Oscar Dalvin Ross, Jr. v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Fitzpatrick, Judge Bray and
Senior Judge Overton∗
Argued at Norfolk, Virginia
OSCAR DALVIN ROSS, JR.
MEMORANDUM OPINION∗∗ BY
v. 	Record No. 0526-98-1 	JUDGE NELSON T. OVERTON
FEBRUARY 16, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
John K. Moore, Judge
Stephen C. Mahan (Brydges, Mahan, O'Brien &
Frucci, P.C., on brief), for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
∗Judge Overton participated in the hearing and decision of
this case prior to the effective date of his retirement on
January 31, 1999 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401, recodifying Code
§ 17-116.01:1.
∗∗Pursuant to Code § 17.1-413, recodifying Code
§ 17.1-116-010, this opinion is not designated for publication.
Oscar Dalvin Ross, Jr. (defendant) appeals his convictions
for robbery, in violation of Code § 18.2-58, and the use of a
firearm in the commission of a felony, in violation of Code
§ 18.2-53.1. He contends that the evidence was insufficient to
support his convictions. 	We hold that the evidence was
sufficient, and we affirm.
The parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedental
value, no recitation of the facts is necessary.

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When the sufficiency of the evidence is challenged on
appeal, we review the evidence in the light most favorable to the
Commonwealth and grant to it all reasonable inferences fairly
deducible therefrom. 	See Higginbotham v. Commonwealth, 216 Va.
349, 352, 218 S.E.2d 534, 537 (1975). 	We may not disturb the
conviction unless it is plainly wrong or unsupported by the
evidence. 	See Traverso v. Commonwealth, 6 Va. App. 172, 176, 366
S.E.2d 719, 721 (1988).
Defendant first asserts that the evidence was insufficient
to support his conviction for robbery because he thought the
musical equipment that he took belonged to him and, therefore, he
did not intend to commit robbery. 	It is true that if a person
has a reasonable belief that the property he takes belongs to
him, no robbery has been committed, even if it is accompanied by
force. 	"[T]here can be no larceny of the property taken if it,
in fact, is the property of the taker, or if he, in good faith,
believes it is his, for there is lacking the criminal intent
which is an essential element of larceny." 	Butts v.
Commonwealth, 145 Va. 800, 811-12, 133 S.E. 764, 767-68 (1926).
However, the trial court did not accept defendant's "claim of
right" defense. 	Defendant failed to present credible evidence to
explain why he thought the equipment was his, yet the
Commonwealth presented substantial evidence that the stolen
equipment belonged to defendant's former employer. 	Because the
record supports the trial court's decision, we shall not disturb
it.

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Defendant further asserts that the evidence was insufficient
to support his convictions because there was no evidence of a
firearm. 	We disagree. 	Mr. Daniel Rosenbaum, the person from
whom the musical equipment was taken, testified that two men
helped defendant take the equipment. 	Rosenbaum also testified
that one of the men drew a small, silver-colored handgun and
asked defendant to "talk to this kid," indicating Rosenbaum. 	At
that point both offenses were complete. 	The display of a firearm
in a threatening manner completed the offense of robbery, see
Chappelle v. Commonwealth, 28 Va. App. 272, 504 S.E.2d 378
(1998), and the use of a firearm in the commission of a felony.
See Code § 18.2-53.1; Thomas v. Commonwealth, 25 Va. App. 681,
684, 492 S.E.2d 460, 462 (1997). 	Because the trial court chose
to believe Rosenbaum's testimony over defendant's, the record
supports the convictions.
We hold that the convictions are not plainly wrong or
unsupported by the evidence. 	Accordingly, they are affirmed.
Affirmed.