Opinion
Record No. 1153-91-2
January 5, 1993
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG OLIVER A. POLLARD, JR., JUDGE
John H. Maclin, IV, for appellant.
Marla Lynn Graff, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Judges Benton, Elder, and Willis
Argued at Richmond, Virginia
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Garrett Haskins was convicted of attempted robbery and statutory burglary. On appeal, Haskins contends that the trial judge erred (1) in finding sufficient evidence to convict him of attempted robbery and (2) in convicting him of breaking and entering with a deadly weapon. We reverse the attempted robbery conviction and affirm the breaking and entering conviction.
I.
On April 9, 1990, Jerry Smith was found dead in the bedroom of his Petersburg residence. He had been stabbed with a knife and shot. The police found the door ajar and found no sign of forced entry. The police who inspected the scene testified that the residence had been ransacked and drawers were left open. The police concluded that Smith had struggled with the person who stabbed and shot him. During the investigation, the police found in Smith's bedroom an empty holster for a .32 revolver. Two weeks later, the Petersburg police arrested Haskins and advised him of his Miranda rights. Haskins signed a consent form waiving hisMiranda rights and gave a statement to the police.
At trial, Haskins' statement was read into the record. Additionally, Haskins testified in his own defense. His version of events is the only evidence of his involvement. His statement and testimony established that on April 5 he drove Bernard Eanes to Smith's residence. Eanes had previously worked for Smith and, on this occasion, borrowed $100 from Smith. Eanes told Haskins "that . . . Smith was known to lend money and stuff, a loan shark."
The next day, between 8:30 and 9:30 p.m., Haskins again drove Eanes to Smith's residence because Eanes wanted to borrow more money from Smith. Smith told Eanes that he did not have money at that time and told Eanes to come back later. Between 10:00 and 10:30 p.m., Eanes and Haskins returned to Smith's residence so that Eanes could borrow the money. On the way to Smith's residence, Eanes told Haskins that if Smith did not have the money, he was going to "kill his ass." Haskins said that he thought Eanes was joking because Eanes smiled when he made the statement.
While Haskins waited in the automobile, Eanes entered Smith's residence. After a few minutes, Haskins heard gunshots and other noises inside Smith's residence. Haskins said he went to the door, knocked, and yelled for Eanes because at that moment he believed Eanes had meant what he had said. When Eanes opened the door, Haskins went inside and saw Smith lying on the floor in the bedroom. Eanes explained to Haskins that he shot Smith with Smith's gun and he asked Haskins to "check for money." Haskins testified that he opened a drawer, then, "changing his mind," pushed it back, and said, "No, let's get out of here, man." Before leaving the house, Haskins "picked up Smith's wallet that was lying on the dresser in the living room and looked through it." There was no money in the wallet. When they left, Eanes took the gun. An hour later, Haskins drove Eanes back to Smith's residence. While Haskins waited in the automobile, Eanes went into the residence to make it look as if Smith had been robbed. Eanes came from the house with four guns.
On this evidence, Haskins was convicted of "being an accessory after the fact to first degree murder," "being an accessory after the fact to entering the home of . . . Smith for the purpose of committing the murder," "attempting to rob . . . Smith of cash and currency," "entering the home of . . . Smith for the purpose of committing larceny," and "larceny of [a] firearm." This appeal challenges the convictions of attempted robbery and entering Smith's residence with intent to commit larceny.
II.
The Commonwealth prosecuted the attempted robbery charge upon the theory that Haskins knew that Eanes intended to rob Smith when Eanes entered the house and shot Smith. The Commonwealth argued that Haskins shared Eanes' intent. On appeal, the Commonwealth asserts that "[t]he evidence clearly shows that [Haskins] and Eanes returned to Smith's home with the intent to commit robbery if Smith would not 'lend' Eanes the requested amount of money."
"The elements of robbery, a common law offense in Virginia, include a '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' which precedes or is 'concomitant with the taking.'" Jones v. Commonwealth, 13 Va. App. 566, 572, 414 S.E.2d 193, 196 (1992) (quoting Johnson v. Commonwealth, 209 Va. 291, 293, 163 S.E.2d 570, 572-73 (1968), and Harris v. Commonwealth, 3 Va. App. 519, 521, 351 S.E.2d 356, 356 (1986)). "Definitionally, there is a temporal correlation among these elements." Branch v. Commonwealth, 225 Va. 91, 94, 300 S.E.2d 758, 759 (1983). "[A]n attempt is composed of two elements: the intention to commit the crime, and the doing of some direct act [toward] its consummation which is more than mere preparation but falls short of execution of the ultimate purpose." Sizemore v. Commonwealth, 218 Va. 980, 983, 243 S.E.2d 212, 213 (1978).
