                  COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Coleman and Senior Judge Cole
Argued at Richmond, Virginia


AUSTIN WAYNE KEYSER, JR.
                                               OPINION
v.        Record No. 0768-95-3        BY JUDGE JOSEPH E. BAKER
                                            JULY 30, 1996
COMMONWEALTH OF VIRGINIA


        FROM THE CIRCUIT COURT OF THE CITY OF WAYNESBORO
                 Rudolph Bumgardner, III, Judge
          William E. Bobbitt, Jr., Public Defender, for
     appellant.

          John H. McLees, Jr., Assistant Attorney General
          (James S. Gilmore, III, Attorney General, on brief),
          for appellee.



     Austin Wayne Keyser (appellant) appeals his bench trial

conviction by the Circuit Court of the City of Waynesboro (trial

court) for carjacking in violation of Code § 18.2-58.1.    The sole

issue presented by this appeal is whether the evidence is

sufficient to support appellant's conviction for carjacking or

whether the evidence merely proves attempted carjacking.

     The sufficiency of the evidence having been challenged, we

view the evidence in the light most favorable to the

Commonwealth, granting to it all reasonable inferences fairly

deducible therefrom.   Wright v. Commonwealth, 224 Va. 502, 505,

297 S.E.2d 711, 713 (1982).   Guided by that principle, the record

discloses that at approximately 3:20 a.m., on August 15, 1994,

Janice Knick (the victim) was engaged in her job of delivering

newspapers, using her car as transportation.   After arriving at
one of her appointed stops, the victim exited her car to perform

her duties, leaving the door to her car open, its automatic

transmission in park, and the motor running.    After collecting

money from the newspaper box, the victim reentered her car and

reached to pull her door shut when appellant "shoved" the car

door back and stated, "I'm going to drive this car."    The

victim's testimony continued as follows:
          I kept trying to pull the door shut but I
          couldn't get it shut and then all of a sudden
          he just pounced over my upper body. Grabbing
          my arms, trying to push me over into the
          passenger seat and . . . my papers were
          stacked all the way up to the window, there
          was no place for me to go. And he kept
          reaching for the gear shift, I assume that's
          what he was reaching for and I started
          screaming, somebody please help me . . . . He
          kept saying, I'm not going to hurt you[.] . . .
          Then I grabbed my scissors because I was
          thinking he wasn't going to let me out.
          There was no way he could take the car unless
          he got me out of there, it's, it just wasn't
          possible.


     The victim tried to get her car moving but appellant's

actions prevented her from doing so.    To protect herself and her

property, the victim began stabbing appellant with her scissors.

She further testified that appellant told her, "I'm not going to

hurt you, I'm not going to hurt you," and then he said, "you

can't hurt me, you can't hurt me."     She said the struggle

continued and "all of a sudden I could feel blood, it started

spurting from somewhere on my hand.    I had on sandals I could

feel it on my feet."   Appellant then "took off around the front

of the car."   The victim immediately reported the incident to the



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police.

       Apprehended by the police shortly after the incident,

appellant told them that all he had done was ask the victim for

directions when, without provocation, she suddenly attacked him

with a pair of scissors.   When apprehended appellant had

approximately fifteen stab wounds.

       Code § 18.2-58.1 provides, in pertinent part, as follows:
                A. Any person who commits carjacking, as
            herein defined, shall be guilty of a felony
            punishable by imprisonment for life or a term
            not less than fifteen years.
                B. As used in this section, "carjacking"
            means 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 threat or
            presenting of firearms, or other deadly
            weapon or instrumentality whatsoever.


To prove that an accused violated the provisions of that code

section, the Commonwealth had to prove beyond a reasonable doubt
                                                                1
that the carjacker took possession or control of the vehicle.
It is not sufficient to prove that the accused merely attempted

to seize the vehicle or seize control of the vehicle.
   1
     Code § 18.2-58.1 requires an intentional "seizure or seizure
of control" of a motor vehicle. "Seizure" has been defined as
"[t]he act of taking possession of property." Black's Law
Dictionary 1359 (6th ed. 1990). The word "control" has been held
to have "no legal or technical meaning apart from its popular
sense, and is synonymous with 'manage.'" National Safe Deposit
Co. v. Stead, 232 U.S. 58, 62 (1914).




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     "'We have frequently pointed out that an attempt to commit a

crime is composed of two elements:      (1) The 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) (citations omitted).

     Although the evidence may have been sufficient to prove

attempted carjacking, it was insufficient to prove beyond a

reasonable doubt that appellant actually seized or seized control

of the victim's vehicle as required by Code § 18.2-58.1.
     Viewed in the light most favorable to the Commonwealth, the

evidence disclosed that by wrongful acts appellant by physical

force "pounced over [the victim's] upper body" and restrained her

movement by "grabbing [the victim's] arms" while unsuccessfully

attempting to "push [the victim] over into the passenger seat."

 However, appellant never seized the vehicle or seized control

of the vehicle.   The evidence would support a conviction for

attempted carjacking but not actual carjacking.

     Accordingly, we reverse appellant's conviction for violation

of Code § 18.2-58.1, and the case is remanded to the trial court

for such further proceedings as the Commonwealth may be advised.

                                               Reversed and remanded.




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