PRESENT: Hassell, C.J., Lacy, Keenan, Kinser, and Lemons, JJ.,
and Compton and Stephenson, S.JJ.
COMMONWEALTH OF VIRGINIA
OPINION BY
v. Record No. 030589 SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
January 16, 2004
ERIC CHERRON JONES
FROM THE COURT OF APPEALS OF VIRGINIA
The sole issue in this appeal is whether the evidence is
sufficient to support convictions of robbery and of use of a
firearm in the commission of robbery.
I
In a bench trial in the Circuit Court of the City of
Hampton, Eric Cherron Jones was convicted of robbery and of use
of a firearm in the commission of robbery. ∗ Jones was sentenced
to 10 years in prison, with seven years suspended, for the
robbery conviction and to three years in prison for the use-of-
a-firearm conviction.
In his appeal before the Court of Appeals, Jones contended,
as he did in the trial court, that, as a matter of law, the
evidence was insufficient to support the robbery conviction and,
therefore, also insufficient to support the conviction for use
of a firearm. The Court of Appeals reversed both convictions
∗
Jones also was convicted of possession of a firearm after
having been convicted of a felony. He did not appeal that
conviction.
and remanded the case for a new trial for larceny, if the
Commonwealth be so advised. Jones v. Commonwealth, 39 Va. App.
545, 574 S.E.2d 767 (2003). We awarded the Commonwealth this
appeal from the judgment of the Court of Appeals.
II
We 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. Hudson, 265 Va.
505, 514, 578 S.E.2d 781, 786, cert. denied, ___ U.S. ___, 124
S.Ct. 444 (2003). On February 17, 2001, Jones entered a store
known as Shoe Carnival, in the City of Hampton. Bobby Ray
Baker, the store manager, immediately began to watch Jones
through a video camera because Jones previously had stolen
merchandise from the store. Baker watched as Jones picked up
shoes in each aisle of the store. Baker then walked down to the
floor to watch Jones. From that vantage point, Baker saw Jones
put a pair of boots in his pants and walk out of the store.
Jones neither paid for the boots nor had permission to take
them.
Baker followed Jones out of the store and approached him in
"the [store's] parking lot." When Baker was "a little less than
ten feet" from Jones, he asked Jones to return the boots. Jones
denied having the boots, and Baker told Jones that he had seen
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Jones put the boots in his pants. At that point, Jones withdrew
a firearm from a pocket of his jacket, pointed it at Baker, and
said, "You better back . . . off me." Baker was frightened, and
he ran and hid behind a parked vehicle. Jones then fled in a
nearby car.
III
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, by violence or
intimidation.' " George v. Commonwealth, 242 Va. 264, 277, 411
S.E.2d 12, 20 (1991) (quoting Pierce v. Commonwealth, 205 Va.
528, 532, 138 S.E.2d 28, 31 (1964)). We have held that, in
order to establish a robbery, the violence or intimidation "must
occur before or at the time of the taking." Branch v.
Commonwealth, 225 Va. 91, 94, 300 S.E.2d 758, 759 (1983).
Jones contends that the violence or intimidation did not
precede or occur at the same time as the taking. More
specifically, he asserts that he
completed the act of petty larceny by concealing the
boots in his pants. Although [the store manager]
could have intervened to prevent the shoplifting, he
failed to do so and allowed Jones to remove the stolen
goods from the store. The record contains no evidence
that Jones employed force to conceal the goods, or for
that matter, to remove them from store property.
Instead, . . . Jones resorted to a showing of force
when [the store manager] attempted to prevent his
escape.
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The Commonwealth, on the other hand, summarizes its
contention as follows:
[The store manager] followed Jones out of the shoe
store and approached him to retrieve the boots that
Jones had taken, but for which he had not paid. While
Jones' original intent may have been to commit only
larceny, his intention changed to robbery. In order
to accomplish the theft, Jones introduced a firearm to
overcome the interference of the manager with Jones'
asportation of the property. The asportation of the
victim's property began when Jones picked up the boots
inside the store and continued throughout the time
that he pointed the gun at [the manager] and carried
the boots away from [the manager's] presence.
The trial court properly found that the larceny
was continuing when Jones introduced the weapon.
(Footnote omitted.)
In reversing the trial court's judgment, the Court of
Appeals ruled that Jones "carried the hidden boots from the
store to the parking lot unhindered," and, in doing so, "he
severed the boots from the possession of the owner." Jones, 39
Va. App. at 549, 574 S.E.2d at 769. The Court of Appeals
concluded that, when Jones produced the firearm, he used it "to
assist in retention of the boots or to facilitate [his] escape."
