Bell v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia

LANCE BELL, a/k/a LANCE JOHNSON

v. Record No. 2362-94-4 OPINION BY
JUDGE ROSEMARIE ANNUNZIATA
COMMONWEALTH OF VIRGINIA FEBRUARY 20, 1996

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

Kevin T. Gaynor, Assistant Public Defender,
for appellant.

Thomas C. Daniel, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.

Following a bench trial on May 19, 1994, the appellant,

Lance Bell ("Bell"), was convicted of carjacking. On October 27,

1994, the trial court sentenced him to fifteen years in prison,

with eight years suspended. On appeal, Bell challenges the

constitutionality of the carjacking statute and the sufficiency

of the evidence. For the reasons that follow, we affirm his

conviction.

I

On January 2, 1994 at 9:25 p.m., thirty-four year old Tracey

Quinn parked her vehicle near her home in Alexandria, Virginia.

Quinn left her vehicle and walked past two or three houses

before turning to ascend the front steps of her townhouse,

located around the corner but on the same block where she parked

her vehicle. As Quinn stood on her porch holding her keys, her
purse hanging from her shoulder, a man, later identified as Bell,

grabbed Quinn's purse strap from behind. Quinn turned, kicked

Bell in the chest, and screamed for help. According to Quinn,

Bell said "give me the keys" in a threatening and aggressive

manner. Bell took the keys from Quinn and ran toward her

vehicle. Quinn watched as Bell entered her vehicle and drove

away. Meanwhile, Quinn's neighbors, hearing her screams, phoned

the Alexandria police. Responding to a police alert, Officer

Spitzer identified Quinn's vehicle being driven at a high rate of

speed. Officer Spitzer apprehended the driver whom Quinn

identified, at the scene, as Bell. Bell admitted being at the

scene of the crime and taking Quinn's vehicle.
II

We address the sufficiency issue first, as the

constitutionality of a statute need only be decided when it is

necessary to the determination of the case. Coleman v. City of

Richmond, 5 Va. App. 459, 461, 364 S.E.2d 239, 241, reh'g denied,

6 Va. App. 296, 368 S.E.2d 298 (1988) (citation omitted).

When considering the sufficiency of the evidence in a

criminal case on appeal, this Court views the evidence in the

light most favorable to the Commonwealth. Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). The

trial court's judgment will not be set aside unless it appears

that the judgment is plainly wrong or without supporting

evidence. Code § 8.01-680; Josephs v. Commonwealth, 10 Va. App.

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87, 99, 390 S.E.2d 491, 497 (1990) (en banc) (quoting Martin v.

Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)).

Code § 18.2-58.1 defines carjacking as
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 . . . violence to
the person, or by assault, or otherwise
putting a person in fear of serious bodily
harm.

The trial court concluded that the elements of the offense

were established beyond a reasonable doubt. It found that when

Bell took Quinn's keys, he took "possession or control" of her

vehicle by "violence" and with intent to either permanently or

temporarily deprive her of possession or control. Bell contends,

however, that the evidence is insufficient to support the

conviction because, at the time he took Quinn's keys, she was not

in "possession or control" of her vehicle.
The question on appeal is whether Quinn's possession or

control of her keys gave her "possession or control" of her

vehicle for purposes of the carjacking statute. The matter

before the Court is one of first impression. However, case law

decided in other contexts supports, by analogy, the conclusion

that Quinn's possession of the vehicle's keys placed her in

possession or control of the vehicle. See e.g., Burchette v.

