Beard v. Commonwealth
19 Va.App. 359, 1994 Va. App. LEXIS 718, 451 S.E.2d 698 (1994)
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Rule of Law:
The crime of robbery is established when violence or intimidation is used to overcome a person's opposition to the taking of property, even if physical possession was initially gained without force, so long as the asportation (removal) of the property is still ongoing and not yet severed from the victim's absolute control, and the intervenor has a superior right of possession.
Facts:
- On December 23, 1992, James Jerome Beard went to a temporary employment agency to collect his paycheck.
- Beard asked for permission to visit the restroom, and after returning, later asked again, leading Pam Payne, the branch manager, to become concerned for safety and close an adjoining office door.
- Payne entered Lori Jackson’s office, which adjoined her own, and discovered Beard bent down, going through Jackson’s pocketbook and flipping through her wallet for fifteen seconds to a minute.
- Payne confronted Beard and demanded that he give her the wallet.
- Beard attempted to leave the office with the wallet, and when Payne tried to intercept him to recover it, Beard grabbed her and threw her against the wall.
- Beard and Payne struggled in the office and hallway before Beard broke free.
- As Beard ran down the hallway toward the front door of the office building, he threw down the wallet, but then forced his way past Payne, who attempted to block the exit.
- When apprehended a short time later, Beard had $619 in his possession, the precise amount missing from the wallet, along with four dance tickets also missing from the wallet.
Procedural Posture:
- James Jerome Beard was convicted of robbery by bench trial in the Circuit Court of the City of Danville.
- Beard appealed his conviction to the Court of Appeals of Virginia (appellate court), arguing that the evidence was insufficient to prove robbery.
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Issue:
Does an act constitute robbery when a person takes property without initial force, but then uses violence against a custodian attempting to recover the property while the asportation of the property is still ongoing and has not been completely removed from the custodian's dominion and control, and is the custodian considered to be in constructive possession of the property?
Opinions:
Majority - KOONTZ, J.
Yes, Beard's actions constituted robbery, and Pam Payne was in constructive possession of the property. The Court affirmed Beard's conviction, holding that common law robbery requires the violence or intimidation to precede or be concomitant with the taking. While asportation can be slight, it is not complete until the property is severed from the owner's absolute control. The court applied the concept of "continuing asportation," asserting that a larceny is an ongoing offense and asportation continues until the property is absolutely severed from the victim’s control. When Payne, as a branch manager responsible for safeguarding the premises, interposed herself, Beard formed an intent to use violence to accomplish his intended act of stealing. At that point, no absolute severance of the property from Payne's possession had occurred, and Beard's taking and asportation continued until he used violence against Payne to remove it from her dominion and control. Therefore, the violence was concomitant with the taking. Payne also had constructive possession of Jackson’s property due to her superior right of possession as the branch manager responsible for safeguarding the premises and property within it.
Dissenting - Elder, J.
No, the evidence was insufficient to support a finding that the violence was concomitant with the taking, although Payne's right to possess the wallet was superior to Beard's. The dissent argued that for robbery, violence must precede or be concomitant with the taking, and asportation is complete upon "severance of the goods from the owner and absolute control of the property by the taker, even for an instant." Justice Elder believed that Beard gained actual possession and absolute control of the wallet and its contents before Payne discovered him and attempted to block his escape. Therefore, any force or violence Beard used occurred after the taking was complete and was merely for the purpose of retaining possession of already acquired property or to effect an escape, which, according to precedent, does not satisfy the force element of robbery. The dissent distinguished this case from others where constructive possession was regained (e.g., when a stolen item was dropped), noting Beard never lost actual possession of the wallet.
Analysis:
This case significantly clarifies the 'continuing asportation' doctrine in Virginia robbery law, emphasizing that the 'taking' element is not complete until the property is absolutely severed from the victim's dominion and control. It establishes that violence used against a custodian attempting to recover property, even if physical possession was initially gained without force, can elevate larceny to robbery if the asportation is still ongoing. The ruling also reinforces a broad interpretation of 'constructive possession,' extending it to employees with a duty to safeguard property on premises, thereby impacting liability for theft-related crimes in business settings and the precise timing distinction between larceny and robbery.
