Brown v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Clements and Agee
Argued at Richmond, Virginia

THOMAS WILLIAM BROWN
OPINION BY
v. Record No. 0024-01-2 JUDGE G. STEVEN AGEE
FEBRUARY 12, 2002
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge

Craig W. Stallard, Assistant Public Defender
(Patricia P. Nagel, Assistant Public
Defender; Office of the Public Defender, on
brief), for appellant.

Stephen R. McCullough, Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.

Thomas William Brown (Brown) was indicted in the City of

Richmond for robbery and the attempted carjacking of Josherryl

Amos, and for robbery of Patricia Wolliver. The Commonwealth

pursued all three indictments in one trial. A jury convicted

Brown of carjacking, in violation of Code § 18.2-58.1, and two

counts of robbery, in violation of Code § 18.2-58. The trial

court, on Brown's motion, reduced the carjacking conviction to

attempted carjacking prior to sentencing in view of the actual

charge in the indictment. He was sentenced to a term of ten

years incarceration, with eight years suspended, on the

attempted carjacking conviction, and terms of imprisonment of
five years for each robbery conviction. On appeal, Brown

contends (1) the trial court erred in refusing his request to

sever the charges and permit a separate trial on the Wolliver

robbery; (2) the Double Jeopardy Clause precludes his conviction

of both robbery and carjacking; (3) a "fatal variance" between

the indictment and the jury's pronouncement of guilty of

carjacking requires dismissal; and (4) the evidence is

insufficient for the attempted carjacking conviction and one of

the robbery convictions. For the following reasons, we disagree

with all of Brown's contentions and affirm his convictions.

I. BACKGROUND

On October 3, 1999, Josherryl Amos (Amos), accompanied a

friend's niece, Lynn Bishop (Bishop) to purchase infant formula.

Bishop drove her car, a 1993 silver Mitsubishi two-door coupe,

to the parking lot of a drug store on Hull Street in the City of

Richmond around 6:00 p.m. While Bishop ran inside, Amos stayed

in the car with the doors unlocked and the engine running.

Brown suddenly entered the car and ordered Amos to leave.

Amos refused. He pulled out a knife, placed it on Amos' throat

and told her to get the "f" out of the car or he would kill her.

Amos tried to take her pocketbook with her, which prompted Brown

to rhetorically ask if she "was stupid or something." Amos then

got out of the car, leaving her pocketbook behind.

Shortly thereafter, around 7:00 p.m., Patricia Wolliver

(Wolliver) was seated in her automobile in the parking lot of a

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grocery store on Jahnke Road in the City of Richmond. She was

about to exit the parking lot onto the road when Brown, who was

driving a small, silver colored car, left his vehicle and

approached Wolliver's car. He initially asked her for

directions to Midlothian Turnpike. She explained how to get

there. He then asked her how to find Chippenham Hospital. She

gave him more directions. Brown then told her, "I've got a gun

and I will shoot and kill you if you don't give me your

pocketbook." Wolliver was shocked at this unexpected threat.

Brown reached in, struck her across the chest, grabbed her purse

and sped away in the silver car. The experience was devastating

for Wolliver.

At approximately 10:00 p.m. that evening, Bishop and Amos

chanced upon Bishop's car, which Brown had abandoned, leaving

the engine running and the lights on. Amos found certain items

belonging to Wolliver in Bishop's recovered car and contacted

Wolliver to return the items. These items had been in

Wolliver's purse.

At trial, Amos and Wolliver identified Brown as the man who

robbed them. Brown, however, denied committing the offenses and

adduced alibi testimony from his former girlfriend and her

mother, who claimed Brown spent the entire day in question with

them.

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 II. ANALYSIS

A. MOTION TO SEVER

Brown argues that the trial court erred in denying his

motion to sever the Amos and Wolliver charges for trial. Rule

3A:10(b) allows the trial court to try the accused for more than

one offense at a time "if justice does not require separate

trials and (i) the offenses meet the requirements of Rule

3A:6(b) or (ii) the accused and the Commonwealth's attorney

consent thereto." Because appellant did not consent to joint

trial of the offenses, we must examine whether Rule 3A:6(b)

allowed joinder and, if so, whether justice nonetheless required

separate trials.

