Craig Henderson v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Clements
Argued at Chesapeake, Virginia
CRAIG HENDERSON
MEMORANDUM OPINION * BY
v. Record No. 3017-99-1 CHIEF JUDGE JOHANNA L. FITZPATRICK
DECEMBER 12, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Thomas S. Shadrick, Judge
Catherine L. MacLean, Assistant Public
Defender, for appellant.
John H. McLees, Jr., Senior Assistant
Attorney General (Mark L. Earley, Attorney
General, on brief), for appellee.
Craig Henderson (appellant) was convicted in a bench trial of
robbery. On appeal, he contends: (1) the trial court erred in
denying his motion for a continuance, (2) the evidence was
insufficient to prove the taking was accomplished by violence, and
(3) the evidence was insufficient to identify him as the robber.
We disagree and affirm his conviction.
I.
Under familiar principles of appellate review, we examine the
evidence in the light most favorable to the Commonwealth, the
prevailing party below, granting to that evidence all reasonable
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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 about 8:00 p.m. on
December 19, 1998, James Minson (Minson) left Pembroke Mall to
smoke a cigarette. Appellant followed Minson outside, and the two
men smoked and talked together for about eight minutes. The area
was well-lit, and Minson had a "clear look" at appellant. As they
spoke, appellant suddenly threw down his cigarette, said "there
she is," and began to chase Ms. Merriam Scott (Scott) and Philip
Anderer. Minson observed appellant "lowering his right shoulder,
swinging it forward in a blocking -- football-blocking-type
motion." It was "no big movement," but it was intentional, "like
running through her, but preparing yourself to do it." Appellant
struck Scott, knocked her to the ground, grabbed her purse and
continued to run.
A number of other people chased appellant, saw him leave the
scene, but could not identify him. Approximately ten days after
the robbery, Minson was shown a photo lineup by Detective Hebert
and identified appellant as the person involved in the robbery.
At trial Minson stated that there was no doubt in his mind that
appellant was the man who robbed Scott.
At the close of the evidence, appellant moved to strike the
evidence because the evidence was (1) insufficient to identify him
as the robber and (2) insufficient to establish the force or
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violence necessary to prove a robbery. The court denied
appellant's motion and found him guilty of robbery.
II. Motion for a Continuance
Appellant contends that the trial court erred in denying
his motion for a continuance made two days before trial to allow
a privately retained attorney to represent him.
"The decision whether to grant a continuance is a matter
within the sound discretion of the trial court." Lowery v.
Commonwealth, 9 Va. App. 304, 307, 387 S.E.2d 508, 509 (1990).
The Virginia Supreme Court has established a two-pronged test
for determining whether a trial court's denial of a continuance
is reversible error. Reversal is required only if it appears
from the record: (1) that the court abused its discretion and
(2) that the movant was prejudiced by the court's decision. See
Cardwell v. Commonwealth, 248 Va. 501, 509, 450 S.E.2d 146, 151
(1994).
On January 13, 1999, appellant requested and received
court-appointed counsel. Trial was set for June 12, 1999, but was
continued by joint motion to August 4, 1999. On August 2, 1999,
appellant requested another continuance to substitute privately
retained counsel for the Assistant Public Defender assigned to his
case. He stated that he had just recently received funds to
retain a new lawyer, who had agreed to represent him but who could
not be present on August 4, 1999. The record showed that
appointed counsel had participated in a "fairly detailed"
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preliminary hearing and was ready for trial. The duty judge heard
arguments on this motion and denied the continuance. At trial,
appellant again requested a continuance which was denied by the
trial judge.
An accused's right to be represented by counsel "includes
'not only an indigent's right to have the government appoint an
attorney to represent him, but also the right of any accused, if
he can provide counsel for himself by his own resources . . . to
be represented by an attorney of his own choosing.'" Bolden v.
Commonwealth, 11 Va. App. 187, 190, 397 S.E.2d 534, 536 (1990)
(quoting Thacker v. Slayton, 375 F. Supp. 1332, 1335 (E.D. Va.
1974)). However, this right is "limited by a 'countervailing
state interest . . . in proceeding with prosecutions on an orderly
and expeditious basis.'" Id. at 190, 397 S.E.2d at 536 (quoting
Paris v. Commonwealth, 9 Va. App. 454, 460, 389 S.E.2d 718, 721-22
(1990) (citations omitted)). A court may also consider the
convenience of the witnesses who are prepared to testify at the
proceeding. See Lebedun v. Commonwealth, 27 Va. App. 697, 713-14,
501 S.E.2d 427, 435 (1998). "'Obviously, a defendant has no
constitutional right to dictate the time, if ever, at which he is
willing to be tried by simply showing up without counsel, or with
allegedly unsatisfactory counsel, whenever his case is called for
trial.'" Bolden, 11 Va. App. at 190, 397 S.E.2d at 536 (quoting
Sampley v. Attorney General of North Carolina, 786 F.2d 610, 613
(4th Cir.), cert. denied, 478 U.S. 1008 (1986)). Nor does the
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right to effective assistance of counsel guarantee the defendant
will be represented by a particular attorney. Feigley v.
Commonwealth, 16 Va. App. 717, 721, 432 S.E.2d 520, 523 (1993).
The trial judge has broad discretion in determining whether a
defendant should be granted a continuance to obtain new counsel.
See id. at 721, 432 S.E.2d at 523. "Only an unreasoning and
arbitrary insistence upon expeditiousness in the face of a
justifiable request for a delay violates the right to the
assistance of counsel." Mills v. Commonwealth, 24 Va. App. 95,
99-100, 480 S.E.2d 746, 748 (1997) (citations omitted). However,
exceptional circumstances must exist to justify a continuance
based upon a last minute change of counsel. See Shifflett v.
