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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Bumgardner Argued at Salem, Virginia
JOSEPH TYRONE EVANS, JR. MEMORANDUM OPINION*^ BY v. Record No. 2216-98-3 JUDGE RICHARD S. BRAY NOVEMBER 2, 1999 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE James F. Ingram, Judge Brian H. Turpin for appellant. Richard B. Smith, Assistant Attorney General(Mark L. Earley, Attorney General, on brief), for appellee.
§ 17-116.010, this opinion is not designated for publication.^ * Pursuant to Code § 17.1-413, recodifying Code
Joseph Tyrone Evans, Jr. (defendant) was convicted in a bench trial for robbery. On appeal, he challenges the sufficiency of the evidence to prove the offense. Finding no error, we affirm the conviction. The parties are fully conversant with the record, and this memorandum opinion recites only those facts necessary to a disposition of the appeal. I. In reviewing the sufficiency of the evidence, we must consider the record "'in the light most favorable to the
Commonwealth, giving it all reasonable inferences fairly deducible therefrom. In so doing, we must discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth
... ." Watkins v. Commonwealth, 26 Va. App. 335, 348, 404 S.E.2d 859, 866 (1998) (citation omitted). The credibility of the witnesses, the weight accorded testimony, and the inferences to be drawn from proven facts are matters to be determined by the fact finder. See Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 474, 476 (1989). "When weighing the evidence, the fact finder is not required to accept entirely either the Commonwealth's or defendant's account of the facts," but "may reject that which it finds implausible, [and] accept other parts which it finds to be believable." Pugliese v. Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24 (1993). The judgment of the trial court will not be set aside unless plainly wrong or unsupported by the evidence. See Code § 8.01-680. Viewed accordingly, the instant record establishes that, on the morning of December 20, 1997, defendant and Joe Leftwich agreed to "make a couple of [drug] sales." Shortly thereafter, the victim, Teresa Hayes, "pulled up" in an automobile and asked if the two had "dope." Leftwich responded, "yeah," and both entered Hayes' car, Leftwich in the front passenger seat and defendant in the rear. Leftwich testified that defendant passed
proximity to the scene, heard "'bout five shots fired," a car "skid[]" and crash and, moments later, observed two men "runnin' down the street." One, resembling defendant, was carrying a "purse," followed by another, "stumblin'" along with "something in his hand." Leftwich's niece, Ashley Poole, testified that defendant and Leftwich arrived at her apartment at "around lunchtime," dressed in "[b]loody clothes." Poole noticed that Leftwich "was carryin' a gun and [defendant]... a pocketbook." Leftwich confessed to Poole that "he did something very bad[,]... he killed a girl." Poole watched as defendant "look[ed] through the pocketbook" and discovered "some credit cards," which he "showed" to Leftwich. The two then "put clothes over their bloody clothes," left the apartment and "ran down [the] street." While in Poole's residence, defendant was observed in possession of the $30 stolen from Hayes. Commonwealth witness Derrick Lea, a jail inmate previously housed in a cellblock with defendant, recounted a conversation in which defendant confessed that he and Leftwich "had robbed this lady[,]... took this pocketbook," and he had directed "Leftwich to shoot the MF." Sharetta Fitzgerald, the mother of defendant's son, testified that defendant also admitted to her that he "got
... money from [the victim]" after "the other person shot" her. At the conclusion of both the Commonwealth's case-in-chief and trial, defendant moved to strike the evidence, arguing that
the Commonwealth had failed to establish his intent to rob Hayes coincided with violence or intimidation, an element indispensable to robbery. The court overruled the motions and convicted defendant of the offense. On appeal, defendant again challenges the sufficiency of the evidence, contending that he "clearly did not have robbery in mind" during the encounter with Hayes, but, "instead[,]... petit larceny after the shooting." II. "Robbery at common law is defined 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.'" Clay v. Commonwealth, 30 Va. App. 254, 258-59, 516 S.E.2d 684, 686 (1999) (en banc) (citation omitted). Thus, [t]he principal elements of robbery,.. .are the taking, the intent to steal, and the violence (or intimidation).there is a temporal correlation among these Definitionally, elements. The violence must occur before or at the time of the taking.steal and the taking must coexist. The intent to And the offense is not robbery unless the furandi was conceived before or at the time animus the violence was committed. Branch v. Commonwealth, 225 Va. 91, 94-95, 300 S.E.2d 758, 759 (1983). It is, therefore, immaterial that the theft may have occurred after the victim's injury or death, provided the requisite intent to steal accompanied the related violence or intimidation, together with the other elements of the offense.
