Lead Opinion
By оpinion dated December 15, 1998, a divided panel of this Court reversed Phillip Clay’s convictions of robbery and use of a firearm in the commission of robbery. On the Commonwealth’s motion, we stayed the mandate of that decision and granted a rehearing en banc. Upon rehearing en banc, the Court’s December 15, 1998 opinion is withdrawn, the mandate is vacated, and we affirm the judgment of the trial court for the reasons set forth below.
I. FACTS
On November 17, 1996, William Vandegrift and Jason Guise were walking from a grocery store to Vandegrift’s house in the City of Virginia Beach when they heard a car approaching them from behind. Phillip Clay, appellant, and Khayree Darton exited the car, approached Vandegrift and Guise, and asked, “Don’t we know you?”
Vandegrift continued walking toward his house. Guise stopped and began talking with Clay and Darton. Guise then called Vandegrift to come back. Vandegrift returned to where the three were standing. Vandegrift and Guise both testified that Clay pointed a small handgun at Guise’s chest and said, “Just give me all your stuff.” Clay removed Guise’s coat from his body. Then Clay turned the gun toward Vandegrift as Darton patted Vandegrift down, but Vandеgrift “didn’t have nothing on [him].”
Both Vandegrift and Guise testified that, when Clay took Guise’s coat, it contained two twenty-dollar bills belonging to Vandegrift, which Guise was holding for him. Vandegrift testified that when Clay pointed the pistol at Guise, Vandegrift and Guise were standing “almost shoulder to shoulder.” Clay and Darton then returned to their car with Guise’s jacket and drove away.
Detective John Mentus interviewed Clay three days later. Detective Mentus testified that Clay admitted he and several
At trial, Clay testified that he had been riding in a car with Darton and two other men. Clay denied having a gun or participating in the robbery of Vandegrift and Guise and said he did not make the statemеnts that Detective Mentus attributed to him.
II. SUFFICIENCY OF THE EVIDENCE
“When the sufficiency of the evidence is an issue on appeal, an appellate court must view the evidence and all reasonable inferences fairly deducible therefrom in the light most favorable to the Commonwealth.” Cheng v. Commonwealth,
Clay argues that the evidence was insufficient as a matter of law to sustain his convictions for robbery of Vandegrift and use of a firearm in the commission of that robbery. Specifically, Clay argues: (1) no threat of force or intimidation was used against Vandegrift; (2) no property was taken from Vandegrift’s persоn or presence; and (3) because he did not know Vandegrift’s money was contained in the jacket, he did not have the requisite criminal intent.
Robbery is a common law crime against the person, which is proscribed statutorily by Code § 18.2-58. See Hairston v. Commonwealth, 2 Va.App. 211, 214,
the taking, with the intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidаtion. The phrase, “... of the personal property of another, from his person or in his presence ...” has been broadly construed to include the*259 taking of property from the custody of, or in the actual or constructive possession of, another.
Crawford v. Commonwealth,
Clay’s contention that no threat of force or intimidation existed to support the conviction for robbery of Vandegrift, and the related charge of use of a firearm in the commission of that robbery, is belied by sufficient evidence in the record. Not only did Clay point a firearm at Guise while Vandegrift was standing “almost shoulder to shoulder,” Clay also pointed the weapon at Vandegrift while Darton conducted a “pat down” of Vandegrift.
Clay argues that when he removed Guise’s jacket he did not rob Vandegrift because he did not take property from Vandegrift’s person or presence. For common law robbery, “the taking must be from what is technically called the ‘person’; the meaning of which ... is, not that it must be from ... actual contact ... [with] the person, but it is sufficient if it is from ... [that person’s] personal protection and presence.” Falden v. Commonwealth,
Clay argues that because he did not know the jacket contained Vandegrift’s money, he lacked the criminal intent to rob Vandegrift. In Jordan v. Commonwealth,
In Sullivan v. Commonwealth,
Larceny is a lesser-included offense of robbery. See Harris v. Commonwealth,
In Virginia, “the wrongful taking of property in itself imports the animus furandi.” Skeeter v. Commonwealth,
Clay argues that there was only one taking; consequently, there can be only one robbery. He is wrong; two takings occurred. The taking of the jacket from Guise was the first taking. The taking of Vandegrift’s money in the jacket pocket was the second taking. In the second taking, Guise had bare custody of the money; Vandegrift retained constructive possession. Additionally, the animus jurandi in the second robbery is provided by Clay’s clearly demonstrated intent to take items from both Guise and Vandegrift and is further supported by Clay’s demand “[j]ust give me all your stuff’ followed by a “pat down” of Vandegrift. Finally, the animus jurandi is provided by inference from the asportation and conversion of the property, in the absence of satisfactory countervailing evidence introduced by the defendant.
