Hopson v. Commonwealth

On April 27, 1991, while on patrol in a high crime area, Officers Browing and Jardin spotted two men, Hopson and Anthony Jordan, crouched by the side of a Chevron Mart. The officers called for backup and positioned themselves to see the activities around the store. From his position, Officer Browning noticed the two men talking and looking around the corner of the building. He saw Hopson wearing a white stocking cap that was pulled down to a point just above his eyebrows. Officer Scott, who responded to the call, arrived and saw Hopson with a mask covering his face. Officer Scott further observed that, when he was arresed, Hopson still wore the mask, but not over his face. Officer Anderson, who arrived with Officer Scott, saw Jordan peeping around the corner of the store while holding a revolver. Anderson also saw the stocking cap on Hopson=s head.

An ambulance drove by sounding its siren. Hopson looked up, saw Officer Anderson and uttered an expletive. The two men then attempted to flee on bicycles. They failed to stop at the officers= command and were detained forcibly. Officer Browning grabbed the handlebars of Hoposon=s bicycle. Other officers knocked Jordan off his bicycle onto the ground. The officers found the previously seen handgun next to Jordan. The store manager testified that Jordan had come into the store several times, and on one occasion had purchased a bottle of wine.

Upon questioning by the police, both men stated that they were behind the store drinking wine that Jordan bought from the store. They stated that Jordan had also gone inside to price beer, but finding it too expensive, they had decided to leave the area. Jordan explained that he had borrowed the coat he was wearing from his cousin and that he knew the revolver was in the coat. Hopson denied seeing or knowing about the presence of the revolver.

At trial, Jordan=s cousin testified that Jordan came to her house earlier and left with her coat, in wihch she had left her revolver. Jordan testified that he borrowed the jacket from his cousin when he left her house. He explained that he drank a bottle of wine with Hopson behind the store, and had tried to buy beer in the store, but found it too expensive. He testified that he was unaware that the revolver was in his pocket, and that he told the officers that the revolver must belong to his cousin only because it was her jacket.

Hopson testified that he saw Jordan borrow the jacket but never saw the revolver. He stated that he and Jordan were drinking wine behind the store and that they only peeked around the corner to avoid being arrested for drinking in public. He claimed the he wore a Awave@ cap, but never pulled it over his face. Both men maintained that they were unaware that the police were in the area until they were stopped while attempting to leave.

Hopson first contends that the evidence presented at trial was insufficient to prove attempted robbery. He argues that the Commonwealth failed to prove the requisite intent or overt act.

(A)n attempt is composed of two elements: the intention to commit the crime, and the doing of some direct act towards its commission than is more than mere preparation but falls short of execution of the ultimate purpose. Sizemore v. Commonwealth, 218 Va. 980, 983, 243 S.E. 2d 212. 213 (1978).

(T)he question of what constitutes an attempt is often intricate and difficult to determine, and ... no general rule can be laid down which will serve as a test in all cases. Each case must be determined on its own facts. Id. At 985, 243 S.E. 2d 215.

Viewed in the light most favorable to the Commonwealth, the evidence esablished that Hopson and Jordan were outside the store behaving suspiciously and repeatedly peeking around the corner of the building. Jordan waived a pistol and Hopson, at one point, had a mask covering his face. On several occasions, apparently to reconnoiter it, Jordan entered the store. When Hopson saw Officer Anderson, he uttered an obscenity, and both men quickly tried to leave the premises. They failed to stop at the officers= command and were detained forcibly. This circumstantial evidence was sufficient to prove their intent to rob the store. See Bell v. Commonwealth, 11 Va. App. 530, 533, 399 S.E. 2d 450, 452 (1991). However, this is but one element of attempted robbery.

To prove an attempt, the Commonwealth must demonstrate an overt, ineffectual act which Amust go beyond mere preparation and be done to produce the inteded result.@ Tharrington v. Commonwealth, 2 Va. App. 491, 494, 346 S.E. 2d 337, 339 (1986) (citation omitted). Hopson and Jordan committed no act directed toward the consummation of a robbery. Rather, the evidence discloses nothing more than preparation to commit the crime. They remained behind the store and made no move toward the door. They peeked around the corner several times, an action consistent only with scouting the store. Neither man made any move toward realizing the ultimate purpose of robbery.