COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Annunziata and Humphreys 

Argued at Alexandria, Virginia 

SAMUEL GONZALES ORTIZ 

 MEMORANDUM OPINION* BY 

v. Record No. 2834-00-4 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 JANUARY 22, 2002 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA 

Alfred D. Swersky, Judge 

 Uley Norris (Mary E. Maguire, Senior 

Assistant Public Defender, on brief), for 

appellant. 

 Michael T. Judge, Assistant Attorney General 

(Randolph A. Beales, Acting Attorney 

General, on brief), for appellee. 

 Samuel Gonzales Ortiz (appellant) was convicted in a bench 

trial of robbery in violation of Code § 18.2-58. On appeal, he 

contends that the trial court erred in finding the evidence 

sufficient to convict him of robbery because (1) the 

Commonwealth failed to prove criminal intent and (2) the 

evidence supported only a finding of larceny from the person. 

For the following reasons, we affirm the judgment of the trial 

court. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.
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I. BACKGROUND 

 Under familiar principles of appellate review, we examine the 

evidence in the light most favorable to the Commonwealth, the 

prevailing party below, granting to it all reasonable inferences 

fairly deducible therefrom. See Juares v. Commonwealth, 26 Va. 

App. 154, 156, 493 S.E.2d 677, 678 (1997). 

 So viewed, the evidence established that on June 10, 2000, 

Yessenia Henriquez (Henriquez) left a check cashing business on 

West Glebe Road in Alexandria, Virginia. As she walked down the 

road she saw appellant standing across the street near a 

taxicab. She asked appellant if the cab "belonged to him." 

Appellant responded that it belonged to another man who was in 

front of the cab. Henriquez walked away, and appellant called 

out to her, "Come here." Henriquez walked to Executive Avenue, 

and appellant grabbed her from behind. He grabbed her right 

arm, pulled her towards him and said again, "Come here," and 

"Let's go." Henriquez fought to "get him off [her]" and after 

they pushed each other, appellant pulled her 14-carat gold 

necklace from her neck. When the necklace broke, a baby ring 

flew off of it. After taking the necklace, appellant walked 

away. 

 Henriquez called the police on her cellular phone, and 

three to five minutes later Officer Buckley (Buckley) arrived on 

the scene. Henriquez told Buckley what had occurred and gave 

him a description of the person who took her necklace. 
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Henriquez's arm was bruised and she also had a red mark on the 

back of her neck which was, "thin, about the width of the gold 

necklace, and it ran from one side to the other side." They 

drove around the neighborhood and after approximately five to 

ten minutes they saw appellant. Henriquez identified him as the 

person who took her necklace. Buckley arrested him and found 

the victim's necklace in his blue jeans pocket. Buckley then 

called another officer who retrieved the baby's ring which had 

fallen off the necklace. 

 Officer Angel Simedly (Simedly) of the Alexandria Police 

Department transported appellant to police headquarters. When 

appellant got into the police car, he told Simedly that: 

he met her by the Rite-Aid. He saw her. He 

told me that she apparently needed a ride. 

He offered $50 in exchange for sex. Then 

they walked to Executive Avenue. He was 

expecting sex. He didn't get any. He says 

that she began to talk to a male outside the 

building on Executive Avenue, and when he 

asked her what's up, she told him to go 

away, and that's when he grabbed for her 

necklace. 

 Appellant said that he took the necklace because she 

refused to give him the $50 back he gave her for sex. Simedly 

also noted that one of appellant's fingers was bleeding. 

Appellant said that it had occurred when he grabbed the necklace 

from Henriquez. 

 At trial, appellant gave a different version of the events. 

