Steven Lamonte Stanley, Jr., s/k/a v. CW ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Bray
Argued at Richmond, Virginia
STEVEN LAMONTE STANLEY, JR., S/K/A
STEVEN LAMONT STANLEY, JR., A/K/A
STEVEN DUNFORD
MEMORANDUM OPINION * BY
v. Record No. 1902-98-2 JUDGE SAM W. COLEMAN III
DECEMBER 28, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
W. Park Lemmond, Jr., Judge Designate
(Margaret Ann Englisby; Denis C. Englisby;
Englisby & Englisby, on brief), for
appellant. Appellant submitting on brief.
(Mark L. Earley, Attorney General;
Kathleen B. Martin, Assistant Attorney
General, on brief), for appellee. Appellee
submitting on brief.
Steven Lamont Stanley was convicted in a bench trial of
robbery in violation of Code § 18.2-58. On appeal, Stanley argues
that the evidence was insufficient to support the conviction
because the acts constituting the required element of violence did
not precede or were not concomitant with the taking of the
property of another from her person or presence. We disagree and
affirm the conviction.
*Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
BACKGROUND
Patricia Aumiller, the victim, was approaching a pay phone
located at the entrance of a grocery store when she noticed a man
and woman at an adjoining pay phone. While Aumiller dialed the
phone, the woman grabbed Aumiller's purse from her right shoulder,
and as Aumiller turned around, the man struck her in the face.
The couple then fled with Aumiller's purse. Aumiller estimated
that approximately two to three seconds elapsed between the time
her purse was taken and when she was struck. Although Aumiller
stated that Stanley looked "identical" to the man who struck her,
she could not positively identify Stanley as the perpetrator.
Janet Bookman testified that as she left the grocery store
that evening, she noticed two people step onto the sidewalk and
run over to the pay phones. She watched as one person picked up
the phone receiver and pretended to use the phone. Bookman
testified that the man walked towards her and passed within a foot
of her. Bookman continued to walk to her car and as she looked
back toward the pay phones, she saw the man strike Aumiller,
hitting her twice in the face, and grab her purse. Bookman
observed the man and woman run off together behind the grocery
store passing the stolen purse back and forth. Bookman later
identified Stanley in a photographic lineup and at trial as the
man at the grocery store who struck Aumiller and stole her purse.
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ANALYSIS
Stanley argues that the evidence failed to prove that the
force or violence preceded or was concomitant with the taking of
Aumiller's purse because two to three seconds elapsed between the
two events. Stanley also argues that the evidence failed to prove
that he was the perpetrator because Aumiller's testimony was
completely contradicted by Bookman's testimony.
On review, we view the evidence in the light most favorable
to the prevailing party and grant to it all reasonable inferences
fairly deducible therefrom. See Commonwealth v. Jenkins, 255 Va.
516, 521, 499 S.E.2d 263, 265 (1998). "The credibility of the
witnesses and the weight accorded the evidence are matters solely
for the fact finder who has the opportunity to see and hear that
evidence as it is presented." Sandoval v. Commonwealth, 20 Va.
App. 133, 138, 455 S.E.2d 730, 732 (1995). "The judgment of a
trial court sitting without a jury is entitled to the same weight
as a jury verdict, and will not be disturbed on appeal unless
plainly wrong or without evidence to support it." Beck v.
Commonwealth, 2 Va. App. 170, 172, 342 S.E.2d 642, 643 (1986).
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). "The act of violence
or intimidation employed must precede or be concomitant with the
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taking." Beard v. Commonwealth, 19 Va. App. 359, 362, 451 S.E.2d
698, 700 (1994) (citing Jones v. Commonwealth, 13 Va. App. 566,
572, 414 S.E.2d 193, 196 (1992)). "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). Similarly, violence resorted to merely to
retain possession already acquired or to effect escape will be
insufficient to supply the force necessary to support a robbery
conviction. See Manson v. Commonwealth, 200 Va. 253, 256, 105
S.E.2d 149, 151 (1958).
Where, as here, the facts establish that the violence against
Aumiller and the trespass to her "'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 (1991) (citation omitted); see
Person v. Commonwealth, 10 Va. App. 36, 40, 389 S.E.2d 907, 910
(1990). Stanley struck Aumiller within two to three seconds after
her purse was removed from her shoulder and while Aumiller was
trying to resist the taking. See Beard, 19 Va. App. at 363, 451
S.E.2d at 700 (finding that "asportation of stolen property
continues and is not complete until the taker severs the property
from the absolute control and possession of the victim"); see also
Jones v. Commonwealth, 26 Va. App. 736, 496 S.E.2d 668 (1998)
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(finding defendant guilty of robbery where defendant "jerked" the
victim around to face him before taking her purse); cf. Winn v.
Commonwealth, 21 Va. App. 179, 462 S.E.2d 911 (1995) (reversing
defendant's robbery conviction where defendant "very strongly"
removed victim's purse from her shoulder). On these facts,
Stanley's striking Aumiller was part of the force used to take
Aumiller's property and was sufficiently close in time and effect
to be concomitant with the taking.
When weighing the evidence, the fact finder is not required
to accept entirely either party's account of the facts. See
Barrett v. Commonwealth, 231 Va. 102, 107, 341 S.E.2d 190, 193
(1986). The fact finder may reject that which it finds
implausible, yet accept other parts which it finds to be
believable. See Durham v. Commonwealth, 214 Va. 166, 169, 198
S.E.2d 603, 606 (1973). Here, the fact that Aumiller could not
positively identify Stanley as her assailant did not render the
evidence insufficient. Rather, the lack of a positive
identification by the victim was a fact to be weighed by the
court. Bookman, a witness who observed the events and passed
close to Stanley, positively identified him as the assailant.
Although Bookman's and Aumiller's recitation of the event differed
in some degree, the fact finder is not bound by either's version
and could believe that which is more favorable to the
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Commonwealth. See Eaton v. Commonwealth, 240 Va. 236, 249-50, 397
S.E.2d 385, 393 (1990).
Accordingly, we affirm Stanley's conviction for robbery.
Affirmed.
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