Lebedun v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Coleman and
Senior Judge Duff
Argued at Alexandria, Virginia

ALLEN ABRAHAM LEBEDUN
OPINION BY
v. Record No. 0250-97-4 JUDGE SAM W. COLEMAN III
JULY 7, 1998
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Marcus D. Williams, Judge
Crystal A. Meleen, Senior Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.

H. Elizabeth Shaffer, Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.

Allen Abraham Lebedun appeals his jury trial convictions for

abduction, robbery, and use of a firearm in the commission of

robbery. Lebedun contends the convictions should be reversed

because (1) the search warrant was not supported by probable

cause and failed to recite the offense for which the search was

being conducted; (2) the general district court erred in refusing

to grant a continuance in order to obtain a court reporter for

the preliminary hearing; (3) the circuit court judge erred by sua
sponte noting the failure of the Commonwealth's evidence to make

an in-court identification of the defendant and by allowing the

Commonwealth to reopen its evidence to prove the defendant's

identity; (4) the circuit court erred by refusing to instruct the

jury that Virginia has abolished parole eligibility in
non-capital cases; (5) the Commonwealth failed to comply with the

statutory notice and copy requirements for introducing prior

convictions evidence at sentencing; and (6) the evidence is

insufficient to support the robbery conviction. For the reasons

that follow, we affirm the convictions.

I. BACKGROUND

Two men wearing masks, wigs, and gloves entered the Medicine

Chest Pharmacy in Fairfax County. The taller of the two men went

to the pharmacy counter, pointed a firearm at Norman Friedlander,

the store manager, and Raza Alborz, the pharmacy technician, and

announced that "it was a hold up" and "no one would get hurt if

[they didn't] do anything silly." He ordered Alborz and

Friedlander to step away from the pharmacy counter. As

Friedlander complied, he noticed that the shorter assailant was

holding a knife on Jerry Danoff, the pharmacist, and Patrice

Lyons, a customer.
Upon learning that Danoff was the pharmacist, the gunman

approached Danoff and demanded methadone. Danoff opened the

narcotics cabinet and the gunman "started grabbing and filling up

[bags]" with packets of narcotics. The gunman then ordered

Danoff to lie on the floor and attempted to bind his feet and

hands with tape. As Danoff lay on the floor, he heard someone

open the cash register. During this time, the shorter assailant,

who had been holding a knife on Friedlander, Alborz, Lyons, and

customer Helen Gray, ordered them into a storage room, where he

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bound them with tape.

Upon hearing the assailants leave the store, the victims

freed themselves. Alborz ran outside and observed the assailants

entering an automobile. Alborz saw the shorter, knife-wielding

assailant remove his mask. Alborz later identified the unmasked

assailant from a photo line-up as Worth Myers.

After the robbery, Friedlander determined that narcotics and

a small amount of cash were missing from the drug cabinet.

Danoff testified that the cash register was "completely empty,

missing approximately $400 that was in the register earlier that

day." Although appellant was charged with having robbed

Friedlander, appellant notes that Friedlander was in the storage

area when the robbers took the drugs and money and no money or

property was taken from him personally.
Approximately two weeks after the robbery, Fairfax County

Police Detective James Agnew executed a search warrant for Worth

Myers' home. In Myers' bedroom, Agnew found pieces of tape

similar to a ball of tape that he had found behind the pharmacy

counter and similar to a roll of tape found in the pharmacy

parking lot after the robbery. Agnew also found two Halloween

masks. Alborz testified that he recognized both masks as having

been worn by the robbers. Friedlander and Lyons testified that

they recognized one of the masks as having been worn by the tall

gunman.

While Agnew searched Myers' home, Fairfax County Police

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Detective Jack Kirk executed a search warrant at Lebedun's

apartment. Kirk recovered several bags of prescription drugs, a

gun, ammunition, and gloves from Lebedun's bedroom. Kirk

testified that one bottle of pills was labeled with a Medicine

Chest price sticker. Friedlander testified that some of the

drugs recovered from Lebedun's home were the same type as those

taken by the robbers. Friedlander, Lyons, and Alborz positively

identified the gun found in Lebedun's bedroom as the gun used by

the taller assailant.
Robert Russell, an acquaintance of Lebedun, testified that

during the three months preceding the robbery Lebedun asked

Russell to get him a gun. Russell recounted that Lebedun said he

and Myers had "something staked out." Lauran Ipsan, another

acquaintance, testified that on the day of or the day after the

robbery Lebedun said he and Myers had "done a robbery," that

Myers had taken off his mask, and that one of the pharmacy

employees had seen Myers.