1. RULE 3A:6(b)

Under Rule 3A:6(b), "[o]ffenses may be joined if (1) the

offenses are based on 'the same act or transaction,' (2) the

offenses are based on 'two or more acts or transactions that are

connected,' or (3) the offenses 'constitute parts of a common

scheme or plan.'" Cook v. Commonwealth, 7 Va. App. 225, 228,

372 S.E.2d 780, 782 (1988). If the offenses are merely

"multiple offenses of a similar nature committed by the same

people" they do not meet the requirements of Rule 3A:6(b).

Spence v. Commonwealth, 12 Va. App. 1040, 1043, 407 S.E.2d 916,

917 (1991). The determination as to joinder rests within the

sound discretion of the trial court and will not be reversed

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absent a showing of abuse of that discretion. Ferrell v.

Commonwealth, 11 Va. App. 380, 386, 399 S.E.2d 614, 617 (1990).

We find Brown's offenses were not part of the "[s]ame act

or transaction" under the first prong of Rule 3A:6(b). Each

offense was a separate act taking place at a different location

and at a different time. However, the Commonwealth argues that

the offenses were properly tried together because they were

interconnected, thus satisfying the second prong of Rule

3A:6(b). We agree that the offenses were based on "two or more

acts or transactions" that were "connected."

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."

Kirkpatrick v. Commonwealth, 211 Va. 269, 273, 176 S.E.2d 802,

806 (1970) (quoting Walker v. Commonwealth, 28 Va. (1 Leigh)

628, 631 (1829)); see also Spence, 12 Va. App. at 1044, 407

S.E.2d at 918. Here, the evidence of Brown's crimes was closely

intertwined. Wolliver observed Brown driving a small, silver

car at the time he robbed her. Items stolen from Wolliver were

discovered in Bishop's car. Wolliver's testimony was

indispensable to corroborate Amos' account that Brown robbed and

carjacked her because he was the one Wolliver saw driving

Bishop's car. Conversely, Amos' testimony that Brown had very

recently carjacked a small, silver car, which was later found

with Wolliver's stolen items inside it, constituted critical

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corroboration of Wolliver's testimony because it placed Brown in

the car he used during the robbery of Wolliver. Furthermore,

the evidence, heard together, rebutted Brown's contention that

he did not commit the crimes because he was with his girlfriend

the entire day.

Wolliver's testimony was critical in Amos' case and Amos'

testimony was critical in Wolliver's case so that they could

"not be departed from with propriety." The requirements of Rule

3A:6(b) were met in this case.

2. JUSTICE DID NOT REQUIRE SEPARATE TRIALS

Finding the offenses "connected" under Rule 3A:6(b), we

must then determine if justice required Brown to have separate

trials. Brown's motion for severance suggested that justice

required separate trials by asserting that evidence of one

offense would prejudice the jury as to the other offense. This

result could occur in any case where one offense is tried with

another.

"Justice often requires separate trials where highly

prejudicial evidence of one of the crimes is not admissible in

the trial of the other." Long v. Commonwealth, 20 Va. App. 223,

226, 456 S.E.2d 138, 139 (1995). "Generally, evidence of other

offenses is inadmissible if it is offered merely to show that an

accused was likely to commit the crime for which he is being

tried." Cheng v. Commonwealth, 240 Va. 26, 33, 393 S.E.2d 599,

603 (1990). Exceptions to this rule allow evidence of other

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offenses where the evidence "tends to prove any relevant element

of the offense charged . . . [or] where the motive, intent or

knowledge of the accused is involved." Id. at 34, 393 S.E.2d at

603 (citation omitted).

In the case at bar, evidence pertaining to the commission

of each crime tended to prove the identity of the offender in

the commission of the other crime.

Evidence of other offenses is admitted if it
shows the conduct and feeling of the accused
toward his victim, if it establishes their
prior relations, or if it tends to prove any
relevant element of the offense charged.
Such evidence is permissible in cases where
the motive, intent or knowledge of the
accused is involved, or where the evidence
is connected with or leads up to the offense
for which the accused is on trial.

Kirkpatrick, 211 Va. at 272, 176 S.E.2d at 805 (citations

omitted).

"[J]ustice did not require separate trials for the offenses

because, if the offenses were . . . tried separately, evidence

of the other offenses would have been admissible to prove the

perpetrator's identity." Traish v. Commonwealth, 36 Va. App.

114, 130, 549 S.E.2d 5, 13 (2001). Given Brown's claim that he

was not the person who committed the offenses, the probative

value of the evidence of the other offenses is obvious, and we

cannot say that the trial court abused its discretion in finding

that the probative value outweighed the prejudicial effect of

such evidence.

