Robert Jerome Brown, II v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Frank
Argued at Chesapeake, Virginia
ROBERT JEROME BROWN, II, S/K/A
ROBERT JEROME BROWN, JR.
MEMORANDUM OPINION * BY
v. Record No. 2559-99-1 JUDGE ROBERT P. FRANK
DECEMBER 12, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG
AND COUNTY OF JAMES CITY
Samuel Taylor Powell, III, Judge
C. Thomas Turbeville (D.R. Dansby, Ltd., on
brief), for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Robert Jerome Brown, II, sometimes known as Robert Jerome
Brown, Jr., (appellant) was convicted, in a jury trial, of robbery
in violation of Code § 18.2-58, felony petit larceny in violation
of Code §§ 18.2-96, 18.2-103 and 18.2-104, and destruction of
private property in violation of Code § 18.2-137. On appeal, he
contends the trial court erred in finding the evidence was
sufficient to convict him of robbery. For the reasons stated
herein, we affirm the judgment of the trial court.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I. BACKGROUND
Donald N. Janderup was employed as a manager at a CVS
Pharmacy in Williamsburg on March 12, 1999. Janderup looked onto
the sales floor of the pharmacy from his "second story" manager's
office and observed appellant concealing a container of baby
formula "inside his coat." Janderup said appellant was located
ten to fifteen feet from him.
Janderup brought the situation to the attention of his
assistant manager, Mattie Campbell, who was in Janderup's office.
Campbell then observed appellant conceal a second container of
formula. She walked out of the office and approached appellant,
who was between four and five feet from the formula display.
Janderup said he observed appellant "brush past [Campbell] making
some contact, just pushing past her." Campbell said appellant
brushed her shoulder. Janderup stated appellant was walking
toward the exit of the store when he passed Campbell. Janderup
came downstairs "for the purpose of keeping the appellant from
leaving the store." At this point, Janderup approached appellant,
who was now located between ten and fifteen feet from where he
initially concealed the baby formula. He was also approximately
forty feet from the store's exit. Janderup walked toward
appellant and said "something along the lines of 'Hold on a
minute.'" Appellant told him, "You don't want to do this." As
appellant came toward him, Janderup held his hands up in a
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"defensive" manner to "block the way." As appellant tried to walk
past him, Janderup reached out toward appellant's arm.
Appellant "lunged" towards Janderup and drove him backward
into a watch case that Janderup knocked over. The two continued
to struggle, knocking over several more displays and "bounc[ing]
off the wall once or twice." They ended up on the floor with
Janderup "on top of [appellant] more or less holding him."
Then, another individual struck and kicked Janderup several
times while ordering him, "Get off my brother." Appellant then
punched Janderup "at least two or three times." At least, "one or
two" of these "closed fist" blows struck Janderup in the face in
his "right jaw area." At some point, another CVS employee,
Nathaniel Isaac, stepped in and assisted Janderup in "holding"
appellant. According to Campbell, Isaac also dissuaded the other
individual from throwing a shopping cart at Janderup.
Then, Janderup grabbed appellant by "his jacket." Suddenly,
appellant "came out of" the jacket leaving Janderup holding it.
Appellant ran from the store without the jacket or the baby
formula. Campbell testified the baby formula fell out onto the
floor during the fight, shortly after the second person joined the
fight. Janderup acknowledged during cross-examination that it was
"clear" to him from the time he approached appellant that
appellant wanted to leave the store and was walking toward an
exit.
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At the conclusion of the Commonwealth’s evidence, appellant
moved to strike the evidence as insufficient to prove robbery.
The trial court denied appellant’s motion.
II. ANALYSIS
On appeal, appellant contends the evidence was insufficient
to prove robbery because the "taking" of the baby formula was
never completed. We disagree.
When sufficiency of the evidence is at
issue on appeal, the evidence must be viewed
in the light most favorable to the
Commonwealth, and the evidence must be
accorded all reasonable inferences fairly
deducible therefrom. Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d
534, 537 (1975). A jury's verdict will not
be disturbed unless it was plainly wrong or
without evidence to support it. Code
§ 8.01-680; Stockton v. Commonwealth, 227 Va.
124, 145-46, 314 S.E.2d 371, 385, cert.
denied, 469 U.S. 873, 105 S. Ct. 229, 83
L.Ed.2d 158 (1984); Albert v. Commonwealth, 2
Va. App. 734, 741-42, 347 S.E.2d 534, 538-39
(1986).
Pugliese v. Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24
(1993).
"The degree of asportation necessary to constitute a taking
under the common law definition of robbery need only be slight."
Durham v. Commonwealth, 214 Va. 166, 168, 198 S.E.2d 603, 606
(1973). In Green v. Commonwealth, 133 Va. 695, 699, 112 S.E. 562,
563 (1922), the Supreme Court of Virginia held that a "taking" in
a robbery requires dominion or absolute control of the property.
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The Court explained that "[t]he absolute dominion must exist at
some time, though it be only momentary." Id. (citation omitted).
Appellant argues the "taking" in this case was never
completed because he did not leave the store with the baby
formula. However, the asportation occurred when appellant
concealed the cans of baby formula inside his coat and continued
through his struggle with Janderup. The evidence established he
exercised absolute control over the cans of formula as he walked
away and during the struggle. Even if his control over the cans
of formula was "momentary," it was sufficient to establish a
"taking" under Green. We, therefore, find the evidence sufficient
to support appellant's conviction.
For these reasons, we affirm the judgment of the trial court
and affirm appellant's conviction.
Affirmed.
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