Lebedun was indicted and convicted for robbery of

Friedlander, use of a firearm in the commission of robbing

Friedlander, and abducting Lyons and Gray.

II. THE SEARCH WARRANT

A. Probable Cause

The Fourth Amendment provides that a search warrant shall

issue only upon a showing of probable cause supported by oath or

affirmation. See Gwynn v. Commonwealth, 16 Va. App. 972, 974,

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434 S.E.2d 901, 903 (1993). Whether probable cause exists to

support the issuance of a warrant is to be determined from the

"totality of the circumstances" that are presented to the

magistrate. Illinois v. Gates, 462 U.S. 213, 238 (1983).
The task of the issuing magistrate is simply
to make a "practical, common-sense decision
whether, given all the circumstances set
forth in the affidavit before him, including
the veracity and the basis of knowledge of
persons supplying hearsay information, there
is a fair probability that contraband or
evidence of a crime will be found in a
particular place." And the duty of a
reviewing court is simply to ensure that the
magistrate had a "substantial basis for . . .
concluding" that probable cause existed.
* * * * * * *

[A]n after-the-fact review of a magistrate's
decision should not be made de novo[,] . . .
great deference should be given to the
magistrate's finding of probable cause.

Derr v. Commonwealth, 242 Va. 413, 421, 410 S.E.2d 662, 666

(1991) (quoting Gates, 462 U.S. at 238).

In the present case, Detective Agnew's affidavit in support

of his request for a warrant to search Lebedun's home stated that

a fatal drug overdose had occurred at Myers' apartment, that an

informant had purchased prescription drugs from Myers, and that

Worth Myers had told the informant how he and Lebedun, while

wearing masks, committed a series of armed robberies of

pharmacies in Maryland and Virginia. The affidavit further

stated that the informant had on other occasions provided the

police with information regarding controlled drug purchases and

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had been found to be reliable. The affidavit also stated that a

victim of one robbery could identify Myers as one of the robbers

after having observed Myers when he removed his mask as he left

the scene. The affidavit further stated that "Myers gave

statements [after his arrest] as to his involvement in the armed

robberies of several pharmacies in Maryland and Virginia, against

his penal interest. In his statement [Myers] implicated one

Allen Lebedun as the second subject in the robberies."

Accordingly, the magistrate issued a warrant to search Lebedun's

apartment.
Lebedun contends the magistrate lacked probable cause to issue

the search warrant because the magistrate's decision was based

solely upon the unreliable assertions made by Worth Myers.

Lebedun reasons that Myers' assertions were unreliable because he

admitted to using and distributing drugs. We find no merit in

the argument. The reliability of hearsay statements in an

affidavit "may be established by showing that . . . the

[declarant] has made a declaration against his penal interest." 1
1
Even before the Supreme Court departed from the more rigid
Aguillar-Spinelli approach in favor of the "totality of the
circumstances" test announced in Gates, the Virginia Supreme
Court had held in Manley v. Commonwealth, 211 Va. 146, 150-51,
176 S.E.2d 309, 313 (1970):

Reliability may be found in an informant's
statement of facts as an "eyewitness." In
People v. Montague, . . . the reliability
standard was said to have been met where the
affidavit in sufficient detail established
that the informer was speaking with personal
knowledge and relating his own participation
with that of the suspects in their illegal

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 Polston v. Commonwealth, 24 Va. App. 738, 745, 485 S.E.2d 632,

634 (1997), aff'd on other grounds, ___ Va. ___, 498 S.E.2d 924

(1998). Myers' admission that he and Lebedun committed the

robberies was a statement against his penal interest and, as

such, constituted reliable information upon which the magistrate

could find probable cause to issue a warrant. Based on the

totality of circumstances presented in the affidavit, the

magistrate had a "substantial basis for concluding" that Lebedun

committed the robberies with Myers and that evidence relating to

the robberies could be found at Lebedun's home. Accordingly,

issuance of the search warrant was supported by probable cause.
(..continued)
activities. In the concurring opinion of Mr.
Justice White in Spinelli, it is said:

But if for example, the informer's
hearsay comes from one of the
actors in the crime in the nature
of an admission against interest,
the affidavit giving this
information should be held
sufficient.

