Winn v. Commonwealth

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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