Tuesday 2nd 

 February, 1999. 

Phillip Clay, Appellant, 

 against Record No. 2227-97-1 

 Circuit Court No. CR97-777 

Commonwealth of Virginia, Appellee. 

Upon a Petition for Rehearing En Banc 

 Before Chief Judge Fitzpatrick, Judges Benton, Coleman, Willis, 

 Elder, Bray, Annunziata, Overton*, Bumgardner and Lemons 

On December 22, 1998 came the appellee, by counsel, and 

filed a petition praying that the Court set aside the judgment 

rendered herein on December 15, 1998, and grant a rehearing en banc 

thereof. 

On consideration whereof, the petition for rehearing en banc 

is granted, the mandate entered herein on December 15, 1998 is stayed 

pending the decision of the Court en banc, and the appeal is 

reinstated on the docket of this Court. 

The parties shall file briefs in compliance with Rule 5A:35. 

 It is further ordered that the appellee shall file with the clerk of 

this Court ten additional copies of the appendix previously filed in 

this case. 
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____________________ 

 *Judge Overton participated in the decision of this petition 

for rehearing en banc prior to the effective date of his retirement on 

January 31, 1999 and thereafter by his designation as senior judge 

pursuant to Code § 17.1-401, recodifying Code § 17-116.01:1. 

 A Copy, 

 Teste: 

 Cynthia L. McCoy, Clerk 

 By: 

 

 Deputy Clerk 
COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Lemons 

Argued at Norfolk, Virginia 

PHILLIP CLAY 

 OPINION BY 

v. Record No. 2227-97-1 JUDGE LARRY G. ELDER 

 DECEMBER 15, 1998 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

John K. Moore, Judge 

 (William L. Taliaferro, Jr.; Rabinowitz, 

Rafal, Swartz, Taliaferro & Gilbert, on 

brief), for appellant. Appellant submitting 

on brief. 

 Daniel J. Munroe, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 Phillip Clay (appellant) was convicted in a bench trial of 

two counts of robbery and two counts of the related use of a 

firearm in the commission of robbery. On appeal, he contends 

that the evidence was insufficient to prove he committed two 

robberies rather than one and that the second firearm conviction, 

contingent upon the second robbery conviction, therefore also 

must fail. For the reasons that follow, we agree and reverse the 

challenged robbery and related firearm convictions. 

 I. 

 FACTS 

 On November 17, 1996, William Vandegrift and Jason Guise 

were walking from a grocery store to Vandegrift's house in the 

City of Virginia Beach when they heard a car approaching them 
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from behind. Appellant and Khayree Darton exited the car, 

approached Vandegrift and Guise, and asked, "Don't we know you?" 

 Vandegrift continued walking toward his house. Guise 

stopped and began talking with appellant and Darton. Guise then 

called Vandegrift to come back. Vandegrift returned to where the 

three were standing. Vandegrift and Guise both testified that 

appellant pointed a small handgun at Guise's chest and said, 

"Just give me all your stuff." Appellant removed Guise's coat 

from his body. Then appellant turned the gun toward Vandegrift 

as Darton patted Vandegrift down, but Vandegrift "didn't have 

nothing on [him]." 

 Both Vandegrift and Guise testified that, when appellant 

took Guise's coat, it contained two twenty-dollar bills belonging 

to Vandegrift, which Guise was holding for him. Vandegrift 

testified that when appellant pointed the pistol at Guise, 

Vandegrift and Guise were standing "almost shoulder to shoulder." 

 Appellant and Darton then returned to their car with Guise's 

jacket and drove away. 

 Detective John Mentus interviewed appellant three days 

later. Detective Mentus testified that appellant admitted he and 

several friends had approached Vandegrift and Guise with the 

intention of obtaining money and that he had used a gun to take 

Guise's coat. 

 At trial, appellant testified that he had been riding in a 

car with Darton and two other men. Appellant denied having a gun 
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or participating in the robbery of Vandegrift and Guise and said 

he did not make the statements that Detective Mentus attributed 

to him. 