Here, the affidavit established that the
informant was stating facts based on his own
personal knowledge and was relating his
participation in defendant's illegal
activity. His statements were admissions
against interest. These facts certainly show
a substantial basis for the officer-affiant
to state that the informant was reliable and
for a neutral and detached magistrate to
conclude that the informant's information was
reliable and that probable cause existed for
the issuance of the warrant.

211 Va. at 150-51, 176 S.E.2d at 313 (citations omitted).

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 B. Recitation of Offense Pertaining to Search Warrant

Both the Fourth Amendment and Code § 19.2-56 require that a

search warrant "recite the offense in relation to which the

search is to be made." Code § 19.2-56; Gilluly v. Commonwealth,

221 Va. 38, 41, 267 S.E.2d 105, 106-07 (1980). The failure of a

warrant to state the related offense renders the warrant "fatally

defective" and the evidence seized in the execution of the

warrant inadmissible. Id.
Code § 19.2-56 further provides: "The judge, magistrate, or

other official authorized to issue criminal warrants shall attach

a copy of the affidavit required by Code § 19.2-54, which shall

become part of the search warrant and served therewith."

(Emphasis added). Although a search warrant should recite on its

face the offense being investigated, an attached affidavit which

recites the offense provides the necessary notice because the

affidavit "become[s] part of the search warrant." A search

warrant sufficiently "recites the offense" if the affidavit

attached to it specifies the offense to which the warrant

pertains. However, a search warrant does not recite the offense

and is "fatally defective," where "the evidence below
establishe[s] conclusively that [the facially deficient warrant

and the affidavit that did recite the offense] were not attached

until after the search warrant had been executed and the disputed

items seized." Gilluly, 221 Va. at 41, 267 S.E.2d at 107 (first

emphasis added).

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 Relying on Gilluly, Lebedun contends the evidence fails to

show that the deficient warrant and affidavit were attached or

that they were attached when the search occurred. Without

dispute, the warrant failed to recite the offense, but the

affidavit expressly stated that the search pertained to charges

of robbery and abduction. Thus, a critical fact is whether the

warrant and affidavit were attached when the warrant was

executed.
At the suppression hearing, Detective Kirk testified

regarding his execution of the search warrant:

COMMONWEALTH'S ATTORNEY: Now, when you state

that you executed [the search warrant], tell

His Honor what you did.

DETECTIVE KIRK: I noted the time that we
made entry into the house. I executed the
warrant by signing my name to it where it
says, execution. At the end of our
investigation at the residence I left a copy
of the warrant on the table in the dining
room/kitchen area of the residence.

COMMONWEALTH'S ATTORNEY: Now, when you say a
copy of the warrant . . . [you mean] not only
of the search warrant itself, but the
affidavit.

DETECTIVE KIRK: Yes, sir.

COMMONWEALTH'S ATTORNEY: Now, did you leave
both of those items at [Lebedun's residence]?

DETECTIVE KIRK: Yes, sir, we always do. We
always leave the affidavit with the copies of
the search warrant itself.

* * * * * * *

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 COMMONWEALTH'S ATTORNEY: What was the status
[of the search warrant and accompanying
affidavit] when you left those at the
apartment?

DETECTIVE KIRK: They were paper clipped
together.

COMMONWEALTH'S ATTORNEY: Paper clipped?

DETECTIVE KIRK: Yes; we paper clip them
together and leave a copy at the scene.

* * * * * * *

COMMONWEALTH'S ATTORNEY: Was there anybody
present besides police officers when you left
those items . . . in that apartment?
DETECTIVE KIRK: There was no one present
inside the house at the time.

On cross-examination, Detective Kirk explained:

DEFENSE COUNSEL: Were [the search warrant
and the affidavit] ever stapled together or
in any way permanently attached to one
another?

DETECTIVE KIRK: They were paper clipped
together.

The evidence did not expressly prove whether the search

warrant and affidavit were attached or "paper clipped together"

at the time the search warrant was executed. Thus, the

dispositive issue is whether on the motion to suppress the

Commonwealth had the burden of proving that the affidavit was

attached or the defendant had the burden of proving that it was

not. We find no Virginia case allocating the burden of proof

when the defendant moves to suppress evidence that was seized

pursuant to a search warrant.
With respect to . . . the reasonableness of

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 the challenged search or seizure . . . most
states follow the rule which is utilized in
the federal courts: if the search or seizure
was pursuant to a warrant, the defendant has
the burden of proof; but if the police acted
without a warrant the burden of proof is on
the prosecution.

