Tuesday 14th
January, 2003.
Eric Cherron Jones, Appellant,
against Record No. 2817-01-1
Circuit Court Nos. CR01-637-00, CR01-637-02
and CR01-637-03
Commonwealth of Virginia, Appellee.
Upon a Petition for Rehearing
Before Judges Benton, Frank and Humphreys
On December 10, 2002 came the appellee, by the Attorney
General of Virginia, and filed a petition praying that the Court
set aside the judgment rendered herein on November 26, 2002, and
grant a rehearing thereof.
Upon consideration whereof, the petition for rehearing
is denied with regard to appellee's request that the judgments of
the trial court pertaining to appellant's convictions of robbery
(CR01-637-02) and use of a firearm in the commission of robbery
(CR01-637-03) be affirmed.
Upon further consideration whereof, the petition for
rehearing is granted with regard to appellee's request that the
robbery conviction be remanded to the trial court for a new trial
for larceny if the Commonwealth be so advised. Accordingly, the
opinion rendered herein on November 26, 2002 is withdrawn and the
mandate entered that date is vacated. A revised opinion is
issued this date and a mandate entered accordingly.
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Frank and Humphreys
Argued at Chesapeake, Virginia
ERIC CHERRON JONES
OPINION BY
v. Record No. 2817-01-1 JUDGE JAMES W. BENTON, JR.
JANUARY 14, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
William C. Andrews, III, Judge
Corry Smith-Ashley for appellant.
Virginia B. Theisen, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
The trial judge convicted Eric Cherron Jones of robbery,
use of a firearm in the commission of robbery, and possession of
a firearm after having been convicted of a felony. Jones
contends the trial judge erred in ruling that the larceny was
not complete when Jones displayed his firearm and, therefore, a
robbery occurred. For the reasons that follow, we reverse the
convictions for robbery and use of a firearm in the commission
of robbery.
I.
The facts are undisputed. Jones entered a retail shoe
store, examined a pair of boots, concealed the boots inside his
pants, and exited the store without paying for the boots. The
manager of the store saw Jones commit these acts and followed
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Jones as he walked out of the store to the parking lot. The
manager first confronted Jones in the parking lot and asked
Jones to give him the boots. When Jones denied having any
boots, the manager told Jones he had seen him put the boots in
his pants. Jones then displayed a firearm and told the manager
to "back . . . off." Jones ran to a car and drove away.
Jones's attorney moved to strike the evidence on the
robbery related indictments and argued that the evidence failed
to prove robbery because the taking was complete when Jones
displayed the weapon. The trial judge ruled there was "not a
point at which the taking is complete" and convicted Jones of
robbery, use of a firearm in the commission of robbery, and
possession of a firearm after having been convicted of a felony.
II.
The principles applicable to the issue before us are well
established. Robbery is a common law offense in Virginia,
requiring proof of a "'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.'"
Pritchard v. Commonwealth, 225 Va. 559, 561, 303 S.E.2d 911, 912
(1983) (citation omitted).
The violence or putting in fear, to
constitute the essential element of robbery,
must precede, or be concomitant with, the
taking of the property from the person or
presence of the owner. No violence, no
excitation of fear, resorted to merely for
the purpose of retaining a possession
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already acquired, or to effect escape, will,
in point of time, supply the element of
force or intimidation, an essential
ingredient of the offense.
Mason v. Commonwealth, 200 Va. 253, 256, 105 S.E.2d 149, 151
(1958). Because "there is a temporal correlation among [the]
elements" necessary to prove robbery, the evidence must prove
"[t]he violence . . . occur[ed] before or at the time of the
taking." Branch v. Commonwealth, 225 Va. 91, 94, 300 S.E.2d 758,
759 (1983). Thus, the Supreme Court has held that "'a charge of
robbery [may not] be sustained merely by a showing of retention
of property, or an attempt to escape, by force or putting in
fear.'" Mason, 200 Va. at 255-56, 105 S.E.2d at 151. The Court
noted that this rule "has found frequent application where force
or intimidation has been exercised after the property came into
the defendant's hands by stealth." Id. at 256, 105 S.E.2d at
151.
The evidence proved that Jones took the boots in the store
and concealed them on his person by stealth. He then carried the
hidden boots from the store to the parking lot unhindered. In so
doing, he severed the boots from the possession of the owner.