Clay further argues that the taking and the required mental state for that taking were not contemporaneous. The issue is nоt whether the mens rea and the actus rea are contemporaneous; rather, it is whether the mens rea and the actus rea concur. However, “concurrence in time ... is neither required nor sufficient; the true meaning of the requirement that the mental fault concur with the act or omission is that the former actuates the latter.” LaFave & Scott, supra, at 267-68. The rule is that “mere coincidence in point of time is not necessarily sufficient, while the lack of such unity is not necessarily a bar to conviсtion.” Id. at 268. Where the state of mind to commit a criminal act exists before the act is committed, in order to find the requisite concurrence that actuates the commission of the act, the actor’s state of mind must not have been abandoned. See id. at 270. An example of abandonment of criminal intent exists where A intends to kill B but changes his mind. If A mistakenly shoots B moments later in a hunting accident, he will not be guilty of murder because there is no concurrence of the mental and
When Clay and Darton approached Vandegrift and Guise, Clay had the intent to rob both men. Clay pointed a handgun at Guise and said, “[j]ust give me all your stuff.” Clay then took Guise’s jacket. Clay turned to Vandegrift and pointed the gun at him as Darton patted him down. Clay intended to rob both Vandegrift and Guise of their possessions and his state of mind was not abandoned at the time he committed the physical act of taking Guise’s jacket that contained Vandegrift’s money. Clay’s mental state actuated the taking and his intent to rob both men was never abandoned; therefore, Clay is guilty of the robbery of Vandegrift as well as Guise.
The evidence was sufficient to find that Clay robbed Vandegrift and that he used a firearm in the commission of that robbery. Clay used a gun to intimidate Vandegrift and to take Vandegrift’s property from his presence. Clay intended to take the money contained in the jacket, as shown by the circumstances and by the taking itself, and as further shown by his statements to Guise, Vandegrift, and Detective Mentus. The convictions are affirmed.
Affirmed.
Dissenting Opinion
with whom BENTON, and FRANK, JJ., join, dissenting.
Because I believe the evidence failed to prove that Phillip Clay (appellant) had the requisite intent to rob Vandegrift by taking Guise’s jacket, I respectfully dissent.
To constitute robbery, the act must be done with a specific criminal intent existing at the time of the commission of the act____ If the criminal intent did not exist when the alleged offense was committed, the crime has not been established. The intent subsequent to the taking is immaterial.
Jones v. Commonwealth,
Proving intent by direct evidence is often impossible. See Servis v. Commonwealth,
Because robbery requires proof of a simple larceny in addition to other elements, see Graves v. Commonwealth,
However, under the facts of this case, I would hold that the inference of intent to steal that аrises from the wrongful taking of property establishes only a single, wrongful intent co-existing with and actuating the taking. To hold that the taking of a single item from the actual possession of a single victim — which item, unbeknownst to the robber, happens to contain property that is owned by some other person present at the scene and that remains constructively in that other person’s possession — also implies the animus fwrandi to support a second robbery conviction would improperly relieve the Commonwealth of its burden of proving that intent to steal from the second victim actuated the taking from the first.
Such a result does not conflict with our holdings in Jordan v. Commonwealth,
In Sullivan, we rejected a double jeopardy challenge to dual robbery convictions where the accused robbed two video store employees. Although only one employee actually “physically surrendered” the money, both employees “were custodians of the store’s money and jointly possessed it,” and the accused forced both “to assist in the collection and surrender of the money.”
Because Jordan involved two actual takings of money from two individuals with a superior claim of right to the money through the use of violence or intimidation, the evidence proved that the accused intended two takings, even though the money belonged to a single entity. Likewise, we held in Sullivan that the evidence was sufficient to prove the accused intended two robberies and accomplished two takings, even though only one employee actually “physically surrendered” the money. The аccused had constructive knowledge that the two video store employees had a superior claim of right to their employer’s money, and he forced one employee to help the second employee gather the store’s money from various locations. In appellant’s case, in contrast to Jordan and Sullivan, the evidence was insufficient to prove a second
For these reasons, I would reverse appellant’s convictions for robbing Vandegrift and for using a firearm in the commission of that robbery.
Notes
. The majority focuses on the fact that appellant clearly had the intent to rob both men and that he had not yet abandoned that intent when he took Guise’s jacket. However, as the majority itself explains, the mere concurrence of the intent and the act is not sufficient. It ordinarily is true that where the mental state has been abandoned, it cannot "actuate [subsequent] physical conduct.” LaFave & Scott, supra, at 270. However,
this may also be true when the mental state has not been abandoned. Assuming again that A forms an intent to kill B, but now that he has not abandoned that intent, and that he accidentally runs over B and kills him, the result still should be that there is no concurrence of the mental and physical elements. This is because "[A’s] moving and steering of his car were not done in order to give effect to desire to kill [B].”
Id. (emphases added). In appellant’s case, the evidence supports the finding that he still had the intent to rob Vandegrift when he took Guise’s jacket, but “his [taking of the jacket from Guise] [was] not done in order to give effect to his desire to [rob Vandegrift].” Id.
. The evidence may have been sufficient to prove attempted robbery of Vandegrift. An attempt consists of the intent to commit the crime and the doing of some direct, ineffectual act toward the commission of the offense. See Sizemore v. Commonwealth,