Samuel Gonzales Ortiz v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Annunziata and Humphreys
Argued at Alexandria, Virginia

SAMUEL GONZALES ORTIZ
MEMORANDUM OPINION * BY
v. Record No. 2834-00-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
JANUARY 22, 2002
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Alfred D. Swersky, Judge

Uley Norris (Mary E. Maguire, Senior
Assistant Public Defender, on brief), for
appellant.

Michael T. Judge, Assistant Attorney General
(Randolph A. Beales, Acting Attorney
General, on brief), for appellee.

Samuel Gonzales Ortiz (appellant) was convicted in a bench

trial of robbery in violation of Code § 18.2-58. On appeal, he

contends that the trial court erred in finding the evidence

sufficient to convict him of robbery because (1) the

Commonwealth failed to prove criminal intent and (2) the

evidence supported only a finding of larceny from the person.

For the following reasons, we affirm the judgment of the trial

court.

* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
 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 June 10, 2000,

Yessenia Henriquez (Henriquez) left a check cashing business on

West Glebe Road in Alexandria, Virginia. As she walked down the

road she saw appellant standing across the street near a

taxicab. She asked appellant if the cab "belonged to him."

Appellant responded that it belonged to another man who was in

front of the cab. Henriquez walked away, and appellant called

out to her, "Come here." Henriquez walked to Executive Avenue,

and appellant grabbed her from behind. He grabbed her right

arm, pulled her towards him and said again, "Come here," and

"Let's go." Henriquez fought to "get him off [her]" and after

they pushed each other, appellant pulled her 14-carat gold

necklace from her neck. When the necklace broke, a baby ring

flew off of it. After taking the necklace, appellant walked

away.

Henriquez called the police on her cellular phone, and

three to five minutes later Officer Buckley (Buckley) arrived on

the scene. Henriquez told Buckley what had occurred and gave

him a description of the person who took her necklace.
- 2 -
Henriquez's arm was bruised and she also had a red mark on the

back of her neck which was, "thin, about the width of the gold

necklace, and it ran from one side to the other side." They

drove around the neighborhood and after approximately five to

ten minutes they saw appellant. Henriquez identified him as the

person who took her necklace. Buckley arrested him and found

the victim's necklace in his blue jeans pocket. Buckley then

called another officer who retrieved the baby's ring which had

fallen off the necklace.

Officer Angel Simedly (Simedly) of the Alexandria Police

Department transported appellant to police headquarters. When

appellant got into the police car, he told Simedly that:

he met her by the Rite-Aid. He saw her. He
told me that she apparently needed a ride.
He offered $50 in exchange for sex. Then
they walked to Executive Avenue. He was
expecting sex. He didn't get any. He says
that she began to talk to a male outside the
building on Executive Avenue, and when he
asked her what's up, she told him to go
away, and that's when he grabbed for her
necklace.

Appellant said that he took the necklace because she

refused to give him the $50 back he gave her for sex. Simedly

also noted that one of appellant's fingers was bleeding.

Appellant said that it had occurred when he grabbed the necklace

from Henriquez.

At trial, appellant gave a different version of the events.

He testified that he had cut his finger at work rather than when

- 3 -
he took the necklace from the victim. He also testified that on

June 9, 2000 he was at "a place called El Tropico" and danced

with a girl who needed and wanted $50. Appellant gave her $50,

and they agreed to meet the next day at the place where

Henriquez encountered appellant. When Henriquez approached, he

mistook her for the girl he met at the El Tropico. Appellant

thought Henriquez was "going to play with me" as she walked

away. He followed her and grabbed her arm, intending to recoup

his $50. He asked what happened to his money and then grabbed

her necklace as a form of repayment.

The trial court found appellant guilty of robbery, stating

that even if it accepted appellant's account of what happened,

the necessary elements for robbery are in place: "a taking by

force that's independent of the force necessary to take the

object from the victim's neck." The court noted that, "the

application of force to stop her, the grabbing of her purse and

then the struggle that ensued afterwards, whether he harbored

some secret intent to try to get back money that he mistakenly

believed she owed him, if you view it from the standpoint of the

victim, that's force." The judge further stated that there was

additional force applied to remove the necklace and that this

situation is distinguishable from the grabbing of a purse where

the person, "is not even aware of the presence until there's

force applied to take the object."

- 4 -
 II. STANDARD OF REVIEW

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

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. See Long v. Commonwealth, 8
Va. App. 194, 199, 379 S.E.2d 473, 476
(1989). 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. See Speight v.
Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d
95, 98 (1987) (en banc).

Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d

233, 235 (1998).

III. CRIMINAL INTENT

Appellant first argues that the Commonwealth failed to

prove that he had the requisite intent to rob the victim because

he had a good faith belief that the necklace belonged to him

under a bona fide claim of right. He contends that because he

mistook Henriquez for the woman whom he had paid $50 for sex, he

took the necklace as substitute for the money he felt he was

- 5 -
owed. If viewed as a bona fide attempt to enforce payment of a

debt, the mens rea for robbery is lacking. This argument is

without merit.

