PRESENT: Hassell, C.J., Lacy, Keenan, Kinser, and Lemons, JJ., 

and Compton and Stephenson, S.JJ. 

COMMONWEALTH OF VIRGINIA 

 OPINION BY 

v. Record No. 030589 SENIOR JUSTICE ROSCOE B. STEPHENSON, JR. 

 January 16, 2004 

ERIC CHERRON JONES 

FROM THE COURT OF APPEALS OF VIRGINIA 

 The sole issue in this appeal is whether the evidence is 

sufficient to support convictions of robbery and of use of a 

firearm in the commission of robbery. 

I 

 In a bench trial in the Circuit Court of the City of 

Hampton, Eric Cherron Jones was convicted of robbery and of use 

of a firearm in the commission of robbery.∗

 Jones was sentenced 

to 10 years in prison, with seven years suspended, for the 

robbery conviction and to three years in prison for the use-ofa-firearm conviction. 

 In his appeal before the Court of Appeals, Jones contended, 

as he did in the trial court, that, as a matter of law, the 

evidence was insufficient to support the robbery conviction and, 

therefore, also insufficient to support the conviction for use 

of a firearm. The Court of Appeals reversed both convictions 

 ∗

 Jones also was convicted of possession of a firearm after 

having been convicted of a felony. He did not appeal that 

conviction. 
and remanded the case for a new trial for larceny, if the 

Commonwealth be so advised. Jones v. Commonwealth, 39 Va. App. 

545, 574 S.E.2d 767 (2003). We awarded the Commonwealth this 

appeal from the judgment of the Court of Appeals. 

II 

 We must view the evidence and all reasonable inferences 

drawn therefrom in the light most favorable to the Commonwealth, 

the prevailing party at trial. Commonwealth v. Hudson, 265 Va. 

505, 514, 578 S.E.2d 781, 786, cert. denied, ___ U.S. ___, 124 

S.Ct. 444 (2003). On February 17, 2001, Jones entered a store 

known as Shoe Carnival, in the City of Hampton. Bobby Ray 

Baker, the store manager, immediately began to watch Jones 

through a video camera because Jones previously had stolen 

merchandise from the store. Baker watched as Jones picked up 

shoes in each aisle of the store. Baker then walked down to the 

floor to watch Jones. From that vantage point, Baker saw Jones 

put a pair of boots in his pants and walk out of the store. 

Jones neither paid for the boots nor had permission to take 

them. 

 Baker followed Jones out of the store and approached him in 

"the [store's] parking lot." When Baker was "a little less than 

ten feet" from Jones, he asked Jones to return the boots. Jones 

denied having the boots, and Baker told Jones that he had seen 

 

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Jones put the boots in his pants. At that point, Jones withdrew 

a firearm from a pocket of his jacket, pointed it at Baker, and 

said, "You better back . . . off me." Baker was frightened, and 

he ran and hid behind a parked vehicle. Jones then fled in a 

nearby car. 

III 

 Robbery, a common-law offense, 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.' " George v. Commonwealth, 242 Va. 264, 277, 411 

S.E.2d 12, 20 (1991) (quoting Pierce v. Commonwealth, 205 Va. 

528, 532, 138 S.E.2d 28, 31 (1964)). We have held that, in 

order to establish a robbery, the violence or intimidation "must 

occur before or at the time of the taking." Branch v. 

Commonwealth, 225 Va. 91, 94, 300 S.E.2d 758, 759 (1983). 

 Jones contends that the violence or intimidation did not 

precede or occur at the same time as the taking. More 

specifically, he asserts that he 

completed the act of petty larceny by concealing the 

boots in his pants. Although [the store manager] 

could have intervened to prevent the shoplifting, he 

failed to do so and allowed Jones to remove the stolen 

goods from the store. The record contains no evidence 

that Jones employed force to conceal the goods, or for 

that matter, to remove them from store property. 

Instead, . . . Jones resorted to a showing of force 

when [the store manager] attempted to prevent his 

escape. 

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 The Commonwealth, on the other hand, summarizes its 

contention as follows: 

[The store manager] followed Jones out of the shoe 

store and approached him to retrieve the boots that 

Jones had taken, but for which he had not paid. While 

Jones' original intent may have been to commit only 

larceny, his intention changed to robbery. In order 

to accomplish the theft, Jones introduced a firearm to 

overcome the interference of the manager with Jones' 

asportation of the property. The asportation of the 

victim's property began when Jones picked up the boots 

inside the store and continued throughout the time 

that he pointed the gun at [the manager] and carried 

the boots away from [the manager's] presence. 

 The trial court properly found that the larceny 

was continuing when Jones introduced the weapon. 

(Footnote omitted.) 

 In reversing the trial court's judgment, the Court of 

Appeals ruled that Jones "carried the hidden boots from the 

store to the parking lot unhindered," and, in doing so, "he 

severed the boots from the possession of the owner." Jones, 39 

Va. App. at 549, 574 S.E.2d at 769. The Court of Appeals 

concluded that, when Jones produced the firearm, he used it "to 

assist in retention of the boots or to facilitate [his] escape." 

Id. For the reasons stated below, we conclude that the Court of 

Appeals erred. 

IV 

 In support of their contentions, the parties rely in large 

measure on three of our cases. Those cases are Pritchard v. 