4 Wayne R. LaFave, Search and Seizure § 11.2(b) at 218 (2d ed.

1987) (emphasis added). See, e.g., United States v. Cahree, 27

F.3d 1493, 1496 (10th Cir. 1994); United States v. Roch, 5 F.3d

894, 897 (5th Cir. 1993); United States v. Longmire, 761 F.2d

411, 417 (7th Cir. 1985); State v. Slaughter, 315 S.E.2d 865 (Ga.
1984); State v. Brown, 333 A.2d 264, 267 (N.J. Super. Ct. App.

1975); Malcolm v. United States, 332 A.2d 917, 918 (D.C. App.

1975); State v. Wilcutt, 526 P.2d 607, 608-09 (Or. App. 1974);

Morales v. State, 170 N.W.2d 684, 687 (Wis. 1969). Because

search warrants are favored, and warrantless searches are

presumptively invalid under the Fourth Amendment, see

Commonwealth v. Ealy, 12 Va. App. 744, 751-52, 407 S.E.2d 681,

686 (1991), we find the warrant/no warrant dichotomy to be a

logical basis for allocating the burden of proof when ruling on

motions to suppress. Thus, the government bears the burden to

justify a warrantless search as an exception to the warrant

requirement. See Coolidge v. New Hampshire, 403 U.S. 443, 454-55

(1971). However, a presumption of validity attaches when a

search is conducted pursuant to a warrant issued by a neutral and

detached magistrate or judicial officer. See Brown, 333 A.2d at

267; Malcolm, 332 A.2d at 918. Therefore, where the police

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conduct a search pursuant to a judicially sanctioned warrant, the

defendant must rebut the presumption of validity by proving that

the warrant is illegal or invalid. See id.; Wilcutt, 526 P.2d at

608-09; see also Longmire, 761 F.2d at 417. We adopt the

well-reasoned rule applied by the federal courts and the majority

of our sister states.

Here, because the evidence was seized pursuant to a

judicially issued search warrant, Lebedun had the burden of

proving that the search warrant was invalid. In order to prove

that the warrant was invalid and thereby necessitated suppression

of the evidence, Lebedun had the burden of proving that the

warrant and the affidavit were not attached when the warrant was

executed. As noted, Lebedun failed to meet this burden. After

Detective Kirk testified that the search warrant and affidavit

were attached when he "left the apartment," Lebedun did not

establish whether they were attached before or after the warrant

was executed. Lebedun had the opportunity to elicit this

information during Detective Kirk's cross-examination but

declined to do so. We hold that Lebedun failed to meet his

burden of proving that the warrant did not recite the offense in

relation to which the search was conducted. Therefore, the trial

court did not err in denying Lebedun's motion to suppress the

seized evidence.
III. GENERAL DISTRICT COURT'S DENIAL OF MOTION FOR A CONTINUANCE
The circuit court granted Lebedun's in forma pauperis motion

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to provide a court reporter to record and transcribe the

testimony at the preliminary hearing. However, the court

reporter did not appear at the preliminary hearing. After

advising the general district court judge that a court reporter

had been authorized to transcribe the hearing and was not

present, Lebedun made a motion for a continuance of the

preliminary hearing. Apparently, no effort was made to obtain

the services of another court reporter. The Commonwealth

objected to a continuance, noting that seven witnesses were

present and prepared to testify. The general district court

denied the motion for continuance. Lebedun's counsel tape

recorded the preliminary hearing, but, according to Lebedun,

several portions of the witnesses' testimony were inaudible or

incomplete. On appeal, Lebedun asks us to dismiss the indictment

and remand the case to the general district court for a

preliminary hearing with a court reporter.
"The decision whether to grant a continuance is a matter

within the sound discretion of the trial court." Lowery v.

Commonwealth, 9 Va. App. 304, 307, 387 S.E.2d 508, 509 (1990).

The Virginia Supreme Court has established a two-pronged test for

determining whether a trial court's denial of a continuance

request is reversible error. Under this test, we may reverse a

trial court's denial of a motion for a continuance only if it

appears from the record: (1) that the court abused its

discretion and (2) that the movant was prejudiced by the court's

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decision. See Cardwell v. Commonwealth, 248 Va. 501, 509, 450

S.E.2d 146, 151 (1994).

