Samuel Gonzales Ortiz v. Commonwealth of Virginia ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and Humphreys
Argued at Alexandria, Virginia
SAMUEL GONZALES ORTIZ
MEMORANDUM OPINION * BY
v. Record No. 2834-00-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
JANUARY 22, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Alfred D. Swersky, Judge
Uley Norris (Mary E. Maguire, Senior
Assistant Public Defender, on brief), for
appellant.
Michael T. Judge, Assistant Attorney General
(Randolph A. Beales, Acting Attorney
General, on brief), for appellee.
Samuel Gonzales Ortiz (appellant) was convicted in a bench
trial of robbery in violation of Code § 18.2-58. On appeal, he
contends that the trial court erred in finding the evidence
sufficient to convict him of robbery because (1) the
Commonwealth failed to prove criminal intent and (2) the
evidence supported only a finding of larceny from the person.
For the following reasons, we affirm the judgment of the trial
court.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I. BACKGROUND
Under familiar principles of appellate review, we examine the
evidence in the light most favorable to the Commonwealth, the
prevailing party below, granting to it all reasonable inferences
fairly deducible therefrom. See Juares v. Commonwealth, 26 Va.
App. 154, 156, 493 S.E.2d 677, 678 (1997).
So viewed, the evidence established that on June 10, 2000,
Yessenia Henriquez (Henriquez) left a check cashing business on
West Glebe Road in Alexandria, Virginia. As she walked down the
road she saw appellant standing across the street near a
taxicab. She asked appellant if the cab "belonged to him."
Appellant responded that it belonged to another man who was in
front of the cab. Henriquez walked away, and appellant called
out to her, "Come here." Henriquez walked to Executive Avenue,
and appellant grabbed her from behind. He grabbed her right
arm, pulled her towards him and said again, "Come here," and
"Let's go." Henriquez fought to "get him off [her]" and after
they pushed each other, appellant pulled her 14-carat gold
necklace from her neck. When the necklace broke, a baby ring
flew off of it. After taking the necklace, appellant walked
away.
Henriquez called the police on her cellular phone, and
three to five minutes later Officer Buckley (Buckley) arrived on
the scene. Henriquez told Buckley what had occurred and gave
him a description of the person who took her necklace.
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Henriquez's arm was bruised and she also had a red mark on the
back of her neck which was, "thin, about the width of the gold
necklace, and it ran from one side to the other side." They
drove around the neighborhood and after approximately five to
ten minutes they saw appellant. Henriquez identified him as the
person who took her necklace. Buckley arrested him and found
the victim's necklace in his blue jeans pocket. Buckley then
called another officer who retrieved the baby's ring which had
fallen off the necklace.
Officer Angel Simedly (Simedly) of the Alexandria Police
Department transported appellant to police headquarters. When
appellant got into the police car, he told Simedly that:
he met her by the Rite-Aid. He saw her. He
told me that she apparently needed a ride.
He offered $50 in exchange for sex. Then
they walked to Executive Avenue. He was
expecting sex. He didn't get any. He says
that she began to talk to a male outside the
building on Executive Avenue, and when he
asked her what's up, she told him to go
away, and that's when he grabbed for her
necklace.
Appellant said that he took the necklace because she
refused to give him the $50 back he gave her for sex. Simedly
also noted that one of appellant's fingers was bleeding.
Appellant said that it had occurred when he grabbed the necklace
from Henriquez.
At trial, appellant gave a different version of the events.
He testified that he had cut his finger at work rather than when
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he took the necklace from the victim. He also testified that on
June 9, 2000 he was at "a place called El Tropico" and danced
with a girl who needed and wanted $50. Appellant gave her $50,
and they agreed to meet the next day at the place where
Henriquez encountered appellant. When Henriquez approached, he
mistook her for the girl he met at the El Tropico. Appellant
thought Henriquez was "going to play with me" as she walked
away. He followed her and grabbed her arm, intending to recoup
his $50. He asked what happened to his money and then grabbed
her necklace as a form of repayment.
The trial court found appellant guilty of robbery, stating
that even if it accepted appellant's account of what happened,
the necessary elements for robbery are in place: "a taking by
force that's independent of the force necessary to take the
object from the victim's neck." The court noted that, "the
application of force to stop her, the grabbing of her purse and
then the struggle that ensued afterwards, whether he harbored
some secret intent to try to get back money that he mistakenly
believed she owed him, if you view it from the standpoint of the
victim, that's force." The judge further stated that there was
additional force applied to remove the necklace and that this
situation is distinguishable from the grabbing of a purse where
the person, "is not even aware of the presence until there's
force applied to take the object."
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II. STANDARD OF REVIEW
In reviewing the sufficiency of the evidence, "the judgment
of the trial court sitting without a jury is entitled to the
same weight as a jury verdict." Saunders v. Commonwealth, 242
Va. 107, 113, 406 S.E.2d 39, 42, cert. denied, 502 U.S. 944
(1991).
"[T]he trial court's judgment will not be set aside unless
plainly wrong or without evidence to support it." Hunley v.
Commonwealth, 30 Va. App. 556, 559, 518 S.E.2d 347, 349 (1999).
The credibility of a witness and the
inferences to be drawn from proven facts are
matters solely for the fact finder's
determination. See Long v. Commonwealth, 8
Va. App. 194, 199, 379 S.E.2d 473, 476
(1989). In its role of judging witness
credibility, the fact finder is entitled to
disbelieve the self-serving testimony of the
accused and to conclude that the accused is
lying to conceal his guilt. See Speight v.
Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d
95, 98 (1987) (en banc).
Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d
233, 235 (1998).
III. CRIMINAL INTENT
Appellant first argues that the Commonwealth failed to
prove that he had the requisite intent to rob the victim because
he had a good faith belief that the necklace belonged to him
under a bona fide claim of right. He contends that because he
mistook Henriquez for the woman whom he had paid $50 for sex, he
took the necklace as substitute for the money he felt he was
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owed. If viewed as a bona fide attempt to enforce payment of a
debt, the mens rea for robbery is lacking. This argument is
without merit.
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."
Graves v. Commonwealth, 21 Va. App. 161, 164, 462 S.E.2d 902,
903 (1995). "With respect to the crimes of robbery and larceny,
a bona fide claim of right could be a defense because it negates
the criminal intent necessary to sustain those offenses, that
is, the intent to steal." Strohecker v. Commonwealth, 23 Va.
App. 242, 257, 475 S.E.2d 844, 852 (1996). "[A] bona fide claim
of right is a sincere, although perhaps mistaken, good faith
belief that one has some legal right to [possess] the property.
O'Banion v. Commonwealth, 33 Va. App. 47, 56, 531 S.E.2d 599,
603 (2000). "But if the claim of right is a mere pretext
covering the intent to steal, the taking by violence is
robbery." Pierce v. Commonwealth, 205 Va. 528, 533, 138 S.E.2d
28, 32 (1964). "[A] claim of right is an affirmative defense
and thus usually a question for the trier-of-fact." Reed v.
Commonwealth, 6 Va. App. 65, 70, 366 S.E.2d 274, 277 (1988).
The trial court found appellant guilty of robbery,
implicitly rejecting his "claim of right defense." Appellant
failed to carry his burden of proof on this affirmative defense.
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We find the facts of this case analogous to those of Pierce
in which there was a conflict about the bona fide nature of the
claim of right defense. Defendants Pierce and Hoffler were
tried together and convicted of robbery for taking the key to a
truck by force. The defendants argued that they had no intent
to steal because they took the key under a bona fide claim of
right because the truck's owner sold the truck to Pierce but
refused to deliver it or refund the purchase money. However,
the owner testified that he had neither sold the truck nor had
Pierce paid him any money. At gunpoint, the defendants forced
the owner to give up the keys to the truck.
The Supreme Court noted "[w]here the evidence is
conflicting the question of bona fides is for the trier of the
facts, in this case the court." Pierce, 205 Va. at 534, 138
S.E.2d at 32. Further, "[t]he opportunity of the trial court to
see and hear these witnesses was helpful beyond the ordinary in
ascertaining the truth." Id.
In the instant case, the trial court was entitled to
consider the conflicts in appellant's own testimony as well as
the testimony of the victim. The trial court was free to
disbelieve the self-serving statements of appellant and conclude
that he was lying to conceal his guilt.
The evidence, viewed in the light most favorable to the
Commonwealth, refutes the claim of right defense. Although
appellant offered a theory explaining why he took the necklace,
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the trial court was not required to accept his account.
Henriquez's version of the encounter gave no indication that at
the time appellant took the necklace, he thought Henriquez owed
him any money or sexual services or was taking the necklace in
an attempt to enforce a claim of right. 1 Further, the fact
finder was not required to accept appellant's inconsistent
testimony and could conclude from it that he made up the story
concerning money for sex and, thus, had no good faith belief
that he was entitled to the necklace. A claim of right is not a
defense when it is a pretext covering the intent to steal. See
Pierce, 205 Va. at 533, 138 S.E.2d at 32. Thus, we cannot say
the trial court erred in rejecting appellant's claim of right
defense.
IV. EVIDENCE SUFFICIENT TO PROVE ROBBERY
Appellant next contends that the violence used in taking
the necklace was insufficient to support a conviction for
robbery and thus he could only be convicted of larceny from the
person. Appellant separates his contact with the victim into
two separate encounters: the approach and the taking.
Appellant argues that his initial grab of the victim's arm was
distinct from his taking of the necklace and that the only force
1
Because it was not raised by either party, we do not
address whether enforcing an illegal contract could ever be the
basis for a claim of right defense.
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he used against Henriquez was that necessary to take the
necklace. This argument too is without merit.
Larceny is the "taking of personal goods of some intrinsic
value, belonging to another, without his assent, and with the
intent to deprive the owner thereof permanently." Graves v.
Commonwealth, 21 Va. App. 161, 164, 462 S.E.2d 902, 903 (1995).
"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). The "[v]iolence or force requires a
physical touching or violation of the victim's person." Id.
There is no basis to bifurcate appellant's contact with the
victim. He grabbed and pushed her and ripped the necklace from
her neck during the same encounter. The force used left bruises
on the victim's arm and a red mark on her neck.
The trial court specifically found that, "[w]e have a
taking by force that's independent of the force necessary to
take the object from the victim's neck." See Jones v.
Commonwealth, 26 Va. App. 736, 496 S.E.2d 668 (1998) (the
evidence was sufficient to prove a robbery rather than a larceny
from the person where the victim was jerked around by her
shoulder and the defendant grabbed the purse she was clutching).
Credible evidence supports this finding.
For these reasons, we affirm the trial court.
Affirmed.
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