Steven Lamonte Stanley, Jr., s/k/a v. CW

• Court: Court of Appeals of Virginia
• Decided: December 28, 1999
• Docket: 1902982
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Coleman and Bray Argued at Richmond, Virginia

STEVEN LAMONTE STANLEY, JR., S/K/A STEVEN LAMONT STANLEY, JR., A/K/A STEVEN DUNFORD MEMORANDUM OPINION * BY v. Record No. 1902-98-2 JUDGE SAM W. COLEMAN III DECEMBER 28, 1999 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY W. Park Lemmond, Jr., Judge Designate

(Margaret Ann Englisby; Denis C. Englisby; Englisby & Englisby, on brief), for appellant. Appellant submitting on brief.

(Mark L. Earley, Attorney General; Kathleen B. Martin, Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.

Steven Lamont Stanley was convicted in a bench trial of

robbery in violation of Code § 18.2-58. On appeal, Stanley argues

that the evidence was insufficient to support the conviction

because the acts constituting the required element of violence did

not precede or were not concomitant with the taking of the

property of another from her person or presence. We disagree and

affirm the conviction.

*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. BACKGROUND

Patricia Aumiller, the victim, was approaching a pay phone

located at the entrance of a grocery store when she noticed a man

and woman at an adjoining pay phone. While Aumiller dialed the

phone, the woman grabbed Aumiller's purse from her right shoulder,

and as Aumiller turned around, the man struck her in the face.

The couple then fled with Aumiller's purse. Aumiller estimated

that approximately two to three seconds elapsed between the time

her purse was taken and when she was struck. Although Aumiller

stated that Stanley looked "identical" to the man who struck her,

she could not positively identify Stanley as the perpetrator.

Janet Bookman testified that as she left the grocery store

that evening, she noticed two people step onto the sidewalk and

run over to the pay phones. She watched as one person picked up

the phone receiver and pretended to use the phone. Bookman

testified that the man walked towards her and passed within a foot

of her. Bookman continued to walk to her car and as she looked

back toward the pay phones, she saw the man strike Aumiller,

hitting her twice in the face, and grab her purse. Bookman

observed the man and woman run off together behind the grocery

store passing the stolen purse back and forth. Bookman later

identified Stanley in a photographic lineup and at trial as the

man at the grocery store who struck Aumiller and stole her purse.

- 2 - ANALYSIS

Stanley argues that the evidence failed to prove that the

force or violence preceded or was concomitant with the taking of

Aumiller's purse because two to three seconds elapsed between the

two events. Stanley also argues that the evidence failed to prove

that he was the perpetrator because Aumiller's testimony was

completely contradicted by Bookman's testimony.

On review, we view the evidence in the light most favorable

to the prevailing party and grant to it all reasonable inferences

fairly deducible therefrom. See Commonwealth v. Jenkins, 255 Va.

516, 521, 499 S.E.2d 263, 265 (1998). "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 judgment of a

trial court sitting without a jury is entitled to the same weight

as a jury verdict, and will not be disturbed on appeal unless

plainly wrong or without evidence to support it." Beck v.

Commonwealth, 2 Va. App. 170, 172, 342 S.E.2d 642, 643 (1986).

Robbery is "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." Pierce v. Commonwealth,

205 Va. 528, 532, 138 S.E.2d 28, 31 (1964). "The act of violence

or intimidation employed must precede or be concomitant with the

- 3 - taking." Beard v. Commonwealth, 19 Va. App. 359, 362, 451 S.E.2d

698, 700 (1994) (citing Jones v. Commonwealth, 13 Va. App. 566,

572, 414 S.E.2d 193, 196 (1992)). "The touching or violation

necessary to prove [robbery] may be indirect, but cannot result

merely from the force associated with the taking." Bivins v.

Commonwealth, 19 Va. App. 750, 752, 454 S.E.2d 741, 742 (1995)

(citation omitted). Similarly, violence resorted to merely to

retain possession already acquired or to effect escape will be

insufficient to supply the force necessary to support a robbery

conviction. See Manson v. Commonwealth, 200 Va. 253, 256, 105

S.E.2d 149, 151 (1958).

Where, as here, the facts establish that the violence against

Aumiller and the trespass to her "'combine in a continuing,

unbroken sequence of events, the robbery itself continues as well

for the same period of time.'" Quesinberry v. Commonwealth, 241

Va. 364, 373, 402 S.E.2d 218, 224 (1991) (citation omitted); see

Person v. Commonwealth, 10 Va. App. 36, 40, 389 S.E.2d 907, 910

(1990). Stanley struck Aumiller within two to three seconds after

her purse was removed from her shoulder and while Aumiller was

trying to resist the taking. See Beard, 19 Va. App. at 363, 451

S.E.2d at 700 (finding that "asportation of stolen property

continues and is not complete until the taker severs the property

from the absolute control and possession of the victim"); see also

Jones v. Commonwealth, 26 Va. App. 736, 496 S.E.2d 668 (1998)

- 4 - (finding defendant guilty of robbery where defendant "jerked" the

victim around to face him before taking her purse); cf. Winn v.

Commonwealth, 21 Va. App. 179, 462 S.E.2d 911 (1995) (reversing

defendant's robbery conviction where defendant "very strongly"

removed victim's purse from her shoulder). On these facts,

Stanley's striking Aumiller was part of the force used to take

Aumiller's property and was sufficiently close in time and effect

to be concomitant with the taking.

When weighing the evidence, the fact finder is not required

to accept entirely either party's account of the facts. See

Barrett v. Commonwealth, 231 Va. 102, 107, 341 S.E.2d 190, 193

(1986). The fact finder may reject that which it finds

implausible, yet accept other parts which it finds to be

believable. See Durham v. Commonwealth, 214 Va. 166, 169, 198

S.E.2d 603, 606 (1973). Here, the fact that Aumiller could not

positively identify Stanley as her assailant did not render the

evidence insufficient. Rather, the lack of a positive

identification by the victim was a fact to be weighed by the

court. Bookman, a witness who observed the events and passed

close to Stanley, positively identified him as the assailant.

Although Bookman's and Aumiller's recitation of the event differed

in some degree, the fact finder is not bound by either's version

and could believe that which is more favorable to the

- 5 - Commonwealth. See Eaton v. Commonwealth, 240 Va. 236, 249-50, 397

S.E.2d 385, 393 (1990).

Accordingly, we affirm Stanley's conviction for robbery.

Affirmed.

- 6 -