Robbery is 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."

Graves v. Commonwealth, 21 Va. App. 161, 164, 462 S.E.2d 902,

903 (1995). "With respect to the crimes of robbery and larceny,

a bona fide claim of right could be a defense because it negates

the criminal intent necessary to sustain those offenses, that

is, the intent to steal." Strohecker v. Commonwealth, 23 Va.

App. 242, 257, 475 S.E.2d 844, 852 (1996). "[A] bona fide claim

of right is a sincere, although perhaps mistaken, good faith

belief that one has some legal right to [possess] the property.

O'Banion v. Commonwealth, 33 Va. App. 47, 56, 531 S.E.2d 599,

603 (2000). "But if the claim of right is a mere pretext

covering the intent to steal, the taking by violence is

robbery." Pierce v. Commonwealth, 205 Va. 528, 533, 138 S.E.2d

28, 32 (1964). "[A] claim of right is an affirmative defense

and thus usually a question for the trier-of-fact." Reed v.

Commonwealth, 6 Va. App. 65, 70, 366 S.E.2d 274, 277 (1988).

The trial court found appellant guilty of robbery,

implicitly rejecting his "claim of right defense." Appellant

failed to carry his burden of proof on this affirmative defense.

- 6 -
 We find the facts of this case analogous to those of Pierce

in which there was a conflict about the bona fide nature of the

claim of right defense. Defendants Pierce and Hoffler were

tried together and convicted of robbery for taking the key to a

truck by force. The defendants argued that they had no intent

to steal because they took the key under a bona fide claim of

right because the truck's owner sold the truck to Pierce but

refused to deliver it or refund the purchase money. However,

the owner testified that he had neither sold the truck nor had

Pierce paid him any money. At gunpoint, the defendants forced

the owner to give up the keys to the truck.

The Supreme Court noted "[w]here the evidence is

conflicting the question of bona fides is for the trier of the

facts, in this case the court." Pierce, 205 Va. at 534, 138

S.E.2d at 32. Further, "[t]he opportunity of the trial court to

see and hear these witnesses was helpful beyond the ordinary in

ascertaining the truth." Id.

In the instant case, the trial court was entitled to

consider the conflicts in appellant's own testimony as well as

the testimony of the victim. The trial court was free to

disbelieve the self-serving statements of appellant and conclude

that he was lying to conceal his guilt.

The evidence, viewed in the light most favorable to the

Commonwealth, refutes the claim of right defense. Although

appellant offered a theory explaining why he took the necklace,
- 7 -
the trial court was not required to accept his account.

Henriquez's version of the encounter gave no indication that at

the time appellant took the necklace, he thought Henriquez owed

him any money or sexual services or was taking the necklace in

an attempt to enforce a claim of right. 1 Further, the fact

finder was not required to accept appellant's inconsistent

testimony and could conclude from it that he made up the story

concerning money for sex and, thus, had no good faith belief

that he was entitled to the necklace. A claim of right is not a

defense when it is a pretext covering the intent to steal. See

Pierce, 205 Va. at 533, 138 S.E.2d at 32. Thus, we cannot say

the trial court erred in rejecting appellant's claim of right

defense.

IV. EVIDENCE SUFFICIENT TO PROVE ROBBERY

Appellant next contends that the violence used in taking

the necklace was insufficient to support a conviction for

robbery and thus he could only be convicted of larceny from the

person. Appellant separates his contact with the victim into

two separate encounters: the approach and the taking.

Appellant argues that his initial grab of the victim's arm was

distinct from his taking of the necklace and that the only force

1
Because it was not raised by either party, we do not
address whether enforcing an illegal contract could ever be the
basis for a claim of right defense.
- 8 -
he used against Henriquez was that necessary to take the

necklace. This argument too is without merit.

Larceny is the "taking of personal goods of some intrinsic

value, belonging to another, without his assent, and with the

intent to deprive the owner thereof permanently." Graves v.

Commonwealth, 21 Va. App. 161, 164, 462 S.E.2d 902, 903 (1995).

"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). The "[v]iolence or force requires a

physical touching or violation of the victim's person." Id.

There is no basis to bifurcate appellant's contact with the

victim. He grabbed and pushed her and ripped the necklace from

her neck during the same encounter. The force used left bruises

on the victim's arm and a red mark on her neck.

The trial court specifically found that, "[w]e have a

taking by force that's independent of the force necessary to

take the object from the victim's neck." See Jones v.

Commonwealth, 26 Va. App. 736, 496 S.E.2d 668 (1998) (the

evidence was sufficient to prove a robbery rather than a larceny

from the person where the victim was jerked around by her

shoulder and the defendant grabbed the purse she was clutching).

Credible evidence supports this finding.

For these reasons, we affirm the trial court.

Affirmed.
- 9 -