Warren Lee Chrisman v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: April 30, 1996
• Docket: 1724953
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

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

WARREN LEE CHRISMAN MEMORANDUM OPINION * BY v. Record No. 1724-95-3 JUDGE SAM W. COLEMAN III APRIL 30, 1996 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF WAYNESBORO Rudolph Bumgardner, III, Judge William E. Bobbitt, Jr., Public Defender, for appellant.

Brian Wainger, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Warren Lee Chrisman appeals his conviction for attempted

robbery in violation of Code §§ 18.2-58 and 18.2-26. Chrisman

contends that the evidence is insufficient to prove that he

intended to commit robbery or that he committed an overt act in

furtherance of robbery. We hold that the evidence is sufficient

to support the defendant's conviction.

"[A]n attempt is composed of two elements: the intention to

commit the crime, and the doing of some direct act towards its

consummation which is more than mere preparation but falls short

of execution of the ultimate purpose." Hopson v. Commonwealth,

15 Va. App. 749, 752, 427 S.E.2d 221, 223 (1993) (quoting

Sizemore v. Commonwealth, 218 Va. 980, 983, 243 S.E.2d 212, 213

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. (1978)). Although the Commonwealth must prove an overt act in

order to establish an attempt, "if 'the design of a person to

commit a crime is clearly shown, slight acts done in furtherance

of this design will constitute an attempt.'" Tharrington v.

Commonwealth, 2 Va. App. 491, 494, 346 S.E.2d 337, 339 (1986)

(quoting State v. Bell, 311 N.C. 131, 141, 316 S.E.2d 611, 616

(1984)).

Here, Thomas Joyce testified unequivocally that the

defendant stated that "he was going to take [Joyce's] money and . . . was going to shoot [Joyce]." Although Joyce did not see a

gun, he testified that the defendant "put his right hand in his

pocket, over towards the passenger door, and he motioned as he

spoke with his pocket, with his hand in his pocket." Joyce, a

former police officer, stated that he "had no doubt in [his] mind

that [the defendant] was going to . . . shoot [him] and take what

money [he] had." See Braxton v. Commonwealth, 13 Va. App. 585,

587-88, 414 S.E.2d 410, 412 (1992) (holding that intent to commit

robbery could be inferred in part from the accused's conduct of

holding his hand in his pocket, which "frightened [the victim]

and further caused her to believe she was about to be robbed").

After driving the defendant around in the taxi for a few

minutes, Joyce turned into the parking lot of a convenience

store, exited the car, and went into the store in order to escape

the defendant. The defendant followed Joyce into the store, and

while holding his right hand in his pocket yelled, "I don't want

- 2 - anybody to get hurt." See id. at 587, 414 S.E.2d at 412 ("If

[the accused] was attempting a lawful withdrawal, he had no

reason to make references to harm which might come to the

[victim]"). According to the store clerk, the defendant looked

"really strained," and said, "where are you, come on out." When

the defendant noticed that Joyce was on the phone, he stated,

"put the phone down, put it down now." The clerk testified that

it appeared to her that the defendant had a gun under his jacket

and that he was pointing it at Joyce. After the defendant

confronted Joyce, he left the store and went to the driver's side

of the taxi, "like he was going to get in," but Joyce had taken

the keys, as well as the bag containing the money, with him. The

defendant "looked in" the car and then disappeared around the

side of the store and was not seen again that night. Although the defendant contends that certain aspects of his

conduct were inconsistent with an intent to commit robbery, we

must review the evidence in the light most favorable to the

Commonwealth. Higginbotham v. Commonwealth, 216 Va. 349, 352,

218 S.E.2d 534, 537 (1975). The defendant's statement that he

was going to shoot Joyce and take his money is sufficient to

prove beyond a reasonable doubt that he intended to rob Joyce.

Furthermore, the defendant committed numerous overt acts in

furtherance of the robbery by placing his hand in his pocket in a

manner that caused Joyce to believe that he had a gun, following

Joyce into the store and stating that he did not "want anybody to

- 3 - get hurt," and attempting to enter the taxi after leaving the

store. Accordingly, the evidence is sufficient to sustain the

defendant's conviction for attempted robbery.

Affirmed.

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