Warren Lee Chrisman v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Senior Judge Cole
Argued at Richmond, Virginia
WARREN LEE CHRISMAN
MEMORANDUM OPINION * BY
v. Record No. 1724-95-3 JUDGE SAM W. COLEMAN III
APRIL 30, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF WAYNESBORO
Rudolph Bumgardner, III, Judge
William E. Bobbitt, Jr., Public Defender, for
appellant.
Brian Wainger, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Warren Lee Chrisman appeals his conviction for attempted
robbery in violation of Code §§ 18.2-58 and 18.2-26. Chrisman
contends that the evidence is insufficient to prove that he
intended to commit robbery or that he committed an overt act in
furtherance of robbery. We hold that the evidence is sufficient
to support the defendant's conviction.
"[A]n attempt is composed of two elements: the intention to
commit the crime, and the doing of some direct act towards its
consummation which is more than mere preparation but falls short
of execution of the ultimate purpose." Hopson v. Commonwealth,
15 Va. App. 749, 752, 427 S.E.2d 221, 223 (1993) (quoting
Sizemore v. Commonwealth, 218 Va. 980, 983, 243 S.E.2d 212, 213
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
(1978)). Although the Commonwealth must prove an overt act in
order to establish an attempt, "if 'the design of a person to
commit a crime is clearly shown, slight acts done in furtherance
of this design will constitute an attempt.'" Tharrington v.
Commonwealth, 2 Va. App. 491, 494, 346 S.E.2d 337, 339 (1986)
(quoting State v. Bell, 311 N.C. 131, 141, 316 S.E.2d 611, 616
(1984)).
Here, Thomas Joyce testified unequivocally that the
defendant stated that "he was going to take [Joyce's] money and
. . . was going to shoot [Joyce]." Although Joyce did not see a
gun, he testified that the defendant "put his right hand in his
pocket, over towards the passenger door, and he motioned as he
spoke with his pocket, with his hand in his pocket." Joyce, a
former police officer, stated that he "had no doubt in [his] mind
that [the defendant] was going to . . . shoot [him] and take what
money [he] had." See Braxton v. Commonwealth, 13 Va. App. 585,
587-88, 414 S.E.2d 410, 412 (1992) (holding that intent to commit
robbery could be inferred in part from the accused's conduct of
holding his hand in his pocket, which "frightened [the victim]
and further caused her to believe she was about to be robbed").
After driving the defendant around in the taxi for a few
minutes, Joyce turned into the parking lot of a convenience
store, exited the car, and went into the store in order to escape
the defendant. The defendant followed Joyce into the store, and
while holding his right hand in his pocket yelled, "I don't want
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anybody to get hurt." See id. at 587, 414 S.E.2d at 412 ("If
[the accused] was attempting a lawful withdrawal, he had no
reason to make references to harm which might come to the
[victim]"). According to the store clerk, the defendant looked
"really strained," and said, "where are you, come on out." When
the defendant noticed that Joyce was on the phone, he stated,
"put the phone down, put it down now." The clerk testified that
it appeared to her that the defendant had a gun under his jacket
and that he was pointing it at Joyce. After the defendant
confronted Joyce, he left the store and went to the driver's side
of the taxi, "like he was going to get in," but Joyce had taken
the keys, as well as the bag containing the money, with him. The
defendant "looked in" the car and then disappeared around the
side of the store and was not seen again that night.
Although the defendant contends that certain aspects of his
conduct were inconsistent with an intent to commit robbery, we
must review the evidence in the light most favorable to the
Commonwealth. Higginbotham v. Commonwealth, 216 Va. 349, 352,
218 S.E.2d 534, 537 (1975). The defendant's statement that he
was going to shoot Joyce and take his money is sufficient to
prove beyond a reasonable doubt that he intended to rob Joyce.
Furthermore, the defendant committed numerous overt acts in
furtherance of the robbery by placing his hand in his pocket in a
manner that caused Joyce to believe that he had a gun, following
Joyce into the store and stating that he did not "want anybody to
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get hurt," and attempting to enter the taxi after leaving the
store. Accordingly, the evidence is sufficient to sustain the
defendant's conviction for attempted robbery.
Affirmed.
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