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 Because the offenses met the requirement of Rule 3A:6(b)

and justice did not require separate trials, the requirements of

Rule 3A:10(c) were met. We hold, therefore, that the trial

court did not abuse its discretion in denying Brown's motion for

separate trials.

B. CLAIM OF DOUBLE JEOPARDY VIOLATION

Brown also avers that the trial court erred in convicting

him of the separate charges of carjacking and robbery of Amos.

He argues the robbery of the purse "merges" with the carjacking

and that he should only have been tried on the carjacking

charge. Citing no authority for his "merging" of the offenses

argument, 1 Brown simply argues "the robbery of the purse merges

into the attempted carjacking of the vehicle, and thus, the

conduct constitutes a single offense . . . . The Double

Jeopardy and Due Process Clauses prohibit multiple punishments

for the same offense." We disagree with his contention that the

Double Jeopardy Clause prohibits the Commonwealth, under the

1
While it is not clear if Brown is arguing for application
of the merger doctrine, or not, we note that merger, a
common-law principle, recognizes that certain offenses arising
from the same occurrence may merge into a single offense. Lash
v. County of Henrico, 14 Va. App. 926, 929, 421 S.E.2d 851, 853
(1992). However, the "doctrine of merger [is] not widely
accepted . . . [t]he doctrine has never been applied in
Virginia." Cotton v. Commonwealth, 35 Va. App. 511, 516, 546
S.E.2d 241, 244 (2001).
Brown does not argue that Code § 19.2-294 is applicable to
his case requiring "merger" of the charges. With the common law
doctrine not accepted in Virginia and no request to consider the
application of Code § 19.2-294, we do not address the concept of
merger.

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facts of this case, from convicting Brown of both robbery of the

purse and carjacking.

The Double Jeopardy Clause protects defendants from

multiple punishments for the "same offense." See Shears v.

Commonwealth, 23 Va. App. 394, 400, 477 S.E.2d 309, 312 (1996).

However, it does not apply where the same conduct is used to

support convictions for separate and distinct crimes. See

Thomas v. Commonwealth, 244 Va. 1, 9, 419 S.E.2d 606, 610

(1992). The robbery of Amos of her purse was a separate and

distinct act, apart from the seizure of the automobile. See

Brown v. Commonwealth, 230 Va. 310, 337 S.E.2d 711 (1985).

Brown seized the automobile by threatening Amos with a knife and

ordering her out of the vehicle. Brown, thus, committed the

offense of carjacking. See Code § 18.2-58.1(B). As Amos began

to exit the automobile, she attempted to take her purse with

her, drawing Brown's attention to the purse. With the knife

still threateningly present, Brown ordered Amos to surrender her

personal property. This was a separate and distinct act,

accompanied by a separate threat of violence, from the prior act

of carjacking. Brown, thus, committed a separate offense of

robbery 2 subsequent to the act of carjacking. The robbery and

2
Robbery is a common law offense in Virginia and 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." Johnson v. Commonwealth,
209 Va. 291, 293, 163 S.E.2d 570, 572-73 (1968). "The predicate
element of robbery is the actual taking by caption and

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carjacking were separate crimes committed by separate acts.

Brown was properly charged with and convicted of both offenses.

See Blythe v. Commonwealth, 222 Va. 722, 726, 284 S.E.2d 796,

798 (1981) (citation omitted).

We further conclude the General Assembly made it clear that

conviction for the offense of carjacking does not prohibit the

Commonwealth from pursuing any other crime an offender commits

while the carjacking is in progress. Code § 18.2-58.1(C)

provides: "The provisions of this section shall not preclude

the applicability of any other provision of the criminal law of

the Commonwealth which may apply to any course of conduct which

violates this section." The language of the statute is plain

and requires no interpretation. Therefore, the Commonwealth is

clearly permitted to try and convict an offender of both robbery

and carjacking when the evidence supports convictions for those

crimes.

C. THE VARIANCE BETWEEN THE INDICTMENT AND CONVICTION

Next, Brown contends there was a fatal variance between the

indictment and the carjacking charge of which he was convicted

that requires the reversal of his conviction. We find this

issue barred.

asportation of the personal property of the victim. . . .
Severance of the goods from the owner and absolute control of
the property by the taker . . . constitutes an asportation."
Beard v. Commonwealth, 19 Va. App. 359, 362, 451 S.E.2d 698, 700
(1994) (citations omitted).

