COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Humphreys and McClanahan
Argued at Richmond, Virginia
CORNELIUS LORENZO SPENCER
OPINION BY
v. Record No. 2344-02-2 JUDGE ROSEMARIE ANNUNZIATA
FEBRUARY 10, 2004
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Catherine C. Hammond, Judge
Christopher A. Bain (Goodwin, Sutton, & DuVal, on brief), for
appellant.
Alice T. Armstrong, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.
Cornelius Lorenzo Spencer appeals his conviction at a bench trial for carjacking in
violation of Code § 18.2-58.1, contending the evidence was insufficient to prove beyond a
reasonable doubt that force was used to take the car from its owner. For the reasons that follow,
we affirm Spencer’s conviction.
I. Background
Cornelius Lorenzo Spencer was tried and convicted on charges of grand larceny in
violation of Code § 18.2-95 and carjacking in violation of Code § 18.2-58.1. The trial court
sentenced him to five years imprisonment, with four years suspended, on the grand larceny
charge, and ten years imprisonment, with nine years suspended, for the carjacking offense. He
contends the evidence was insufficient to establish the carjacking conviction; the grand larceny
conviction was not challenged.
We review the evidence on appeal, together with the reasonable inferences that may be
drawn, in the light most favorable to the party who prevailed below. Commonwealth v.
Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). So viewed, the record shows that
on February 6, 2002, Teal Smith drove her car, a 1994 Toyota Camry, to the rental office of the
Hilliard Apartments in Henrico County where she intended to drop off her rent check. When she
arrived at approximately 12:45 a.m., Smith “pulled . . . up to the curb[,] . . . left the car running
with the headlights on[,] walked over” to the rental office, and “dropped [her rental check]
through the slot.” She was ten feet from her car. As she returned to her vehicle, Smith “heard
somebody running across the street.” She turned and saw Spencer open her car door and jump
into the car. He did not immediately drive away, however. Thinking that someone was “playing
a joke,” Smith walked up to the car and stood in front of it, touching the car for a minute or two
and staring at Spencer through the windshield.
As she stood there, Spencer put the car in gear and bumped her legs with the car, causing
bruising. Smith nevertheless stood her ground, recalling that she “wasn’t really nervous,”
because she “was so in shock.” However, when the car started rolling toward her again, Smith
moved away, knowing that “if [she] didn’t . . . she might get run over.” Spencer drove away in
Smith’s car.
Officer Stephen Canada of the Henrico County Police Department received the report of
Smith’s stolen vehicle at approximately 1:13 a.m. At about 2:39 a.m., he saw a car that matched
the description of Smith’s car. Once he verified that the car he saw belonged to Smith, Officer
Canada stopped the vehicle and arrested Spencer.
Smith identified Spencer at trial as the person who stole her car. Spencer testified and
denied that he stole Smith’s car, although he conceded he was driving the vehicle when Officer
Canada stopped it. The trial court convicted Spencer of the offense, finding that
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the facts of the case are sufficient to support the crime that’s
charged, because there’s testimony that’s basically uncontradicted
that there was a seizure of the car during the time that Ms. Smith
was still in possession of the car and that the person who
committed that seizure intended to deprive Ms. Smith of her
possession of the car, and the way that he intended to do that was
by means of forcing her away with the threatening conduct of
driving towards her.
Spencer was sentenced to ten years imprisonment, nine years suspended, for the carjacking
offense. This appeal ensued.
II. Analysis
A. Standard of Review
When considering sufficiency claims on appeal, this Court “review[s] the evidence in the
light most favorable to the Commonwealth, granting to it all reasonable inferences deducible
therefrom.” Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
Applying this standard of review, the Court looks “to that evidence which tends to support the
verdict and to permit the verdict to stand unless plainly wrong.” Snyder v. Commonwealth, 202
Va. 1009, 1016, 121 S.E.2d 452, 457 (1961). “The judgment of a trial court sitting without a
jury is entitled to the same weight as a jury verdict and will not be set aside unless it appears
from the evidence that the judgment is plainly wrong or without evidence to support it.” Martin,
4 Va. App. at 443, 358 S.E.2d at 418. Moreover, “[t]he credibility of the witnesses and the
weight accorded the evidence are matters solely for the fact finder who has the opportunity to see
and hear that evidence as it is presented.” Sandoval v. Commonwealth, 20 Va. App. 133, 138,
455 S.E.2d 730, 732 (1995).
B. Smith Still Had Possession of Her Car when Spencer Resorted to Violence
Code § 18.2-58.1 defines the elements of the instant offense as follows:
“[C]arjacking” means the intentional seizure or seizure of control
of a motor vehicle of another with intent to permanently or
temporarily deprive another in possession or control of the vehicle
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of that possession or control by means of partial strangulation, or
suffocation, or by striking or beating, or by other violence to the
person, or by assault or otherwise putting a person in fear of
serious bodily harm, or by the threat or presenting of firearms, or
other deadly weapon or instrumentality whatsoever.
