John Brooks v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Clements and Senior Judge Hodges
Argued at Chesapeake, Virginia
JOHN BROOKS
MEMORANDUM OPINION * BY
v. Record No. 2852-99-1 JUDGE JEAN HARRISON CLEMENTS
OCTOBER 24, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
John K. Moore, Judge
Ben Pavek, Assistant Public Defender, for
appellant.
Thomas M. McKenna, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
John Brooks was convicted in a jury trial of robbery. On
appeal, he contends (1) the trial court erred in permitting the
Commonwealth to refresh the memory of the victim and (2) the
evidence was not sufficient to sustain the conviction. We
disagree and affirm the conviction.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts necessary to a
disposition of this appeal.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
A. REFRESHED RECOLLECTION
Appellant contends that the trial court erred in allowing
the Commonwealth to refresh the recollection of Stephanie
Ferebee, the victim herein, following her unequivocal testimony
that Brooks entered the store only twice because she had given
no indication that her memory needed to be refreshed. It was,
of course, important to the Commonwealth's case that Ms. Ferebee
testify that Brooks entered the store a third time as that is
when the robbery occurred.
In addressing the issue of "present recollection
refreshed," this Court has held that
when a witness has a memory lapse on the
stand and "forgets some portion (or even
all) of the facts of the matter about which
[he or she is] called to testify," a party
may attempt to "refresh" the witness's
memory by having the witness examine
materials relating to the matter for which
they are testifying.
McGann v. Commonwealth, 15 Va. App. 448, 451-52, 424 S.E.2d 706,
709 (1992) (alteration in original) (quoting Charles E. Friend,
The Law of Evidence in Virginia § 18 (3d ed. 1988)). The issue
here then is whether the victim had a memory lapse on the stand.
Admittedly, if Ms. Ferebee's original responses to the
prosecutor's questions regarding what took place following
Brooks's second departure from the store are viewed in
isolation, it is difficult to imagine a memory lapse on her
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part. More than once she stated with no apparent equivocation
that Brooks did not enter the store a third time.
A review of the victim's testimony as a whole, however,
convinces us that Ms. Ferebee did indeed suffer a memory lapse
while testifying. Much of her testimony prior to having her
memory refreshed was confused. She initially testified that
Brooks, after entering the store a second time, left the store
and came back in again. Shortly thereafter, though, she
testified that Brooks came into the store only twice. She also
testified that she left the store immediately after Brooks left
the second time. However, when she returned to the store, her
register was inexplicably on the floor and broken open, despite
having been intact and on the counter when she left.
The prosecutor then asked Ms. Ferebee, without objection,
about the state of her memory:
Q. Ma'am, let me ask you this. How
clearly are you able to recall today the
events of –
A. It was awhile – awhile ago, so I
can remember as much as I can. You know, it
was awhile ago. So –
Q. Okay. Can you tell the court
whether or not there's parts today you're
not – may not be able to remember that
happened day?
A. Probably, because I'm going through
some stuff right now; and I only had like
two hours of sleep. So –
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We find, therefore, that the victim's confused testimony
and her admission on the stand that she was probably forgetting
something that happened that night sufficiently demonstrated
that Ms. Ferebee forgot when testifying some portion of the
facts of the matter about which she was called to testify.
Hence, the trial court did not err in allowing the Commonwealth
to refresh her recollection.
B. SUFFICIENCY OF THE EVIDENCE
Appellant also contends that the jury verdict cannot be
sustained because there was insufficient evidence to convict him
of robbery. Specifically, he maintains that the evidence
presented to the jury was not sufficient to prove beyond a
reasonable doubt that the taking of the victim's property by
appellant was achieved through the use of violence or
intimidation.
The elements of common law robbery include the taking of a
victim's property "'against his will, by violence or
intimidation.'" Harris v. Commonwealth, 3 Va. App. 519, 521,
351 S.E.2d 356, 356 (1986) (quoting Johnson v. Commonwealth, 209
Va. 291, 293, 163 S.E.2d 570, 572-73 (1968) (emphasis added)).
