COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Annunziata and
Senior Judge Overton
Argued at Chesapeake, Virginia
RICHARD BROWN, S/K/A
RICHARD LEE BROWN
MEMORANDUM OPINION * BY
v. Record No. 2101-01-1CHIEF JUDGE JOHANNA L. FITZPATRICK
JULY 30, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Edward L. Hubbard, Judge
Myrna G. Splan for appellant.
Steven A. Witmer, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Richard Lee Brown (appellant) was convicted of two counts
of robbery, in violation of Code § 18.2-58; three counts of
abduction with the intent to extort money, in violation of
Code § 18.2-48; and five counts of use of a firearm during a
felony, in violation of Code § 18.2-53.1. 1 Appellant challenges
only his convictions for the robbery of Derrick Sales and
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Code § 18.2-53.1 provides in pertinent part: "It shall be
unlawful for any person to use or attempt to use any pistol,
shotgun, rifle, or other firearm or display such weapon in a
threatening manner while committing or attempting to
commit . . . robbery, . . . or abduction."
abduction of Reginald O'Neal and the ancillary firearm charges.
He contends the evidence was insufficient to prove the offenses.
For the following reasons, we affirm appellant's convictions.
I. BACKGROUND
Under familiar principles of appellate review, we examine the
evidence in the light most favorable to the Commonwealth, the
prevailing party below, granting to it all reasonable inferences
fairly deducible therefrom. See Juares v. Commonwealth, 26 Va.
App. 154, 156, 493 S.E.2d 677, 678 (1997).
So viewed, the evidence established that on January 6,
2001, appellant and codefendants, Raymond Antwan Lucas (Lucas)
and Jameel Usamah McLaughlin (McLaughlin), went to the home of
Andrew Lopez (Lopez) to commit a robbery. Lopez's sister had
returned from, college and several family and friends were at
his house. Lopez and Derrick Sales (Sales) returned from the
store and entered the garage portion of the home, where Reginald
O'Neal (O'Neal) and several others were located. Lopez
responded to a knock on the door to the exterior of the house,
and appellant, Lucas and McLaughlin confronted him. Appellant
held a handgun, and one of the other codefendants had a shotgun.
One of the robbers ordered Sales to lock the door to the
interior of the house, and Sales and Lopez were ordered to the
ground. The other victims were already sitting around the room.
The robbers said "we want whatever you all got . . . give it
up." Lopez gave up his money and saw Sales put his money with
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Lopez's money. The robbers picked up the money and left the
garage when someone from inside the house knocked on the door.
Detective M.D. Poole testified that he questioned appellant
about the robbery and that appellant admitted that:
[W]hen he went in he was very, very drunk.
He went in armed knowing it was wrong,
knowing he shouldn't have gone in there with
a gun, or shouldn't have gone at all,
basically, that he was being one of the
group, that he did order people on the
ground, other people ordered people on the
ground. He denied taking any money, but he
did admit there was money taken . . . .
Lopez's sister, Vivian Lopez, and her friend, Hannah Gill, also
testified at trial. Their testimony mirrored that of Lopez.
Neither Sales nor O'Neal testified at trial.
In its finding, the trial court stated:
[W]hat the Commonwealth has to do is exclude
every reasonable hypothesis of innocence, as
they do in all cases, and it may very well
be difficult to do in a case where you don't
have a confession, but you've got to
remember the Commonwealth introduced the
confession, they become part of the
Commonwealth's case, they tie it up and
exclude every reasonable hypothesis of
innocence because the rest of the evidence
is there from the other witnesses.
The trial court then found appellant guilty.
II. SUFFICIENCY OF THE EVIDENCE
In reviewing the sufficiency of the evidence, "the judgment
of the trial court sitting without a jury is entitled to the
same weight as a jury verdict." Saunders v. Commonwealth, 242
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Va. 107, 113, 406 S.E.2d 39, 42, cert. denied, 502 U.S. 944
(1991).
"[T]he trial court's judgment will not be set aside unless
plainly wrong or without evidence to support it." Hunley v.
Commonwealth, 30 Va. App. 556, 559, 518 S.E.2d 347, 349 (1999).
"The credibility of a witness and the inferences to be drawn
from proven facts are matters solely for the fact finder's
determination." Marable v. Commonwealth, 27 Va. App. 505,
509-10, 500 S.E.2d 233, 235 (1998) (internal citation omitted).
"This Court does not substitute its judgment for that of
the trier of fact." Hunley v. Commonwealth, 30 Va. App. 556,
559, 518 S.E.2d 347, 349 (1999) (citing Cable v. Commonwealth,
243 Va. 236, 239, 415 S.E.2d 218, 220 (1992)).
III. ROBBERY OF SALES
Appellant first contends that, because Sales did not
testify at trial, no evidence established that Sales was put in
"fear of serious bodily harm" during the robbery. We disagree.
