Steven Lamont Carney v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Retired Judge Olitsky*
Argued at Richmond, Virginia
STEVEN LAMONT CARNEY
MEMORANDUM OPINION ** BY
v. Record No. 0137-99-2 JUDGE NORMAN OLITSKY
JULY 18, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge
Patricia P. Nagel, Assistant Public Defender
(David J. Johnson, Public Defender, on
brief), for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Steven Lamont Carney, appellant, was convicted of robbery and
the use of a firearm in the commission of robbery. Appellant
argues on appeal that the evidence was insufficient to prove he
committed the offenses. We affirm his convictions.
FACTS
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v.
*
Retired Judge Norman Olitsky took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400, recodifying Code § 17-116.01.
**
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)
(citation omitted). Officer John Rockwood testified that on
June 23, 1998 at approximately 2:45 to 3:00 a.m., he was
traveling in a marked police vehicle with Officer Charles
Edmonds. As they approached a parking lot, they saw four men
standing in a group. Two of the men had their hands up.
Rockwood testified that appellant and the other man were
"[h]olding guns on them." Rockwood then saw appellant "reach
out and grab something off the chest" of Tesfa Borland.
Rockwood testified that the item "turned out to be a gold
medallion necklace."
When appellant and his accomplice, Damond Hilliard, saw the
police officers, Hilliard threw down his gun. He and appellant
fled in a car. Rockwood testified that Borland said, "[T]hey
just robbed me."
After the police pursued and stopped appellant's vehicle,
appellant fled on foot. The officers apprehended appellant and
searched him incident to his arrest. They recovered a gold
necklace and a medallion from appellant's pocket. The chain had
"snapped." Rockwood testified this was the item he saw
appellant remove from Borland's chest. In addition, the
officers recovered a gun from the path of pursuit. Rockwood
testified the gun looked "like the weapon" appellant held during
the incident in the parking lot.
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Officer Edmonds testified he saw the men standing together
in the parking lot, but he did not see any weapons. Edmonds
also testified that Borland told the officers, "[T]hey just
robbed me." The trial judge convicted appellant of robbery and
use of a firearm in the commission of robbery.
ANALYSIS
Appellant contends the evidence was insufficient to support
the convictions because the Commonwealth failed to prove the
necklace recovered from appellant was the "personal property of
another" or that Borland had a right to possession of the
necklace superior to the rights of all others. Appellant also
contends the evidence failed to prove the item was taken against
Borland's will, by force or violence, and that appellant
intended to steal the necklace.
Appellant first argues that Rockwood's identification of
the victim as Borland was inadmissible hearsay evidence.
Appellant did not appeal that issue however. Thus, in the
absence of an appeal from the ruling on admissibility of the
evidence, we assume for purposes of deciding the issue of
sufficiency that the evidence was properly considered. See
e.g., Bell v. Commonwealth, 22 Va. App. 93, 99 n.1, 468 S.E.2d
114, 117 n.1 (1996); McQuinn v. Commonwealth, 19 Va. App. 418,
424, 451 S.E.2d 704, 707 (1994), aff'd on other grounds, 20 Va.
App. 753, 460 S.E.2d 624 (1995) (en banc).
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"Robbery is defined at common law as '"the 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."'" Brown v. Commonwealth, 24 Va. App. 292, 295,
482 S.E.2d 75, 77 (1997) (citation omitted).
In the commission of robbery the
property must be taken by force and
violence, not necessarily from the owner,
but from any person in possession thereof
whose right of possession is superior to
that of the robber. The very fact that
property is taken from a person by the use
of firearms, violence or threatened
violence, is, within and of itself,
sufficient to show that the person from whom
it was taken was in possession thereof.
Johnson v. Commonwealth, 215 Va. 495, 496, 211 S.E.2d 71, 72
(1975).
Rockwood testified he saw appellant point a gun at Borland,
then "reach out and grab" something from Borland's chest.
Borland then exclaimed to the police, "[T]hey just robbed me."
Rockwood recovered a gold necklace and medallion from
appellant's pocket. The recovered necklace had a broken chain.
From that statement, the trial judge could infer that appellant
took personal property belonging to Borland. Clearly, this
evidence, if believed, proved the necklace was in Borland's
possession when appellant took it and that appellant took the
necklace against Borland's will.
Moreover, appellant failed to present any evidence to
support his "claim of right" theory, and the trial judge did not
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accept appellant's "claim of right" argument. Appellant's
conduct was inconsistent with a claim of right. Appellant fled
from the police both in a car and on foot just after the
incident. "Flight following the commission of a crime is
evidence of guilt . . . ." Clagett v. Commonwealth, 252 Va. 79,
93, 472 S.E.2d 263, 271 (1996). In addition, the police
recovered a gun from the path of the pursuit, and Rockwood
stated that the gun had the appearance of the weapon he saw
appellant point at Borland.
The trial judge believed the testimony of the
Commonwealth's witnesses. "The credibility of the witnesses and
the weight accorded the evidence are matters solely for the fact
finder who has the opportunity to see and hear that evidence as
it is presented." Sandoval v. Commonwealth, 20 Va. App. 133,
138, 455 S.E.2d 730, 732 (1995). The testimony of the
Commonwealth's witnesses was competent and was not inherently
incredible. From the evidence presented, the trial judge could
conclude beyond a reasonable doubt that appellant took, with the
intent to steal, personal property belonging to Borland, from
Borland's person, against Borland's will, by violence or
intimidation. The trial judge could further conclude that
appellant used a firearm in the commission of the robbery.
Accordingly, the convictions are affirmed.
Affirmed.
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