“[C]arjacking is a species of robbery.” Sanchez v. Commonwealth, 32 Va. App. 238, 241, 527
S.E.2d 461, 463 (2000). Therefore, “the requisite violence or intimidation must precede or be
concomitant with the taking.” Bell v. Commonwealth, 21 Va. App. 693, 701, 467 S.E.2d 289,
293 (1996). “Robbery, a common law offense in Virginia, 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.’” Jones v. Commonwealth, 26 Va. App. 736, 738, 496 S.E.2d 668,
669 (1998) (quoting Harris v. Commonwealth, 3 Va. App. 519, 521, 351 S.E.2d 356, 357
(1986)); see Mason v. Commonwealth, 200 Va. 253, 254, 105 S.E.2d 149, 150 (1958); Graves v.
Commonwealth, 21 Va. App. 161, 164, 462 S.E.2d 902, 903 (1995).
“The essential elements of common law robbery are (1) a felonious taking, (2)
accompanied by an asportation of (3) personal property of value (4) from the person of another
or in his presence, (5) against his will, (6) by violence or by putting him in fear, (7) animo
furandi (with the intent to steal).” Chappelle v. Commonwealth, 28 Va. App. 272, 274-75, 504
S.E.2d 378, 379 (1998).
“The actual taking and asportation of some of the victim’s personal
property is an essential element of robbery. In other words, there
must first be a larceny -- felonious taking. Supplementing the
taking, as in larceny, there must be an asportation or 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, 200 Va. at 256, 105 S.E.2d at 151 (quoting 46 Am. Jur. Robbery § 6).
“Violence or force requires a physical touching or violation of the victim’s person. The
touching or violation necessary to prove the offense may be indirect, but cannot result merely
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from the force associated with the taking.” Bivens v. Commonwealth, 19 Va. App. 750, 752,
454 S.E.2d 741, 743 (1995). The force or intimidation that must be proved to sustain a
conviction for robbery must be directed at the person of the victim. Winn v. Commonwealth, 21
Va. App. 179, 182, 462 S.E.2d 911, 912 (1995).
Relying on Bell, Spencer reasons that his larceny of Smith’s car was complete when he
“entered the vehicle, closed the door and sat in the driver’s seat” because he had “gained
possession and complete control of the vehicle.” We find that his contention is without merit
and that his reliance on Bell is misplaced. The issue before the Court in Bell was whether the
evidence was sufficient to sustain a charge of carjacking where the defendant took the keys to the
victim’s car but the car was not in the victim’s presence. Bell, 21 Va. App. at 698, 467 S.E.2d at
291. In Bell, the victim parked her car and walked around the corner to her home. Id. at 696,
467 S.E.2d at 291. Bell followed the victim to her doorstep, demanded her car keys, took the
keys, and ran to her car. Id. at 696-97, 467 S.E.2d at 291. This Court held that, when he took the
victim’s keys, Bell deprived her of possession of the car because she no longer had the means to
exercise control of it. Id. at 699, 467 S.E.2d at 292. We, therefore, upheld Bell’s conviction for
carjacking. Id.
Analogizing to Bell and the import of the holding that the victim was found to have
dominion and control over her vehicle at the time Bell took possession of the car keys, Spencer
argues that, once he was inside Smith’s car and had her vehicle’s keys, which she had left in the
ignition, he had possession of Smith’s car. At that point, Spencer argues, the larceny was
completed before any violence was exerted. Spencer misapprehends the distinguishing features
of Bell. In Bell, the victim made no attempt to exercise dominion and control over the keys or
the car which they controlled once the defendant obtained possession of them; rather, she was
forced to relinquish her possessory interest in the keys and, by extension the car, by violence and
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intimidation. Id. Under those facts, we affirmed Bell’s conviction of carjacking because the
taking and asportation of the keys as a result of the defendant’s intimidation, in effect, gave the
defendant absolute control over the vehicle. Bell does not support the proposition, however, that
possession of the car keys is alone determinative of the issue. See, e.g., Brown v.
Commonwealth, 37 Va. App. 507, 521, 559 S.E.2d 415, 422 (2002) (noting that determining
“possession and control [of a vehicle] . . . solely by the physical possession of the car keys” has
“no support in the statute or case law”).
