COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Annunziata and
Senior Judge Coleman
Argued at Richmond, Virginia
RICKY LEE YELLARDY
OPINION BY
v. Record No. 0172-01-2 JUDGE SAM W. COLEMAN III
APRIL 2, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Gregory W. Franklin, Assistant Public
Defender, for appellant.
Michael T. Judge, Assistant Attorney General
(Randolph A. Beales, Attorney General, on
brief), for appellee.
Ricky Lee Yellardy, appellant, appeals his felony conviction
of robbery in violation of Code § 18.2-58. Appellant contends:
(1) the trial court erred by denying his motion to sever the
original two counts of robbery, and (2) the trial court erred by
refusing to instruct the jury on a lesser-included offense of
petit larceny. We hold that because the two robbery counts arose
out of two acts or transactions that constituted parts of a common
scheme or plan, the trial court did not err by refusing to sever
the two charges. We also hold that because the evidence and the
defendant's theory of the case did not support the lesser-included
offense of petit larceny, the trial court did not err by refusing
to instruct on petit larceny. Therefore, we affirm the judgment
of the trial court.
BACKGROUND
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v. Commonwealth,
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted).
"The 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). The trier of fact is not required to accept a
party's evidence in its entirety, Barrett v. Commonwealth,
231 Va. 102, 107, 341 S.E.2d 190, 193 (1986), but is free to
believe and disbelieve in part or in whole the testimony of any
witness. Rollston v. Commonwealth, 11 Va. App. 535, 547, 399
S.E.2d 823, 830 (1991).
In this light, the evidence showed that on August 4, 2000,
at approximately 1:30 p.m., Shawn Cumfer was walking alone on a
path in the James River Park. From behind, two men approached
Cumfer and asked him for a cigarette. Cumfer did not have a
cigarette and continued walking. One of the men, later identified
as appellant, turned Cumfer around and demanded his money. Cumfer
complied and gave appellant twenty-three dollars. Appellant
insisted Cumfer had more money and would not leave until Cumfer
gave him more. Appellant appeared agitated and threatening and
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held a rock in his hand. Within minutes the confrontation ended.
Cumfer walked home and reported the incident to police. A week
later, from a photographic display, Cumfer identified appellant as
the person who robbed him. In the photograph, appellant was
wearing the same clothing he wore the day of the robbery.
Appellant testified that he did not rob Cumfer but instead
Cumfer approached him at the park and inquired about appellant
performing sexual acts. Appellant said they agreed to a price of
twenty dollars for oral sex. Appellant stated Cumfer then
suggested having anal intercourse, but Cumfer did not have a
condom and, therefore, appellant refused to engage in any sexual
acts. Appellant denied threatening Cumfer with a rock.
As to the second robbery charge, the evidence showed that
four days later, on August 8, 2000, at approximately 1:00 p.m.,
William Halsey was parked in his car eating his lunch alone in a
parking lot at the James River Park. As Halsey sat eating and
reading a newspaper, appellant approached Halsey's car and punched
Halsey through the open window and stated, "I'm going to fuck you
up." Halsey exited his car to find appellant confronting him
holding a large rock in his hand. Appellant demanded Halsey's
money. Halsey handed appellant four dollars. Appellant demanded
more money and asked for Halsey's wallet. When Halsey refused to
relinquish his wallet, appellant threw the rock at Halsey,
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striking him in the arm. Halsey then picked up the rock and
appellant fled.
Halsey immediately reported the incident to a citizen and two
park employees who had entered the parking lot just after the
robbery. One of the employees called the police and drove in the
direction where appellant reportedly fled. The employee found
appellant and spoke with him until the police arrived. As the
police car approached, appellant attempted to hide behind a parked
truck. Appellant told the police officer he was just walking to
work. He made no statement about having seen or confronted
Halsey.
At trial, appellant testified he encountered Halsey as he
walked through the park and had entered Halsey's car at Halsey's
request. Appellant stated they discussed how much it would cost
for Halsey to fondle appellant. Appellant said he asked for
twenty dollars, but Halsey only gave him four dollars. Appellant
testified that, because Halsey did not give him the agreed price,
he got out of the car and left. Appellant said he kept the four
dollars Halsey had given him.
Before trial, appellant made a motion to sever the two
robbery charges, which motion the trial court denied. Appellant
also requested a jury instruction on petit larceny, which the
trial court refused. The jury convicted appellant of the August
8, 2000 robbery, but acquitted him of the August 4, 2000 charge.
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ANALYSIS
Joinder of Offenses
As pertinent here, Rule 3A:10(c) provides
that all offenses pending against an accused
may be tried at one time "if justice does
not require separate trials and . . . the
offenses meet the requirements of Rule
3A:6(b) . . . ." Under Rule 3A:6(b),
joinder of offenses is permissible if they
"are based on the same act or transaction,
or on two or more acts or transactions that
are connected or constitute parts of a
common scheme or plan."
Satcher v. Commonwealth, 244 Va. 220, 229, 421 S.E.2d 821, 827
(1992). "'Whether different offenses should be tried separately
is a matter that rests within the sound discretion of a trial
court. Thus, a trial court's ruling on the matter will not be
reversed absent a showing that the court abused its
discretion.'" Traish v. Commonwealth, 36 Va. App. 114, 129, 549
S.E.2d 5, 12 (2001) (quoting Ferrell v. Commonwealth, 11 Va.
App. 380, 386, 399 S.E.2d 614, 617 (1990)).
The two robberies occurred on separate dates and involved
separate victims. Nothing in the record suggests that the
offenses were based on the same act or transaction. However,
two offenses may be tried together if the two offenses are
connected or constitute parts of a common scheme or plan.
