Donald Wayne Gary v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Humphreys and Agee
Argued at Salem, Virginia
DONALD WAYNE GARY
MEMORANDUM OPINION * BY
v. Record No. 1099-00-3 JUDGE ROBERT J. HUMPHREYS
APRIL 17, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
S. Jane Chittom, Appellate Defender (Public
Defender Commission, on briefs), for
appellant.
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Donald Wayne Gary appeals his conviction, after a bench
trial, of robbery and use of a firearm in the commission of a
felony. Gary contends that the trial court erred in finding the
evidence sufficient to convict him of the charges.
"Where the sufficiency of the evidence is challenged after
conviction, it is our duty to consider it in the light most
favorable to the Commonwealth and give it all reasonable
inferences fairly deducible therefrom." Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
Furthermore, "[t]he judgment of a trial court will be disturbed
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
on appeal only if plainly wrong or unsupported by the evidence."
See Code § 8.01-680.
So viewed, the evidence established that on April 10, 1999,
Gloria Mills was working at "The Hair Shop" in Danville. The
Hair Shop was set up so that it was divided into three separate
areas. There were two separate styling rooms, each containing
four chairs. The two styling rooms were connected by a small
hallway containing hair dryers, and each had their own entrance
from the parking lot.
Mills was the only employee working in her styling area on
that particular day. She kept her purse and other personal
belongings in a supply room that was located off of her styling
area. During a break around 11:00 a.m., when Mills had no
customers, Mills went to the other styling area to speak with
co-workers Robin Jones and Diane Sigmon. There were three
customers in that area. One female customer, who was sitting in
Jones' styling chair, another female customer who was sitting in
Sigmon's styling chair, and a male customer who was sitting in
the waiting area.
A few moments after Mills entered the area, she thought she
saw a man enter the salon through the door to her styling area.
Sigmon also saw the man in her mirror. She testified that he
"look[ed] at [her], but kept on walking." Mills, who was a
relatively new employee at The Hair Shop, asked Jones if "there
was supposed to be a male on the other side of the beauty shop."
- 2 -
Jones replied that she did not think so, and the two walked to
the other styling area to find the man. They did not see him in
the main area, so they walked toward the supply room. Jones
looked into the supply room and saw the man "bent over, going
through [Mills'] purse." She said "Hey," and the man turned,
then walked out of the supply room and stood between her and
Mills. Jones thought she had seen the man "take something out"
of Mills' purse, so she said, "Hey, wait a minute." The man
then turned to face her and she saw that he had a gun. He asked
her to open the cash register and "give him all the money."
Jones testified that she told the man "we don't have any money
here." The man then told Jones to get down on the floor and
turned toward Mills.
Mills walked toward the second styling area and the man
told Mills, "If you run, I'll shoot you." Mills took a few more
steps into the area and told Sigmon, "We're being robbed." When
she turned back to face the man, she saw that he had a gun in
his hand. The man pulled out the gun, asked again about the
cash register, said "something about . . . purse [sic]," and
told Sigmon to "get on the floor." He then took a few steps
more into the second styling area and reached up to pull a hose
over his face, but did not do so. When he noticed the male
customer, who had stood up, he fled the store. Mills later
determined that her wallet had been taken from her purse. The
wallet contained $30, a driver's license and a credit card.
- 3 -
Gary was arrested on May 24, 1999. On May 25, 1999, the
police showed the victims a computerized photograph lineup of
six people, including Gary. Mills could not make an
identification, but Jones identified Gary as the perpetrator.
Sigmon hesitated when she looked at Gary's picture but
identified another individual as the perpetrator.
When shown another photograph lineup on the morning of
trial, Jones identified another individual, not Gary, as the
perpetrator. During the trial, neither Mills, Jones, nor the
male customer was able to make an in-court identification.
However, Sigmon identified Gary as the perpetrator and testified
that she wasn't sure when she looked at the photographs, because
they were computer photographs and were very "orange looking."
She further testified she was "sure" her in-court identification
of Gary was accurate.
Gary first contends that the identification evidence
submitted at trial was insufficient to establish that he was the
perpetrator. We disagree.
The sufficiency of the evidence depends upon the
reliability of the identifications. See Smallwood v.
Commonwealth, 14 Va. App. 527, 530, 418 S.E.2d 567, 568 (1992).
The factors to be considered in determining the reliability of
an identification include:
"the opportunity of the witness to view the
criminal at the time of the crime, the
witness' degree of attention, the accuracy
- 4 -
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."
Townes v. Commonwealth, 234 Va. 307, 331, 362 S.E.2d 650, 663-64
(1987) (quoting Neil v. Biggers, 409 U.S. 188, 199-200 (1972)),
cert. denied, 485 U.S. 971 (1988).
Here, Gary argues only about the "level of certainty" of
the identifications in contending that "there [was] no
eyewitness identification at trial except that of [Sigmon]" and
that Sigmon's identification is "equivocal at best, because she
had previously failed to pick Gary's picture in a photo array."