Commonwealth, 218 Va. 25, 30, 235 S.E.2d 316, 320 (1977).
Exceptional circumstances do not exist when a defendant has "a
'basic feeling' that his attorney would not represent him as ably
as privately retained counsel." Feigley, 16 Va. App. at 721, 432
S.E.2d at 523.
In the instant case, appellant waited until late in the
afternoon two days prior to the second trial date to request a
continuance for new counsel. The case had already been continued
once before, for a month and a half. Appellant's sole reason for
the last minute change of counsel was that he had obtained the
money necessary to hire a private attorney. This case is
analogous to the situation in Feigley. Appellant failed to
justify a continuance at the last minute as no exceptional
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circumstances existed for his request to substitute counsel two
days before trial and again the day of trial.
Furthermore, appellant has not shown that the denial of a
continuance prejudiced his case. There is no indication that his
court-appointed public defender was inadequately prepared for
trial, failed to pursue a defense or failed to perform any other
duties required of her. Thus, the trial judge did not abuse his
discretion in denying appellant's motion for a continuance in
order to substitute new counsel.
III. Violence
Appellant next contends that the evidence was insufficient to
convict him of robbery because the Commonwealth failed to
establish that the purse was taken "by violence or intimidation."
In order to sustain a robbery conviction, the Commonwealth has the
burden of proving beyond a reasonable doubt the elements of
robbery which include a "'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' which precedes or
is 'concomitant with the taking.'" Jones v. Commonwealth, 13 Va.
App. 566, 572, 414 S.E.2d 193, 196 (1992) (emphasis added)
(citations omitted). "Violence or force requires a physical
touching or violation of the victim's person. The touching or
violation necessary to prove the offense may be indirect, but
cannot result merely from the force associated with the taking."
Bivens v. Commonwealth, 19 Va. App. 750, 752, 454 S.E.2d 741, 742
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(1995) (emphasis added) (citing Johnson v. Commonwealth, 65 Va.
(24 Gratt.) 555, 557 (1873)). The element of violence is related
to the violence or intimidation directed at the person of the
victim not violence used on the object taken. See Winn v.
Commonwealth, 21 Va. App. 179, 182, 462 S.E.2d 911, 912 (1995).
In the absence of evidence of physical contact or a struggle with
the victim, there is no violence used in the taking of a purse.
See id. at 183, 462 S.E.2d at 913.
A purse snatching is not robbery unless the evidence proves
the accused used violence against the victim's person or used
intimidation. See Jones v. Commonwealth, 26 Va. App. 736, 739,
496 S.E.2d 668, 669 (1998); See also Winn, 21 Va. App. at 181-83,
462 S.E.2d at 913. If the accused pushes the victim in taking the
purse, he has committed the requisite violence to be convicted of
robbery. See Broady v. Commonwealth, 16 Va. App. 281, 289, 429
S.E.2d 468, 473 (1993). The violence used does not need to be
great or cause any actual harm to the victim. Tapping the victim
on the shoulder and jerking her around is sufficient violence to
support a robbery conviction even though the victim isn't knocked
down. See Jones, 26 Va. App. at 740, 496 S.E.2d at 670.
In the instant case appellant ran toward the victim, lowered
his right shoulder and swung it forward in a blocking --
"football-blocking-type motion." It appeared that appellant
prepared to strike Scott before the contact occurred. After being
hit, she fell to the ground as appellant continued running away.
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Thus, in this case the violence was directed at the victim and did
not "result merely from the force associated with the taking."
Bivens, 19 Va. App. at 752, 454 S.E.2d at 472. Accordingly, we
hold that the evidence was sufficient to establish beyond a
reasonable doubt the violence requisite to sustain a robbery
conviction.
IV. Identification
Lastly appellant contends that the evidence was
insufficient to establish his identity as the person who
committed the robbery. Determining credibility of witnesses is
within the province of the trier of fact, who has the
opportunity to observe the demeanor of the witnesses as they
testify. See Tross v. Commonwealth, 21 Va. App. 362, 383, 464
S.E.2d 523, 533 (1995) (citing Lea v. Commonwealth, 16 Va. App.
300, 304, 429 S.E.2d 477, 479 (1993)). The trial court's choice
to believe Minson's testimony will not be reversed on appeal
unless plainly wrong or without evidence to support it. See id.In evaluating an eyewitness identification, the opportunity and
ability of the witness to view the criminal before and during
the crime, "the witness' degree of attention, the accuracy of
the witness' prior description of the criminal, the level of
certainty demonstrated by the witness at the confrontation, and
the length of time between the crime and the confrontation," are
factors to be considered. McCary v. Commonwealth, 228 Va. 219,
223, 321 S.E.2d 637, 644 (1984).
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Minson testified that he had a clear look at appellant,
spoke with him for eight minutes and saw appellant run toward
and hit the victim. Minson clearly identified appellant both
from the photo identification and in court as the man who robbed
Scott. The testimony of one witness, if believed, is sufficient
to prove identity beyond a reasonable doubt and to sustain a
guilty verdict. See Bryant v. Commonwealth, 10 Va. App. 421,
427, 393 S.E.2d 216, 220 (1990).
The evidence was sufficient to convict appellant of
robbery, and the denial of a continuance was not an abuse of
discretion. Accordingly, the decision of the trial court is
affirmed.
Affirmed.
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