In the instant case, Smith did not relinquish her car to Spencer by leaving her keys in the
vehicle. Nor did she relinquish her keys to him upon a showing of force, as did the victim in
Bell. When she left her keys in the ignition, she remained in constructive possession and control
of the vehicle, and she exercised that superior claim, challenging Spencer’s attempt to divest her
of it. She did so by standing in front of her car, blocking its passage, until Spencer bumped her
with the car and forced her out of his path. See Commonwealth v. Jones, ___ Va. ___, ___, ___
S.E.2d ___, ___, 2004 Va. LEXIS 25, *8 (Jan. 16, 2004) (upholding robbery conviction where
defendant “originally intended to commit larceny” in stealing boots from a store but committed
robbery when, in the store parking lot, he “produced [a] firearm to overcome the manager’s
opposition to the taking”).
“‘In a robbery prosecution, where the violence against the victim and the trespass to his
property combine in a continuing, unbroken sequence of events, the robbery itself continues as
well for the same period of time.’” Quisenberry v. Commonwealth, 241 Va. 364, 373, 402
S.E.2d 218, 224 (1991) (quoting Briley v. Commonwealth, 221 Va. 532, 543, 273 S.E.2d 48, 55
(1980)).
Applying these principles, we find that Smith retained possession of the vehicle when
Spencer entered it in her presence and that, in an “unbroken sequence of events,” she was forced
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by Spencer, through violence and intimidation, to relinquish possession of the property. The
taking and asportation of Smith’s vehicle was accomplished only when Spencer intimidated and
forced her to move from the path of the vehicle as he attempted to take the car. At that juncture,
and only then, did Spencer establish his “absolute control of the property,” Mason, 200 Va. at
256, 105 S.E.2d at 151, and thereby sever Smith’s control.
We also find that this Court’s decision in Broady v. Commonwealth, 16 Va. App. 281,
429 S.E.2d 468 (1993), is apposite on its facts. In Broady, the defendant and a companion
followed the victim, Mrs. Lee, into her motel room and took the victim’s purse. Id. at 283, 429
S.E.2d at 470. After the defendant took possession of the purse, he fled with Mrs. Lee in pursuit.
Id. The defendant threw the purse to his accomplice who then threw it back to the defendant
who “fumbled” it. Id. The purse dropped to the ground, evidencing the defendant’s absence of
absolute control over the property. See Mason, 200 Va. at 256, 105 S.E.2d at 151. The Court
held that the victim had constructive possession of the purse as it lay on the ground and that the
force then used by the defendant to take it from her constituted robbery. Broady, 16 Va. App. at
289, 429 S.E.2d at 473. Similarly, the victim here maintained constructive possession because
she resisted the taking and remained in close proximity to the car. The force used in order to
complete the asportation was sufficient to sustain the charge of carjacking.
Finally, we note that Spencer’s reliance on Mason is misplaced. In Mason, the evidence
showed that the thief had completed the taking and asportation before the use of violence.
Before the owner of the property confronted the defendant and violence occurred, the defendant
transported the property to an accomplice who absconded with it; absolute control over the
property in the defendant was therefore established before force or intimidation was exerted.
Mason, 200 Va. at 256-67, 105 S.E.2d at 151-52; see also Jones, ___ Va. at ___, ___ S.E.2d at
___, 2004 Va. LEXIS 25, *6-7 (distinguishing Mason on the ground that the asportation was
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complete when force was exerted). Here, the taking and asportation of Smith’s car was not
complete until after Spencer bumped her out of his path, and Smith did not relinquish possession
and control of the vehicle until that juncture.1 See Beard v. Commonwealth, 19 Va. App. 359,
363, 451 S.E.2d 698, 700 (1994) (“Where violence or intimidation is part of a continuous
transaction collateral to the . . . asportation, the point in time . . . in which the asportation has
removed the property from the victim’s absolute control so that the continued removal of the
property constitutes an escape rather than a taking defies a bright line test.”).
In short, the trial court here concluded that Smith was still in possession of her car when
Spencer exerted force to take it from her possession and control, and the evidence fully supports
this conclusion. See Martin, 4 Va. App. at 443, 358 S.E.2d at 418.
For the foregoing reasons, we affirm the decision of the trial court.
Affirmed.
1
The Commonwealth does not argue that, by analogy to the crime of robbery, the
evidence was sufficient to sustain the conviction because Smith’s car was taken “from her
presence.” See, e.g., Person v. Commonwealth, 10 Va. App. 36, 40, 389 S.E.2d 907, 910 (1990)
(finding that, “because the five dollar bill was in [the victim’s] presence at the inception of the
robbery, this was sufficient to prove that it was taken from her presence”). Accordingly, we will
not address the issue.
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