Tuesday 14th 

 January, 2003. 

Eric Cherron Jones, Appellant, 

 against Record No. 2817-01-1 

 Circuit Court Nos. CR01-637-00, CR01-637-02 

 and CR01-637-03 

Commonwealth of Virginia, Appellee. 

Upon a Petition for Rehearing 

Before Judges Benton, Frank and Humphreys 

On December 10, 2002 came the appellee, by the Attorney 

General of Virginia, and filed a petition praying that the Court 

set aside the judgment rendered herein on November 26, 2002, and 

grant a rehearing thereof. 

Upon consideration whereof, the petition for rehearing 

is denied with regard to appellee's request that the judgments of 

the trial court pertaining to appellant's convictions of robbery 

(CR01-637-02) and use of a firearm in the commission of robbery 

(CR01-637-03) be affirmed. 

Upon further consideration whereof, the petition for 

rehearing is granted with regard to appellee's request that the 

robbery conviction be remanded to the trial court for a new trial 

for larceny if the Commonwealth be so advised. Accordingly, the 

opinion rendered herein on November 26, 2002 is withdrawn and the 

mandate entered that date is vacated. A revised opinion is 

issued this date and a mandate entered accordingly. 

 A Copy, 
 Teste: 

 Cynthia L. McCoy, Clerk 

 By: 

 Deputy Clerk 

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COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Frank and Humphreys 

Argued at Chesapeake, Virginia 

ERIC CHERRON JONES 

 OPINION BY 

v. Record No. 2817-01-1 JUDGE JAMES W. BENTON, JR. 

 JANUARY 14, 2003 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON 

William C. Andrews, III, Judge 

 Corry Smith-Ashley for appellant. 

 Virginia B. Theisen, Assistant Attorney 

General (Jerry W. Kilgore, Attorney General, 

on brief), for appellee. 

 The trial judge convicted Eric Cherron Jones of robbery, 

use of a firearm in the commission of robbery, and possession of 

a firearm after having been convicted of a felony. Jones 

contends the trial judge erred in ruling that the larceny was 

not complete when Jones displayed his firearm and, therefore, a 

robbery occurred. For the reasons that follow, we reverse the 

convictions for robbery and use of a firearm in the commission 

of robbery. 

 I. 

 The facts are undisputed. Jones entered a retail shoe 

store, examined a pair of boots, concealed the boots inside his 

pants, and exited the store without paying for the boots. The 

manager of the store saw Jones commit these acts and followed 

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Jones as he walked out of the store to the parking lot. The 

manager first confronted Jones in the parking lot and asked 

Jones to give him the boots. When Jones denied having any 

boots, the manager told Jones he had seen him put the boots in 

his pants. Jones then displayed a firearm and told the manager 

to "back . . . off." Jones ran to a car and drove away. 

 Jones's attorney moved to strike the evidence on the 

robbery related indictments and argued that the evidence failed 

to prove robbery because the taking was complete when Jones 

displayed the weapon. The trial judge ruled there was "not a 

point at which the taking is complete" and convicted Jones of 

robbery, use of a firearm in the commission of robbery, and 

possession of a firearm after having been convicted of a felony. 

 II. 

 The principles applicable to the issue before us are well 

established. Robbery is a common law offense in Virginia, 

requiring proof of 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.'" 

Pritchard v. Commonwealth, 225 Va. 559, 561, 303 S.E.2d 911, 912 

(1983) (citation omitted). 

 The violence or putting in fear, to 

constitute the essential element of robbery, 

must precede, or be concomitant with, the 

taking of the property from the person or 

presence of the owner. No violence, no 

excitation of fear, resorted to merely for 

the purpose of retaining a possession 

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already acquired, or to effect escape, will, 

in point of time, supply the element of 

force or intimidation, an essential 

ingredient of the offense. 

Mason v. Commonwealth, 200 Va. 253, 256, 105 S.E.2d 149, 151 

(1958). Because "there is a temporal correlation among [the] 

elements" necessary to prove robbery, the evidence must prove 

"[t]he violence . . . occur[ed] before or at the time of the 

taking." Branch v. Commonwealth, 225 Va. 91, 94, 300 S.E.2d 758, 

759 (1983). Thus, the Supreme Court has held that "'a charge of 

robbery [may not] be sustained merely by a showing of retention 

of property, or an attempt to escape, by force or putting in 

fear.'" Mason, 200 Va. at 255-56, 105 S.E.2d at 151. The Court 

noted that this rule "has found frequent application where force 

or intimidation has been exercised after the property came into 

the defendant's hands by stealth." Id. at 256, 105 S.E.2d at 

151. 

 The evidence proved that Jones took the boots in the store 

and concealed them on his person by stealth. He then carried the 

hidden boots from the store to the parking lot unhindered. In so 

doing, he severed the boots from the possession of the owner. 

