Joseph Tyrone Evans, Jr. v. Commonwealth of VA

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Bumgardner
Argued at Salem, Virginia
JOSEPH TYRONE EVANS, JR.
MEMORANDUM OPINION * BY
v. Record No. 2216-98-3 JUDGE RICHARD S. BRAY
NOVEMBER 2, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
Brian H. Turpin for appellant.
Richard B. Smith, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Joseph Tyrone Evans, Jr. (defendant) was convicted in a bench
trial for robbery. On appeal, he challenges the sufficiency of
the evidence to prove the offense. Finding no error, we affirm
the conviction.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
I.
In reviewing the sufficiency of the evidence, we must
consider the record "'in the light most favorable to the
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Commonwealth, giving it all reasonable inferences fairly deducible
therefrom. In so doing, we must discard the evidence of the
accused in conflict with that of the Commonwealth, and regard as
true all the credible evidence favorable to the Commonwealth
. . . ." Watkins v. Commonwealth, 26 Va. App. 335, 348, 404
S.E.2d 859, 866 (1998) (citation omitted). The credibility of the
witnesses, the weight accorded testimony, and the inferences to be
drawn from proven facts are matters to be determined by the fact
finder. See Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d
474, 476 (1989). "When weighing the evidence, the fact finder is
not required to accept entirely either the Commonwealth's or
defendant's account of the facts," but "may reject that which it
finds implausible, [and] accept other parts which it finds to be
believable." Pugliese v. Commonwealth, 16 Va. App. 82, 92, 428
S.E.2d 16, 24 (1993). The judgment of the trial court will not be
set aside unless plainly wrong or unsupported by the evidence.
See Code § 8.01-680.
Viewed accordingly, the instant record establishes that, on
the morning of December 20, 1997, defendant and Joe Leftwich
agreed to "make a couple of [drug] sales." Shortly thereafter,
the victim, Teresa Hayes, "pulled up" in an automobile and asked
if the two had "dope." Leftwich responded, "yeah," and both
entered Hayes' car, Leftwich in the front passenger seat and
defendant in the rear. Leftwich testified that defendant passed
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him "something that looked like dope," 1 which Leftwich exchanged
with Hayes for $30. However, after examining the item, Hayes
declared that "she didn't want it . . . [because] it didn't look
right," and Leftwich returned her money and took "the fake stuff
back."
Leftwich recalled that Hayes and defendant then "got to
arguin'" and defendant, armed with a gun, "was threatenin'
[Hayes], . . . [c]allin' her bitches and . . . threatenin' to
shoot her" if she did not "pay" the money to him. Hayes began to
"pull off slow," defendant reached into his coat pocket, Hayes
reached for her pocketbook, and defendant "jumped outta' the car."
With defendant outside the car and fearing that Hayes "was trying
to shoot" him, Leftwich "pulled" a gun and shot her five times.
Mortally wounded, Hayes "pushed the gas to the floorboard,"
and the car "speeded up a little bit," striking a nearby tree and
injuring Leftwich. "[D]izzy," Leftwich dropped the gun to the
floor, stumbled from the vehicle and directed defendant, standing
approximately 20 feet distant, "to get the gun." Defendant ran to
the disabled car and returned with the gun, Hayes' pocketbook and
her $30 cash. Retaining possession of the pocketbook and money,
defendant passed the weapon to Leftwich, and both fled.
At approximately 11:30 a.m. on the day of the offense,
Quimmah Rasheed, a Commonwealth witness residing in close
1
Leftwich acknowledged that the "dope" was "fake."
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proximity to the scene, heard "'bout five shots fired," a car
"skid[]" and crash and, moments later, observed two men "runnin'
down the street." One, resembling defendant, was carrying a
"purse," followed by another, "stumblin'" along with "something in
his hand."
Leftwich's niece, Ashley Poole, testified that defendant and
Leftwich arrived at her apartment at "around lunchtime," dressed
in "[b]loody clothes." Poole noticed that Leftwich "was carryin'
a gun and [defendant] . . . a pocketbook." Leftwich confessed to
Poole that "he did something very bad[,] . . . he killed a girl."
Poole watched as defendant "look[ed] through the pocketbook" and
discovered "some credit cards," which he "showed" to Leftwich.
The two then "put clothes over their bloody clothes," left the
apartment and "ran down [the] street." While in Poole's
residence, defendant was observed in possession of the $30 stolen
from Hayes.
Commonwealth witness Derrick Lea, a jail inmate previously
housed in a cellblock with defendant, recounted a conversation in
which defendant confessed that he and Leftwich "had robbed this
lady[,] . . . took this pocketbook," and he had directed "Leftwich
to shoot the MF." Sharetta Fitzgerald, the mother of defendant's
son, testified that defendant also admitted to her that he "got
. . . money from [the victim]" after "the other person shot" her.
At the conclusion of both the Commonwealth's case-in-chief
and trial, defendant moved to strike the evidence, arguing that
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the Commonwealth had failed to establish his intent to rob Hayes
coincided with violence or intimidation, an element indispensable
to robbery. The court overruled the motions and convicted
defendant of the offense. On appeal, defendant again challenges
the sufficiency of the evidence, contending that he "clearly did
not have robbery in mind" during the encounter with Hayes, but,
"instead[,] . . . petit larceny after the shooting."
II.
"Robbery at common law is defined as, 'the taking, with the
intent to steal, of the personal property of another, from his
person or in his presence, against his will, by violence or
intimidation.'" Clay v. Commonwealth, 30 Va. App. 254, 258-59,
516 S.E.2d 684, 686 (1999) (en banc) (citation omitted). Thus,
[t]he principal elements of robbery, . . .
are the taking, the intent to steal, and the
violence (or intimidation). Definitionally,
there is a temporal correlation among these
elements. The violence must occur before or
at the time of the taking. The intent to
steal and the taking must coexist. And the
offense is not robbery unless the animus
furandi was conceived before or at the time
the violence was committed.
Branch v. Commonwealth, 225 Va. 91, 94-95, 300 S.E.2d 758, 759
(1983). It is, therefore, immaterial that the theft may have
occurred after the victim's injury or death, provided the
requisite intent to steal accompanied the related violence or
intimidation, together with the other elements of the offense.
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See Whitney v. Commonwealth, 223 Va. 66, 73, 286 S.E.2d 162, 166
(1982).
Here, defendant "was threatenin' [Hayes], . . . [c]alling
her bitches, . . . threatenin' to shoot her" if she refused to
surrender to him the $30 cash originally exchanged during the
aborted drug transaction, finally instructing Leftwich "to shoot
the MF" and immediately stealing her purse and money. Defendant
later confessed to the robbery and attendant murder of Hayes to
both Lea and Fitzgerald. Such evidence clearly supports the
finding that defendant intended to steal Hayes' property through
intimidation and violence and commanded another to murder her in
furtherance of his criminal design, conduct clearly sufficient
to constitute robbery.
Accordingly, we affirm the conviction.
Affirmed.
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