Commonwealth, 225 Va. 559, 303 S.E.2d 911 (1983); Durham v. 

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Commonwealth, 214 Va. 166, 198 S.E.2d 603 (1973); and Mason v. 

Commonwealth, 200 Va. 253, 105 S.E.2d 149 (1958). 

 In Mason, the accused broke a store's display window and 

entered the store. He picked up a portable television set about 

two and one-half feet from the hole in the window and handed it 

to a confederate who was outside the store. Just as the accused 

was handing the television set to his confederate, the store 

owner, who had been hiding behind the display window, struck the 

accused with a board. The accused then threw a portable radio 

at the owner and fired a pistol four times towards the owner. 

200 Va. at 254-55, 105 S.E.2d at 150. The owner testified that 

" 'the television was out of [the accused's] arms and in the 

arms of [the accused's] companion before [the accused] threw the 

radio set and started shooting.' " Id. at 255, 105 S.E.2d at 

150. 

 In holding that the evidence was insufficient to support a 

robbery conviction, we stated the following: 

 Here no force was used towards [the owner] and 

there was no intimidation until accused had taken the 

television set in his arms and handed the article to a 

confederate who made off with it. The taking and 

asportation preceded both the violence, and the 

intimidation for neither occurred until after accused 

had passed the article to his companion and been 

struck by [the owner]. 

 The facts and circumstances unquestionably show 

that in time sequence the taking and asportation 

occurred before there was any violence or intimidation 

by throwing the radio or by presentation of firearms. 

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Id. at 256-57, 105 S.E.2d at 151-52. Unlike the present case, 

the accused in Mason had succeeded in removing the merchandise 

from the presence and constructive possession of the owner 

before the accused introduced violence toward the owner. 

 In Durham, a mother and her daughter were found stabbed to 

death in the daughter's home. The accused and an accomplice had 

broken into and entered the home with the intent to commit 

larceny. 214 Va. at 167, 198 S.E.2d at 605. We reasonably 

inferred from proven facts that, while the thieves were in the 

process of carrying out their intended act, the victims appeared 

on the scene and surprised them. It was then that the thieves' 

intention "changed from the commission of larceny to robbery to 

accomplish their original purpose by overcoming [the victims'] 

interference with the taking." Id. at 169, 198 S.E.2d at 606. 

 In Durham, we stated the following: 

 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. 

Id. We also said that "[a]n intent to commit robbery does not 

have to exist for any particular length of time. It may occur 

momentarily." Id. 

 In the present case, Jones, like the thieves in Durham, 

originally intended to commit larceny. While Jones was in the 

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process of carrying out that intention and the larceny was 

continuing, the store manager interposed himself to prevent 

Jones from taking the merchandise. At that time, Jones produced 

the firearm to overcome the manager's opposition to the taking, 

and his crime became robbery, not merely larceny. 

 Finally, in Pritchard, the proprietor of a gasoline service 

station filled the tank of the accused's car. When the 

proprietor asked the accused for payment, the accused produced 

and cocked a firearm. The proprietor ran into the station, and 

the accused drove away without paying for the gasoline. 225 Va. 

at 560-61, 303 S.E.2d at 912. 

 Pritchard contended that he did not commit a robbery 

"because he presented no deadly force or intimidation to [the 

proprietor] until after the asportation of the stolen gasoline 

was complete." Id. at 561, 303 S.E.2d at 912. Pritchard 

claimed that the asportation occurred when the proprietor pumped 

the gasoline into the tank of his car. According to Pritchard, 

when the pumping of the gasoline ended, the proprietor had 

surrendered to him " 'control and possession' " of the gasoline; 

thus, the taking was unaccompanied by force or violence and was 

merely a petit larceny. Id. 

 We rejected Pritchard's contention and focused upon the 

distinction, in the context of larceny, between possession and 

custody. Id. at 562, 303 S.E.2d at 913. We held that Pritchard 

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had committed a robbery because, when the gasoline was pumped 

into the car's tank, Pritchard "became a bare custodian of the 

gasoline" while the proprietor "remained in constructive 

possession [of the gasoline] pending payment." Id. at 563, 303 

S.E.2d at 913 (emphasis added). Concluding, we said the 

following: 

When Pritchard produced the firearm, he exerted 

intimidation upon [the proprietor]. This subdued [the 

proprietor's] ability to resist and enabled Pritchard 

to convert his custody into possession by carrying the 

goods away in violation of the condition, with the 

intent to steal. The use of force preceded this 

conversion and enabled Pritchard to obtain possession. 

Id. 

 The rationale in Pritchard applies in the present case. 

When Jones seized and hid the boots, he had custody of them, not 

possession. The store manager, as he observed Jones, retained 

constructive possession of the merchandise. As Jones' larceny 

was continuing, but before his custody was converted into 

possession, the manager interposed himself to prevent the theft. 

When Jones introduced force and violence by producing the 

firearm, his crime was transformed into robbery. 

V 

 In sum, for the reasons stated, we hold that the evidence 

is sufficient to support the convictions of robbery and of use 

of a firearm in the commission of robbery. Accordingly, the 

judgment of the Court of Appeals will be reversed, the case will 

8
be remanded to the Court of Appeals with direction that the 

Court of Appeals remand the case to the trial court, and the 

trial court's judgment shall be reinstated. 

Reversed and remanded. 

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