As a result, he argues "[t]here is no physical evidence, no
testimony or statement that places him at the scene." However,
Sigmon's identification was not equivocal at trial. In fact,
Sigmon testified that she was "sure" her in-court identification
was correct. Furthermore, although she could not make an
in-court identification, Jones also identified Gary from the
photograph lineup which took place approximately six weeks after
the incident. There is no evidence that Jones was in any way
equivocal when making the identification at that time.
Based on this evidence, we cannot hold that the trial court
was plainly wrong in finding the identifications sufficiently
reliable to establish that Gary was the perpetrator of the
crime. It is well settled that "[t]he credibility of witnesses,
the weight accorded testimony, and the inferences to be drawn
- 5 -
from proven facts are matters to be determined by the fact
finder." Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d
473, 476 (1989).
Gary next argues that the evidence was insufficient to
establish that the taking of Mills' property amounted to robbery
because "it was not accomplished by force, violence or
intimidation directed toward [Mills] before or at the time of
the taking." Accordingly, Gary argues that his actions amounted
merely to larceny.
Robbery is a common law offense in Virginia and is defined
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." Johnson v. Commonwealth,
209 Va. 291, 293, 163 S.E.2d 570, 572-73 (1968).
The predicate element of robbery is the
actual taking by caption and asportation of
the personal property of the victim. The
degree of asportation necessary to
constitute a taking under the common law
definition of robbery need only be slight.
Severance of the goods from the owner and
absolute control of the property by the
taker, even for an instant, constitutes an
asportation.
The timing of the other elements of robbery,
as distinguished from larceny, relate to the
instant of the predicate felonious taking.
The act of violence or intimidation employed
must precede or be concomitant with the
taking. If the violence or intimidation
preceded or was concomitant with the taking,
the offense of robbery is established; if
the taking was accomplished before the
violence toward or intimidation of [the
- 6 -
victim], then it was not robbery. Thus no
violence, no excitation of fear, resorted to
merely for the purpose of retaining a
possession already acquired, or to effect
escape, will, in point of time, supply the
element of force or intimidation, an
essential [element] of [robbery].
Beard v. Commonwealth, 19 Va. App. 359, 361-62, 451 S.E.2d 698,
700 (1994) (citations omitted).
Here, unlike the perpetrator in Mason v. Commonwealth, 200
Va. 253, 105 S.E.2d 149 (1958), Gary had taken the property from
Mills' purse before he pulled out the gun, but had not yet left
the premises with the property. Accordingly, it appears logical
and reasonable to infer that while Gary was in the process of
carrying out his intended act of stealing, Mills and Jones
surprised him by their appearance in the room. Thus, Gary's
intention changed from the commission of larceny to robbery
when, in order to accomplish his original purpose, Gary used
force to overcome their interference with the asportation of the
property, and to maintain the property. See Pritchard v.
Commonwealth, 225 Va. 559, 563, 303 S.E.2d 911, 913 (1983)
(holding that defendant committed robbery when his use of force
preceded possession and enabled him to obtain possession by
completing the asportation of the property). This conclusion is
further supported by the fact that after Gary had pulled out the
gun and pointed it at Mills, Jones and Sigmon, he demanded money
from the cash register at least two times and made some
reference to "purse" or purses, amounting to separate attempts
- 7 -
of robbery. Accordingly, it is clear that the putting in fear
and violence were concurrent or concomitant with the larceny, or
attempt to commit larceny, and indicative of Gary's intent to
commit, or attempt to commit, robbery.
Finally, Gary argues that the evidence was insufficient to
establish that he used a firearm in the commission of a felony.
Gary again alleges that the identification was unreliable and
therefore, that there was no proof he was the gunman. He
further alleges that the action was at most larceny, which he
states does not fall within the enumerated felonies listed in
Code § 18.2-53.1. 1 Since we have found that the identification
was reliable and that the evidence was sufficient to support a
conviction for robbery, we also find the evidence sufficient to
support Gary's conviction for the use of a firearm in the
1
Code § 18.2-53.1 provides the following, in pertinent
part:
It shall be unlawful for any person to use
or attempt to use any pistol, shotgun,
rifle, or other firearm or display such
weapon in a threatening manner while
committing or attempting to commit murder,
rape, forcible sodomy, inanimate or animate
object sexual penetration as defined in
§ 18.2-67.2, robbery, carjacking, burglary,
malicious wounding as defined in § 18.2-51,
malicious bodily injury to a law-enforcement
officer as defined in § 18.2-51.1,
aggravated malicious wounding as defined in
§ 18.2-51.2, malicious wounding by mob as
defined in § 18.2-41 or abduction.
- 8 -
commission of a felony. Therefore, we affirm the judgment of
the trial court.
Affirmed.
- 9 -