Thus, a robbery can occur when a defendant employs either
violence or intimidation against the victim, or both. See
Chappell v. Commonwealth, 28 Va. App. 272, 275, 504 S.E.2d 378,
379 (1998).
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"Violence or force requires a physical touching or
violation of the victim's person." Bivins v. Commonwealth, 19
Va. App. 750, 752, 454 S.E.2d 741, 742 (1995). "Intimidation
results when the words or conduct of the accused exercise such
domination and control over the victim as to overcome the
victim's mind and overbear the victim's will, placing the victim
in fear of bodily harm." Id. at 753, 454 S.E.2d at 742.
"Threats of violence or bodily harm are not an indispensable
ingredient of intimidation. It is only necessary that the
victim actually be put in fear of bodily harm by the willful
conduct or words of the accused." Harris, 3 Va. App. at 521,
351 S.E.2d at 357.
When the sufficiency of the evidence is challenged on
appeal, we view the evidence "in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom." Bright v. Commonwealth, 4 Va. App. 248,
250, 356 S.E.2d 443, 444 (1987). In addition, the "credibility
of a witness, the weight accorded the testimony, and the
inferences to be drawn from proven facts are matters solely for
the factfinder's determination." Keyes v. City of Virginia
Beach, 16 Va. App. 198, 199, 428 S.E.2d 766, 767 (1993).
Furthermore, a conviction will not be reversed unless "it
appears from the evidence that it is plainly wrong or without
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evidence to support it." Sutphin v. Commonwealth, 1 Va. App.
241, 243, 337 S.E.2d 897, 898 (1985).
Here, Ms. Ferebee testified that Brooks, upon re-entering
the store a third time after previously grabbing money from her
open register drawer, walked around behind the counter, started
banging on the keys of the victim's register, and told her to
"open the fucking register." The victim then stepped away from
her register out of "instinct" 1 and ran out of the store.
The assistant manager, who had called the police after
Brooks's second exit from the store, testified that she was "in
shock" when Brooks came back in, went around the counter, and
started hitting the buttons on the register. She stopped
talking to the police at that point, put the phone down, and ran
to a nearby store because she had been robbed before and did not
"know what was going to happen."
Another clerk testified that Brooks, upon returning to the
store the third time, went behind the counter, commanded Ms.
Ferebee to "open the fucking register," "pushed [Ms. Ferebee]
1
"Instinct" is defined in Webster's Third New International
Dictionary 1171 (1993), as "a natural or inherent aptitude,
tendency, impulse, or capacity." Clearly, the jury could have
reasonably found, given the circumstances described by the
victim, that the victim's use of the word "instinct" to explain
why she stepped back from her register encompassed a feeling of
fear on her part and an inherent impulse to avoid bodily harm.
She did not elaborate in her testimony.
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out of the way" when she refused to move, and "started punching
buttons on [Ms. Ferebee's] register to try to get it open."
The jury, having had the opportunity to observe the
witnesses and weigh the evidence, was certainly entitled to
infer from such evidence that Brooks's words and actions were
intimidating and placed the victim in fear of bodily harm and
induced her to unwillingly relinquish the property taken by
Brooks. Moreover, if satisfied beyond a reasonable doubt that
Brooks pushed Ms. Ferebee, the jury could have properly found
that the taking of property was by an act of violence
perpetrated against the victim.
We therefore conclude (1) that the evidence in the record
is sufficient as a matter of law to prove beyond a reasonable
doubt that the victim's property was taken by Brooks through the
use of intimidation or violence, or both, and (2) that
appellant's conviction of robbery is not plainly wrong.
Consequently, we will not disturb that conviction.
Accordingly, appellant's robbery conviction is affirmed.
Affirmed.
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