 II. 

 ANALYSIS 

 When considering the sufficiency of the evidence on appeal 

in a criminal case, we view the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom. See Higginbotham v. 

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

 The weight which should be given to evidence 

and whether the testimony of a witness is 

credible are questions which the fact finder 

must decide. However, whether a criminal 

conviction is supported by evidence 

sufficient to prove guilt beyond a reasonable 

doubt is not a question of fact but one of 

law. 

Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 

601-02 (1986). 

 Robbery is a larceny from the person accomplished by 

violence or intimidation. See Butts v. Commonwealth, 145 Va. 

800, 811, 133 S.E. 764, 766 (1926); Nelson v. Commonwealth, 12 

Va. App. 268, 270, 403 S.E.2d 384, 386 (1991) (defining larceny); 

see also Graves v. Commonwealth, 21 Va. App. 161, 167, 462 S.E.2d 

902, 905 (1995), aff'd on reh'g en banc, 22 Va. App. 262, 468 

S.E.2d 710 (1996) (holding that simple larceny is a 

lesser-included offense of robbery). The common law defines 

robbery as "'[1] the taking, with intent to steal, [2] of the 
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personal property of another, [3] from his person or in his 

presence, [4] against his will, by violence or intimidation.'" 

Jordan v. Commonwealth, 2 Va. App. 590, 595, 347 S.E.2d 152, 155 

(1986) (quoting Johnson v. Commonwealth, 215 Va. 495, 496, 211 

S.E.2d 71, 72 (1975)). In order to constitute robbery, the 

property taken need not belong to the possessor, as long as the 

possessor has a claim of right to the property that is superior 

to that of the robber. See Johnson, 215 Va. at 496, 211 S.E.2d 

at 72. 

 Appellant does not challenge the sufficiency of the evidence 

to prove he robbed Guise of his jacket and its contents. Rather, 

he challenges the separate conviction for robbing Vandegrift, 

which was based on the presence of the forty dollars of 

Vandegrift's money in Guise's coat at the time of the robbery. 

Appellant contends the evidence was insufficient to prove he 

(1) took property from Vandegrift's person or presence; (2) used 

the threat of force or intimidation to effect the taking; and 

(3) acted with the requisite intent because he did not know 

Vandegrift's money was in Guise's jacket. 

 We agree with appellant's third contention--that the 

evidence failed to prove he intended to rob Vandegrift by taking 

Guise's jacket. 

 To constitute robbery, the act must be done 

with a specific criminal intent existing at 

the time of the commission of the act. . . . 

 If the criminal intent did not exist when 

the alleged offense was committed, the crime 

has not been established. The intent 

subsequent to the taking is immaterial. 
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Jones v. Commonwealth, 172 Va. 615, 618-19, 1 S.E.2d 300, 301 

(1939) (emphasis added). "When a criminal offense consists of an 

act and a particular [intent], both the act and [intent] are 

independent and necessary elements of the crime that the 

Commonwealth must prove beyond a reasonable doubt." Hunter v. 

Commonwealth, 15 Va. App. 717, 721, 427 S.E.2d 197, 200 (1993) 

(en banc). 

 Proving intent by direct evidence is often impossible. See

Servis v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165 

(1988). Like any other element of a crime, it may be proved by 

circumstantial evidence, as long as such evidence excludes all 

reasonable hypotheses of innocence flowing from it. See Rice v. 

Commonwealth, 16 Va. App. 370, 372, 429 S.E.2d 879, 880 (1993). 

Circumstantial evidence of intent may include the conduct and 

statements of the alleged offender, and "[t]he finder of fact may 

infer that [he] intends the natural and probable consequences of 

his acts." Campbell v. Commonwealth, 12 Va. App. 476, 484, 405 

S.E.2d 1, 4 (1991) (en banc). In addition, whether an accused 

has knowledge of particular facts when he engages in certain 

conduct or a motive to engage in that conduct may be relevant in 

determining intent, even where knowledge and motive are not 

elements of the offense. See Charles E. Friend, The Law of 

Evidence in Virginia § 12-6 (4th ed. 1993); see also Robinson v. 

