Download as PDF
COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Lemons and Frank
Argued at Norfolk, Virginia
ELMER K. FLOYD
JUDGE DONALD W. LEMONS
DECEMBER 21, 1999
Record No. 2427-98-1
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
William C. Andrews, III, Judge
Charles E. Haden for appellant.
Jeffrey S. Shapiro, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Elmer K. Floyd was convicted in a bench trial of robbery of
Annette Keats in violation of Code § 18.2-58, abducting Annette
Keats for pecuniary benefit in violation of Code § 18.2-48, and
maliciously causing bodily injury to Annette Keats with a
caustic substance in violation of Code § 18.2-52.
Floyd challenges the sufficiency of the evidence for each of his
Finding no error, we affirm the convictions.
Where the sufficiency of the evidence is an issue on
appeal, an appellate court must view the evidence and all
reasonable inferences fairly deducible therefrom in the light
most favorable to the Commonwealth.
See Cheng v. Commonwealth,
240 Va. 26, 42, 393 S.E.2d 599, 608 (1990) (citations omitted).
Unless the verdict is plainly wrong, or without evidence to
support it, it shall not be disturbed on appeal.
§ 8.01-680; George v. Commonwealth, 242 Va. 264, 278, 411 S.E.2d
12, 20 (1991).
On the morning of February 7, 1997, Annette Keats, manager
of Atlantic Self-Storage, opened the store for business.
Shortly after 9:00 a.m. that morning, two men entered the store.
One man, later identified as Kyle King, approached Keats, who
was sitting at her desk behind the counter, and asked about
renting a storage unit.
King was described as heavy set and
wearing a black skull cap.
The other man, Floyd, was described
as shorter and thinner than King and wore a black bandana tied
around his head.
While King discussed renting a storage unit
with Keats, Floyd paced by the entrance in a hunched posture
while looking out the window and door of the store.
During her conversation with King, Keats came around her
desk and went to the counter to look at the vacant space
While Keats examined the listing, one of the two men
sprayed her with a substance that smelled like pepper.
substance burned and stung Keats' eyes and both sides of her
face, and Keats could no longer see.
head and knocked to the floor.
She was then hit in the
One of the men continued to
spray her in the face while kicking her in the back.
He put his
foot on Keats' face and pushed her head into the floor.
- 2 -
Meanwhile, Keats heard the other man rifling through the
Specifically, Keats heard the money tray being
picked up and put down and change being "ruffled."
One of the
men then bound Keats' hands together with duct tape.
fled the store.
When Keats got up, she found the cash drawer
empty and immediately called the police.
Keats was hospitalized for several hours while her eyes
were washed out with saline solution.
She was also treated for
several contusions and abrasions on her back and a "bump" on her
On February 12, 1997, Keats examined a photo spread and
identified the appellant, Elmer K. Floyd, and another individual
She said that only one of the two men she
identified attacked and robbed her but refused to identify which
one because she was "afraid of being hurt."
On February 21,
1997, Keats examined another photo spread and identified the
photo of Kyle King as one of the perpetrators.
King and Floyd were both indicted for robbery, abduction
and maliciously causing bodily injury with a caustic substance
and were tried jointly in a bench trial.
At trial, Keats
positively identified King and Floyd as the perpetrators of
Floyd's fingerprints were found on the outside of
the money tray that was inside the cash register at Atlantic
Self-Storage on February 7, 1997.
- 3 -
Both defendants denied any involvement in the crimes.
Floyd testified that his fingerprints were present on the money
tray because he had taken $50 from the drawer on January 20,
1997 when he, his brother, a friend and Cheraine Middleton went
to Atlantic Self-Storage to store various items belonging to
According to appellant, his fingerprints were
present because of that prior larceny and not because of the
robbery of February 7.
Keats denied having seen Floyd present
on that occasion and did not know of any shortage in her
register on January 20.
The evidence also showed that, contrary
to the description given by Keats, Floyd is about six or seven
inches taller than King and somewhat thinner.
SUFFICIENCY OF THE EVIDENCE - IDENTIFICATION
Floyd contends the evidence in this case is entirely
circumstantial and, therefore, insufficient to convict him
because the Commonwealth failed to exclude every reasonable
hypothesis of innocence.
See Cameron v. Commonwealth, 211 Va.
108, 110, 175 S.E.2d 275, 276 (1970).
the Commonwealth's evidence.
Direct evidence is evidence that, if believed, resolves a
matter in issue.
Conversely, circumstantial evidence, even if
accepted as true, requires additional reasoning to accept the
proposition to which the evidence is directed.
Evidence § 185 at 339 (4th ed. 1992).