He testified that he had cut his finger at work rather than when 
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he took the necklace from the victim. He also testified that on 

June 9, 2000 he was at "a place called El Tropico" and danced 

with a girl who needed and wanted $50. Appellant gave her $50, 

and they agreed to meet the next day at the place where 

Henriquez encountered appellant. When Henriquez approached, he 

mistook her for the girl he met at the El Tropico. Appellant 

thought Henriquez was "going to play with me" as she walked 

away. He followed her and grabbed her arm, intending to recoup 

his $50. He asked what happened to his money and then grabbed 

her necklace as a form of repayment. 

 The trial court found appellant guilty of robbery, stating 

that even if it accepted appellant's account of what happened, 

the necessary elements for robbery are in place: "a taking by 

force that's independent of the force necessary to take the 

object from the victim's neck." The court noted that, "the 

application of force to stop her, the grabbing of her purse and 

then the struggle that ensued afterwards, whether he harbored 

some secret intent to try to get back money that he mistakenly 

believed she owed him, if you view it from the standpoint of the 

victim, that's force." The judge further stated that there was 

additional force applied to remove the necklace and that this 

situation is distinguishable from the grabbing of a purse where 

the person, "is not even aware of the presence until there's 

force applied to take the object." 
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II. STANDARD OF REVIEW 

 In reviewing the sufficiency of the evidence, "the judgment 

of the trial court sitting without a jury is entitled to the 

same weight as a jury verdict." Saunders v. Commonwealth, 242 

Va. 107, 113, 406 S.E.2d 39, 42, cert. denied, 502 U.S. 944 

(1991). 

 "[T]he trial court's judgment will not be set aside unless 

plainly wrong or without evidence to support it." Hunley v. 

Commonwealth, 30 Va. App. 556, 559, 518 S.E.2d 347, 349 (1999). 

The credibility of a witness and the 

inferences to be drawn from proven facts are 

matters solely for the fact finder's 

determination. See Long v. Commonwealth, 8 

Va. App. 194, 199, 379 S.E.2d 473, 476 

(1989). In its role of judging witness 

credibility, the fact finder is entitled to 

disbelieve the self-serving testimony of the 

accused and to conclude that the accused is 

lying to conceal his guilt. See Speight v. 

Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 

95, 98 (1987) (en banc). 

Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 

233, 235 (1998). 

III. CRIMINAL INTENT 

 Appellant first argues that the Commonwealth failed to 

prove that he had the requisite intent to rob the victim because 

he had a good faith belief that the necklace belonged to him 

under a bona fide claim of right. He contends that because he 

mistook Henriquez for the woman whom he had paid $50 for sex, he 

took the necklace as substitute for the money he felt he was 
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owed. If viewed as a bona fide attempt to enforce payment of a 

debt, the mens rea for robbery is lacking. This argument is 

without merit. 

 Robbery is 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." 

Graves v. Commonwealth, 21 Va. App. 161, 164, 462 S.E.2d 902, 

903 (1995). "With respect to the crimes of robbery and larceny, 

a bona fide claim of right could be a defense because it negates 

the criminal intent necessary to sustain those offenses, that 

is, the intent to steal." Strohecker v. Commonwealth, 23 Va. 

App. 242, 257, 475 S.E.2d 844, 852 (1996). "[A] bona fide claim 

of right is a sincere, although perhaps mistaken, good faith 

belief that one has some legal right to [possess] the property. 

O'Banion v. Commonwealth, 33 Va. App. 47, 56, 531 S.E.2d 599, 

603 (2000). "But if the claim of right is a mere pretext 

covering the intent to steal, the taking by violence is 

robbery." Pierce v. Commonwealth, 205 Va. 528, 533, 138 S.E.2d 

28, 32 (1964). "[A] claim of right is an affirmative defense 

and thus usually a question for the trier-of-fact." Reed v. 

Commonwealth, 6 Va. App. 65, 70, 366 S.E.2d 274, 277 (1988). 