Initially, we note that Code § 18.2-58 provides "[i]f any
person commit robbery by . . . 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,
he shall be guilty of a felony . . . ." (Emphasis added.)
In Chappelle v. Commonwealth, 28 Va. App. 272, 504 S.E.2d
378 (1998), the defendant approached the victim, wearing a mask
and displaying a handgun, and asked for money. The victim gave
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the defendant the money and testified at trial that he felt no
fear when he did so. Defendant appealed his conviction because
the Commonwealth failed to prove the victim was "in fear."
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).
* * * * * * *
While it is true [victim] testified he was
not afraid, element six may be satisfied
even though the victim is not put in fear.
The word "or" appears between the words
"violence" and "putting him in fear."
Because element six is constructed using the
disjunctive "or," it is satisfied when a
defendant instills fear in the heart of the
victim, when he perpetrates violence against
the victim, or both. Proof of both
conditions is not necessary so long as one
is present. This interpretation of the
offense of robbery is widely recognized as
the law in our Commonwealth.
* * * * * * *
If either violence or fear may precede
robbery, there is little question
defendant's actions served to complete the
crime. . . . The violence inherent in the
presentation of a firearm caused [victim] to
surrender his property. This is the essence
of robbery.
* * * * * * *
We reaffirm the long-standing doctrine that
proof the victim felt fear is not an
indispensable element to the offense of
robbery if violence is shown.
Id. at 274-75, 504 S.E.2d at 379-80.
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In the instant case, the evidence supports the trial
court's finding that appellant possessed a firearm and
brandished it during the robbery, that Sales gave the robbers
his money, and that the robbers took the money with them when
they left. Appellant confessed to entering the home armed with
a gun and to knowing money was taken from the victims. Lopez
saw Sales relinquish his money after being told to "give it up"
at gunpoint. Code § 18.2-58 requires "fear of serious bodily
harm, . . . or presenting of firearms." (Emphasis added.)
Clearly, Sales relinquished his money as a result of the demands
of the robbers and their presentation of the firearms.
Additionally, appellant argues that the Commonwealth cannot
establish the requisite elements of the offense without the
direct testimony of the victim. This argument is without merit.
"Where circumstantial evidence is sufficient to exclude every
reasonable hypothesis of innocence, it is sufficient to support
a conviction. The hypotheses which must be thus excluded are
those which flow from the evidence itself, and not from the
imagination of defense counsel." Cook v. Commonwealth, 226 Va.
427, 433, 309 S.E.2d 325, 329 (1983) (citing Turner v.
Commonwealth, 218 Va. 141, 148-49, 235 S.E.2d 357, 361 (1977)).
Based on the totality of the Commonwealth's evidence, every
reasonable hypothesis of innocence was excluded. Although Sales
did not testify, the trial court could properly infer from the
use of the firearm and surrounding facts established by the
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other victims that Sales did not give his money to appellant
voluntarily. Sufficient evidence proved appellant, while armed,
robbed Sales of his money.
IV. ABDUCTION OF O'NEAL
Appellant next contends that because O'Neal did not testify
at trial, no evidence proved that O'Neal was detained against
his will by force, intimidation or deception because "other
witnesses can't establish what was running through O'Neal's
mind." We disagree.
Code § 18.2-47 defines abduction as: "[a]ny person, who,
by force, intimidation or deception, and without legal
justification or excuse, seizes, takes, transports, detains or
secretes the person of another, with the intent to deprive such
other person of his personal liberty . . . shall be deemed
guilty of 'abduction' . . . ."
Code § 18.2-48 provides: "[a]bduction . . . with the intent
to extort money or pecuniary benefit, . . . shall be a Class 2
felony."
"[T]he physical detention of a person, with the intent to
deprive him of his personal liberty, by force, intimidation, or
deception, without any asportation of the victim from one place
to another is sufficient [to prove abduction]." Scott v.
Commonwealth, 228 Va. 519, 526, 323 S.E.2d 572, 576 (1984).
The evidence proved that O'Neal was one of several victims
locked in the garage by the two armed men. Lopez testified that
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the robbers told Sales to lock the door to the garage and that
he did so. Three of the victims testified that they were afraid
to leave the garage because the men had weapons. There is no
requirement that all elements of an offense be established by a
victim (see Part III) nor is any reasonable hypothesis of
innocence established by the evidence. O'Neal and the other
victims were detained in the garage and told to lie or sit on
the ground against their will by the two men brandishing the
guns. Thus, the trial court could properly conclude that
appellant detained O'Neal with the intent to extort money by
force in violation of Code § 18.2-48.
For the foregoing reasons, we affirm appellant's
convictions of robbery and abduction. 2
Affirmed.
2
Because we affirm the convictions for robbery and
abduction, the two ancillary firearm charges are also affirmed.
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