Commonwealth, 15 Va. App. 432, 435-36, 425 S.E.2d 81, 84 (1992)

(reversing conviction based on constructive possession, noting

lack of evidence that defendant had keys to vehicle in which

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contraband was found); United States v. Sotelo-Rivera, 931 F.2d

1317, 1319 (9th Cir. 1991), cert. denied, 502 U.S. 1100 (1992)

(possession of vehicle's keys is evidence of his exclusive

control over vehicle); United States v. Damsky, 740 F.2d 134, 139

(2d Cir.), cert. denied, 469 U.S. 918 (1984) (defendant had

dominion and control of vehicle once he was given the key);

United States v. Jackson, 529 F. Supp. 1047, 1050 (D. Md. 1981)

(exclusive control over vehicle obtained upon possession of

keys); Fitzpatrick v. United States, 410 F.2d 513, 517 n.3 (5th
Cir. 1969) (noting that lack of keys indicates lack of control). 4

Moreover, cases decided by both the Supreme Court of

Virginia and this Court hold that "constructive possession" may

be established by proving that an individual has the means of

exercising dominion or control over the item. See, e.g., Drew v.

Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986);

Archer v. Commonwealth 225 Va. 416, 418, 303 S.E.2d 863, 864

(1983); Brown v. Commonwealth, 5 Va. App. 489, 491-92, 364 S.E.2d

773, 774-75 (1988). While these cases address the concepts of

"possession," "constructive possession," and "control" in the

4
Although the Virginia Supreme Court in Overbee v.
Commonwealth 227 Va. 238, 315 S.E.2d 242 (1984), concluded that
mere possession of a vehicle's keys is not enough to establish
actual physical control of the vehicle, the Overbee Court was
construing Code § 18.2-266, which requires operation of the
vehicle in order to be convicted of DUI. Id. at 243, 315 S.E.2d
at 244. Although operating a vehicle under Code § 18.2-266
requires something more than having "the means of effecting
control," id., the same cannot be said of the meaning of
"possession or control" of a vehicle under other statutes.

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context of Code § 18.2-248, the Controlled Substances Act, the

holdings of those cases are applicable here.

Bell's contention that the legislature did not intend to

premise "possession or control" of the vehicle on the mere

possession of the vehicle's keys without regard to the victim's

proximity to the vehicle ignores this line of cases and their

relationship to statutory construction issues. It is well

established that "where the General Assembly acts in an area in

which this Court has already spoken, it is presumed to know the

law as the Court has stated it and to acquiesce therein."

Fortune v. Commonwealth, 12 Va. App. 643, 650, 406 S.E.2d 47, 50

(1991); McFadden v. Commonwealth, 3 Va. App. 226, 230, 348 S.E.2d

847, 849 (1986). 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

persons in "possession or control" of their vehicles, we presume

the legislature intended to include persons possessing the means

of exercising dominion and control of the vehicle.

Accordingly, appellant's claim that the evidence is

insufficient to sustain the conviction must fail.

III

Having found sufficient evidence to support the conviction,

we now consider whether the carjacking statute is

unconstitutionally vague. In assessing the constitutionality of

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a statute, "the burden is on the challenger to prove the alleged

constitutional defect". Woolfolk v. Commonwealth, 18 Va. App.

840, 848, 447 S.E.2d 530, 534 (1994). In addressing the issue, a

state court may construe its statutes as having limited

application "if such a construction will tailor the statute to a

constitutional fit." Coleman, 5 Va. App. at 462, 364 S.E.2d at

241. Bell argues that the carjacking statute is

unconstitutionally vague because it contains no temporal or

spatial constraint. We disagree. A criminal statute is

unconstitutionally vague only if it fails to define the offense

"with sufficient definiteness that ordinary people can understand

what conduct is prohibited and in a manner that does not

encourage arbitrary and discriminatory enforcement." Perkins v.

Commonwealth, 12 Va. App. 7, 16, 402 S.E.2d 229, 234 (1991)

(quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983)). Due

process requires that the law "give the person of ordinary

intelligence a reasonable opportunity to know what is

prohibited." Id. (quoting Coleman, 5 Va. App. at 466, 364 S.E.2d

at 243).