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 After his trial, Brown moved "the Court to amend the

conviction to an attempt." He argued by oral and written

motions that "he can be convicted of nothing more than an

attempted carjacking because of the wording of the indictment."

The Commonwealth and the trial court agreed. Brown's conviction

for carjacking was reduced to a conviction for attempted

carjacking.

Now, on appeal, Brown argues for the first time that the

Commonwealth was required to seek a new trial. "The defendant,

having agreed upon the action taken by the trial court, should

not be allowed to assume an inconsistent position." Clark v.

Commonwealth, 220 Va. 201, 214, 257 S.E.2d 784, 792 (1979).

"'No litigant, even a defendant in a criminal case, will be

permitted to approbate and reprobate - to invite error . . . and

then to take advantage of the situation created by his own

wrong.'" Manns v. Commonwealth, 13 Va. App. 677, 680, 414

S.E.2d 613, 615 (1992) (quoting Fisher v. Commonwealth, 236 Va.

403, 417, 374 S.E.2d 46, 54 (1988)). This is exactly what Brown

attempts to do, and he cannot.

D. SUFFICIENCY OF THE EVIDENCE

As a final contention on appeal, Brown argues the evidence

was insufficient to convict him of attempted carjacking and the

robbery of Wolliver.

"Where the sufficiency of the evidence is
challenged after conviction, it is our duty
to consider it in the light most favorable

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 to the Commonwealth and give it all
reasonable inferences fairly deducible
therefrom. We should affirm the judgment
unless it appears from the evidence that the
judgment is plainly wrong or without
evidence to support it." Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d
534, 537 (1975). Moreover, "[i]f there is
evidence to support the conviction, an
appellate court is not permitted to
substitute its own judgment for that of the
finder of fact, even if the appellate court
might have reached a different conclusion."
Commonwealth v. Presley, 256 Va. 465, 466,
507 S.E.2d 72, 72 (1998).

Furthermore, "[t]he credibility of a
witness and the inferences to be drawn from
proven facts are matters solely for the fact
finder's determination. In its role of
judging witness credibility, the fact finder
is entitled to disbelieve the self-serving
testimony of the accused and to conclude
that the accused is lying to conceal his
guilt." Marable v. Commonwealth, 27 Va.
App. 505, 509-10, 500 S.E.2d 233, 235 (1998)
(citations omitted).

Snow v. Commonwealth, 33 Va. App. 766, 774, 537 S.E.2d 6, 10

(2000). For the following reasons we disagree with Brown's

contentions.

1. ATTEMPTED CARJACKING

Code § 18.2-58.1(B) provides, in pertinent part:

"[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 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

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 threat or presenting of firearms, or other
deadly weapon or instrumentality whatsoever.

Thus, as to the attempted carjacking charge, the Commonwealth

was required to prove that Brown intentionally acted to deprive

someone in possession or control of Bishop's vehicle of his or

her possession or control by means specified in Code

§ 18.2-58.1(B). Brown contends the Commonwealth failed to prove

this element of the crime because Amos was not in control of the

car keys. We disagree with Brown's argument.

The evidence demonstrates that Amos, the passenger awaiting

Bishop's return, was "in possession or control" of the vehicle

at the time Brown got into the vehicle and ordered her with a

knife to exit the vehicle. Possession of a vehicle may be

actual or constructive. See Bell v. Commonwealth, 21 Va. App.

693, 467 S.E.2d 289 (1996). Actual possession is the "physical

occupancy or control over property." See Black's Law Dictionary

1183 (7th ed. 1999). Clearly, Amos physically occupied the

vehicle at the time Brown seized it. She was in possession of

the vehicle. She also had control 3 of the running vehicle at the

time it was seized. Constructive possession of the vehicle

provided Amos with the control of it. "Constructive possession"

occurs where an individual has the means of exercising dominion

3
The word "control" has been held to have "no legal or
technical meaning apart from its popular sense, and is
synonymous with 'manage.'" National Safe Deposit Co. v. Stead,
232 U.S. 58, 62 (1914).

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or control over the vehicle. See Bell, 21 Va. App. at 698-99,

467 S.E.2d at 292.

The law is well established that possession
of the means to exercise dominion or control
over an item gives the possessor dominion or
control over the item itself. Thus, when
the General Assembly enacted the carjacking
statute to protect [a] person[] in
"possession or control" of [a vehicle], we
presume the legislature intended to include
persons possessing the means of exercising
dominion and control of the vehicle.

Id. at 699, 467 S.E.2d at 292.

