Steven Lamont Carney v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: July 18, 2000
• Docket: 0137992
• Status: Unpublished

Opinion

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.

- 2 - 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).

- 3 - "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

- 4 - 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.

- 5 -