Austin Wayne Keyser v. Commonwealth , 22 Va. App. 747 ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Senior Judge Cole
Argued at Richmond, Virginia
AUSTIN WAYNE KEYSER, JR.
OPINION
v. Record No. 0768-95-3 BY JUDGE JOSEPH E. BAKER
JULY 30, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF WAYNESBORO
Rudolph Bumgardner, III, Judge
William E. Bobbitt, Jr., Public Defender, for
appellant.
John H. McLees, Jr., Assistant Attorney General
(James S. Gilmore, III, Attorney General, on brief),
for appellee.
Austin Wayne Keyser (appellant) appeals his bench trial
conviction by the Circuit Court of the City of Waynesboro (trial
court) for carjacking in violation of Code § 18.2-58.1. The sole
issue presented by this appeal is whether the evidence is
sufficient to support appellant's conviction for carjacking or
whether the evidence merely proves attempted carjacking.
The sufficiency of the evidence having been challenged, we
view the evidence in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom. Wright v. Commonwealth, 224 Va. 502, 505,
297 S.E.2d 711, 713 (1982). Guided by that principle, the record
discloses that at approximately 3:20 a.m., on August 15, 1994,
Janice Knick (the victim) was engaged in her job of delivering
newspapers, using her car as transportation. After arriving at
one of her appointed stops, the victim exited her car to perform
her duties, leaving the door to her car open, its automatic
transmission in park, and the motor running. After collecting
money from the newspaper box, the victim reentered her car and
reached to pull her door shut when appellant "shoved" the car
door back and stated, "I'm going to drive this car." The
victim's testimony continued as follows:
I kept trying to pull the door shut but I
couldn't get it shut and then all of a sudden
he just pounced over my upper body. Grabbing
my arms, trying to push me over into the
passenger seat and . . . my papers were
stacked all the way up to the window, there
was no place for me to go. And he kept
reaching for the gear shift, I assume that's
what he was reaching for and I started
screaming, somebody please help me . . . . He
kept saying, I'm not going to hurt you[.] . . .
Then I grabbed my scissors because I was
thinking he wasn't going to let me out.
There was no way he could take the car unless
he got me out of there, it's, it just wasn't
possible.
The victim tried to get her car moving but appellant's
actions prevented her from doing so. To protect herself and her
property, the victim began stabbing appellant with her scissors.
She further testified that appellant told her, "I'm not going to
hurt you, I'm not going to hurt you," and then he said, "you
can't hurt me, you can't hurt me." She said the struggle
continued and "all of a sudden I could feel blood, it started
spurting from somewhere on my hand. I had on sandals I could
feel it on my feet." Appellant then "took off around the front
of the car." The victim immediately reported the incident to the
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police.
Apprehended by the police shortly after the incident,
appellant told them that all he had done was ask the victim for
directions when, without provocation, she suddenly attacked him
with a pair of scissors. When apprehended appellant had
approximately fifteen stab wounds.
Code § 18.2-58.1 provides, in pertinent part, as follows:
A. Any person who commits carjacking, as
herein defined, shall be guilty of a felony
punishable by imprisonment for life or a term
not less than fifteen years.
B. As used in this section, "carjacking"
means the intentional seizure or seizure of
control of a motor vehicle of another with
intent to permanently or temporarily deprive
another in possession or control of the
vehicle of that possession or control by
means of partial strangulation, or
suffocation, or by striking or beating, or by
other violence to the person, or by assault
or otherwise putting a person in fear of
serious bodily harm, or by the threat or
presenting of firearms, or other deadly
weapon or instrumentality whatsoever.
To prove that an accused violated the provisions of that code
section, the Commonwealth had to prove beyond a reasonable doubt
1
that the carjacker took possession or control of the vehicle.
It is not sufficient to prove that the accused merely attempted
to seize the vehicle or seize control of the vehicle.
1
Code § 18.2-58.1 requires an intentional "seizure or seizure
of control" of a motor vehicle. "Seizure" has been defined as
"[t]he act of taking possession of property." Black's Law
Dictionary 1359 (6th ed. 1990). The word "control" has been held
to have "no legal or technical meaning apart from its popular
sense, and is synonymous with 'manage.'" National Safe Deposit
Co. v. Stead, 232 U.S. 58, 62 (1914).
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"'We have frequently pointed out that an attempt to commit a
crime is composed of two elements: (1) The intent to commit it;
and (2) the direct, ineffectual act done toward its commission
which must reach far enough toward the accomplishment of the
desired result to amount to the commencement of the
consummation." Howard v. Commonwealth, 207 Va. 222, 227, 148
S.E.2d 800, 804 (1966) (citations omitted).
Although the evidence may have been sufficient to prove
attempted carjacking, it was insufficient to prove beyond a
reasonable doubt that appellant actually seized or seized control
of the victim's vehicle as required by Code § 18.2-58.1.
Viewed in the light most favorable to the Commonwealth, the
evidence disclosed that by wrongful acts appellant by physical
force "pounced over [the victim's] upper body" and restrained her
movement by "grabbing [the victim's] arms" while unsuccessfully
attempting to "push [the victim] over into the passenger seat."
However, appellant never seized the vehicle or seized control
of the vehicle. The evidence would support a conviction for
attempted carjacking but not actual carjacking.
Accordingly, we reverse appellant's conviction for violation
of Code § 18.2-58.1, and the case is remanded to the trial court
for such further proceedings as the Commonwealth may be advised.
Reversed and remanded.
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