Brown's argument that possession and control are determined

solely by the physical possession of the car keys finds no

support in the statute or case law. Subject to Bishop's return,

Amos had possession and control of the vehicle. Amos sat alone

in a vehicle that was running; thus, she had the power to

exercise control. In enacting Code § 18.2-58.1, the General

Assembly clearly intended to protect persons in Amos' position.

2. THE ROBBERY OF WOLLIVER

Brown also challenges the sufficiency of the evidence to

convict him of robbing Wolliver. He contends the evidence fails

to establish that he was the robber because Wolliver's

description of her assailant does not match Brown and because

Wolliver's identification of Brown "was tainted by the unduly

suggestive manner in which it was made."

To support his contentions that Wolliver failed to describe

him accurately and was only able to identify him at trial due to

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undue influence, Brown points to the following facts: First, he

has long hair, is 5'5" tall, does not wear a pierced earring in

his ear and is twenty years old. Second, Wolliver provided the

police with a physical description of her assailant as a

light-skinned black male with curly black hair, approximately

5'11" tall, in his early to mid-thirties, wearing a white

baseball shirt with blue and black stripes and a pierced earring

in his ear, who fled in a gray or silver car. Third, Wolliver

twice viewed a photo spread presented to her by Detective

Rinaldi and was unable to identify Brown as her assailant.

Fourth, at his preliminary hearing, Wolliver testified that she

was unable to identify Brown as her assailant. Fifth, it was

only at trial that Wolliver was able to identify him as her

assailant.

The Commonwealth points out that Wolliver fully explained

her past inability or reluctance to identify Brown. Wolliver

testified that she did not want to choose a photograph until she

was "100% sure." She testified that she recognized Brown at the

preliminary hearing but did not identify him out of fear. She

testified, "I was scared. I was nervous . . . I was just so

scared I didn't know what to say or do . . . I did [recognize

Brown] but I didn't say nothing. I was so scared to even say it

was him." After the preliminary hearing she called Detective

Rinaldi and identified Brown as her assailant. The detective

testified that Wolliver was "nervous" and "real concerned about

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her welfare after the fact . . . . She was very nervous, very

frightened, real concerned about her family."

The factors set forth in Neil v. Biggers, 409 U.S. 188

(1972), are relevant in determining whether the identification

evidence is sufficient, standing alone or in combination with

other evidence, to prove beyond a reasonable doubt that Brown

robbed Wolliver. See Smallwood v. Commonwealth, 14 Va. App.

527, 530, 418 S.E.2d 567, 568 (1992). To determine the

reliability of a victim's eyewitness identification and to

evaluate the likelihood of misidentification due to any

suggestive factor, the fact finder shall consider:

the opportunity of the witness to view the
criminal at the time of the crime, the
witness' degree of attention, the accuracy
of the witness' prior description of the
criminal, the level of certainty
demonstrated by the witness at the
confrontation, and the length of time
between the crime and the confrontation.

Townes v. Commonwealth, 234 Va. 307, 331, 362 S.E.2d 650, 663

(1987), cert. denied, 485 U.S. 971 (1988). "[W]hether an

identification is reliable 'depends on the totality of the

circumstances.'" Satcher v. Commonwealth, 244 Va. 220, 249, 421

S.E.2d 821, 839 (1992) (quoting Stovall v. Denno, 388 U.S. 293,

302 (1967)).

Here, Wolliver had a good opportunity to view Brown as he

asked her for several sets of directions. Wolliver's

identification of Brown at trial, which occurred seven months

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after the robbery, was without hesitation. She stated, "I know.

I can tell you by the complexion of his face, his hair, just - I

mean, that is something you never forget." Her identification

at trial was certain. See Satcher, 244 Va. at 250, 421 S.E.2d

at 839 ("of the most significance on the subject of [the

witness'] level of certainty . . . is the fact that her in-court

identification of [the accused] was unequivocally positive").

"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).

Further, the identification of Brown as Wolliver's

assailant is corroborated by Amos' description and in-court

identification of Brown, Amos' testimony placing Brown in

Bishop's silver-gray automobile, and by the discovery of

Wolliver's belongings in Bishop's vehicle. Under the totality

of the circumstances, in light of all the evidence identifying

Brown as Wolliver's assailant, we cannot say the fact finder was

plainly wrong in finding the evidence sufficient to establish

Brown guilty of robbery.

For the foregoing reasons, we affirm Brown's convictions.

Affirmed.

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