Id. When he was confronted by the manager in the parking lot, 

the evidence established that he then displayed the gun. At that 

point, the gun was used to assist in retention of the boots or to 

facilitate Jones's escape. By then, the taking had been 

accomplished. 

 We hold, therefore, the evidence was insufficient to prove a 

robbery. Accordingly, we reverse the convictions for robbery and 

use of a firearm in the commission of robbery, and we remand for 

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a new trial for larceny if the Commonwealth be so advised. See

Gorham v. Commonwealth, 15 Va. App. 673, 677-79, 426 S.E.2d 493, 

496-97 (1993); see also Woodard v. Commonwealth, 27 Va. App. 

405, 410, 499 S.E.2d 557, 559-60 (1998). 

 Reversed and remanded, in part; reversed and

dismissed, in part. 

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COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Frank and Humphreys 

Argued at Chesapeake, Virginia 

ERIC CHERRON JONES 

 OPINION BY 

v. Record No. 2817-01-1 JUDGE JAMES W. BENTON, JR. 

 NOVEMBER 26, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON 

William C. Andrews, III, Judge 

 Corry Smith-Ashley for appellant. 

 Virginia B. Theisen, Assistant Attorney 

General (Jerry W. Kilgore, Attorney General, 

on brief), for appellee. 

 The trial judge convicted Eric Cherron Jones of robbery, 

use of a firearm in the commission of robbery, and possession of 

a firearm after having been convicted of a felony. Jones 

contends the trial judge erred in ruling that the larceny was 

not complete when Jones displayed his firearm and, therefore, a 

robbery occurred. For the reasons that follow, we reverse the 

convictions for robbery and use of a firearm in the commission 

of robbery. 

 I. 

 The facts are undisputed. Jones entered a retail shoe 

store, examined a pair of boots, concealed the boots inside his 

pants, and exited the store without paying for the boots. The 

manager of the store saw Jones commit these acts and followed 

- 7 - 
Jones as he walked out of the store to the parking lot. The 

manager first confronted Jones in the parking lot and asked 

Jones to give him the boots. When Jones denied having any 

boots, the manager told Jones he had seen him put the boots in 

his pants. Jones then displayed a firearm and told the manager 

to "back . . . off." Jones ran to a car and drove away. 

 Jones's attorney moved to strike the evidence on the 

robbery related indictments and argued that the evidence failed 

to prove robbery because the taking was complete when Jones 

displayed the weapon. The trial judge ruled there was "not a 

point at which the taking is complete" and convicted Jones of 

robbery, use of a firearm in the commission of robbery, and 

possession of a firearm after having been convicted of a felony. 

 II. 

 The principles applicable to the issue before us are well 

established. Robbery is a common law offense in Virginia, 

requiring proof of 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.'" 

Pritchard v. Commonwealth, 225 Va. 559, 561, 303 S.E.2d 911, 912 

(1983) (citation omitted). 

 The violence or putting in fear, to 

constitute the essential element of robbery, 

must precede, or be concomitant with, the 

taking of the property from the person or 

presence of the owner. No violence, no 

excitation of fear, resorted to merely for 

the purpose of retaining a possession 

- 8 - 
already acquired, or to effect escape, will, 

in point of time, supply the element of 

force or intimidation, an essential 

ingredient of the offense. 

Mason v. Commonwealth, 200 Va. 253, 256, 105 S.E.2d 149, 151 

(1958). Because "there is a temporal correlation among [the] 

elements" necessary to prove robbery, the evidence must prove 

"[t]he violence . . . occur[ed] before or at the time of the 

taking." Branch v. Commonwealth, 225 Va. 91, 94, 300 S.E.2d 758, 

759 (1983). Thus, the Supreme Court has held that "'a charge of 

robbery [may not] be sustained merely by a showing of retention 

of property, or an attempt to escape, by force or putting in 

fear.'" Mason, 200 Va. at 255-56, 105 S.E.2d at 151. The Court 

noted that this rule "has found frequent application where force 

or intimidation has been exercised after the property came into 

the defendant's hands by stealth." Id. at 256, 105 S.E.2d at 

151. 

 The evidence proved that Jones took the boots in the store 

and concealed them on his person by stealth. He then carried the 

hidden boots from the store to the parking lot unhindered. In so 

doing, he severed the boots from the possession of the owner. 

Id. When he was confronted by the manager in the parking lot, 

the evidence established that he then displayed the gun. At that 

point, the gun was used to assist in retention of the boots or to 

facilitate Jones's escape. By then, the taking had been 

accomplished. 

 We hold, therefore, the evidence was insufficient to prove a 

robbery. Accordingly, we reverse the convictions for robbery and 

use of a firearm in the commission of robbery, and we dismiss 

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those indictments. 

 Reversed and dismissed.

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