Commonwealth, 228 Va. 554, 558, 322 S.E.2d 841, 843 (1984) 

("'[B]efore a fact or circumstance is admissible in evidence 
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against a party to show motive, such fact or circumstance must be 

shown to have probably been known to him, otherwise it could not 

have influenced him, for a man cannot be influenced or moved to 

act by a fact or circumstance of which he is ignorant.'" (quoting 

Mullins v. Commonwealth, 113 Va. 787, 789-90, 75 S.E. 193, 195 

(1912)). 

 Because robbery requires proof of a simple larceny in 

addition to other elements, see Graves, 21 Va. App. at 167, 462 

S.E.2d at 905, principles of law relevant to larceny find equal 

application here. Ordinarily, in proving a larceny, proof of 

"the wrongful taking of property in itself imports the animus

furandi" or the intent to steal, Skeeter v. Commonwealth, 217 Va. 

722, 725, 232 S.E.2d 756, 758 (1977), and the fact finder "may 

infer the [criminal] intent from the immediate asportation and 

conversion of the property in the absence of satisfactory 

countervailing evidence by the . . . [defendant]." Pierce v. 

Commonwealth, 205 Va. 528, 533, 138 S.E.2d 28, 31 (1964). This 

principle is based on the inference, set out above, that one 

intends the natural and probable consequences of his acts. 

 However, under the facts of this case, we hold that the 

inference of intent to steal that arises from the wrongful taking 

of property establishes only a single, wrongful intent 

co-existing with the taking. To hold that the taking of a single 

item from the actual possession of a single victim--which item, 

unbeknownst to the robber, happens to contain property that is 
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owned by some other person present at the scene and that remains 

constructively in that other person's possession--also implies 

the animus furandi to support a second robbery conviction would 

improperly relieve the Commonwealth of its burden of proving 

intent to steal from the second victim. 

 Here, the record contains no evidence permitting the 

inference that appellant intended to take property belonging to 

more than one person by the single act of taking Guise's jacket. 

 The evidence showed that appellant and Darton had discussed 

obtaining money from Guise and Vandegrift before approaching them 

on the street and that Darton patted Vandegrift down while 

appellant held both victims at gunpoint, permitting the inference 

that appellant and Darton may have intended to rob Vandegrift 

directly.1

 However, the pat down of Vandegrift yielded nothing. 

 Although Vandegrift retained constructive possession of the 

money, it was in Guise's actual possession, inside his coat, at 

 

 1The evidence may have been sufficient to prove attempted 

robbery of Vandegrift. An attempt consists of the intent to 

commit the crime and the doing of some direct, ineffectual act 

toward the commission of the offense. See Sizemore v. 

Commonwealth, 218 Va. 980, 983, 243 S.E.2d 212, 213 (1978). 

Here, the fact finder may have been presented with ample evidence 

of appellant's intent to rob Vandegrift at the time Vandegrift 

was first confronted by the two men. The act of patting down 

Vandegrift may have provided sufficient evidence of a direct, 

ineffectual act toward the commission of the robbery of 

Vandegrift. However, the evidence fails to show that appellant 

intended to rob Vandegrift when he took Guise's jacket or, in the 

words of the dissent, that appellant's intent to steal from 

Vandegrift "actuated" the taking of Guise's jacket. Rather, the 

evidence shows only that intent to steal from Guise actuated the 

taking of the jacket. 
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the time of the taking. Therefore, the mere fact of its taking 

does not permit the inference that appellant intended to rob 

Vandegrift by taking Guise's jacket. Evidence that appellant 

knew Vandegrift's property was in Guise's jacket may have 

supported the inference that appellant intended to rob Vandegrift 

as well as Guise when he took Guise's jacket. However, the 

record here is devoid of any evidence that appellant had such 

knowledge. Therefore, the evidence is insufficient to prove 

appellant intended to rob Vandegrift when he took Guise's jacket. 

