Tiffany Shakeya Pollard v. Commonwealth of VA

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Frank and Clements Argued at Richmond, Virginia

TIFFANY SHAKEYA POLLARD MEMORANDUM OPINION * v. Record No. 1424-01-2 PER CURIAM APRIL 2, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Learned D. Barry, Judge

(Ali J. Amirshahi, on brief), for appellant. Appellant submitting on brief.

(Jerry W. Kilgore, Attorney General; Richard B. Smith, Senior Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.

Tiffany Shakeya Pollard, appellant, appeals her robbery

conviction. Appellant contends the evidence was not sufficient to

show she intended to permanently deprive another of property.

Finding no error, the judgment of the trial court is affirmed.

BACKGROUND

"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.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(citation omitted). "The credibility of the witnesses and the

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 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). "In its role of judging

witness credibility, the fact finder is entitled to disbelieve

the self-serving testimony of the accused and to conclude that

the accused is lying to conceal his guilt." Marable v.

Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235

(1998). The trier of fact is not required to accept a party's

evidence in its entirety, Barrett v. Commonwealth, 231 Va. 102,

107, 341 S.E.2d 190, 193 (1986), but is free to believe and

disbelieve in part or in whole the testimony of any witness.

Rollston v. Commonwealth, 11 Va. App. 535, 547, 399 S.E.2d 823,

830 (1991).

In this light, the evidence showed that Sylvia Wimbush was in

her home on November 28, 2000, at 1:20 a.m., when appellant,

accompanied by three other people, knocked at Wimbush's door.

Wimbush allowed the four people to enter her home. Wimbush

admitted owing appellant and one other confederate money for

drugs. Not having the money to pay her debt, appellant and the

others stated they were going to take some of her property for

"collateral." James Brown was staying at the home and offered to

pay the debt at a later time. One of the codefendants left and

returned with a firearm. Appellant acquired the gun, pointed it

- 2 - toward Wimbush, her daughter, and Brown. Appellant directed her

confederates to take the property. The group took a television,

stereo, and compact disc player. Appellant returned the property

to Wimbush after she learned of the robbery warrant against her

for this taking.

ANALYSIS

"Robbery is defined at common law as '"the taking, with the

intent to steal, of the personal property of another, from his

person or in his presence, against his will by violence or

intimidation."' . . . The intent to steal means the intent to

deprive the owner permanently of his property." Brown v.

Commonwealth, 24 Va. App. 292, 295, 482 S.E.2d 75, 77 (1997) (en

banc) (citations omitted). "To take property under a bona fide

claim of right, as under . . . a bona fide attempt to enforce

payment of a debt, is not robbery though the taking be accompanied

by violence or putting in fear." Pierce v. Commonwealth, 205 Va.

528, 533, 138 S.E.2d 28, 31 (1964) (citation omitted). "But if

the claim of right is a mere pretext covering the intent to steal,

the taking by violence is robbery." Id. at 533, 138 S.E.2d at 32

(citation omitted).

Although Wimbush admitted owing appellant $30, and one

other codefendant $110, there was a discrepancy in the evidence

as to how much money Wimbush owed. Nevertheless, appellant took

possession of the gun and pointed it at Wimbush, her daughter,

- 3 - and Brown, placing them in fear of bodily harm. Wimbush did not

want appellant or the others to take the property as collateral

or otherwise. Appellant refused to accept Brown's offer to pay

the debt later and took the property against Wimbush's will

under the pretext of satisfying the debt. Further, the trial

court was entitled to disbelieve appellant's statements and

testimony that she took the property solely for collateral and

would have returned it upon payment of the debt. Therefore, the

evidence was sufficient to prove appellant had the requisite

intent to permanently deprive Wimbush of the property.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

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