Craig Henderson v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: December 12, 2000
• Docket: 3017991
• Status: Unpublished

Opinion

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

- 2 - 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"

- 3 - 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

- 4 - 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

- 5 - 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

- 6 - (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.

- 7 - 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).

- 8 - 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.

- 9 -