 Such a result does not conflict with this Court's holdings 

in Jordan, 2 Va. App. 590, 347 S.E.2d 152, and Sullivan v. 

Commonwealth, 16 Va. App. 844, 433 S.E.2d 508 (1993) (en banc). 

As this Court held in Jordan, "the appropriate 'unit of 

prosecution' is determined by the number of persons from whose 

possession property is taken separately by force or 

intimidation." 2 Va. App. at 596, 347 S.E.2d at 156 (emphasis 

added) (analyzing whether actions of accused constituted one 

robbery or two for purposes of resolving double jeopardy 

challenge). In Jordan, we upheld the two robbery convictions of 

the accused because, although he took money belonging to only one 

entity--a fast-food restaurant--he used threats to obtain 

separate quantities of the restaurant's money from two different 

employees. Id. at 597, 347 S.E.2d at 156. Jordan forced one 

employee to "turn over the money in a cash register" and another 

employee to "turn over [the restaurant's] money from [the 
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employee's] pockets." Id. Under the facts of that case, we 

held, "the evidence clearly show[ed] that both employees were 

subjected to the threat of violence by the presenting of firearms 

as money was taken from each of them." Id. (emphasis added). 

 In Sullivan, we rejected a double jeopardy challenge to dual 

robbery convictions where the accused robbed two video store 

employees. Although only one employee actually "physically 

surrendered" the money, both employees "were custodians of the 

store's money and jointly possessed it," and the accused forced 

both "to assist in the collection and surrender of the money." 

16 Va. App. at 848, 433 S.E.2d at 510. 

 Because Jordan involved two actual takings of money from two 

individuals with a superior claim of right to the money through 

the use of violence or intimidation, the evidence proved that the 

accused intended two takings, even though the money belonged to a 

single entity. Likewise, we held in Sullivan that the evidence 

was sufficient to prove the accused intended two robberies and 

accomplished two takings, even though only one employee actually 

"physically surrendered" the money. The accused had constructive 

knowledge that the two video store employees had a superior claim 

of right to their employer's money, and he forced one employee to 

help the second employee gather the store's money from various 

locations. In appellant's case, in contrast to Jordan and 

Sullivan, the evidence was insufficient to prove a second robbery 

because it did not prove appellant intended to take any of 
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Vandegrift's property contemporaneously with the taking of 

Guise's coat. 
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 For these reasons, we reverse appellant's convictions for 

robbing Vandegrift and for using a firearm in the commission of 

that robbery. 

 Reversed. 
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Lemons, J., dissenting. 

 Because the evidence and the law support the convictions, I 

dissent. 

 Clay argues that the evidence was insufficient as a matter 

of law to sustain his convictions for robbery of Vandegrift and 

use of a firearm in the commission of that robbery. 

Specifically, Clay argues: (1) no threat of force or 

intimidation was used against Vandegrift; (2) no property was 

taken from Vandegrift's person or presence; and (3) because he 

did not know Vandegrift's money was contained in the jacket, he 

did not have the requisite criminal intent. 

 When the sufficiency of the evidence is an issue on appeal, 

an appellate court must view the evidence and all reasonable 

inferences fairly deducible therefrom in the light most favorable 

to the Commonwealth. Cheng v. Commonwealth, 240 Va. 26, 42, 393 

S.E.2d 599, 608 (1990). On appeal, the decision of a trial court 

sitting without a jury is afforded the same weight as a jury's 

verdict and "will not be disturbed by us unless plainly wrong or 

without evidence to support it." King v. Commonwealth, 217 Va. 

601, 604, 231 S.E.2d 312, 315 (1977). 

 Robbery is a common law crime against the person, which is 

proscribed statutorily by Code § 18.2-58. Hairston v. 