To prove an attempted robbery, the Commonwealth must establish an intent to rob. The record, however, does not contain any evidence, direct or circumstantial, that Haskins formed an intent to rob Smith. Haskins' statement and testimony indicate that when Haskins drove Eanes to Smith's residence on April 5, Eanes borrowed money from Smith, who was known as a "loan shark." The next day, Haskins again drove Eanes to Smith's residence for the purpose of borrowing money. While Haskins waited in the car, Eanes went alone to see Smith. Upon returning to the car, Eanes informed Haskins that Smith asked him to come back for the money.
No evidence proved that Eanes ever conveyed to Haskins that he intended to rob Smith. According to the evidence, Eanes only discussed borrowing money from Smith, as Eanes had done on previous occasions. Haskins' statement indicates that when Eanes returned to Smith's residence on the second occasion, Eanes' sole intent was to borrow money from Smith. The only statement attributed to Eanes that might have revealed his intent to harm Smith was made when Eanes made the second visit to see Smith on April 6. Eanes then said, "If he don't give me the money, I'll kill his ass." Haskins testified, consistent with his statement, that he thought Eanes was joking because Eanes made the statement with a smile. Even if the trier of fact could have concluded that Haskins should have known that Eanes was not joking, the statement that was attributed to Eanes does not prove Eanes intended to rob Smith. Therefore, on this evidence, intent to rob cannot be imputed to Haskins.
In a somewhat similar case, the Supreme Court of Virginia reversed the convictions of burglary and attempted robbery because the evidence failed to prove the defendant shared the intent of his companion. Jones v. Commonwealth, 208 Va. 370, 157 S.E.2d 907 (1967). The evidence in that case proved that the victim "heard that her 'house was going to be robbed.'"Id. at 371, 157 S.E.2d at 908. The police observed Ronald Jones and Waddell Flood walk along the street toward the victim's home and walk up the steps onto the porch. Id. at 372, 157 S.E.2d at 908. One of the men knocked on the door and said that he had a telegram. Id. When the homeowner opened the door and reached for an envelope, Flood jumped through the door and grabbed her.Id. The police grabbed Flood and chased Jones, who immediately ran. Holding that "mere presence and consent are not sufficient to constitute one an aider and abettor in the commission of a crime," id. at 373, 157 S.E.2d at 909, the Supreme Court found the evidence insufficient to support the inference that Jones was acting in concert with Flood. Id. at 374, 157 S.E.2d at 910. The evidence did not prove that Jones "share[d] the criminal intent of the principal or party who commit[ted] the crime.'"Id. at 373, 157 S.E.2d at 909 (quoting Triplett v. Commonwealth, 141 Va. 577, 586, 127 S.E. 486, 489 (1925)).
No evidence in this record proved that Haskins shared Eanes' criminal intent. According to the evidence, until Haskins entered Smith's residence after the shooting, the only evidence of his participation was limited to testimony that he drove Eanes to Smith's residence. Haskins was waiting in the automobile when the violence and shooting occurred. The violence had commenced and ceased prior to Haskins' entry into Smith's residence. In the absence of evidence of a shared intent to rob, Haskins could not commit a robbery under the common law definition because the violence towards Smith had already occurred. "[T]he offense is not robbery unless the animus furandi was conceived before or at the time the violence was committed." Branch, 225 Va. at 95, 300 S.E.2d at 759. Because the evidence did not prove that Haskins possessed an intent to steal at or prior to the moment the shooting occurred, we hold that the evidence was insufficient as a matter of law to support his conviction of attempted robbery.
III.
Haskins contends that the trial judge erred in convicting him of breaking and entering while armed with a deadly weapon. This argument is without merit. At the close of all of the evidence, the trial judge found Haskins guilty of several offenses including "entering the home of Mr. Smith for the purpose of committing larceny." The trial judge explained however:
I am not so sure the evidence supports the other indictment which states 'while armed with a deadly weapon.' I don't think that there is any evidence of that. So I [am] going to find him guilty in so far as indictment number 499 of entering the home for [the] purpose of committing larceny.
The final conviction order states "Statutory Burglary (F499-90) convicted of Entering a Home to Commit Larceny." Consequently, the record proves that Haskins was not convicted of breaking and entering while armed with a deadly weapon.
For these reasons, we reverse the attempted robbery conviction and affirm the statutory burglary conviction.
Affirmed, in part, and reversed, in part.