COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, McCullough and Senior Judge Willis

Argued at Richmond, Virginia

CHADWICH DESHAWN PRICE

OPINION BY

v. Record No. 0192-11-3 JUDGE ROBERT P. FRANK

MARCH 13, 2012

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY

Charles J. Strauss, Judge

James C. Martin (Martin & Martin Law Firm, on brief), for 

appellant.

Donald E. Jeffrey, III, Senior Assistant Attorney General

(Kenneth T. Cuccinelli, II, Attorney General; Kathleen B. Martin, 

Senior Assistant Attorney General, on brief), for appellee.

Chadwich Deshawn Price, appellant, was convicted, in a jury trial, of robbery in violation 

of Code § 18.2-58.

1

 On appeal, he contends the evidence was insufficient to prove the robbery 

of S.S., claiming that the property was not taken from her presence. For the reasons stated, we 

affirm.

BACKGROUND

During the nighttime, appellant and two others forced entry into a single-wide trailer in

which D.C. and her twelve-year-old daughter, S.S., resided. S.S. testified she awoke at night 

with a gun in her face. Two men told her to walk down the hall to her mother’s bedroom which 

is at the opposite end of the trailer. A living room is situated between the two bedrooms.

 1 Appellant was also convicted of another count of robbery, one count of armed burglary, 

in violation of Code § 18.2-89, one count of animate object sexual penetration, in violation of 

Code § 18.2-67.2, and two counts of use of a firearm in the commission of a felony, in violation 

of Code § 18.2-53.1. None of these convictions are the subject of this appeal.
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Once inside her mother’s bedroom, the intruders made S.S. lie on the floor next to her 

mother. One intruder, the gunman, stayed in the bedroom with D.C. and S.S. while the other two 

intruders took property from within the residence. At trial, S.S. could not identify any of the

intruders, although she testified one of the three wore gray and blue checkerboard shoes. 

The intruders took S.S.’s cell phone, iPod, and camera, all from inside her pocketbook 

located in the living room.2 The jury convicted appellant of robbery of S.S., and this appeal 

follows. 

ANALYSIS

Appellant contends that since S.S.’s property was not taken from her person or in her 

presence, the trial court erred in convicting him of robbing S.S. and the use of a firearm in 

connection with that robbery. He points to the uncontroverted evidence that S.S.’s property was 

taken from another room while S.S. was in her mother’s bedroom.3 

“‘Robbery at common law 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)). The act of violence or 

 2 While D.C. testified that the purse was stolen from S.S.’s bedroom, S.S. testified that it 

was taken from the living room. This evidentiary inconsistency bears no relevance to our 

analysis.

3 Appellant also argues, in his brief, the evidence was insufficient to prove he had the 

requisite intent to rob S.S. This issue was not included in his assignment of error. Rule 5A:20(c) 

requires us to hold that this issue is waived because it is not part of appellant’s assignment of 

error. See Winston v. Commonwealth, 51 Va. App. 74, 82, 654 S.E.2d 340, 345 (2007) (holding 

that because an appellant did not include an argument in his questions presented (now 

assignments of error), the Court would not address it on appeal); see also Hillcrest Manor 

Nursing Home v. Underwood, 35 Va. App. 31, 39 n.4, 542 S.E.2d 785, 789 n.4 (2001) (declining 

to consider an issue on appeal because it was not “expressly stated” in the questions presented 

(now assignments of error)). 
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intimidation employed must precede or be concomitant with the taking. Jones v. 

Commonwealth, 13 Va. App. 566, 572, 414 S.E.2d 193, 196 (1992).

In asking us to affirm, the Commonwealth relies on Bunch v. Commonwealth, 225 Va. 

423, 304 S.E.2d 271 (1981). There, the victim was murdered and various items of her personal 

property were removed from her residence. The record did not disclose the specific location of the 

items within the residence prior to the theft. Bunch argued the evidence was insufficient to prove 

robbery since nothing proved the items were taken from the victim’s person or in her presence. Id.

at 439, 414 S.E.2d at 280. The Supreme Court of Virginia rejected this argument, concluding that 

the phrase ““‘of the personal property of another, from his person or in his presence” has been 

broadly construed to include the taking of property from the custody . . . or . . . the constructive 

possession of . . . another.’” Id. at 440, 414 S.E.2d at 281 (quoting Durham v. Commonwealth, 

214 Va. 166, 168, 198 S.E.2d 603, 605-06 (1973)). The Court noted that it does not “make any 

difference whether, as Bunch asserts, ‘the items [stolen] could have been taken from parts of the 

residence away from where the victim was shot.’” Id. (alteration in orginal).

