Mario Sentia Johnson v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Elder and Annunziata
Argued at Richmond, Virginia
MARIO SENTIA JOHNSON
MEMORANDUM OPINION * BY
v. Record No. 2475-00-2 JUDGE JERE M. H. WILLIS, JR.
NOVEMBER 6, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
William B. Bray (Perry & Bray, on brief), for
appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Mario Sentia Johnson was convicted in a bench trial of
robbery, in violation of Code § 18.2-58. On appeal, he contends
that the Commonwealth failed to prove force, violence or
intimidation. We reverse the judgment of the trial court and
remand for further proceedings, if the Commonwealth be so advised.
I. BACKGROUND
On the evening of March 5, 2000, Ruth Valore exited a
Friendly's restaurant in Chesterfield County. As she approached
her car, her purse was stolen by Johnson. Johnson was indicted
for robbery.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Mrs. Valore testified as follows:
[PROSECUTOR]: And go ahead and describe how
it [the purse] was taken from you?
A: Well, I was walking towards the car and
he came up behind me and just kind of turned
me around and just took it right off my arm.
Q: You say you were turned around?
A: Well, I mean, you know, almost turned
around.
Q: Did you feel anything?
A: Not really, not at first, no.
* * * * * * *
[DEFENSE COUNSEL]: He took the purse,
right?
A: Yeah.
Q: He did not grab you, correct?
A: Not really.
Q: He grabbed the purse; is that correct?
A: Yeah.
Q: And when you --
A: But he grabbed it so hard it turned me
around.
Q: How far around did it turn you? I know
you're sitting down now, so could you sort
of indicate -- I don't know if you know your
angles, like 45 degrees? 90 degrees?
A: I don't know. He just turned and just
took it and I went this way.
Q: Okay. And how far around would you say?
A: I don't know. I can't --
- 2 -
Q: Okay. Was it that you turned to look at
him as he took your purse?
A: No. I didn't even know, at first I
didn't even know what happened. I just --
Q: But you do not recall him touching you
at all then, just your purse?
A: Just, yeah, just my purse.
Q: And he did not threaten you in any way
or present any weapon, did he?
A: No.
Q: Okay. No further questions.
At the conclusion of the Commonwealth's case, Johnson moved
to strike the evidence. He renewed the motion upon resting his
case. He argued that the evidence did not support the charge of
robbery, because the use of force, violence or intimidation was
not proven.
II. ANALYSIS
Johnson contends that the evidence was insufficient to
prove robbery. He argues that the evidence failed to prove that
Johnson used force, violence or intimidation against Mrs. Valore
to effect the taking of the purse. We agree.
When the sufficiency of the evidence is
challenged on appeal, it is well established
that we must view the evidence in the light
most favorable to the Commonwealth, granting
to it all reasonable inferences fairly
deducible therefrom. The conviction will be
disturbed only if plainly wrong or without
evidence to support it.
The elements of robbery, a common law
offense in Virginia, include a "'taking,
with intent to steal, of the personal
- 3 -
property of another, from his person or in
his presence, against his will, by violence
or intimidation'" which precedes or is
"concomitant with the taking."
Jones v. Commonwealth, 13 Va. App. 566, 572, 414 S.E.2d 193, 196
(1992) (citations omitted).
"'The touching or violation necessary to prove [robbery]
may be indirect, but cannot result merely from the force
associated with the taking.'" Winn v. Commonwealth, 21 Va. App.
179, 181, 462 S.E.2d 911, 912 (1995) (quoting Bivins v.
Commonwealth, 19 Va. App. 750, 752, 454 S.E.2d 741, 742 (1995)).
"'[V]iolence or force requires a physical touching or violation
of the victim's person.'" Id. (quoting Bivins, 19 Va. App. at
752, 454 S.E.2d at 742) (emphasis in the original).
The circumstances in this case are similar to those in
Winn. In Winn, the victim was walking through a parking lot
when Winn approached from behind her. He very strongly removed
her purse strap from her shoulder and took her purse from under
her arm. Id. at 180-81, 462 S.E.2d at 911-12. During the theft
Winn did not intimidate, touch, struggle with, knock down,
strike, or injure the victim. We reversed Winn's robbery
conviction and remanded. We found that the "very strong" force
employed by Winn was merely the force necessary to remove the
purse from the victim's shoulder, not force associated with
violence to the victim or employed to overcome resistance by
her. Id. at 184, 486 S.E.2d at 913.
- 4 -
Like the victim in Winn, Mrs. Valore had her purse strap
over her shoulder. Johnson approached from behind and exerted
the force required to take her purse. Mrs. Valore testified
that she felt nothing at first, although she was almost turned
around. The force employed by Johnson was merely the force
required to remove the purse from Mrs. Valore's shoulder.
Johnson employed no violence or intimidation to accomplish
the taking of the purse. Mrs. Valore testified that he did not
touch her, threaten her, or present a weapon. Absent such
violence or intimidation, the evidence proved no more than
larceny.
Accordingly, we reverse Johnson's conviction and remand the
case for further proceedings if the Commonwealth be so advised.
Reversed and remanded.
- 5 -