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Fagan v. Commonwealth

Court of Appeals of Virginia

May 20, 2014

TYQUAN DEONTA FAGAN
v.
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE. Frederick H. Creekmore, Judge.

(Stephen P. Givando, on brief), for appellant. Appellant submitting on brief.

Katherine Quinlan Adelfio, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges McCullough, Huff and Senior Judge Haley. OPINION BY JUDGE STEPHEN R. McCULLOUGH.

OPINION

Page 79

[63 Va.App. 396] STEPHEN R. McCULLOUGH, JUDGE.

Tyquan Deonta Fagan challenges his conviction for robbery. He argues that the evidence fails to establish that he took the property of one of the victims by force or threat of violence. We disagree and affirm.

BACKGROUND

During the evening of May 29, 2012, five young men, Emmitt Lamar Downing, Melvin Blackwell, Theodore Winfield, Earl McNair, and Richard Flowers, were traveling in a car in the City of Chesapeake late at night. They noticed a flashing blue light in the rearview mirror and pulled over. Two men emerged from what first appeared to be a police vehicle and walked toward the stopped car. One advanced on the left, appellant on the right. Appellant tapped on the [63 Va.App. 397] window with the handle of a sheathed knife and said " undercover." He told the men to roll down the window and to get out of the car. Both " officers" said " police." Downing recognized appellant because they had attended the same high school. One of the men posing as an officer claimed to be " Officer Warren." James Quarles and Javon Israel also posed as police officers with appellant. Once outside of the car, Downing noticed that the supposed police vehicle was a Hyundai, a vehicle not commonly used by police departments.

Downing " put two and two together, and [he] figured that [they] were about to get robbed." After all of the men in the stopped vehicle exited the car, the " officers" told the men to place their hands on the trunk of the car. The " officers" then frisked the young men, helping themselves to their cell phones and wallets. The pretend police officers also searched the car, asking if the men had any weapons or drugs in the car. As the " officers" walked back to their vehicle, they told the victims not to move and proceeded to drive away.

McNair testified that he did not know the three accomplices were not real officers until they drove away. He said that he was " just nervous, so [he] was assuming anybody was a police officer." McNair felt " nervous and scared" during the incident.

ANALYSIS

Appellant argues that, with respect to Earl McNair, he can be found guilty of larceny by trick, but not robbery. He points out that McNair did not know that the men who took his property were not police officers until after they had left. He concludes that " [b]y submitting to the authority of someone he believed to be a police officer, McNair was the victim of larceny by trick, not robbery."

On appeal, a reviewing court does not " 'ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.'" Jackson v. Virginia,443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original, citation omitted). Instead, we ask only " 'whether, [63 Va.App. 398] after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008) (quoting Jackson, 443 U.S. at 319) (emphasis in original). An appellate court is " not permitted to reweigh the evidence," Nusbaum v. Berlin, 273 Va. 385, 408, 641 S.E.2d 494, 507 (2007), because appellate judges have no authority " to preside de novo over a second trial," Haskins v. Commonwealth, 44 Va.App. 1, 11, 602 S.E.2d 402, 407 (2004). ...


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