COURT OF APPEALS OF VIRGINIA
Present: Judges Fran k, McClanahan and Haley Argued at Richmond, Virginia

KATHY ANN MILLS OPINION BY v. Record No. 0141-07-3 J UDGE JAMES W. HALEY, JR. JULY 1, 2008 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE David A. Melesco, Judge Catherine E. P. Haas, Assistant Appellate Defender (Office of the Appellate Defender, on briefs), for appellant. Craig W. Stallard, Assistant Atto rney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
In this purse-snatching case, Kathy Ann Mills (“Mills”) maintains that the evidence of force antecedent to or contemporaneous with th e taking is insufficient to show she committed robbery and that, accordi ngly, the trial court erred in convicting her of that crime. We disagree and affirm.
I. FACTS The relevant facts may be succinctly stated. Mills was the front seat passe nger in a vehicle, which pulled up beside Elizabeth Witcher, who was walking in a Hardee’s parking lot. Mills asked Witcher for directions, and then grabbed Witcher’s pocketbook. As Witcher explained: I had it hooked in my arm, and ah, she snatched it . . . soon as she snatched it, she pulled off w ith the car, and . . . I was runnin’ along with the car, until ah, my ankles started to draggin’ . . . then I got on my toes. They was draggin’ me on my toes. When she got-2- to the end of the street, she took off real fast, and that’s when my purse slipped outta my arm, and I fell. Witcher was dragged over thirty feet until she lost possession of her purse. As a result of the incident, she experienced an immediate asthma a ttack and was taken from the scene to a local
emergency room. II. ANALYSIS “‘Robbery at common law is defined as the taki ng, with intent to st eal, of the property of another, from his person or in his presence, ag ainst 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)). Mills states on brief that “the requisite violence . . . must o ccur before or at the same time as the taking” and cites Mason v. Commonwealth , 200 Va. 253, 105 S.E.2d 149 (1958). We agree. Mills then presumes “the taking” occu rred when she first touc hed the purse, and thus argues the violence against Witcher that followed was not antecedent to or contemporaneous with the taking. Initially, we note, a taking does not occur until an owner loses physical (or constructive) possessi on of his property. See Commonwealth v. Jones , 267 Va. 284, 289, 591 S.E.2d 68, 71 (2004); Pritchard v. Commonwealth , 225 Va. 559, 563, 303 S.E.2d 911, 913 (1983). Witcher did not lose possession of her pur se to Mills until after she had been violently dragged over thirty feet. See Falden v. Commonwealth , 167 Va. 542, 545, 189 S.E. 326, 328 (1937) (“In other words, before the crime is comp lete it must appear that the property was taken into possession by the robber . . . .”).
In Mason , the Supreme Court quoted 12 M.J. Larceny § 4 to define “taking” as follows: “‘All the authorities agre e in stating that in ev ery larceny there must be an actual taking, or severance of the goods from the possession of the owner.’” 200 Va. at 256, 105 S.E.2d at 151-3- (emphasis supplied). The Mason Court reversed a robbery conviction because “no force was used towards [the victim] . . . until accused had taken the television set in his arms and handed the article to a confederate w ho made off with it. The taki ng and asportation preceded the violence . . . .” Id. at 256-57, 105 S.E.2d at 151. This Court has twice addressed the question as to whether a purse- snatching constituted robbery, or merely larceny. In Winn v. Commonwealth , 21 Va. App. 179, 181, 462 S.E.2d 911, 912 (1995), the defendant “very st rongly” took the purse, but “the re was no struggle between her and appellant.” Because “the record . . . [was] devoid of even ‘slight’ violence against the victim or resistance from the victim ,” we reversed a conviction for robbery. Id. at 183, 462 S.E.2d at 913 (emphasis supplied). We distinguished Winn in Jones v. Commonwealth , 26 Va. App. 736, 496 S.E.2d 668 (1998). There the victim was ca rrying her purse tucked under her arm. Id. at 737, 496 S.E.2d at 669. The defendant approached from her rear, “jerked her around by pulling her shoulder,” and “snatched her purse.” Id. This was a “sudden physical confrontation” which “violated her person” and constituted sufficient force or intim idation to affirm a conviction for robbery. Id. at 740, 496 S.E.2d at 670. Factually similar cases from other juri sdictions support our conclusion that the circumstances of the instant case subs tantiate a robbery conviction. In People v. Pagan , 553 N.Y.S.2d 380, 381 (N.Y. App. Div. 1990), a r obbery conviction was upheld where the “[d]efendant was accused of lean ing from a moving subway train and snatching a bag carried by the victim who was walking along the station platform. She was dragged 6 to 8 feet along the platform, suffering bruises and abra sions, before she let go of her bag.” A conviction for robbery was affirmed in Madison v. State , 219 N.W.2d 259, 260, 261-62 (Wis. 1974), where the defendant “attempted to pull away her purse. She held tightly and the defendant pulled her around on the street until the link hol ding the strap broke, and the defe ndant fled with her purse.”-4- A robbery conviction was also upheld where the victim was pushing a grocery cart with her purse hanging from her wrist. State v. Scott , 568 A.2d 1048 (Conn. App. Ct.), appeal denied , 573 A.2d 316 (Conn. 1990). The court described th e robbery: “The tugging was strong enough to pull both the victim a nd her cart of groceries to the ground. The victim resisted . . . as long as she was able by crooking her wrist . . . . She wa s dragged along the pavement with sufficient force to cause [injuries] . . . . She finally released the bag . . . .” Id. at 1049-50. In People v. Thomas , 34 Cal. Rptr. 3d 858, 863 (Cal. Ct. App. 2005), vacated on other grounds , 127 S. Ct. 1224 (2007), the court wrote: “Defendant’s compan ion grabbed [victim’s] purse and tried to pull it away from her; she pulled back . . . . The th ief . . . pulled on the strap with enough strength to defeat efforts to hold on to the purse. That desc ription perfectly fits th e force provision of the crime of robbery.” Unlike Winn , here there was “resistance by the victim” to retain possession of her purse. The loss of that possession followed the use of force to overcome that resistance. In addition to the factually similar case s quoted above, the comme ntators likewise note the relevance of resistan ce to loss of possession in distinguishing larceny from robbery. Thus, as stated in 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 8.11(d)(1) (1986): The great weight of authority . . . supports the view that there is not sufficient force to c onstitute robbery when the thief snatches property from the owner’s grasp so suddenly that the owner cannot offer any resistance to the taking. On the other hand, when the owner, aware of the impe nding snatching, resists it . . . [and] a struggle . . . is necessary before the thief can get possession . . . there is enough force to make the taking robbery. Likewise other commentators writ e: “For the snatching of prope rty from another to amount to robbery, the perpetrator must empl oy more than the force necessary to remove the property from the person. Rather, there must be resistance by the victim that is overcome by the physical force-5- of the offender.” 67 Am. Jur. 2d Robbery § 29 (2007); see also Peter G. Guthrie, Annotation, Purse Snatching as Robbery or Theft , 42 A.L.R.3d 1381, 1386 (1972) (stating that “if a struggle immediately ensues to keep possession of the property and the thief overcomes the resistance, the violence is sufficient to c onstitute the act of robbery”).
III. CONCLUSION “On appeal, ‘we review the ev idence in the light most fa vorable to the Commonwealth, granting to it all reasonable inferenc es fairly deducible therefrom.’” Archer v. Commonwealth , 26 Va. App. 1, 11, 494 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth , 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)). Applying that sta ndard to the facts, Mills’ conviction of robbery is affirmed. Affirmed.