COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Bray and Overton 

Argued at Norfolk, Virginia 

CLARENCE R. McCRAY 

 MEMORANDUM OPINION* BY 

v. Record No. 1961-97-1 JUDGE RICHARD S. BRAY 

 JULY 7, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON 

Christopher W. Hutton, Judge 

 Brian D. Lytle for appellant. 

 John H. McLees, Jr., Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Clarence R. McCray (defendant) was convicted for seven 

felonies and two misdemeanors arising from seven separate 

incidents of "purse-snatching." On appeal, defendant challenges 

the trial court's failure to suppress his confession to police 

and the sufficiency of the evidence to support several of the 

convictions. Finding no error, we affirm the trial court. 

 The parties are conversant with the record, and this 

memorandum opinion recites only those facts necessary to 

disposition of the appeal. 

I. The Confession

 On October 18, 1996, defendant voluntarily accompanied 

Hampton police to the offices of detectives investigating the 

subject offenses. Although not then under arrest, defendant was 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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advised of his Miranda rights and willingly submitted to three 

hours of intermittent questioning relative to a rash of local 

"purse-snatchings." Unaware that a victim had already identified 

him as the perpetrator of one offense, defendant repeatedly 

denied involvement in the crimes. However, when Detective 

Jimmy L. Forbes escorted defendant to a nearby magistrate's 

office to secure a warrant charging robbery, he requested to talk 

with Forbes "right now" and confessed to the instant crimes. He 

further agreed to an additional interview and, on October 20th, 

affirmed to Forbes his earlier statements, with added details of 

the offenses. 

 Defendant later moved the trial court to suppress his 

confessions, arguing that they had not been "freely and 

voluntarily given." At the related hearing, Forbes acknowledged 

that defendant's health was "poor" on October 18th, but noted 

that he "displayed no difficulty" "comprehend[ing] simple 

questions" and "did not appear to be under the influence of any 

substance." However, Detective Nisley, also involved in the 

questioning, recalled that defendant was a "physical wreck" and 

suspected he was "on . . . cocaine." Defendant testified that he 

had smoked "crack" and consumed gin prior to the interrogation, 

and confessed in hope of release and upon Forbes' promise of 

"some help." 

 In denying the motion, the trial court determined, from "the 

totality of the evidence," that defendant, "acting of his own 
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free will with knowledge and intelligence," decided "to tell 

Detective Forbes . . . about [his involvement in] the crimes." 

The court specifically noted that Forbes "spent much greater 

time" with defendant than Nisley. 

 "Although the issue of voluntariness is a question of law 

subject to the court's independent review of the entire record, 

'the trial court's subsidiary factual findings, upon which 

voluntariness is determined, . . . will not be disturbed on 

appeal unless plainly wrong.'" Green v. Commonwealth, ___ Va. 

App. ___, ___, ___ S.E.2d ___, ___ (1998) (citations omitted). 

"[T]he burden is upon the defendant to show the trial judge's 

ruling, when the evidence is viewed in the light most favorable 

to the Commonwealth, constituted reversible error." Id. at ___, 

___ S.E.2d at ___ (citing Fore v. Commonwealth, 220 Va. 1007, 

1010, 265 S.E.2d 729, 731 (1989)). 

 "The test for voluntariness is whether the statement is the 

'product of an essentially free and unconstrained choice by its 

maker,' or whether the maker's will 'has been overborne and his 

capacity for self-determination critically impaired.'" Jenkins 

v. Commonwealth, 244 Va. 445, 453-54, 423 S.E.2d 360, 366 (1992) 

(citations omitted). "'In determining whether the defendant's 

will has been overborne, courts look to the totality of all the 

surrounding circumstances,' including the defendant's background, 

experience, mental and physical condition and the conduct of the 

police." Commonwealth v. Peterson, 15 Va. App. 486, 488, 424 
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S.E.2d 722, 723 (1992) (citations omitted). 

 We recognize that "[t]he amount of coercion necessary to 

trigger the due process clause may be lower if the defendant's 

ability to withstand the coercion is reduced by intoxication, 

drugs, or pain, but some level of coercive police activity must 

occur before a statement or confession can be said to be 

involuntary." Id. (statement ruled involuntary when defendant on 

cocaine, "'having problems' breathing, having chest pains, and 

connected to a heart monitor in an ambulance en route to the 

hospital"). However, "mere emotionalism, confusion, or 

depression do not dictate a finding" that a confession was 

involuntarily given. See Harrison v. Commonwealth, 244 Va. 576, 

583, 423 S.E.2d 160, 164 (1992) (citation omitted). 

 The instant record discloses that defendant consistently 

denied involvement in the crimes during the several hours of 

initial questioning, later confessing in a further interview 

undertaken at his request and affirmed by him several days 

thereafter. The trial court determined from the related evidence 

that defendant was "responsive . . . alert, [and reasonably] 

articulate," throughout and "made the intellectual decision of 

his own freewill that he wanted to [confess]." This finding is 

supported by the record and will not be disturbed on appeal. 