Id. When he was confronted by the manager in the parking lot,
the evidence established that he then displayed the gun. At that
point, the gun was used to assist in retention of the boots or to
facilitate Jones's escape. By then, the taking had been
accomplished.
We hold, therefore, the evidence was insufficient to prove a
robbery. Accordingly, we reverse the convictions for robbery and
use of a firearm in the commission of robbery, and we remand for
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a new trial for larceny if the Commonwealth be so advised. See
Gorham v. Commonwealth, 15 Va. App. 673, 677-79, 426 S.E.2d 493,
496-97 (1993); see also Woodard v. Commonwealth, 27 Va. App.
405, 410, 499 S.E.2d 557, 559-60 (1998).
Reversed and remanded,
in part; reversed and
dismissed, in part.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Frank and Humphreys
Argued at Chesapeake, Virginia
ERIC CHERRON JONES
OPINION BY
v. Record No. 2817-01-1 JUDGE JAMES W. BENTON, JR.
NOVEMBER 26, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
William C. Andrews, III, Judge
Corry Smith-Ashley for appellant.
Virginia B. Theisen, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
The trial judge convicted Eric Cherron Jones of robbery,
use of a firearm in the commission of robbery, and possession of
a firearm after having been convicted of a felony. Jones
contends the trial judge erred in ruling that the larceny was
not complete when Jones displayed his firearm and, therefore, a
robbery occurred. For the reasons that follow, we reverse the
convictions for robbery and use of a firearm in the commission
of robbery.
I.
The facts are undisputed. Jones entered a retail shoe
store, examined a pair of boots, concealed the boots inside his
pants, and exited the store without paying for the boots. The
manager of the store saw Jones commit these acts and followed
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Jones as he walked out of the store to the parking lot. The
manager first confronted Jones in the parking lot and asked
Jones to give him the boots. When Jones denied having any
boots, the manager told Jones he had seen him put the boots in
his pants. Jones then displayed a firearm and told the manager
to "back . . . off." Jones ran to a car and drove away.
Jones's attorney moved to strike the evidence on the
robbery related indictments and argued that the evidence failed
to prove robbery because the taking was complete when Jones
displayed the weapon. The trial judge ruled there was "not a
point at which the taking is complete" and convicted Jones of
robbery, use of a firearm in the commission of robbery, and
possession of a firearm after having been convicted of a felony.
II.
The principles applicable to the issue before us are well
established. Robbery is a common law offense in Virginia,
requiring proof of a "'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.'"
Pritchard v. Commonwealth, 225 Va. 559, 561, 303 S.E.2d 911, 912
(1983) (citation omitted).
The violence or putting in fear, to
constitute the essential element of robbery,
must precede, or be concomitant with, the
taking of the property from the person or
presence of the owner. No violence, no
excitation of fear, resorted to merely for
the purpose of retaining a possession
- 8 -
already acquired, or to effect escape, will,
in point of time, supply the element of
force or intimidation, an essential
ingredient of the offense.
Mason v. Commonwealth, 200 Va. 253, 256, 105 S.E.2d 149, 151
(1958). Because "there is a temporal correlation among [the]
elements" necessary to prove robbery, the evidence must prove
"[t]he violence . . . occur[ed] before or at the time of the
taking." Branch v. Commonwealth, 225 Va. 91, 94, 300 S.E.2d 758,
759 (1983). Thus, the Supreme Court has held that "'a charge of
robbery [may not] be sustained merely by a showing of retention
of property, or an attempt to escape, by force or putting in
fear.'" Mason, 200 Va. at 255-56, 105 S.E.2d at 151. The Court
noted that this rule "has found frequent application where force
or intimidation has been exercised after the property came into
the defendant's hands by stealth." Id. at 256, 105 S.E.2d at
151.
The evidence proved that Jones took the boots in the store
and concealed them on his person by stealth. He then carried the
hidden boots from the store to the parking lot unhindered. In so
doing, he severed the boots from the possession of the owner.
Id. When he was confronted by the manager in the parking lot,
the evidence established that he then displayed the gun. At that
point, the gun was used to assist in retention of the boots or to
facilitate Jones's escape. By then, the taking had been
accomplished.
We hold, therefore, the evidence was insufficient to prove a
robbery. Accordingly, we reverse the convictions for robbery and
use of a firearm in the commission of robbery, and we dismiss
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those indictments.
Reversed and dismissed.
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