Commonwealth v. Jones - 267 Va. 284, 591 S.E.2d 68 (2004)

Rule:

Where the owner of personal property, or another having custody or constructive possession of the same, interposes himself to prevent a thief from taking the property, and the force and violence used to overcome the opposition to the taking is concurrent or concomitant with the taking, the thief's action constitutes robbery.

Facts:

Defendant Eric Cherron Jones shoplifted a pair of boots and walked out of the store known as Shoe Carnival. Bobby Ray Baker, the store manager saw defendant take the boots, and followed him into the store's parking lot. When Baker was within 10 feet of defendant, he asked defendant to return the boots. Eventually, defendant pulled a gun and pointed it at Baker, who ran and hid behind a parked vehicle. Jones was subsequently convicted of robbery and use of a firearm in the commission of robbery. In reversing the convictions, the intermediate appellate court ruled that defendant carried the hidden boots from the store to the parking lot unhindered, and, in doing so, he severed the boots from the owner's possession. Since he had already taken the boots when he pulled the gun, it was not robbery. The Commonwealth appealed.

Issue:

By carrying the boots from the store to the parking lot unhindered, did the defendant severe the boots from the owner’s possession, thereby warranting his acquittal from the charge of robbery and use of a firearm in the commission of robbery?

Answer:

No.

Conclusion:

The appellate court disagreed and found that when defendant seized and hid the boots, he had custody of them, but not possession. The store manager retained constructive possession. As defendant's larceny was continuing, but before his custody was converted into possession, the manager interposed himself to prevent the theft. When defendant introduced force and violence by producing the firearm, his crime was transformed into robbery. The evidence was sufficient to support the convictions of robbery and of use of a firearm in the commission of robbery. Accordingly, the judgment of the intermediate appellate court was reversed.