In Clay v. Commonwealth, 30 Va. App. 254, 516 S.E.2d 684 (1999) (en banc), two men 

were walking from a grocery store when they were approached by Clay and another individual. 

Clay pointed a handgun at one victim’s chest and removed the victim’s coat from his person. Id.

at 257, 516 S.E.2d at 685. Both victims testified that when Clay took the coat from the first man, 

it contained two twenty-dollar bills belonging to the second man. When Clay pointed the pistol

at the first victim, the two men were standing “almost shoulder to shoulder.” Id.

Clay argued at trial that the evidence was insufficient to sustain his conviction of robbing 

the second victim because no property was taken from the second victim’s person or presence. 

Id. at 259, 516 S.E.2d at 686. Explaining that robbery is a common law offense, this Court 

stated, ‘“the taking must be from what is technically called the “person”; the meaning of which 
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. . . is, not that it must be from . . . actual contact . . . [with] the person, but it is sufficient if it is 

from . . . [that person’s] personal protection and presence.”’ Id. (quoting Falden v. 

Commonwealth, 167 Va. 542, 546, 189 S.E. 326, 328 (1937)). The Court affirmed the robbery 

conviction by concluding:

The term “in the presence” is “not so much a matter of eyesight as 

it is one of proximity and control: the property taken in the 

robbery must be close enough to the victim and sufficiently under 

his control that, had the latter not been subjected to violence or 

intimidation by the robber, he could have prevented the taking.”

Id. (quoting Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law § 8.11, at 780 (2d ed. 

1986)); see also Houston v. Commonwealth, 87 Va. 257, 264, 12 S.E. 385, 387 (1890) (“[T]he 

taking [in a robbery] must be from what is technically called the ‘person;’ the meaning of which 

expression is, not that it must necessarily be from the actual contact of the person, but it is 

sufficient if it is from the personal protection and presence.”).

In People v. Blake, 579 N.E.2d 861 (Ill. 1991), the Illinois Supreme Court addressed the 

same factual scenario as presented here. The robbery victim and another woman were in a bedroom 

on the second floor of her house. The victim was held at gunpoint while other perpetrators looted 

the first floor of the victim’s personal property. Blake argued the stolen items were not taken from 

the victim’s presence, since she was not in control of those items located on the first floor. Id. at 

863. In affirming the conviction, the Illinois Supreme Court held, “the presence element of 

robbery or armed robbery may be established if the owner, possessor, or custodian of the 

property is on the premises at the time of the occurrence.” Id. at 864. The court explained that 

there was nothing in the facts of that case to suggest that the women, still on the second floor, 

intended to relinquish control over the property on the first floor. Id. The court noted that before 

the victims retired to the second floor for the evening, they locked the doors of the home to 

secure themselves, the structure, and its contents from intruders. Id. In addition, the court 
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pointed out that the intruders believed that the owner was in control of her home and all its 

contents at all times. Had the intruders believed otherwise, observed the court, the intruders 

would not have demanded the owner’s car keys or used force and the threat of force to keep the 

women from protecting the house. The court concluded: 

Under these circumstances, the fact that neither woman had been 

on the first floor of the home for several hours is immaterial. We 

conclude that because the women were in the house during the acts 

of violence and the taking of property, the jury could properly find 

that the property was taken from their presence.

Id.

Guided by these principles, it is clear that “[a] robber takes property from the victim’s 

presence if he locks or ties the victim up in one room of a building and then helps himself to 

valuables located in another room of the same building . . . .” 3 Wayne R. LaFave & Austin W. 

Scott, Jr., Substantive Criminal Law § 20.3(c), at 179-80 (2d ed. 2003). On the evidence before 

us, we find that the items taken from S.S.’s purse located in another room of the trailer were 

close enough to her and sufficiently under her control that, had she not been subjected to 

violence and intimidation by the intruders, she could have attempted to prevent the taking of her 

personal items. The perpetrators, through the use of violence and death threats, prevented S.S. 

from protecting her property located elsewhere in her residence. Because of the intruders’

actions, S.S. was unable to maintain physical control of her property. Thus, we conclude that 

because S.S. was in the residence during the acts of violence and the taking of the property, the 

trial court properly found that S.S.’s property was taken from her presence. See Clay, 30 

Va. App. at 259, 516 S.E.2d at 686.

Thus, the evidence viewed in the light most favorable to the Commonwealth proves that 

appellant committed the offense charged and his conviction is affirmed.

Affirmed.