                               COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judges Frank and Beales
Argued at Chesapeake, Virginia


MARQUES LATAI WALKER
                                                              MEMORANDUM OPINION* BY
v.     Record No. 0775-06-1                                    JUDGE ROBERT P. FRANK
                                                                    MAY 22, 2007
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                               A. Bonwill Shockley, Judge

                 Annette Miller, Senior Assistant Public Defender (Office of the
                 Public Defender, on brief), for appellant.

                 Gregory W. Franklin, Assistant Attorney General (Robert F.
                 McDonnell, Attorney General, on brief), for appellee.


       Marques Latai Walker, appellant, was convicted, in a bench trial, of attempted carjacking, in

violation of Code § 18.2-58.1, and use of a firearm in the commission of a felony, in violation of

Code § 18.2-53.1. On appeal, appellant challenges the sufficiency of the evidence. For the reasons

stated, we affirm the convictions.

                                          BACKGROUND

       On July 21, 2005, at 1:30 a.m., D.C. was a passenger in a vehicle driven by a man she only

knew as Jason, whom she met the day before. As Jason drove into the parking lot of a motel, she

noticed two men approaching the vehicle. Jason opened the driver’s door to observe the curb as he

was backing into a parking space. One of the men said, “Get out of the car.” That man pointed a

gun at Jason and tried to further open the partially opened driver’s door. Appellant, who was not



       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
holding a gun, “tried to grab the back door.” The gunman again ordered Jason out of the car, but

Jason replied, “I’m not getting out. You’re not getting my car.”

       Jason sped off with his door still open and found a police officer nearby. Appellant was still

in eyesight when the car stopped. D.C. testified she never lost sight of appellant and that the area

where the incident occurred was well-lit. Jason pointed out appellant to the officer.

       As the officer approached appellant and his companion, the two men fled. The officer

apprehended appellant. As appellant sat in the police cruiser, D.C. identified appellant as the man

who attempted to open the rear door.

       After being given his Miranda warnings, appellant admitted being in the same motel parking

lot, and admitted seeing a man with a gun. Appellant denied involvement in the incident. When

asked to identify the man with the gun, appellant responded, “[u]nless you can do something for me,

I can’t help you.” The interview concluded.

       This appeal follows.

                                             ANALYSIS

       Appellant challenges the sufficiency of the evidence on four grounds: (1) the amended

indictment lacked specificity; (2) there was no evidence the driver had a possessory interest in the

vehicle; (3) there was no evidence appellant or his companion wanted possession of the vehicle; and

(4) the evidence was insufficient to prove the elements of the offenses.

                                       Specificity of Indictment

       Appellant first raised an objection to the indictment at the sentencing hearing, over four

months after the guilty verdict was rendered. We hold that the objection was not timely made.

       Rule 3A:9(b)(1) requires non-jurisdictional defects in an indictment to be raised prior to

entry of a plea. Since appellant’s objection to the indictment was made after he entered his plea of

not guilty, he has waived any objection to the indictment. “The plain language of the Rule states

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that the requirements of Rule 3A:9(b)(1) are mandatory, and ‘[f]ailure to raise such [defenses]

properly is a waiver,’ unless ‘good cause’ is shown.” Harris v. Commonwealth, 39 Va. App. 670,

675, 576 S.E.2d 228, 230 (2003) (en banc) (quoting Freeman v. Commonwealth, 14 Va. App. 126,

127, 414 S.E.2d 871, 872 (1992)).

        While Rule 3A:9(d) allows, “[f]or good cause shown the court may grant relief from any

waiver provided for in this Rule,” appellant made no such request for relief before the trial court.

                                          Possessory Interest

        Appellant argues there was no evidence that Jason had a possessory interest in the vehicle

that was the subject of the offense.1

        When the sufficiency of the evidence is challenged on appeal, we review the evidence in the

“light most favorable” to the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578

S.E.2d 781, 786 (2003). That principle requires us to “‘discard the evidence of the accused in

conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the

Commonwealth and all fair inferences that may be drawn therefrom.’” Kelly v. Commonwealth, 41

Va. App. 250, 254, 584 S.E.2d 444, 446 (2003) (en banc) (quoting Watkins v. Commonwealth, 26

Va. App. 335, 348, 494 S.E.2d 859, 866 (1998)).