As previously noted, the legislature used terms well-

grounded in our jurisprudence. Existing case law defines the

term "constructive possession," and establishes the principle

that possession of a vehicle's keys is sufficient to establish

possession or control of the vehicle. What is prohibited by the

carjacking statute is not beyond the ken of a person of ordinary

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intelligence. Indeed, understanding the terms "possession and

control" as employed in the carjacking statute requires "no

superior intellectual attributes." United States v. Watson, 815

F. Supp. 827, 837 (E.D. Pa. 1993). Moreover, contrary to Bell's

contention, the mere potential for different interpretations

"concerning the precise meaning of a statute" does not

necessarily render it void for vagueness. Jackson v. W., 14 Va.

App. 391, 405, 419 S.E.2d 385, 393 (1992).
We also disagree with Bell's contention that the statute is

unlimited in terms of time or space. However, even if Bell's

theory were correct, Bell may challenge the constitutionality of

a law only as it applies to him. See Coleman, 5 Va. App. at 463,

364 S.E.2d at 241-42; Grosso v Commonwealth 177 Va. 830, 839, 13

S.E.2d 285, 288 (1941). "That the statute may apply

unconstitutionally to another is irrelevant." Id. Thus, Bell is

constrained to argue the statute's unconstitutionality based on

his temporal or spatial relation to the victim and her vehicle.

The evidence proved that Bell used violence to take Quinn's keys

and, within seconds, drove off in her vehicle while she watched.

Furthermore, as evidenced by the statutory elements of the

crime, the carjacking offense is a species of robbery. Indeed,

the carjacking offense was enacted as an additional provision in

Article 5, Chapter 4 of Title 18.2 of the Virginia Code, entitled

"Robbery." 5 While not part of the code section, in the strictest
5
The bill offered for passage by the General Assembly was
captioned, "Aggravated robbery, motor vehicle piracy; carjacking

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sense, the caption may be considered in construing the statute,

as it is "valuable and indicative of legislative intent".

Krummert v. Commonwealth, 186 Va. 581, 584, 43 S.E.2d 831, 832

(1947). Thus, carjacking must be viewed as a crime against the

person as well as against the person's property. See Mason v.

Commonwealth, 200 Va. 253, 255, 105 S.E.2d 149, 151 (1958); Jones

v. Commonwealth, 13 Va. App. 566, 572 n.3, 414 S.E.2d 193, 196

n.3 (1992). Though the elements of carjacking and robbery are

not identical, the carjacking provision is nonetheless confined

by the same limitations which apply to robbery. Thus, the

requisite violence or intimidation must precede or be concomitant

with the taking. E.g., Mason, 200 Va. at 255-56, 105 S.E.2d at

151. Where, as here, the facts establish that the violence

against the victim and the trespass to the victim's property

"combine in a continuing, unbroken sequence of events, the

robbery itself continues as well for the same period of time."

Quesinberry v. Commonwealth, 241 Va. 364, 373, 402 S.E.2d 218,

224, cert. denied, 502 U.S. 834 (1991); see Person v.
Commonwealth, 10 Va. App. 36, 40, 389 S.E.2d 907, 910 (1990).

The carjacking statute, well-grounded in the law of robbery,

defines and limits the challenged provisions in a manner that

does not encourage arbitrary and discriminatory enforcement.

Viewed as a particularized form of robbery, the carjacking

statute contains both temporal and spacial limits which negate
(..continued)
penalty." (Emphasis added.)

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Bell's argument.

We do not construe the carjacking statute to cover every

case where a defendant takes a victim's car keys and then

deprives the victim of his or her vehicle. Rather, the

Commonwealth must prove an act of violence against the victim

that precedes or is concomitant with the taking of the vehicle

from the possession or control of the victim, as delineated in

the opinion.
For these reasons, we find that, as applied to Bell, Code

§ 18.2-58.1 is constitutional. 6

Accordingly, his conviction is affirmed.

Affirmed.

6
Bell also raises the issue of whether he may be convicted
of the lesser-included offense of larceny or robbery. Because we
affirm, we do not reach this question.

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