"To meet the 'connected' test, the crimes should be 'so
intimately connected and blended with the main facts adduced in
evidence, that they cannot be departed from with propriety.'"
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Spence v. Commonwealth, 12 Va. App. 1040, 1044, 407 S.E.2d 916,
918 (1991) (quoting Kirkpatrick v. Commonwealth, 211 Va. 269,
273, 176 S.E.2d 802, 806 (1970)). A reviewing court must look
to whether the transactions were "closely connected in time,
place, and means of commission, all of which supports the use of
a single trial." Satcher, 244 Va. at 229, 421 S.E.2d at 827;
see Cook v. Commonwealth, 7 Va. App. 225, 229, 372 S.E.2d 780,
782 (1988) (robberies connected when "committed by the same
persons, one immediately after the other, in close geographical
proximity to each other[; t]hey were connected in time, place,
method and perpetrators").
Although these acts occurred four days apart, they both
transpired in the same area of the same park. Appellant
targeted single males in the park at lunchtime. In each
robbery, the method of intimidation by appellant was identical.
Appellant first demanded money and then continued to demand more
money once the victims complied. In both instances appellant
used a rock to threaten his victims, a weapon not commonly used
in the commission of robbery. Such facts connect the two events
in time, place, and manner of commission. Although the two
events are not so inextricably connected such that the proof of
one requires proof of the other, the proof of the identical
methods used to commit the two robberies tends to prove the
identity of appellant as the person who committed both offenses.
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Evidence of both charges also tends to prove that the
confrontation was a robbery rather than homosexual encounters,
which appellant contended at trial.
Further, the two robberies were parts of a common scheme or
plan.
A "common scheme or plan" exists when the
"relationship among the offenses . . . is
dependant upon the existence of a plan that
ties the offenses together and demonstrates
that the objective of each offense was to
contribute to the achievement of a goal not
attainable by the commission of any of the
individual offenses."
Godwin v. Commonwealth, 6 Va. App. 118, 122, 367 S.E.2d 520, 522
(1988) (citation omitted); see also Cook, 7 Va. App. at 229,
372 S.E.2d at 782 (crimes committed by the same perpetrators, in
the same area, one after the other, "manifests a single plan").
Although it may not have been apparent to the trial judge when
ruling on the motion to sever that the two offenses constituted
a common scheme or plan, upon our review of the record it is
apparent that appellant had a scheme or plan to confront and rob
single men in the park during lunchtime by threatening them with
a rock, and when prosecuted, to assert that the victims
confronted him with offers of homosexual sex. Appellant's
defense established that he devised a scheme or plan to commit
robberies under the guise of being solicited for sex in the
park. Proof of the common scheme or plan is relevant to prove
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appellant's intent and his identity as the perpetrator of each
offense. "Although generally evidence of other crimes is not
admissible as evidence of guilt in another crime, exception is
made where the purpose is to show a common scheme or plan from
which motive, intent or knowledge could be inferred." Id. at
229-30, 372 S.E.2d at 783 (defendant's intent contested).
Because proof of the two offenses was relevant to prove
motive, intent and identity, the proof of a common scheme was
highly relevant and, as such, justice did not require separate
trials. Because the two offenses met the requirements of Rules
3A:10(c) and 3A:6(b), and justice did not require separate
trials, the trial court did not abuse its discretion by refusing
to sever the offenses.
Petit Larceny Instruction
"We are bound by the principle that the accused is entitled,
on request, to have the jury instructed on a lesser included
offense that is supported by more than a 'scintilla of evidence'
in the record." Bunn v. Commonwealth, 21 Va. App. 593, 599,
466 S.E.2d 744, 746 (1996) (citation omitted). "'In determining
whether to instruct the jury on a lesser-included offense, the
evidence must be viewed in the light most favorable to the
accused's theory of the case.'" Hunt v. Commonwealth, 25 Va.
App. 395, 400, 488 S.E.2d 672, 674 (1997) (citation omitted).
Appellant requested a jury instruction on the
lesser-included offense of petit larceny. Larceny is "'the
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wrongful or fraudulent taking of personal goods of some
intrinsic value, belonging to another, without his assent, and
with the intention to deprive the owner thereof permanently.
The animus furandi must accompany the taking, but the wrongful
taking of property in itself imports the animus furandi.'"
Welch v. Commonwealth, 15 Va. App. 518, 521-22, 425 S.E.2d 101,
104 (1992) (quoting Dunlavey v. Commonwealth, 184 Va. 521, 524,
35 S.E.2d 763, 764 (1945)); see Tarpley v. Commonwealth, 261 Va.
251, 256, 542 S.E.2d 761, 764 (2001) ("larceny requires proof
beyond a reasonable doubt of the defendant's intent to steal,
which must accompany his taking of the property").
The jury acquitted appellant of the August 4, 2000 offense.
Therefore, we only consider appellant's claim that he was
entitled to a petit larceny instruction for the August 8, 2000
incident. Viewed in the light most favorable to appellant, the
evidence was that Halsey willingly gave him the money as payment
for sexual favors. Thus, under this version of the evidence it
did not support a larceny instruction because no intent to steal
existed and the taking was not against Halsey's will. Neither
version of the evidence supported a theory of defense that
appellant stole the money from Halsey against his will.
Therefore, he was not entitled to an instruction on a
lesser-included offense of petit larceny.
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The trial court did not err by joining for trial the two
robbery offenses or by refusing to instruct the jury on petit
larceny as a lesser-included offense. Accordingly, the judgment
of the trial court is affirmed.
Affirmed.
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