The function of a preliminary hearing is to determine before

a judicial officer whether probable cause exists to believe that

an accused may have committed a criminal offense and whether

reason exists for a grand jury to investigate the charges. See

Webb v. Commonwealth, 204 Va. 24, 31, 129 S.E.2d 22, 38 (1963).

A preliminary hearing is not a vehicle for an accused to conduct

discovery. See Williams v. Commonwealth, 208 Va. 724, 729, 160

S.E.2d 781, 784 (1968).

Although a preliminary hearing is not constitutionally

mandated, an accused who has been arrested on a felony warrant is

statutorily entitled to a preliminary hearing. See Code

§ 19.2-218. Because a transcript of the preliminary hearing may

be an effective tool for cross-examining and impeaching witnesses

at trial, see Harley v. Commonwealth, 25 Va. App. 342, 348-50,

488 S.E.2d 647, 649-50 (1997), the circuit court authorized

Lebedun to employ a court reporter. See Roberts v. LaVallee, 389

U.S. 40, 42-43 (1967) (per curiam); Code § 19.2-185. However,

the responsibility for employing the court reporter and having

the court reporter present rested with Lebedun. Lebedun did not

have a court reporter present for the scheduled preliminary

hearing and offered no justification other than that the court

reporter had not appeared. Lebedun could not determine when a

court reporter would be available or whether one could be

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available that day.

Here, the general district court did not abuse its

discretion in denying the motion for a continuance. The

Commonwealth had committed to provide Lebedun a court reporter.

As with a non-indigent defendant, the court must determine

whether a party has shown good cause for not having a court

reporter present for a scheduled preliminary hearing. In ruling

upon a motion for a continuance, a court may properly consider

the convenience of the witnesses who are prepared to testify at

the scheduled proceeding. See Ex Parte Windham, 634 S.W.2d 718,

720-21 (Tex. Crim. App. 1982); Phifer v. State, 218 N.W.2d 354,

356-58 (Wis. 1974). The Commonwealth had seven witnesses present

to testify at the preliminary hearing, several of whom had been

subpoenaed to appear. Because the appellant could not determine

that a court reporter could be available that day, the witnesses

would likely have been required to reappear to testify on another

date. The appellant did not give a justifiable reason why he did

not have a court reporter present.

Furthermore, Lebedun has not demonstrated that the lack of a

transcript of the preliminary hearing denied him the opportunity

to assess the strength of the Commonwealth's case or was

essential for him to impeach the witnesses at trial. See Edwards

v. Commonwealth, 19 Va. App. 568, 572, 454 S.E.2d 1, 3 (1995).

Lebedun was allowed to tape record the testimony of the witnesses

at the preliminary hearing and could have taken notes of the

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proceedings. See Code § 16.1-69.35:2. After the circuit court

authorized Lebedun to employ a court reporter, the responsibility

for employing a reporter and having the reporter present rested

with the appellant. Although Lebedun may have been

inconvenienced by the lack of a transcript, he has not shown that

he was prejudiced by not having a transcript of the preliminary

hearing. See Bird v. Peyton, 287 F. Supp. 860, 862-63 (W.D. Va.

1968). We find that, under the circumstances, the general

district court's denial of the motion for a continuance was not

an abuse of discretion. Accordingly, we decline to dismiss the

indictment and remand the case to the general district court for

a preliminary hearing.
IV. REOPENING OF THE COMMONWEALTH'S CASE

Lebedun made a motion to strike the evidence on the ground

the Commonwealth failed to prove the requisite elements of

robbery. After discussing and denying Lebedun's motion, the

trial court inquired: "[B]efore we proceed[,] where is the

identification of the defendant as the person who did this, in

Court identification?" The court further stated:
I believe you got to make an in Court --
you still got to link the name -- you've got
a name in evidence, but you've got to say
this is the person is -- I mean you could do
it through the witnesses who know him. They
can say that's Mr. Lebedun.
It doesn't have to be the people at the
robbery, but I think you got to have somebody
to say this is the person.

The court then permitted the Commonwealth, over Lebedun's

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objection, to reopen its case to make an in-court identification

of Lebedun. Lebedun contends the court erred in permitting the

Commonwealth to reopen its case and in raising the issue sua

sponte.