 The trial court found appellant guilty of robbery, 

implicitly rejecting his "claim of right defense." Appellant 

failed to carry his burden of proof on this affirmative defense. 
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 We find the facts of this case analogous to those of Pierce

in which there was a conflict about the bona fide nature of the 

claim of right defense. Defendants Pierce and Hoffler were 

tried together and convicted of robbery for taking the key to a 

truck by force. The defendants argued that they had no intent 

to steal because they took the key under a bona fide claim of 

right because the truck's owner sold the truck to Pierce but 

refused to deliver it or refund the purchase money. However, 

the owner testified that he had neither sold the truck nor had 

Pierce paid him any money. At gunpoint, the defendants forced 

the owner to give up the keys to the truck. 

 The Supreme Court noted "[w]here the evidence is 

conflicting the question of bona fides is for the trier of the 

facts, in this case the court." Pierce, 205 Va. at 534, 138 

S.E.2d at 32. Further, "[t]he opportunity of the trial court to 

see and hear these witnesses was helpful beyond the ordinary in 

ascertaining the truth." Id.

 In the instant case, the trial court was entitled to 

consider the conflicts in appellant's own testimony as well as 

the testimony of the victim. The trial court was free to 

disbelieve the self-serving statements of appellant and conclude 

that he was lying to conceal his guilt. 

 The evidence, viewed in the light most favorable to the 

Commonwealth, refutes the claim of right defense. Although 

appellant offered a theory explaining why he took the necklace, 
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the trial court was not required to accept his account. 

Henriquez's version of the encounter gave no indication that at 

the time appellant took the necklace, he thought Henriquez owed 

him any money or sexual services or was taking the necklace in 

an attempt to enforce a claim of right.1 Further, the fact 

finder was not required to accept appellant's inconsistent 

testimony and could conclude from it that he made up the story 

concerning money for sex and, thus, had no good faith belief 

that he was entitled to the necklace. A claim of right is not a 

defense when it is a pretext covering the intent to steal. See

Pierce, 205 Va. at 533, 138 S.E.2d at 32. Thus, we cannot say 

the trial court erred in rejecting appellant's claim of right 

defense. 

IV. EVIDENCE SUFFICIENT TO PROVE ROBBERY 

 Appellant next contends that the violence used in taking 

the necklace was insufficient to support a conviction for 

robbery and thus he could only be convicted of larceny from the 

person. Appellant separates his contact with the victim into 

two separate encounters: the approach and the taking. 

Appellant argues that his initial grab of the victim's arm was 

distinct from his taking of the necklace and that the only force 

 1

 Because it was not raised by either party, we do not 

address whether enforcing an illegal contract could ever be the 

basis for a claim of right defense. 
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he used against Henriquez was that necessary to take the 

necklace. This argument too is without merit. 

 Larceny is the "taking of personal goods of some intrinsic 

value, belonging to another, without his assent, and with the 

intent to deprive the owner thereof permanently." Graves v. 

Commonwealth, 21 Va. App. 161, 164, 462 S.E.2d 902, 903 (1995). 

 "The touching or violation necessary to prove [robbery] may 

be indirect, but cannot result merely from the force associated 

with the taking." Bivins v. Commonwealth, 19 Va. App. 750, 752, 

454 S.E.2d 741, 742 (1995). The "[v]iolence or force requires a 

physical touching or violation of the victim's person." Id. 

 There is no basis to bifurcate appellant's contact with the 

victim. He grabbed and pushed her and ripped the necklace from 

her neck during the same encounter. The force used left bruises 

on the victim's arm and a red mark on her neck. 

 The trial court specifically found that, "[w]e have a 

taking by force that's independent of the force necessary to 

take the object from the victim's neck." See Jones v. 

Commonwealth, 26 Va. App. 736, 496 S.E.2d 668 (1998) (the 

evidence was sufficient to prove a robbery rather than a larceny 

from the person where the victim was jerked around by her 

shoulder and the defendant grabbed the purse she was clutching). 

Credible evidence supports this finding. 

 For these reasons, we affirm the trial court. 

Affirmed.