property from

Detective Sloan against her will by force, violence, or

intimidation. Pitt, 260 Va. at 695, 539 S.E.2d at 78-79.

respectively.

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“While the overt acts of the accused [need not be] the last

proximate acts necessary to the consummation of the crime,

they [must be] direct overt acts well calculated to

accomplish the result intended.” Granberry v.

Commonwealth, 184 Va. 674, 678, 36 S.E.2d 547, 548 (1946).

As we explained in Hicks:

[T]he act must reach far enough towards the
accomplishment of the desired result to amount to
the commencement of the consummation. It must
not be merely preparatory. In other words, while
it need not be the last proximate act to the
consummation of the offence attempted to be
perpetrated, it must approach sufficiently near
to it to stand either as the first or some
subsequent step in a direct movement towards the
commission of the offence after the preparations
are made.

86 Va. (11 Hans.) at 226-27, 9 S.E. at 1025. See also

Anderson v. Commonwealth, 195 Va. 258, 264, 77 S.E.2d 846,

849 (1953).

Here, the evidence, viewed in the light most favorable

to the Commonwealth, established James’ intent to commit

the crime of robbery, but it did not establish beyond a

reasonable doubt the other necessary element of attempted

robbery, i.e., a direct overt act that could fairly be

characterized as “well calculated to accomplish the result

intended.” Granberry, 184 Va. at 678, 36 S.E. at 548.

Detective Sloan testified that James repeatedly asked her

to get into his vehicle and that she repeatedly refused.

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Detective Sloan further testified that James never

mentioned the firearm and that she never saw it. The

Commonwealth also conceded at trial that James did not

brandish the weapon.

Furthermore, at no time did James threaten Sloan in

order to get her into his vehicle nor did he use any type

of force or violence to do so. Moreover, James neither

demanded nor even asked Detective Sloan to give him the

money, and he took no direct action to accomplish that

result. Without any such evidence, the events leading up

to the arrest of James were just as consistent with an

attempt to obtain money by false pretenses as they were

with an attempt to commit robbery. Cf. Parker v.

Commonwealth, 275 Va. 150, 152-53, 654 S.E.2d 580, 581-82

(2008) (in affirming a conviction for obtaining money under

false pretenses, the evidence established that the

defendant and his girlfriend arranged to meet an undercover

officer, provided a price quote, met the officer in a

parking lot, and then made an exchange of fake ecstasy

pills for the officer’s money).

When as here, the facts are “equally susceptible of

two interpretations one of which is consistent with the

innocence of the accused, [the trier of fact] cannot

arbitrarily adopt that interpretation which incriminates

25
[the accused].” Burton v. Commonwealth, 108 Va. 892, 899,

62 S.E. 376, 379 (1908); accord Commonwealth v. Smith, 259

Va. 780, 782, 529 S.E.2d 78, 79 (2000). Stated

differently, the Commonwealth had the burden to prove

beyond a reasonable doubt that James committed the crime of

attempted robbery and it failed to do so. One would have

to resort to speculation and conjecture in order to find

that James was attempting to rob Sloan as opposed to

attempting to obtain money by false pretenses. This, of

course, is impermissible. Coffey v. Commonwealth, 202 Va.

185, 188, 116 S.E.2d 257, 259 (1960) (“[E]vidence is not

sufficient to support a conviction if it engenders only a

suspicion or even a probability of guilt. Conviction

cannot rest upon conjecture.”). We therefore hold as a

matter of law that the evidence in this case was

insufficient to prove beyond a reasonable doubt that James

committed the crime of attempted robbery.

2. Attempted Use of a Firearm

Our decision to reverse James’ attempted robbery

conviction necessarily requires a reversal of the

conviction for attempted use of a firearm during the

commission of attempted robbery under Code § 18.2-53.1.

Under the plain language of Code § 18.2-53.1, there can be

no conviction for use or attempted use of a firearm when

26
there has been no commission of one of the predicate

offenses enumerated in that statute. Bundy v.

Commonwealth, 220 Va. 485, 488, 259 S.E.2d 826, 828 (1979)

(a violation of Code § 18.2-53.1 occurs only when a firearm

is used with respect to the felonies specified in the

statute); but see Reed v. Commonwealth, 239 Va. 594, 596-

98, 391 S.E.2d 75, 76-77 (1990) (upholding “inconsistent”

verdict where the jury found the defendant not guilty of

robbery but guilty of using a firearm in the commission of

robbery).

III. CONCLUSION

In summary, we will reverse the judgment of the Court

of Appeals in Jay’s appeal and remand for consideration of

Jay’s challenge to the sufficiency of the evidence to

sustain his conviction for breaking and entering. With

regard to James’ conviction for conspiracy to commit

robbery, we will reverse the judgment of the Court of

Appeals and remand for consideration of his challenge to

the sufficiency of the evidence to sustain that conviction.

Finally, we will reverse the judgment of the Court of

Appeals upholding James’ convictions for attempted robbery

and attempted use of a firearm during the commission of

attempted robbery and dismiss those indictments.

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Record No. 071432 – Reversed and remanded.
Record No. 071599 – Reversed and remanded in part,
and dismissed in part.

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