David Ray Riggs, Jr. v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: October 24, 1995
• Docket: 1199942
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Senior Judge Cole Argued at Richmond, Virginia

DAVID RAY RIGGS, JR. MEMORANDUM OPINION * BY v. Record No. 1199-94-2 JUDGE JAMES W. BENTON, JR. OCTOBER 24, 1995 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HENRICO COUNTY Lee A. Harris, Jr., Judge

Joseph Dee Morrissey (Gary R. Hershner; Hershner & Jacobs, on brief), for appellant.

Leah A. Darron, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

David Ray Riggs, Jr., was tried without a jury and convicted

of robbery and use of a firearm in the commission of robbery.

Code §§ 18.2-53.1 and 18.2-58. He contends the evidence was

insufficient to support the convictions. For the reasons that

follow, we affirm the convictions.

The evidence proved that Riggs and Stoney Verlander visited

Terry Smith's apartment to have tattoos placed on their bodies.

Remke Wallermeyer gave Verlander his tattoo first. Before

receiving his tattoo, Riggs removed his shirt and a gold necklace

and placed them on a chair. After Wallermeyer gave Riggs his

tattoo, Riggs and Verlander left the apartment.

Several minutes after they left, Riggs telephoned Smith and

asked Smith to look for his gold chain. After Smith and his * Pursuant to Code § 17-116.010 this opinion is not designated for publication. roommates, Steve Marshall and Anja Anderton, searched the

apartment for the necklace, Smith told Riggs that they could not

find it. Within minutes of the telephone call, Verlander and

Riggs returned to the apartment. Smith, Marshall, Anderton,

Wallermeyer and Anthony Johnson were all in the apartment.

Riggs angrily accused the people in the apartment of having

his necklace and told them to empty their pockets. After Smith

emptied his pockets and was replacing items in his pockets, Riggs

made Smith empty his pockets a second time. Smith testified that

Verlander then pointed a gun at him. When Smith removed $200

from his pocket and held it in his hand, Riggs took the money and

stated, "that makes us even for the chain." He also told Smith,

"when you find my chain, you can have your money." Smith then

noticed that Riggs was holding a gun at Riggs' side. Johnson testified that Riggs was upset when he made the

accusations. Both Johnson and Wallermeyer testified that neither

Verlander nor Riggs had a weapon. Marshall testified that both

Verlander and Riggs had a gun. Anderton testified that Riggs was

angry and hollering and that Verlander had a gun. Smith

testified that although he was not verbally threatened by Riggs,

he was frightened and did not want to give his money to Riggs.

To sustain a conviction of robbery, the evidence must prove

that Riggs took, with the intent to steal, property from Smith by

violence, force, or intimidation. Mitchell v. Commonwealth, 213

Va. 149, 149, 191 S.E.2d 261, 261 (1972). Intent to steal means

- 2 - an intent to deprive permanently of the property. Pierce v.

Commonwealth, 205 Va. 528, 533, 138 S.E.2d 28, 31 (1964). All

the elements of the offense must be proved beyond a reasonable

doubt. Mitchell, 213 Va. at 149, 191 S.E.2d at 261.

When the issue of sufficiency of the evidence is raised

following a conviction, we must view the evidence in the light

most favorable to the Commonwealth. Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). So

viewed, the evidence proved that Riggs angrily entered the

apartment and forced each person to empty his and her pockets.

Although the evidence concerning the guns was in conflict, the

trier of fact could have found beyond a reasonable doubt from the

witnesses' testimony that both Riggs and Verlander had guns when

they made the people empty their pockets. Hall v. Commonwealth,

8 Va. App. 526, 530, 383 S.E.2d 18, 21 (1989). The evidence

further proved that when Riggs took money from Smith, Verlander

was pointing his gun at Smith. Riggs also had a gun at his side.

This evidence proved beyond a reasonable doubt that the taking

of the money was accompanied by force or intimidation.

Riggs contends that the evidence did not prove he intended

to permanently deprive Smith of the money. We disagree. When

Riggs took the money from Smith, he had no basis to believe that

Smith had taken his necklace or knew where his necklace was.

Thus, his statement, "when you find my chain, you can have your

money," does not evince an intent not to permanently deprive

- 3 - Smith of the money. From his statement, the trier of fact could

have found beyond a reasonable doubt that he intended to keep the

money if Smith did not find and deliver the chain to him.

For these reasons, we conclude that the evidence proved

beyond a reasonable doubt all the elements of robbery and use of

a firearm in the commission of robbery.

Affirmed.

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