COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Benton and Overton
Argued at Norfolk, Virginia
DANNY LOPEZ MARTINEZ
MEMORANDUM OPINION * BY
v. Record No. 0176-96-1 JUDGE NELSON T. OVERTON
DECEMBER 3, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
William F. Rutherford, Judge
Jan F. Hoen (Zoby & Broccoletti, on brief),
for appellant.
John K. Byrum, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Danny Lopez Martinez was convicted by a jury of robbery in
violation of § 18.2-58 and the use of a firearm in the commission
of robbery in violation of § 18.2-53.1. He appeals his
convictions, contending that the trial court erred in refusing to
grant his jury instruction on a claim of right defense. Because
we find that the evidence does not support such an instruction,
we affirm.
The parties are fully conversant with the record in the
cause, and a recitation of the facts is unnecessary to this
memorandum opinion.
"A jury must be instructed on any theory or affirmative
defense supported by the evidence." McCoy v. Commonwealth, 9 Va.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
App. 227, 229, 385 S.E.2d 628, 629 (1989); see Stevenson v.
United States, 162 U.S. 313, 322 (1896). This Court must decide
whether the evidence when viewed in the light most favorable to
the defendant's theory required the requested instruction.
McCoy, 9 Va. App. at 229, 385 S.E.2d at 629; see Neighbors v.
Commonwealth, 214 Va. 18, 19, 197 S.E.2d 207, 208 (1973).
Martinez requested two jury instructions pertaining to the
claim of right defense. Martinez argues that if he took the
property "under a bona fide claim of right, as under a claim of
ownership or in a bona fide attempt to enforce payment of a
debt," then he lacked the necessary criminal intent and his
convictions fail. See Pierce v. Commonwealth, 205 Va. 528, 533,
138 S.E.2d 28, 32 (1964). The defense's theory in this case
stems solely from a statement made by Martinez at the time of the
incident and overheard by other witnesses. Martinez asked the
alleged robbery victim where the money was that the victim owed
him. On appeal, he now contends that this statement is
sufficient evidence so that a jury could reasonably conclude that
he was acting under a claim of right, thus absolving him from the
offense of robbery.
We disagree. Although Martinez's statement provided some
evidence that he believed that the victim owed him money, no
evidence was presented to prove the amount that was owed. No
connection was made between the amount taken from the victim and
the amount of the alleged debt. In addition to money, the
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victim's wallet and its contents were taken by Martinez when he
ran away.
These circumstances do not provide the requisite evidence to
support a jury instruction for a claim of right defense. Because
no evidence proved that Martinez took no more than he was owed,
the evidence did not present a factual basis from which the jury
could have determined whether Martinez had a bona fide claim to
what he took. Cf. Butts v. Commonwealth, 145 Va. 800, 815, 133
S.E. 764, 768-69 (1926) (taking was bona fide where the defendant
demanded or took no more than what was due him). When the
evidence proves the amount owed and the amount taken, the
question of bona fides becomes an issue for the trier of fact.
See Pierce, 205 Va. at 533-34, 138 S.E.2d at 32. If the proposed
instruction had been given, the jury would have been required to
speculate as to the amount of the debt. Thus, the evidence in
this case did not support a claim of right jury instruction.
For the reasons stated, the convictions are affirmed.
Affirmed.
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Danny Lopez Martinez v. Commonwealth
Combined Opinion