COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Benton, Coleman, Willis, 

 Elder, Bray, Fitzpatrick, Annunziata and Overton 

Argued at Richmond, Virginia 

DAMARCUS MANDELL BROWN, S/K/A 

 DEMARCUS M. BROWN 

 OPINION BY 

v. Record No. 1341-94-2 JUDGE ROSEMARIE ANNUNZIATA 

 MARCH 11, 1997 

COMMONWEALTH OF VIRGINIA 

UPON REHEARING EN BANC 

 FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE 

Jay T. Swett, Judge 

 Bruce R. Williamson, Jr. (Daniel J. Meador, 

Jr.; Williamson & Toscano; Morin & Barkley, 

on brief), for appellant. 

 Thomas C. Daniel, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Following a jury trial, appellant, Damarcus Mandell Brown, 

s/k/a DeMarcus M. Brown, was convicted of robbery in violation of 

Code § 18.2-58. On appeal, Brown argued that the trial court 

erred in refusing to instruct the jury on attempted robbery. By 

memorandum opinion issued November 21, 1995, in Damarcus Mandell 

Brown, s/k/a DeMarcus M. Brown v. Commonwealth of Virginia, 

Record No. 1341-94-2, a panel of this Court affirmed appellant's 

conviction. On appellant's motion, we stayed the mandate of that 

decision and granted a rehearing en banc. Upon rehearing en

banc, the judgment of the trial court is affirmed. Accordingly, 

the stay of this Court's mandate is lifted, and the mandate is 

reinstated. 
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 As Michael Murphy walked down an alley, appellant approached 

him from behind and stated "give me your money." Murphy ignored 

the comment and kept walking. Appellant demanded Murphy's money 

a second time, in a "stern" voice. This time, Murphy turned to 

find Brown pointing a handgun at him, eighteen inches from 

Murphy's head. Appellant again stated "give me your money." 

Knowing he had no money in his wallet, Murphy answered, "You've 

got the wrong guy." Appellant responded, "Give me your wallet." 

 Murphy then handed appellant his wallet, stating again that he 

had no money. Appellant looked in the wallet and, seeing no 

money in it, threw it to the ground as he backed away. 

 At trial, appellant requested that the court instruct the 

jury on attempted robbery. The court denied his request. Under 

the undisputed facts of this case, we find that the trial court 

correctly refused to grant the attempted robbery instruction. 

 Robbery is defined at common law 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.'" E.g., Beard v. Commonwealth, 19 Va. App. 359, 

361-62, 451 S.E.2d 698, 699-700 (1994) (quoting Johnson v. 

Commonwealth, 209 Va. 291, 293, 163 S.E.2d 570, 572-73 (1968)). 

The degree of asportation of the property need only be slight. 

E.g., id. at 362, 451 S.E.2d at 700. The intent to steal means 

the intent to deprive the owner permanently of his property. 

Pierce v. Commonwealth, 205 Va. 528, 532-33, 138 S.E.2d 28, 31 
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(1964). Personal property is anything of value, but the value of 

the stolen item is not an element of the crime. Id. at 532, 138 

S.E.2d at 31. 

 An attempt is an "unfinished crime, composed of . . . the 

intent to commit the crime and the doing of some direct act 

toward its consummation, but falling short of the accomplishment 

of the ultimate design." See Johnson v. Commonwealth, 209 Va. 

291, 293, 163 S.E.2d 570, 573 (1968). Where more than a 

scintilla of credible evidence tends to support a lesser offense, 

the trial court errs in refusing to instruct the jury thereon. 

E.g., Miller v. Commonwealth, 5 Va. App. 22, 24, 359 S.E.2d 841, 

842 (1987). 

 Here, no evidence supports an attempted robbery instruction, 

because the record indisputably shows that appellant completed 

the crime. Through the use of force, appellant demanded and 

received Murphy's wallet with the intent to deprive him 

permanently of his money. His direct acts did not fall short of 

the accomplishment of the ultimate design. The fact that the 

wallet contained no money and was thereafter abandoned does not 

nullify appellant's intent to deprive Murphy of his money when he 

demanded and received the wallet. See Whalen v. Commonwealth, 90 

Va. 544, 549, 19 S.E. 182, 183 (1894). 

 Accordingly, we affirm the conviction. 

Affirmed.
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Moon, C.J., with whom Benton, and Bray, J.J., join, dissenting. 

 I agree that the evidence construed in the light most 

favorable to the Commonwealth supports a finding of a completed 

robbery. However, when deciding whether to grant a jury 

instruction the evidence should be construed in the light most 

favorable to the defendant. Blondel v. Hays, 241 Va. 467, 469, 

403 S.E.2d 340, 341 (1991). Because the evidence is open to the 

interpretation that Brown intended to steal only money from the 

victim but was foiled after discovering that the victim had no 

money, I would hold that the trial court erred by not granting 

Brown's proffered instruction on attempted robbery. 

 "[W]hen considering on appeal whether an instruction was 

properly refused, `[i]t is immaterial that the jury could have 

reached contrary conclusions.' `[I]f there is evidence tending 

to support the lesser offense, a trial court errs in refusing an 

instruction thereon.'" Bellfield v. Commonwealth, 11 Va. App. 

310, 313-14, 398 S.E.2d 90, 92 (1990) (citations omitted). 

Robbery is defined at common law to be "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." 

Mason v. Commonwealth, 200 Va. 253, 254, 105 S.E.2d 149, 150 

(1958). The intent to steal means the intent to permanently 

deprive the owner of his property. Pierce v. Commonwealth, 205 

Va. 528, 138 S.E.2d 28 (1964). 

 Here the focus of this Court's inquiry should be on Brown's 
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intent. That Brown actually took the wallet and used violence or 

intimidation to secure dominion and control over the wallet are 

facts beyond dispute. However, whether Brown took the wallet 

with the intent to steal it is debatable. The question is 

whether there was credible evidence that Brown took the wallet, 

not with the intent to permanently deprive Murphy of the wallet, 

but to search the wallet for cash. The evidence is that Brown 

first demanded money. When Murphy told Brown that he had no 

money, Brown demanded the wallet, looked in the wallet, and 

discarded it after finding it empty. Because the jury, 

considering all of the circumstances, could have believed Brown 

only wanted to see if there was money in the wallet and had no 

intent to permanently deprive Murphy of the wallet, I would hold 

that an instruction on attempted robbery should have been given. 

 Therefore, I would reverse and remand.