FROM THE CIRCUIT COURT OF LOUDOUN COUNTY. Burke F. McCahill, Judge.
David B. Hargett (Hargett Law PLC, on briefs), for appellant.
Benjamin H. Katz, Assistant Attorney General (Mark R. Herring, Attorney General, on briefs), for appellee.
Present: Chief Judge Felton, Judges Frank and Huff. OPINION BY JUDGE ROBERT P. FRANK.
[63 Va.App. 619] ROBERT P. FRANK,
Adedamola Oraide Adeniran, appellant, was convicted of attempted robbery in violation of Code § § 18.2-26 and 18.2-58 and use of a firearm in violation of Code § 18.2-53.1. On appeal, he contends the trial court erred in not instructing the jury on assault, and on assault and battery, which appellant argues are lesser-included offenses of robbery or attempted [63 Va.App. 620] robbery. For the reasons stated, we affirm the judgment of the trial court.
On July 30, 2011, the victim, N.R., a prostitute, occupied a room in a hotel in Loudoun County, Virginia. Chinwe Enoch called the victim to secure an appointment with her. Upon Enoch's arrival to her room, the victim observed that Enoch was speaking with an individual, later identified as appellant, in the atrium hallway of her floor.
Shortly after entering the victim's room, Enoch asked to use her restroom. When Enoch later emerged, he was armed with a pistol.
Enoch aimed the pistol at the victim and proceeded to look around the bedroom portion of the hotel suite, looking behind furniture and under the bed. The victim instantly raised both hands so that Enoch would not shoot her. She was praying, thinking about her children. Enoch then ordered her into the bathroom, directing the victim to stand inside the tub. The victim remained there, behind a closed door, for approximately five minutes until Enoch opened the bathroom door, demanding that the victim tell him where she hid her money.
Finally, Enoch allowed the victim to exit the bathroom to show him where the money was hidden. At that time, the victim noticed the contents of her purse, including prepaid debit cards and receipts, were scattered on top of the bed. She then observed appellant armed with a knife. Both appellant and Enoch demanded to know where the victim's money had gone.
Focusing upon the debit cards, both men directed the victim to call and verify the remaining balances of the cards. The victim handed the cards to appellant, indicating that he should [63 Va.App. 621] call. The victim testified appellant checked the balance of at least two of her debit cards.
Appellant and Enoch then left. At trial, the victim testified prior to leaving, she heard appellant tell Enoch, " Don't shoot her, don't ...