COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Fitzpatrick and Annunziata 

Argued at Charlottesville, Virginia 

LEROY MCKINLEY SPENCER, JR. 

 MEMORANDUM OPINION* BY 

v. Record No. 2074-95-3 CHIEF JUDGE NORMAN K. MOON 

 NOVEMBER 26, 1996 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG 

James M. Lumpkin, Judge Designate 

 Wade A. Bowie (Richard P. Cunningham & 

Associates, P.C., on brief), for appellant. 

 Kimberley A. Whittle, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General; Brian Wainger, Assistant Attorney 

General, on brief), for appellee. 

 Leroy McKinley Spencer, Jr., appeals his convictions of 

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

violation of Code §§ 18.2-58 and 18.2-53.1. He argues that the 

evidence was insufficient to prove that a taking occurred and 

that the evidence was insufficient to prove he had the intent to 

permanently deprive the victim of his personal property. We 

disagree and affirm the convictions. 

 On April 17, 1994, James Goode was standing on a street 

corner talking with his girlfriend and his cousin when Goode 

noticed the appellant and two other men walking on the street. 

One of the men accompanying appellant approached Goode and asked 

if he had anything to sell for fifteen dollars. Goode replied 

 

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

designated for publication. 
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that he did not have anything to sell and the person returned to 

his companions. Goode believed that appellant and his companions 

were attempting to purchase drugs from him. Appellant then 

approached Goode and asked the same question, Goode again 

responded that he had nothing to sell, at which point appellant 

drew a gun and pointed it at Goode. Goode testified that 

appellant 

 said, empty your pockets, [expletive]. And I 

[Goode] said, what? And he said it again. 

And he put the gun to my head -- no, he put 

the gun to my head after he raised it back 

the second time. Then he put it to my head 

and said, empty your pockets, [expletive]. 

So I tried to talk to him and I seen it won't 

going to do any good, so I took the money out 

of my pocket and dropped it on the ground. 

But it was like he didn't see the money he 

just said it again, empty your pockets 

[expletive]. 

While held at gunpoint Goode dropped approximately one hundred 

and ten dollars on the ground. After dropping the money and 

being ordered again to empty his pockets, Goode, fearing he would 

be shot, struck appellant in the face and turned to run, leaving 

the money. As he turned, he tripped and fell. He then got up 

and ran approximately twenty-five to thirty feet before he was 

shot once in the leg. He then turned and saw appellant with a 

gun, searching for him, but appellant did not find him. 

Appellant and his companions then left. 

 Goode identified appellant in a photographic line-up and at 

trial as the person who had shot him. For his alibi, appellant's 

girlfriend testified that he was with her at the time of the 
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shooting. The trial court found appellant guilty of robbery, use 

of a firearm while in the commission of robbery, malicious 

wounding, and use of a firearm while in the commission of 

malicious wounding.1

 On appeal, we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom. Higginbotham v. 

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). To 

prove robbery, the Commonwealth must show that appellant engaged 

in a "taking, with intent to steal, of the personal property of 

another, from his person or his presence, against his will, by 

violence or intimidation." Harris v. Commonwealth, 3 Va. App. 

519, 521, 351 S.E.2d 356, 356 (1986) (quoting Johnson v. 

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

 Appellant argues that the Commonwealth has failed to prove 

robbery because the evidence admitted is insufficient to prove 

1) intent to permanently deprive Goode of his property; or 2) 

that appellant committed a taking. It is the duty of the trier 

of fact to determine whether appellant acted with criminal 

intent. See Griggs v. Commonwealth, 220 Va. 46, 51, 255 S.E.2d 

475, 478 (1979). In making such a determination the court may, 

and often must, rely on circumstantial evidence. Id. Here, 

appellant held a gun to Goode's head and repeatedly demanded, 

 

 1A writ of error was denied to appellant's appeal of his 

convictions of malicious wounding and use of a firearm while in 

the commission of malicious wounding. 
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"empty your pockets [expletive]." Whether appellant sought 

drugs, money, or anything else appellant may have believed Goode 

had in his pockets, these actions are sufficient for the court to 

infer that appellant's intent was to take Goode's property. 

Appellant's failure to immediately seize the money dropped by 

Goode does not preclude a finding of criminal intent. Brown v. 

Commonwealth, __ Va. App. ___, ___ S.E.2d ___ (1996). 

 "The degree of asportation necessary to constitute a taking 

under the common law definition of robbery need be only slight." 

Turner v. Commonwealth, 221 Va. 513, 528, 273 S.E.2d 36, 45 

(1980), cert. denied, 451 U.S. 1011 (1981) (quoting Durham v. 

Commonwealth, 214 Va. 166, 168, 198 S.E.2d 603, 606 (1973)). A 

taking occurs even where the perpetrator does not physically 

seize the property but merely orders another person to exercise 

control over the property on behalf of the perpetrator. Id. In 

Turner, the defendant argued the evidence was insufficient to 

prove a robbery where the defendant had ordered a jewelry store 

clerk, at gunpoint, to place jewelry in jewelry bags owned by the 

store, but where the defendant never took physical possession of 

the bags. Id. The Supreme Court rejected the defendant's 

argument, holding that "[a] perpetrator exercises dominion and 

control over an object where he commands another to seize the 

object and the person complies." Id. Like the defendant in 

Turner, here, appellant ordered Goode at gunpoint to empty his 

pockets. That the appellant did not specify money or drugs when 
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demanding Goode empty his pockets does nothing to alter the fact 

that appellant exercised dominion and control over the money when 

at appellant's command Goode retrieved the money and dropped it. 

 When Goode took the money from his pocket and dropped it, he no 

longer exercised control over the money and merely acted on 

appellant's behalf. Accordingly, appellant constructively 

possessed the money as soon as Goode complied with appellant's 

order. 

 Therefore, we hold that the evidence was sufficient to 

sustain the trial court's finding that a taking occurred and that 

appellant had the intent to deprive Goode of his property. We 

affirm the convictions for robbery and use of a firearm in the 

commission of a robbery. 

 Affirmed.