"[T]he order of proof is a matter within the sound

discretion of the trial court and [an appellate] court will not

reverse the judgment except in very exceptional cases, and,

unless it affirmatively appears from the record that this

discretion has been abused, [an appellate] court will not disturb

the trial court's ruling." Hargraves v. Commonwealth, 219 Va.

604, 608, 248 S.E.2d 814, 817 (1978).

Hargraves is controlling on this issue. In that case, after

the Commonwealth presented its case, the defendant made a motion

to strike the evidence on the ground that he had not been

identified as the perpetrator. Id. at 606, 248 S.E.2d at 816.

"After expressing doubt as to the sufficiency of the

Commonwealth's evidence," the trial court permitted the

Commonwealth to reopen in order to present a witness who

identified the defendant as the perpetrator. Id. at 607, 248

S.E.2d at 816. The Virginia Supreme Court held that the trial

court had broad discretion to control the order of evidence

before it and did not abuse its discretion in permitting the

Commonwealth to reopen its case to present additional evidence.

Id. at 608, 248 S.E.2d at 817. Here, as in Hargraves, the trial

court did not abuse its discretion by allowing the Commonwealth

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to reopen its case to make an in-court identification of Lebedun.

Moreover, contrary to Lebedun's assertion, the trial judge did

not transgress his role as an impartial arbiter by commenting sua

sponte upon the identification issue. See Students of Calif.

School for the Blind v. Honig, 736 F.2d 538, 548-49 (9th Cir.

1984), vacated on other grounds, 471 U.S. 148 (1985). Although

the trial judge is a neutral and impartial arbiter and should not

abandon that role by becoming an advocate, the trial judge is not

required to sit idly and observe a miscarriage of justice occur

because one party inadvertently overlooks establishing a routine

element of proof. The trial court did not abuse its discretion

by raising the issue or by permitting the Commonwealth to reopen

its case to identify Lebedun.

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 V. REFUSAL TO INSTRUCT JURY ON THE ABOLITION OF
PAROLE ELIGIBILITY IN NON-CAPITAL CASES

During deliberations, the jury sent the trial judge a note

inquiring: "What is the Virginia Parole law, if any?" Over

Lebedun's objection, the trial judge responded that the jury

"should not concern [them]selves with . . . these matters."

Lebedun contends the trial judge erred and should have told the

jury that he was ineligible for parole under Virginia law.

Our disposition of this issue is controlled by Briscoe v.
Commonwealth, 26 Va. App. 415, 494 S.E.2d 898 (1998).

Recognizing that courts are not required to instruct the jury on

a defendant's eligibility for parole in non-capital cases, see

Walker v. Commonwealth, 25 Va. App. 50, 66, 486 S.E.2d 126, 134

(1997); Mosby v. Commonwealth, 24 Va. App. 284, 286, 482 S.E.2d

72, 72 (1997), Briscoe held that a trial court does not err by

refusing to answer a jury's questions regarding parole

eligibility. 26 Va. App. at 417, 494 S.E.2d at 899.

Accordingly, the trial judge did not err when he informed the

jury that it was "not to concern [them]selves" with whether

Lebedun was eligible for parole.
VI. NOTICE OF INTENT TO INTRODUCE PRIOR CONVICTIONS

More than a month before trial, the Commonwealth notified

Lebedun's counsel that it intended to introduce at sentencing an

August 2, 1977 Fairfax County conviction for robbery. The

related order provided by the Commonwealth showed the date of

conviction to be August 27, 1976. The Commonwealth also gave

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notice of its intention to introduce evidence of four convictions

in Montgomery County, Maryland in January 1977, which included

two convictions for robbery and two convictions for use of a

firearm in the commission of a felony. The Maryland records

provided by the Commonwealth to Lebedun's counsel indicated that

on appeal the 1977 convictions were reversed and remanded and

that Lebedun was retried and convicted on the same charges in

1979.
Code § 19.2-295.1 requires that at the sentencing phase of a

bifurcated trial the Commonwealth provide notice of its intention

to introduce evidence of the defendant's prior convictions. The

notice shall include "the date of each prior conviction." Code

§ 19.2-295.1. The statute further provides that "[p]rior to the

commencement of the trial, the Commonwealth shall provide to the

defendant photocopies of certified copies of the defendant's

prior criminal convictions which it intends to introduce at

sentencing." Id.

Lebedun argues that the trial court erred by permitting the

Commonwealth to introduce the prior conviction orders at

sentencing because the Commonwealth erroneously stated the dates

of the respective convictions in its notice to defense counsel.

