Opinion
Record No. 0453-92-1
September 14, 1993
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS RANDOLPH T. WEST, JUDGE.
Waverly W. Jones, Jr. (Waverly W. Jones, Jr., P.C., on brief), for appellant.
Janet F. Rosser, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
In a bench trial, Kevin Randolph Buie (Buie) was convicted of two counts of robbery and two counts of felonious use of a firearm. Buie contends on appeal that the Commonwealth failed to prove that his actions constituted robbery of Wanda Morton (Morton). We construe Buie's assignment of error as a challenge to the sufficiency of the evidence. We hold that the evidence, which showed that Buie stole property in Morton's constructive possession through intimidation, is sufficient to support Buie's conviction for robbery of Morton.
Buie also contends on brief that "[a]ll convictions relating to employee Morton should be reversed and dismissed as violative of the double jeopardy clause" of the constitutions of the United States and Virginia. However, because Buie did not raise the double jeopardy issue before the trial court, we may not consider this issue for the first time on appeal. Rule 5A:18; Hogan v. Commonwealth, 5 Va. App. 36, 45, 360 S.E.2d 371, 376 (1987).
Because the parties are familiar with the facts of the case, we restate only those facts necessary to explain our holding. Upon familiar principles, we view the evidence in the light most favorable to the Commonwealth, the prevailing party below.Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en banc). On May 30, 1991, Barbara Phillips (Phillips) and Morton were working the midnight to 8 a.m. shift at a Newport News 7-11 store. Phillips was the deli clerk manager; Morton was responsible for running the cash register and stocking shelves. When Buie and two other men entered the store early that morning, Phillips was standing behind the counter and Morton was standing beside the counter. The gunman, who stood in front of the counter, told Phillips and Morton to stand still and to do what he said. The gunman pointed the weapon at Phillips, then at Morton, shifting back and forth.
The gunman ordered Phillips to open the registers. When she did so, he "scooped out" the money and put it in his pockets. The gunman also waited for two time-controlled "drops" from the safe and took about $80. Upon seeing a purse under the counter, the gunman asked Morton whose it was and what was in it. Morton said that the purse belonged to her and it contained nothing. Subsequently, all three men left the store with money, cigarettes and beer.
Essentially, Buie contends that only one robbery, that of Phillips, took place. He alleges that Morton was not the victim of a robbery because he did not take anything from Morton or anything from her possession or custody. We disagree.
Robbery is
"[a] 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 phrase '. . . of the personal property of another, from his person or in his presence . . .' has been broadly construed to include the taking of property from the custody of, or in the actual or constructive possession of, another."
Sullivan v. Commonwealth, ___ Va. App. ___, ___, ___ S.E.2d ___, ___ (1993) (en banc) (quoting Johnson v. Commonwealth, 215 Va. 495, 496, 211 S.E.2d 71, 72 (1975)).
In the commission of robbery the property must be taken by force and violence, not necessarily from the owner, but from any person in possession thereof whose right of possession is superior to that of the robber. The very fact that property is taken from a person by the use of firearms, violence or threatened violence, is, within and of itself, sufficient to show that the person from whom it was taken was in possession thereof.
Johnson, 215 Va. at 496, 211 S.E.2d at 72. The language of Code § 18.2-58 "suggests that the General Assembly's primary purpose was the protection of an individual from violence and fear of harm during a robbery." Jordan v. Commonwealth, 2 Va. App. 590, 595, 347 S.E.2d 152, 155 (1986). Thus, "[t]he offense of robbery requires a theft and force or intimidation directed against a custodian of personal property." Id.
In Johnson, the defendant entered a business and ordered a sales person into the cashier's office. After forcing the sales person and two cashiers to the floor, Johnson took cash from the cash drawers and fled. The issue before the Virginia Supreme Court was whether Johnson could be convicted of robbing the sales person, whose duties did not include receiving or handling company money. 215 Va. at 495-96, 211 S.E.2d at 72. The Court affirmed Johnson's conviction, finding that the sales person had constructive possession of the money:
While [the sales person's] duties did not include the collection of and accounting for the company's funds, she was an employee of the company and the law imposed upon her a duty of fidelity to her employer. This duty would include reasonable diligence on her part to protect the company's property from damage or larceny by strangers.
Johnson, 215 Va. at 496-97, 211 S.E.2d at 72-73.
In our recent decision in Sullivan, the concept of constructive possession or custody was at issue in a challenge to a robbery conviction. In Sullivan, the defendant entered a video rental store, pointed a gun at two store employees, Foster and Meade, and threatened to kill them if they did not obey his instructions. Sullivan ordered Foster to give him money. Because Foster was a new employee, Meade helped him collect the money. Foster placed the money in a bag and handed it to Sullivan. Applying double jeopardy principles, we upheld Sullivan's conviction for the robbery of Meade. Although only Foster physically surrendered the money to Sullivan, we held that both employees "were custodians of the store's money and jointly possessed it." Sullivan, ___ Va. App. at ___, ___ S.E.2d at ___. To accomplish the robbery, Sullivan intimidated and threatened both employees and took property that was in their custody.
As a 7-11 employee, Morton had a duty to protect the company's property from damage or theft. Moreover, Morton was responsible for running the cash register and stocking the shelves. Morton had constructive possession of the property and cash in the store and her right of possession to the company money and property was superior to that of Buie. The cash and property were taken at gunpoint from Morton's presence. The gunman pointed the weapon at both Morton and Phillips; he directed them not to move and to do what he said. "[Buie] intimidated each employee and obtained the money through the agency of that intimidation."Sullivan, ___ Va. App. at ___, ___ S.E.2d at ___. This evidence clearly shows that the cash and property in Morton's constructive possession were taken from her presence by intimidation. Because the trial court's judgment is not plainly wrong and is supported by the evidence, we affirm Buie's convictions for robbery of Morton and felonious use of a firearm. See Josephs, 10 Va. App. at 99, 390 S.E.2d at 497.
Affirmed.