Commonwealth, 2 Va. App. 211, 214, 343 S.E.2d 355, 357 (1986). 

Robbery at common law is defined as, 

 the taking, with the intent to steal, of the 

personal property of another, from his person 

or in his presence, against his will, by 
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violence or intimidation. 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 of, or in the 

actual or constructive possession of, 

another. 

Crawford v. Commonwealth, 217 Va. 595, 597, 231 S.E.2d 309, 310 

(1977) (quoting Johnson v. Commonwealth, 215 Va. 495, 496, 211 

S.E.2d 71, 72 (1975)). 

 Clay's contention that no threat of force or intimidation 

existed to support the conviction for robbery of Vandegrift and 

the related charge of use of a firearm in the commission of that 

robbery is belied by sufficient evidence in the record. Not only 

did Clay point a firearm at Guise while Vandegrift was standing 

"almost shoulder to shoulder," Clay also pointed the weapon at 

Vandegrift while Darton conducted a "pat down" of Vandegrift. 

 Clay argues that when he removed Guise's jacket he did not 

rob Vandegrift because he did not take property from Vandegrift's 

person or presence. For common law robbery, "the taking must be 

from what is technically called the 'person'; the meaning of 

which . . . 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." Falden v. 

Commonwealth, 167 Va. 542, 546, 189 S.E. 326, 328 (1937) (quoting 

Houston v. Commonwealth, 87 Va. 257, 264, 12 S.E. 385, 387 

(1890)). The term "in the presence" is "not so much a matter of 

eyesight as it is one of proximity and control: the property 
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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." LaFave, Wayne R. & Scott, Jr., 

Austin W., Criminal Law § 8.11, at 780 (2d ed. 1986). 

 Clay argues that because he did not know the jacket 

contained Vandegrift's money, he lacked the criminal intent to 

rob Vandegrift. In Jordan v. Commonwealth, 2 Va. App. 590, 347 

S.E.2d 152 (1986), we upheld the defendant's convictions of two 

counts of robbery and two counts of the use of a firearm in the 

commission of a felony. In Jordan, the defendant forced several 

employees of a fast-food restaurant to turn over their employer's 

money. We held that, although the money taken belonged to the 

restaurant, the defendant's multiple robbery convictions arising 

from this incident did not violate the double jeopardy 

prohibition. Rather, we held that the appropriate "unit of 

prosecution" was determined by the number of persons from whose 

possession property is taken separately by force or intimidation. 

Id. at 596, 347 S.E.2d at 156 (emphasis added). Similarly, we 

found that the firearm convictions were "separate and distinct 

offenses." Id. at 596, 347 S.E.2d at 156. 

 In Sullivan v. Commonwealth, 16 Va. App. 844, 433 S.E.2d 508 

(1993), we upheld the defendant's convictions of two counts of 

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

of robbery where two employees of a video store were held at 
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gunpoint but only one employee gathered the money and delivered 

it to the defendant. We found that both employees were 

"custodians of the store's money and jointly possessed it." Id.

at 848, 433 S.E.2d at 510. Additionally, in Pritchard v. 

Commonwealth, 225 Va. 559, 562, 303 S.E.2d 911, 913 (1983), the 

Virginia Supreme Court affirmed a robbery conviction and stated 

that "[t]he owner of personal property may deliver it to another 

upon conditions, or in circumstances, which give the recipient 

bare custody of the property. Constructive possession remains in 

the owner." (Emphasis added). 

 Larceny is a lesser-included offense of robbery. Harris v. 

Commonwealth, 23 Va. App. 311, 477 S.E.2d 3 (1996). Larceny is 

defined as "the wrongful or fraudulent taking of personal goods 

of some intrinsic value belonging to another, without his assent 

and with the intention to deprive the owner thereof permanently." 

Cullen v. Commonwealth, 13 Va. App. 182, 186, 409 S.E.2d 487, 489 

(1991). The animus furandi, or the intent to steal, "is an 

essential element in the crime of larceny." Black's Law 

Dictionary 88 (6th ed. 1990). 