Thus, he contends, because the Commonwealth failed to strictly

comply with the notice provisions of Code § 19.2-295.1, the case

must be remanded for resentencing. We disagree.

Code § 19.2-295.1 is "procedural in nature" and "does not

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convey a substantive right." Riley v. Commonwealth, 21 Va. App.

330, 337-38, 464 S.E.2d 636, 638-39 (1994). As such, the

statute's notice provisions are merely directory, and "precise

compliance [was] not . . . essential to the validity of the

proceedings. . . ." Commonwealth v. Rafferty, 241 Va. 319, 324,

402 S.E.2d 17, 20 (1991) (citation omitted). The purpose of the

notice provisions of Code § 19.2-295.1 is to provide defense

counsel with the opportunity to know in advance what convictions

the Commonwealth intends to introduce and to investigate their

validity. Although the Commonwealth's notices incorrectly stated

the dates of the actual convictions, the Fairfax County

conviction order and the Maryland documentation apprised Lebedun

of the convictions that would be proven and the correct

conviction dates. Lebedun does not contend that the convictions

never occurred or that he could not ascertain whether the

conviction record was accurate. The Commonwealth's failure to

strictly comply with the procedural requirements of Code

§ 19.2-295.1 violated no substantive right and did not prejudice

Lebedun's ability to contest the validity of the convictions.

Therefore, the trial court did not err in admitting proof of the

prior convictions.
VII. SUFFICIENCY OF THE EVIDENCE - ROBBERY

Lebedun next contends the evidence is insufficient to

support the robbery conviction. Upon familiar principles of

appellate review, we will not disturb the jury's verdict unless

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it is plainly wrong or without evidence to support it. Traverso

v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988).

When the sufficiency of the evidence is challenged on appeal, we

must determine whether the evidence, viewed in the light most

favorable to the Commonwealth, and granting to it all reasonable

inferences fairly deducible therefrom, supports each and every

element of the charged offense. See Higginbotham v.

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

Commonwealth, 205 Va. 528, 532, 138 S.E.2d 28, 31 (1964). When

one takes property "from the presence of a person whose right to

possession is superior to that of the [robber], the robbery is

complete." Clay v. Commonwealth, 13 Va. App. 617, 619, 414

S.E.2d 432, 433 (1992).

Here, the indictment alleged that Lebedun robbed

Friedlander. The Commonwealth did not charge that Lebedun robbed

any other pharmacy employee. Lebedun contends that because

Friedlander was sequestered in the storage room before Lebedun

took any of the drugs or money the evidence failed to prove that

he took property "from [Friedlander's] person or in
2
[Friedlander's] presence." The argument is without merit.
2
Appellant does not contend the evidence is insufficient to
identify him as one of the perpetrators of the robbery. Instead,
he argues that, at most, the evidence proved that he robbed
Danoff and not Friedlander, as the indictment alleged.

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 "The phrase 'of the personal property of another, from his

person or in his presence' has been broadly construed to include

the taking of property from the custody or . . . the constructive

possession of another." Bunch v. Commonwealth, 225 Va. 423, 440,

304 S.E.2d 271, 280 (1983). As the store manager, Friedlander

was the custodian of the pharmacy's drugs and money, was in

constructive possession of those items, and clearly had a right

to possession of the property superior to that of Lebedun. See
Sullivan v. Commonwealth, 16 Va. App. 844, 848, 433 S.E.2d 508,

510-11 (1993). The evidence proved that Lebedun and Myers

threatened Friedlander with dangerous weapons, forced him away

from the pharmacy counter and into a storage room, and took drugs

and money from the narcotics cabinet and cash register behind the

counter. These facts sufficiently established that Lebedun took

the property from Friedlander's custody. See Bunch, 225 Va. at

440, 304 S.E.2d at 280 (property taken from victim's custody

where defendant brutally beat victim in her home and alleged to

have taken property from another part of residence); see also
Person v. Commonwealth, 10 Va. App. 36, 40, 389 S.E.2d 907, 910

(1990) (property taken from victim's presence where victim

forcibly transported from her car to another car and held down by

one assailant while other assailant entered victim's car and took

money from glove compartment). Accordingly, the evidence is

sufficient to support the robbery conviction.

For these reasons, we affirm the convictions.

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 Affirmed.

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