II. The Assault & Battery Conviction

 Victim Vernita K. Aiken testified that, on October 17, 1996, 

she returned to her parked car and discovered her "purse . . . 
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tipped over" and wallet missing. She immediately noticed 

defendant "at the end of [her] car," about to leave the area by 

bicycle. Aiken "yelled" to defendant, grabbed both him and the 

bike, and a struggle ensued, ending when Aiken fell to the ground 

and defendant fled on foot with the wallet. Aiken suffered 

"scratches" and "scrapes," which resulted in scarring to her 

legs. Defendant was convicted of petit larceny and assault and 

battery, complaining on appeal that the evidence does not support 

the latter conviction. 

 "Assault and battery, . . . requires proof of 'an overt act 

or an attempt . . . with force and violence, to do physical 

injury to the person of another,' 'whether from malice or from 

wantonness,' together with 'the actual infliction of corporal 

hurt on another . . . willfully or in anger.'" Boone v. 

Commonwealth, 14 Va. App. 130, 132-33, 415 S.E.2d 250, 251 (1992) 

(citations omitted). "[T]he slightest touching of another . . . 

if done in a rude, insolent or angry manner, constitutes a 

battery for which the law affords redress." Crosswhite v. 

Barnes, 139 Va. 471, 477, 124 S.E. 242, 244 (1924) (citation 

omitted). "'[W]here there is physical injury to another person, 

it is sufficient that the cause is set in motion by the 

defendant, or that the [victim] is subjected to its operation by 

means of any act or control which the defendant exerts.' 'The 

law upon the subject is intended primarily to protect the 

sacredness of the person, and, secondarily, to prevent breaches 
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of the peace." Banovitch v. Commonwealth, 196 Va. 210, 219, 83 

S.E.2d 369, 374 (1954) (citations omitted). 

 Here, the trial court concluded from the evidence that 

Aiken's injuries resulted from defendant's deliberate acts 

directed toward her, attended by the requisite "touching" and 

wrongful purpose, a finding supported by the record. 

III. The Robbery Convictions

 Victim Lisa Gray testified that, on October 7, 1996, 

defendant "ran into [her] like a football player," "grabbed [her] 

purse," and "dragg[ed her] through the dirt." Gray required 

medical treatment, including physical therapy. The court 

convicted defendant of robbery. 

 Victim Doris Cavedo testified that, on October 14, 1996, 

defendant "rode beside [her] on a bicycle and grabbed [her] purse 

off [her] arm," "pull[ing] [her] down" and along the "ground" for 

ten feet. During the offense, defendant "turned and looked" at 

Cavedo but continued dragging her until he secured possession of 

the purse. Cavedo was treated for "cracked ribs," a leg injury 

and various scratches and bruises, care which required 

hospitalization for eight days, followed by two weeks in a 

convalescent center. The court found defendant guilty of 

unlawful wounding and robbery. 

 In challenging both the Gray and Cavedo robbery convictions, 

defendant argues that the evidence establishes only that "contact 

and injur[ies were] . . . incidental to the grabbing of the 
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purse[s]" and, therefore, proves only two larcenies from the 

person. 

 "'Robbery, a common law offense in Virginia, is defined as 

the "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."'" Jones v. Commonwealth, 26 Va. App. 

736, 738, 496 S.E.2d 668, 669 (1998) (citation omitted). 

 "The touching or violation necessary to prove 

[robbery] may be indirect, but cannot result 

merely from the force associated with the 

taking." Instead, "[v]iolence or force 

requires a physical touching or violation of 

the victim's person." . . . "'[T]he offense 

of robbery . . . is not related to the force 

used on the object taken but to the force or 

intimidation directed at the person of the 

victim.'" 

Id. at 739, 496 S.E.2d at 670 (quoting Winn v. Commonwealth, 21 

Va. App. 179, 181-82, 462 S.E.2d 911, 912-13 (1995)). Thus, 

"additional circumstances" are necessary "to transform the taking 

from a larceny to a robbery," including a "struggle, where the 

victim is knocked down, or . . . put in fear -- in other words, 

where the defendant employs violence or intimidation against the 

victim's person." Winn, 21 Va. App. at 182, 462 S.E.2d at 913 

(citation omitted). 

 Here, the evidence clearly supports the finding that 

defendant directed the requisite deliberate violence and 

intimidation against both Gray and Cavedo, physically injuring 

and intimidating each as he consummated the requisite "taking." 

IV. The Unlawful Wounding Conviction
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 Lastly, defendant complains that evidence of the attack upon 

Doris Cavedo fails to support the conviction for unlawful 

wounding. "An element necessary to both malicious and unlawful 

wounding is the 'intent to maim, disfigure, disable, or kill' the 

victim." Boone v. Commonwealth, 14 Va. App. 130, 132, 415 S.E.2d 

250, 251 (1992); Code § 18.2-51. "'[A]n intent to maim, 

disfigure or kill may be presumed' when an attack is 'attended 

with . . . violence and brutality.'" Id. at 133, 415 S.E.2d at 

252 (citations omitted). The nature and circumstances of 

defendant's aggravated attack on Cavedo clearly gives rise to the 

presumption that he possessed the requisite intent to maim, 

disfigure, disable or kill her, and provides ample support for 

the conviction. 

 Accordingly, we affirm the disputed convictions. 

 Affirmed.