 In Virginia, "the wrongful taking of property in itself 

imports the animus furandi." Skeeter v. Commonwealth, 217 Va. 

722, 725, 232 S.E.2d 756, 758 (1977). Under the common law of 

Virginia, animus furandi means "an intent to feloniously deprive 

the owner permanently of his property . . . [b]ut 'feloniously' 

in this [context] simply means 'with criminal intent.'" Pierce 
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v. Commonwealth, 205 Va. 528, 533, 138 S.E.2d 28, 31 (1964). The 

fact finder "may infer the felonious intent from the immediate 

asportation and conversion of the property, in the absence of 

satisfactory countervailing evidence by the . . . [defendant]." 

Id. at 533, 138 S.E.2d at 31. 

 Clay argues that there was only one taking; consequently, 

there can be only one robbery. He is wrong; two takings 

occurred. The taking of the jacket from Guise was the first 

taking. The taking of Vandegrift's money in the jacket pocket 

was the second taking. In the second taking, Guise had bare 

custody of the money; Vandegrift retained constructive 

possession. Additionally, the animus furandi in the second 

robbery is provided by Clay's clearly demonstrated intent to take 

items from both Guise and Vandegrift and is further supported by 

Clay's demand "[j]ust give me all your stuff" followed by a "pat 

down" of Vandegrift. Finally, the animus furandi is provided by 

inference from the asportation and conversion of the property, in 

the absence of satisfactory countervailing evidence introduced by 

the defendant. 

 The majority concludes "the evidence was insufficient to 

prove a second robbery because it did not prove appellant 

intended to take any of Vandegrift's property contemporaneously 

with the taking of Guise's coat." The majority misapprehends a 

basic concept in criminal law. The issue is not whether the mens

rea and the actus rea are contemporaneous; rather, it is whether 
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the mens rea and the actus rea concur. However, "concurrence in 

time . . . is neither required nor sufficient; the true meaning 

of the requirement that the mental fault concur with the act or 

omission is that the former actuates the latter." See LaFave & 

Scott, supra at 267-68 (emphasis added). The rule is that "mere 

coincidence in point of time is not necessarily sufficient, while 

the lack of such unity is not necessarily a bar to conviction." 

Id. at 268. 

 Where the state of mind to commit a criminal act exists 

before the act is committed, in order to find the requisite 

concurrence that actuates the commission of the act, the actor's 

state of mind must not have been abandoned. Id. at 270. An 

example of abandonment of criminal intent exists where A intends 

to kill B but changes his mind. If A mistakenly shoots B moments 

later in a hunting accident, he will not be guilty of murder 

because "there is no concurrence of the mental and physical 

elements." Id. Once the mental state has been abandoned, it can 

no longer actuate the commission of the crime and no concurrence 

exists. 

 When Clay and Darton approached Vandegrift and Guise, Clay 

had the intent to rob both men. Clay pointed a handgun at Guise 

and said, "[j]ust give me all your stuff." Clay then took 

Guise's jacket. Clay turned to Vandegrift and pointed the gun at 

him as Darton "patted him down." Clay intended to rob both 

Vandegrift and Guise of their possessions and his state of mind 
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was not abandoned at the time he committed the physical act of 

taking Guise's jacket that contained Vandegrift's money. Clay's 

mental state actuated the taking, and his intent to rob both men 

was never abandoned; therefore, Clay is guilty of the robbery of 

Vandegrift as well as Guise. 

 The evidence was sufficient to find that Clay robbed 

Vandegrift and that he used a firearm in the commission of that 

robbery. Clay used a gun to intimidate Vandegrift and to take 

Vandegrift's property from his presence. Clay intended to take 

the money contained in the jacket, as shown by the circumstances 

and by the taking itself, and as further shown by his statements 

to Guise, Vandegrift, and Detective Mentus. For the foregoing 

reasons, I would affirm the convictions.