Id. For the reasons stated below, we conclude that the Court of
Appeals erred.
IV
In support of their contentions, the parties rely in large
measure on three of our cases. Those cases are Pritchard v.
Commonwealth, 225 Va. 559, 303 S.E.2d 911 (1983); Durham v.
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Commonwealth, 214 Va. 166, 198 S.E.2d 603 (1973); and Mason v.
Commonwealth, 200 Va. 253, 105 S.E.2d 149 (1958).
In Mason, the accused broke a store's display window and
entered the store. He picked up a portable television set about
two and one-half feet from the hole in the window and handed it
to a confederate who was outside the store. Just as the accused
was handing the television set to his confederate, the store
owner, who had been hiding behind the display window, struck the
accused with a board. The accused then threw a portable radio
at the owner and fired a pistol four times towards the owner.
200 Va. at 254-55, 105 S.E.2d at 150. The owner testified that
" 'the television was out of [the accused's] arms and in the
arms of [the accused's] companion before [the accused] threw the
radio set and started shooting.' " Id. at 255, 105 S.E.2d at
150.
In holding that the evidence was insufficient to support a
robbery conviction, we stated the following:
Here no force was used towards [the owner] and
there was no intimidation until accused had taken the
television set in his arms and handed the article to a
confederate who made off with it. The taking and
asportation preceded both the violence, and the
intimidation for neither occurred until after accused
had passed the article to his companion and been
struck by [the owner].
The facts and circumstances unquestionably show
that in time sequence the taking and asportation
occurred before there was any violence or intimidation
by throwing the radio or by presentation of firearms.
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Id. at 256-57, 105 S.E.2d at 151-52. Unlike the present case,
the accused in Mason had succeeded in removing the merchandise
from the presence and constructive possession of the owner
before the accused introduced violence toward the owner.
In Durham, a mother and her daughter were found stabbed to
death in the daughter's home. The accused and an accomplice had
broken into and entered the home with the intent to commit
larceny. 214 Va. at 167, 198 S.E.2d at 605. We reasonably
inferred from proven facts that, while the thieves were in the
process of carrying out their intended act, the victims appeared
on the scene and surprised them. It was then that the thieves'
intention "changed from the commission of larceny to robbery to
accomplish their original purpose by overcoming [the victims']
interference with the taking." Id. at 169, 198 S.E.2d at 606.
In Durham, we stated the following:
Where 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.
Id. We also said that "[a]n intent to commit robbery does not
have to exist for any particular length of time. It may occur
momentarily." Id.
In the present case, Jones, like the thieves in Durham,
originally intended to commit larceny. While Jones was in the
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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.
Finally, in Pritchard, the proprietor of a gasoline service
station filled the tank of the accused's car. When the
proprietor asked the accused for payment, the accused produced
and cocked a firearm. The proprietor ran into the station, and
the accused drove away without paying for the gasoline. 225 Va.
at 560-61, 303 S.E.2d at 912.
Pritchard contended that he did not commit a robbery
"because he presented no deadly force or intimidation to [the
proprietor] until after the asportation of the stolen gasoline
was complete." Id. at 561, 303 S.E.2d at 912. Pritchard
claimed that the asportation occurred when the proprietor pumped
the gasoline into the tank of his car. According to Pritchard,
when the pumping of the gasoline ended, the proprietor had
surrendered to him " 'control and possession' " of the gasoline;
thus, the taking was unaccompanied by force or violence and was
merely a petit larceny. Id.
We rejected Pritchard's contention and focused upon the
distinction, in the context of larceny, between possession and
custody. Id. at 562, 303 S.E.2d at 913. We held that Pritchard
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had committed a robbery because, when the gasoline was pumped
into the car's tank, Pritchard "became a bare custodian of the
gasoline" while the proprietor "remained in constructive
possession [of the gasoline] pending payment." Id. at 563, 303
S.E.2d at 913 (emphasis added). Concluding, we said the
following:
When Pritchard produced the firearm, he exerted
intimidation upon [the proprietor]. This subdued [the
proprietor's] ability to resist and enabled Pritchard
to convert his custody into possession by carrying the
goods away in violation of the condition, with the
intent to steal. The use of force preceded this
conversion and enabled Pritchard to obtain possession.
Id.
The rationale in Pritchard applies in the present case.
When 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.
V
In sum, for the reasons stated, we hold that the evidence
is sufficient to support the convictions of robbery and of use
of a firearm in the commission of robbery. Accordingly, the
judgment of the Court of Appeals will be reversed, the case will
8
be remanded to the Court of Appeals with direction that the
Court of Appeals remand the case to the trial court, and the
trial court's judgment shall be reinstated.
Reversed and remanded.
9