When a conviction is
based entirely on circumstantial evidence,
- 4 -
See McCormick On
all necessary circumstances proved must be
consistent with guilt and inconsistent with
innocence and must exclude every reasonable
hypothesis of innocence. . . . The
circumstances of motive, time, place, means,
and conduct must all concur to form an
unbroken chain which links the defendant to
the crime beyond a reasonable doubt.
Bishop v. Commonwealth, 227 Va. 164, 169, 313 S.E.2d 390, 393
Floyd argues that "[t]he Commonwealth's entire case was
built on the circumstantial evidence, namely, that [his]
fingerprint had been found on the cash tray."
direct evidence offered by the Commonwealth.
Floyd ignores the
testified that she was alone in the store and two men came in
immediately after she opened for business.
She identified Floyd
as one of the perpetrators in a pretrial photo spread and in her
testimony at trial.
Because the victim was temporarily blinded, she did not see
who taped her wrists together, and she did not see anyone take
money from the cash drawer.
She did, however, hear the cash
drawer being lifted up and down.
She heard the "ruffle" of
Floyd's fingerprints were found on the cash tray.
money was missing after the men left.
Floyd does not maintain that the money was not taken or
that the victim was not sprayed or that the victim's wrists were
not bound by duct tape.
Furthermore, he does not contend that a
third perpetrator was involved.
He maintains that he did not
- 5 -
commit the offenses.
With only two persons present, one of them
identified as Floyd, the evidence supports his conviction of
robbery, abduction and malicious wounding as either a principal
in the first or second degree.
The in-court identification of
Floyd as one of the two perpetrators is sufficient direct
evidence to establish his identity.
Upon a review of the
record, we cannot say the trial judge was plainly wrong or
without evidence to support the finding that Floyd was one of
the perpetrators of these crimes.
SUFFICIENCY OF THE EVIDENCE - "CAUSTIC SUBSTANCE"
Code § 18.2-52 provides, in pertinent part, as follows:
"[i]f any person maliciously causes any other person bodily
injury by means of any acid, lye or other caustic substance or
agent or use of any explosive or fire, he shall be guilty of a
felony . . . ."
At trial, Floyd did not contend that "bodily
injury" did not occur; rather, he argued that the Commonwealth
failed to prove that a "caustic substance" was utilized.
term "caustic" is not defined by the legislature.
the words and phrases used in a statute should be given their
ordinary and usually accepted meaning unless a different
intention is fairly manifest."
Woolfolk v. Commonwealth, 18 Va.
App. 840, 847, 447 S.E.2d 530, 533 (1994) (citation omitted). 1
"[T]he word caustic is of Latin and Greek derivation, the
original words meaning 'to burn.'" People v. Hicks, 462 N.E.2d
473, 475 (Ill. 1984) (holding that boiling water is a "caustic
- 6 -
Among several definitions of "caustic" are "very irritant" and
Blakiston's Gould Medical Dictionary 238 (4th ed.
We accept these definitions as the "common and ordinary
meanings" of the word "caustic."
The court found that Keats was sprayed with a substance
that "smelled like pepper."
The substance immediately disabled
her, caused her skin and eyes to burn, temporarily blinded her
and required medical personnel to spend several hours rinsing
her eyes with saline solution to provide relief.
was not recovered, tested or introduced into evidence.
Nonetheless, the nature of a substance can be proved by proof of
the circumstances and effects of its use.
See Hill v.
Commonwealth, 8 Va. App. 60, 379 S.E.2d 134 (1989).
the description given by Keats as to how the spray affected her
and the circumstances of its use, the trial court was not
plainly wrong or without evidence to support its determination
that the spray was a "caustic substance" as contemplated by Code
§ 18.2-52. 2
substance" within the meaning of Illinois' heinous battery
Whether the use of pepper spray under these circumstances
is a violation of Code § 18.2-312 is not before us. However,
"'[w]here the circumstances surrounding an offense permit
prosecution under either of two statutes, the selection of the
statute under which to proceed is a matter of prosecutorial
election.'" Brown v. Commonwealth, 30 Va. App. 243, 250, 516
S.E.2d 678, 682 (1999) (quoting Smith v. Commonwealth, 17 Va.
App. 37, 41, 434 S.E.2d 914, 916 (1993)).
- 7 -
SUFFICIENCY OF THE EVIDENCE - ABDUCTION
Additionally, Floyd claims on appeal that the evidence does
not support a finding that an abduction took place.
was not raised at trial, and Floyd is barred from raising it for
the first time on appeal.
See Rule 5A:18.
Finding no error, we affirm the convictions.
- 8 -