Damarcus Mandell Brown, etc. v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Moon, Judges Benton, Coleman, Willis,
Elder, Bray, Fitzpatrick, Annunziata and Overton
Argued at Richmond, Virginia
DAMARCUS MANDELL BROWN, S/K/A
DEMARCUS M. BROWN OPINION BY
v. 	Record No. 1341-94-2 	JUDGE ROSEMARIE ANNUNZIATA
MARCH 11, 1997
COMMONWEALTH OF VIRGINIA
UPON REHEARING EN BANC
FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
Jay T. Swett, Judge
Bruce R. Williamson, Jr. (Daniel J. Meador,
Jr.; Williamson & Toscano; Morin & Barkley,
on brief), for appellant.
Thomas C. Daniel, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Following a jury trial, appellant, Damarcus Mandell Brown,
s/k/a DeMarcus M. Brown, was convicted of robbery in violation of
Code § 18.2-58. 	On appeal, Brown argued that the trial court
erred in refusing to instruct the jury on attempted robbery. 	By
memorandum opinion issued November 21, 1995, in Damarcus Mandell
Brown, s/k/a DeMarcus M. Brown v. Commonwealth of Virginia,
Record No. 1341-94-2, a panel of this Court affirmed appellant's
conviction. 	On appellant's motion, we stayed the mandate of that
decision and granted a rehearing en banc. 	Upon rehearing en
banc, the judgment of the trial court is affirmed. 	Accordingly,
the stay of this Court's mandate is lifted, and the mandate is
reinstated.

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As Michael Murphy walked down an alley, appellant approached
him from behind and stated "give me your money." 	Murphy ignored
the comment and kept walking. 	Appellant demanded Murphy's money
a second time, in a "stern" voice. 	This time, Murphy turned to
find Brown pointing a handgun at him, eighteen inches from
Murphy's head. 	Appellant again stated "give me your money."
Knowing he had no money in his wallet, Murphy answered, "You've
got the wrong guy." 	Appellant responded, "Give me your wallet."
Murphy then handed appellant his wallet, stating again that he
had no money. 	Appellant looked in the wallet and, seeing no
money in it, threw it to the ground as he backed away.
At trial, appellant requested that the court instruct the
jury on attempted robbery. 	The court denied his request. 	Under
the undisputed facts of this case, we find that the trial court
correctly refused to grant the attempted robbery instruction.
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.'" 	E.g., Beard v. Commonwealth, 19 Va. App. 359,
361-62, 451 S.E.2d 698, 699-700 (1994) (quoting Johnson v.
Commonwealth, 209 Va. 291, 293, 163 S.E.2d 570, 572-73 (1968)).
The degree of asportation of the property need only be slight.
E.g., id. at 362, 451 S.E.2d at 700. 	The intent to steal means
the intent to deprive the owner permanently of his property.
Pierce v. Commonwealth, 205 Va. 528, 532-33, 138 S.E.2d 28, 31

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(1964). 	Personal property is anything of value, but the value of
the stolen item is not an element of the crime. 	Id. at 532, 138
S.E.2d at 31.
An attempt is an "unfinished crime, composed of . . . the
intent to commit the crime and the doing of some direct act
toward its consummation, but falling short of the accomplishment
of the ultimate design." 	See Johnson v. Commonwealth, 209 Va.
291, 293, 163 S.E.2d 570, 573 (1968). 	Where more than a
scintilla of credible evidence tends to support a lesser offense,
the trial court errs in refusing to instruct the jury thereon.
E.g., Miller v. Commonwealth, 5 Va. App. 22, 24, 359 S.E.2d 841,
842 (1987).
Here, no evidence supports an attempted robbery instruction,
because the record indisputably shows that appellant completed
the crime. 	Through the use of force, appellant demanded and
received Murphy's wallet with the intent to deprive him
permanently of his money. 	His direct acts did not fall short of
the accomplishment of the ultimate design. 	The fact that the
wallet contained no money and was thereafter abandoned does not
nullify appellant's intent to deprive Murphy of his money when he
demanded and received the wallet. 	See Whalen v. Commonwealth, 90
Va. 544, 549, 19 S.E. 182, 183 (1894).
Accordingly, we affirm the conviction.
Affirmed.

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Moon, C.J., with whom Benton, and Bray, J.J., join, dissenting.
I agree that the evidence construed in the light most
favorable to the Commonwealth supports a finding of a completed
robbery. 	However, when deciding whether to grant a jury
instruction the evidence should be construed in the light most
favorable to the defendant. 	Blondel v. Hays, 241 Va. 467, 469,
403 S.E.2d 340, 341 (1991). 	Because the evidence is open to the
interpretation that Brown intended to steal only money from the
victim but was foiled after discovering that the victim had no
money, I would hold that the trial court erred by not granting
Brown's proffered instruction on attempted robbery.
"[W]hen considering on appeal whether an instruction was
properly refused, `[i]t is immaterial that the jury could have
reached contrary conclusions.' 	`[I]f there is evidence tending
to support the lesser offense, a trial court errs in refusing an
instruction thereon.'" 	Bellfield v. Commonwealth, 11 Va. App.
310, 313-14, 398 S.E.2d 90, 92 (1990) (citations omitted).
Robbery is defined at common law to be "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."
Mason v. Commonwealth, 200 Va. 253, 254, 105 S.E.2d 149, 150
(1958). 	The intent to steal means the intent to permanently
deprive the owner of his property. 	Pierce v. Commonwealth, 205
Va. 528, 138 S.E.2d 28 (1964).
Here the focus of this Court's inquiry should be on Brown's

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intent. 	That Brown actually took the wallet and used violence or
intimidation to secure dominion and control over the wallet are
facts beyond dispute. 	However, whether Brown took the wallet
with the intent to steal it is debatable. 	The question is
whether there was credible evidence that Brown took the wallet,
not with the intent to permanently deprive Murphy of the wallet,
but to search the wallet for cash. 	The evidence is that Brown
first demanded money. 	When Murphy told Brown that he had no
money, Brown demanded the wallet, looked in the wallet, and
discarded it after finding it empty. 	Because the jury,
considering all of the circumstances, could have believed Brown
only wanted to see if there was money in the wallet and had no
intent to permanently deprive Murphy of the wallet, I would hold
that an instruction on attempted robbery should have been given.
Therefore, I would reverse and remand.