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Present: Hassell, C.J., Koontz, Kinser, Lemons, Goodwyn, and Millette, JJ., and Russell, S.J. WASEEM ALI v. Record No. 092461 OPINION BY SENIOR JUSTICE CHARLES S. RUSSELL November 4, 2010

COMMONWEALTH OF VIRGINIA FROM THE COURT OF APPEALS OF VIRGINIA This is an appeal from convictions of robbery and grand larceny from the person. It presents three questions: (1)

whether the evidence was sufficient to support the conviction of robbery, (2) whether the defendant could properly be convicted of both crimes when the evidence showed the commission of a single act, and (3) whether the "ends of justice" exception to Rule 5A:18 should have been invoked to permit the defendant to raise question (2) for the first time on appeal. Facts and Proceedings Applying familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, the prevailing party at trial. On May 20, 2007,

at about 11:30 p.m., a man later identified as Waseem Ali entered a convenience store located on Route 1 in Stafford County. When Ali entered, the only others present were the

store manager, Pauline J. Kessler (Pauline), who was working in the back office, Pauline's 23-year-old daughter, Tara

Kessler (Tara), who was in the retail part of the store behind the counter, near the cash register, and Timothy Gabel and his wife, employees who were behind the cooler, stocking it with cold drinks. Ali approached Tara and asked for a cigar that was displayed behind the counter. Tara retrieved the cigar, gave As

it to Ali, and accepted a dollar bill from him in payment. she opened the cash register to deposit the dollar, Ali

reached across the counter into the cash register drawer and attempted to grab a handful of currency. Tara tried to

prevent him from taking the money by holding on to it as best she could. She testified that she was "scared" and "didn't I had never been robbed

know what was going to happen. before." it.

She held on to the money and the two struggled for Pauline looked at the

Tara "screamed" for her mother.

monitor that was connected to the store's surveillance camera and saw Ali "[p]hysically attacking [Tara]." into the store. Pauline ran out

Ali, seeing her coming, finally "yanked" the

money away from Tara and ran out of the store with it. Photographs recorded by the surveillance camera, showing Ali reaching toward the cash drawer and Tara and Ali struggling over the money, were admitted in evidence. Pauline, with Timothy Gabel, who had heard the commotion, pursued Ali into the parking lot, where he escaped in a white

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station wagon.

An emergency services ("911") dispatcher later

informed Pauline that Ali had wrecked the station wagon within minutes after leaving the scene and had been apprehended. At a jury trial in the Circuit Court of Stafford County, Ali was convicted of robbery, grand larceny from the person, reckless driving, and driving while license revoked, third or subsequent offense. In accordance with the jury's verdict, he

was sentenced to 12 years for robbery, five years for grand larceny from the person, and 18 months for the two driving offenses. Ali appealed the convictions to the Court of

Appeals, which affirmed the circuit court's judgment by memorandum opinion. (Nov. 10, 2009). Ali v. Commonwealth, Record No. 1650-08-4 We

Ali petitioned this Court for an appeal.

awarded him an appeal limited to his convictions for robbery and grand larceny from the person. Analysis Robbery is a common law crime in Virginia. It is defined

as "the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation." Durham v. Commonwealth, The element of

214 Va. 166, 168, 198 S.E.2d 603, 605 (1973). violence need only be slight. resistance is sufficient."

"[A]nything which calls out

Maxwell v. Commonwealth, 165 Va.

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860, 864, 183 S.E. 452, 454 (1936) (quoting Houston v. Commonwealth, 87 Va. 257, 264, 12 S.E. 385, 387 (1890)). We recently considered the circumstance in which the victim engaged in a struggle with a would-be thief to prevent a taking or asportation of property. We explained that

[w]here the owner of personal property, or another having custody or constructive possession of the same, interposes himself to prevent a thief from taking the property, and the force and violence used to overcome the opposition to the taking is concurrent or concomitant with the taking, the thief's action constitutes robbery. Commonwealth v. Jones, 267 Va. 284, 289, 591 S.E.2d 68, 71 (2004). In the present case, there was sufficient evidence to support the jury's conclusion that the taking of money was accomplished by intimidation as well as by violence. Accordingly, we hold that the evidence was sufficient to support the conviction of robbery. Ali contends that he cannot lawfully be found guilty of both robbery and grand larceny from the person because both are based upon the same conduct. Ali concedes that robbery

and grand larceny from the person are distinct offenses for the purposes of analysis under the Blockburger test. That

test, expressed in Blockburger v. United States, 284 U.S. 299 (1932), provides that when a single act violates two separate

criminal statutory provisions, convictions for both crimes

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will not offend the constitutional guarantees against double jeopardy if each crime requires proof of an element that the other does not. Id. at 304.

We held in Commonwealth v. Hudgins, 269 Va. 602, 611 S.E.2d 362 (2005), that the crimes of robbery and grand larceny from the person were separate and distinct under the Blockburger analysis because an essential element of robbery

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