COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Annunziata
Argued at Richmond, Virginia
KENNETH GAYLOCK WINN
OPINION BY
v. Record No. 0861-94-2 JUDGE LARRY G. ELDER
OCTOBER 24, 1995
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge
B. Craig Dunkum (Duane & Shannon, P.C., on
briefs), for appellant.
Monica S. McElyea, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Kenneth Gaylock Winn (appellant) appeals his conviction for
robbery in violation of Code § 18.2-58. Appellant contends the
evidence failed to prove he used violence or intimidation against
the victim to take the victim's purse, a necessary element to
support his conviction. Under the facts of this case, we agree
and reverse the robbery conviction.
I.
The victim was walking through the parking lot of a Ukrop's
Grocery Store in Henrico County at approximately 8:30 p.m. on
November 13, 1993, after having purchased groceries. As the
victim walked toward her car, accompanied by a Ukrop's employee,
she heard footsteps behind her. Appellant appeared from behind
the victim and "took" her purse from her. The purse strap, which
was worn over the victim's shoulder, was "very strongly" removed
and the purse taken from under her arm. The victim testified
that there was no struggle between her and appellant and that the
entire event lasted mere seconds. Although the victim and the
Ukrop's employee immediately chased appellant, he escaped with
the purse. He was thereafter apprehended. Appellant was tried
without a jury and convicted of robbery.
II.
We hold under the facts of this case that the Commonwealth
produced insufficient evidence to convict appellant of robbery,
as appellant did not use violence or intimidation against the
victim to effect the theft of the victim's purse. In reaching
this determination, we are guided by certain principles.
When the sufficiency of the evidence is challenged on
appeal, it is well established that we must view the
evidence in the light most favorable to the
Commonwealth, granting to it all reasonable inferences
fairly deducible therefrom. The conviction will be
disturbed only if plainly wrong or without evidence to
support it.
The elements of robbery, a common law offense in
Virginia, include 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'" which precedes or is "concomitant with
the taking."
Jones v. Commonwealth, 13 Va. App. 566, 572, 414 S.E.2d 193, 196
(1992)(emphasis added)(citations omitted).
"The touching or violation necessary to prove [robbery] may
be indirect, but cannot result merely from the force associated
with the taking." Bivins v. Commonwealth, 19 Va. App. 750, 752,
454 S.E.2d 741, 742 (1995)(citation omitted). Instead,
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"[v]iolence or force requires a physical touching or violation of
the victim's person." Id. In support of this concept, the
Bivins Court cited with approval People v. Thomas, 119 Ill. App.
3d. 464, 75 Ill. Dec. 1, 2, 456 N.E.2d 684, 685 (1983), which
stated, "'the offense of robbery . . . is not related to the
force used on the object taken but to the force or intimidation
directed at the person of the victim.'" Id. at 753-54, 454
S.E.2d at 743. See also Mason v. Commonwealth, 200 Va. 253, 255,
105 S.E.2d 149, 151 (1958)("[r]obbery is an offense against the
person")(emphasis added).
Appellant admits he took the victim's purse with the intent
to steal it. The focus of appellant's insufficiency claim is
based wholly upon the evidence related to proof of the essential
element of robbery--that the actor used violence or intimidation
directed against the victim to effect the taking. Appellant
argues he used no more force than was necessary to accomplish the
removal of the purse from the victim's shoulder and arm. Absent
the violence/intimidation element, appellant contends he could
only have been convicted of larceny from the person in violation
of Code § 18.2-95, which carries a less severe punishment.
The Commonwealth asserts that because the victim testified
appellant "took" her purse "very strongly" and ran with it, the
trial court could have reasonably inferred appellant used
violence to effectuate the taking. We disagree with the
Commonwealth. Although no Virginia cases have decided whether a
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"purse snatching" is a robbery or a larceny from the person, we
are guided by the decisions of other jurisdictions. Some states
have held that the mere snatching of another's purse constitutes
robbery, yet most states have determined that such a "sudden
taking of property from the person of another does not in itself
involve such force, violence, or putting in fear as will
constitute robbery," and instead constitutes larceny. Peter G.
Guthrie, Purse Snatching as Robbery or Theft, 42 A.L.R.3d 1381,
1383 (1972 & 1994 Supp.). These jurisdictions have held that
there must be "additional circumstances at the time of the
snatching tending to transform the taking from a larceny to a
robbery." Id. For example, these circumstances are present when
a struggle ensues, where the victim is knocked down, or where the
victim is put in fear--in other words, where the defendant
employs violence or intimidation against the victim's person.
See, e.g., People v. Middleton, 623 N.Y.S.2d 298, 299 (N.Y. App.
Div. 1995)(reversing robbery conviction where the victim was not
intimidated, knocked down, struck, or injured, even where the
victim's purse was found with a broken shoulder strap); State v.
Sein, 590 A.2d 665, 668 (N.J. 1991)(following "predominant view
[that] there is insufficient force to constitute robbery when the
thief snatches property from the owner's grasp so suddenly that
the owner cannot offer any resistance to the taking"); State v.
Williams, 521 A.2d 150, 155 (Conn. 1987)(affirming robbery
conviction where purse snatching left bruises on the victim's
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shoulder; jury could have inferred that the victim offered
resistance to the force exerted to wrench the shoulder strap from
her). Contra People v. Brooks, 559 N.E.2d 859, 862 (Ill. App.
Ct. 1990)("a simple snatching or sudden taking of property from
an unsuspecting person will be insufficient force to constitute
robbery;" however, if "the property is so attached to the
victim's person or clothing as to create resistance to the
taking," robbery may be proven); Raiford v. State, 447 A.2d 496,
500 (Md.Ct.Spec.App. 1982)(affirming robbery conviction where the
victim's shoulder strap was ripped from her arm and stating that
"purse was so attached to her person as to afford resistance to
the taking"), aff'd in pertinent part, 462 A.2d 1192 (Md. 1983).
The Commonwealth relies on Maxwell v. Commonwealth, 165 Va.
860, 864, 183 S.E. 452, 454 (1936), in which the Supreme Court
stated that only "slight" violence, or anything that calls out
for resistance, is enough to establish the violence/intimidation
element of robbery. However, the record in this case is devoid
of even "slight" violence against the victim or resistance from
the victim. Here, no evidence proved that appellant touched the
victim's person at any time or that the victim resisted the
removal of the purse. This case also differs from Broady v.
Commonwealth, 16 Va. App. 281, 429 S.E.2d 468 (1993), cited by
the Commonwealth. In Broady, we held that appellant was guilty
of robbery where he struggled with the victim for her purse and
in the process pushed the victim six to eight feet against her
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car. In this case, there was no evidence of any physical contact
or struggle.
As appellant contends, this case is more similar to Johnson
v. Commonwealth, 65 Va. (24 Gratt.) 555 (1873), in which the
defendant was convicted of larceny from the person. In Johnson,
the Supreme Court held that the facts supported a larceny
conviction where the victim held money in his open hand as the
defendant walked by, and the defendant took the money out of the
victim's hand and kept walking. 65 Va. at 557-58. In this case,
the "very strong" force employed by appellant was the force
necessary to remove the purse from the victim's shoulder, not the
force associated with violence against or resistance from the
victim.
We hold that under the facts of this case, there was
insufficient evidence of violence or intimidation against the
victim's person to convict appellant of robbery. Accordingly, we
reverse appellant's conviction and remand with leave for the
Commonwealth to proceed on other appropriate charges if it be so
advised.
Reversed and remanded.
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