Towler v. Commonwealth
59 Va. App. 284
Va. Ct. App.2011Background
- CVS Altavista incident: masked man demanded money and displayed a gun; J.H. handed over about $230.
- J.M., CVS sales manager, identified Towler by voice, mannerisms, gait, and build during the encounter.
- B.P. informant: Towler told her he robbed CVS for Oxycontin/Lortab and later that he had money from CVS.
- December 2, 2008: police conducted a controlled buy; B.P. testified Towler appeared with a black semi-automatic pistol.
- Police spoke with Towler; he denied armed robbery despite not being told a gun was used; he claimed prior drug issues.
- Trial court credited B.P. over Towler; verdicts included robbery, attempted robbery, statutory burglary, firearm use, and mask statute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of identity evidence | Towler is the CVS robber per BP and JM testimony. | BP credibility attacks undermine identity. | Evidence sufficient; trial court credibility determinations upheld. |
| Firearm use in burglary under 18.2-53.1 | Firearm use displayed during burglary breached statute. | Argument regarding display timing questioned. | Conviction proper; display or use satisfies 18.2-53.1. |
| Firearm use in robbery/burglary threatening display | Towler displayed firearm in a threatening manner during robbery. | No threat shown by weapon during certain phases. | Convictions sustained under totality of circumstances. |
| Statutory burglary intent | Indictment and evidence show Towler intended felony other than robbery (e.g., burglary with intent to possess Schedule II drugs). | Indictment allowed multiple intents; lacks robbery-specific intent. | Right result under right result doctrine; conviction upheld for felony possession and related intent. |
Key Cases Cited
- Rashad v. Commonwealth, 50 Va.App. 528, 651 S.E.2d 407 (2007) (use of firearm in burglary permitted under 18.2-53.1)
- Courtney v. Commonwealth, 281 Va. 363, 706 S.E.2d 344 (2011) (threatening display can sustain 18.2-53.1 even without weapon seen)
- Powell v. Commonwealth, 268 Va. 233, 602 S.E.2d 119 (2004) (threats with weapon kept in pocket can support 18.2-53.1)
- Banks v. Commonwealth, 280 Va. 612, 701 S.E.2d 437 (2010) (right result doctrine and evidentiary review)
- Corvin v. Commonwealth, 13 Va.App. 296, 411 S.E.2d 235 (1991) (credibility determinations lie with fact finder)
- Siquina v. Commonwealth, 28 Va.App. 694, 508 S.E.2d 350 (1998) (reasonable inferences allowed in determining intent)
- Cromite v. Commonwealth, 3 Va.App. 64, 348 S.E.2d 38 (1986) (totality of testimony considered for firearm threat cases)
- Startin v. Commonwealth, 281 Va. 374, 706 S.E.2d 873 (2011) (Schedule II drugs and possession as related offenses)
- Statutory burglary, Code § 18.2-91, n/a (n/a) (interpretation of multiple intents in indictment; interpanel accord)