        “Carjacking” is defined as:

                the intentional seizure or seizure of control of a motor vehicle of
                another with intent to permanently or temporarily deprive another
                in possession or control of the vehicle of that possession or control
                by means of partial strangulation, or suffocation, or by striking or
                beating, or by other violence to the person, or by assault or
                otherwise putting a person in fear of serious bodily harm, or by the


        1
          In his brief, appellant also argues that there was no evidence that Jason had a possessory
interest in the vehicle that was “superior” to that of appellant or his companion. As appellant did
not include this argument in his questions presented, we will not address it on appeal. Rule
5A:20; Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31, 39 n.4, 542 S.E.2d 785,
789 n.4 (2001) (finding that “an issue [was] not expressly stated among the ‘questions
presented,’ . . . we, therefore, decline to consider [it] on appeal” (emphasis added)).
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                 threat or presenting of firearms, or other deadly weapon or
                 instrumentality whatsoever.

Code § 18.2-58.1(B) (emphasis added). “Thus, as to the attempted carjacking charge, the

Commonwealth was required to prove that [appellant] intentionally acted to deprive someone in

possession or control of [another’s] vehicle of his [] possession or control by means specified in

Code § 18.2-58.1(B).” Brown v. Commonwealth, 37 Va. App. 507, 520, 559 S.E.2d 415, 422

(2002).

          The statute plainly proscribes the taking of a vehicle from one in possession or control of

the vehicle. The statute does not require any ownership or possessory interest on the part of the

victim; the evidence need only prove that Jason was actually or constructively in possession or

control of the vehicle at the time of the offense. See id. at 520-21, 559 S.E.2d at 422 (holding

that passenger sitting alone in running vehicle, while driver of vehicle was inside of a store, had

possession and control over the vehicle as she had the “power to exercise control” over the

vehicle).

          Clearly, Jason possessed and controlled the subject vehicle. While Jason did not testify,

his testimony was not critical to proving the offense. D.C. testified that Jason drove the car to

the motel and maintained exclusive control and possession of that vehicle throughout the

incident. At trial, appellant contended only that there was no evidence as to ownership of the

vehicle; he did not contest that Jason was in actual possession and control of the vehicle at the

time of the offense. As such, the evidence was sufficient to prove this element of the offense.

                                           Intent to Carjack

          Next, appellant maintains the evidence fails to prove he and his companion intended to

take the vehicle. He contends the evidence is equally susceptible to show the only intent was to

rob, abduct or assault the driver.



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       Code § 18.2-58.1 proscribes “the intentional seizure or seizure of control of a motor

vehicle of another . . . .” Thus, one can be guilty of carjacking for either seizing the vehicle or

seizing control of the vehicle.

               “Intent in fact is the purpose formed in a person’s mind, which
               may be shown by the circumstances surrounding the offense,
               including the person’s conduct and his statements.” Nobles v.
               Commonwealth, 218 Va. 548, 551, 238 S.E.2d 808, 810 (1977).
               “Intent may, and often must, be proven by circumstantial evidence
               and the reasonable inferences to be drawn from proven facts are
               within the province of the trier of fact.” Fleming v.
               Commonwealth, 13 Va. App. 349, 353, 412 S.E.2d 180, 183
               (1991).

Abraham v. Commonwealth, 32 Va. App. 22, 27, 526 S.E.2d 277, 279 (2000). From the

evidence, the fact finder could properly infer appellant attempted to seize the vehicle.

       Here, appellant and his companion attempted to enter the vehicle. Appellant’s attempt to

enter the vehicle from the rear door is inconsistent with an attempt to accost the driver. If such

was the intent, appellant would have remained outside the vehicle to assist the gunman in the

assault. If Jason had complied with the gunman’s demands to exit the vehicle, he would have

surrendered control of the vehicle. The trial court could properly infer that appellant and the

gunman attempted to seize control and possession of the vehicle.

                                      Elements of the Offense

       This part of the sufficiency argument is subsumed in the issues addressed above.

               “We have frequently pointed out that an attempt to commit a crime
               is composed of two elements: (1) [t]he intent to commit it; and
               (2) the direct, ineffectual act done toward its commission which
               must reach far enough toward the accomplishment of the desired
               result to amount to the commencement of the consummation.”

Howard v. Commonwealth, 207 Va. 222, 227, 148 S.E.2d 800, 804 (1966) (quoting Slusher v.

Commonwealth, 196 Va. 440, 443-44, 83 S.E.2d 719, 721 (1954)).




                                                -5-
         In order to convict appellant of carjacking, the evidence must prove appellant

intentionally acted to deprive someone in possession or control of the vehicle of his or her

possession or control by the means set forth in Code § 18.2-58.1(B).

         Here, appellant, in concert with the gunman, intentionally attempted to seize control of

the vehicle by trying to enter the vehicle while the gunman pointed a firearm at the driver. The

evidence is sufficient to convict of both offenses. We therefore affirm the judgment of the trial

court.

                                                                                          Affirmed.




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