Present: Hassell, C.J., Keenan, Koontz, Lemons, Kinser, and
Goodwyn, JJ., and Carrico, S.J.
COMMONWEALTH OF VIRGINIA
OPINION BY
v. Record No. 081720 SENIOR JUSTICE HARRY L. CARRICO
September 18, 2009
JASON WILLIAM ANDERSON
FROM THE COURT OF APPEALS OF VIRGINIA
PROCEDURAL BACKGROUND
In a bench trial held in the Circuit Court of the City of
Virginia Beach, the defendant, Jason William Anderson, was
convicted under indictments charging him with conspiracy to
commit robbery (Code § 18.2-22), robbery with the use of a gun
or simulated gun (Code § 18.2-58), and use of a firearm in the
commission of a felony (Code § 18.2-53.1). The circuit court
sentenced the defendant to incarceration in the Virginia
Department of Corrections for terms of five years for
conspiracy, seven years for robbery, and three years for use of
a firearm in the commission of a felony, with all but three
years suspended.
In a published opinion, the Court of Appeals of Virginia
affirmed the defendant’s conviction for conspiracy to commit
robbery but reversed his convictions for robbery and use of a
firearm in the commission of robbery. The Court of Appeals
remanded the case to the circuit court for imposition of a new
sentence on the conspiracy conviction. Anderson v.
Commonwealth, 52 Va. App. 501, 509-10, 664 S.E.2d 514, 518-19
(2008). The Commonwealth appeals from the Court of Appeals’
reversal of the defendant’s convictions for robbery and the use
of a firearm in the commission of robbery.
FACTUAL BACKGROUND
The Commonwealth’s evidence shows that the defendant and a
friend, Corey Edwards, were both cashiers at a Dick’s Sporting
Goods store in the City of Virginia Beach. On several occasions
prior to the events in question, they discussed staging a
robbery at the store. On one morning in early November 2006,
the plan was for the defendant “to come in and rob [Edwards
while he] was working downstairs.” The defendant “walked in the
store like normal people” and looked around, but “then walked
out” without taking any money from Edwards. The defendant later
explained to Edwards that he left because he “didn’t see [him]
downstairs.”
On the morning of November 18, 2006, the defendant was on
duty at a second floor cash register and telephoned Edwards at
his home and told him that “it was time,” that there was “enough
money,” and that Edwards “should come [and] get it.” Edwards
said he was sleeping and the defendant should call back later.
Approximately an hour and a half later, the defendant
called Edwards again and said that he had been instructed to go
to the cash register “downstairs to relieve somebody’s lunch
2
break,” that they “had an hour” to stage the robbery, and that
the defendant “would take his register and everything . . . he
had – his receipts, his checks, everything – down to that
register.” The defendant said it “would be easy . . . just show
them the gun, and . . . threaten somebody.” Edwards replied
that he did not want to use a “real gun” and “wasn’t going to do
it” but that he would “get somebody to do it and we’d be up
there.”
Edwards enlisted the assistance of Noel McBride, a
juvenile, who was a friend of both Edwards and the defendant.
McBride had been present when Edwards and the defendant
discussed “the topic of the robbery . . . a week or two” before
it was actually staged. Edwards had McBride secure from a
neighbor “an airsoft gun” that holds “CO2 and shoots plastic
pellets.”
Edwards drove McBride to Dick’s and parked on “the
next street over away from [the store].” McBride “hopped
out [of] the car and proceeded to go in [the store].”
At that point in time, Edward Lee Rinehart, Jr., an
employee of Dick’s and “the department lead” in the store’s
first-floor golf department, was standing some thirty-five to
forty feet from the store entrance discussing a matter with a
fellow employee. Rinehart saw McBride enter the store wearing a
3
hooded sweatshirt with a bandanna over his face. McBride made
“eye contact” with Rinehart but then turned his back to him and
walked sideways to the cash register manned by the defendant.
Rinehart started to walk toward the cash register because
he thought “something didn’t look right” and he had “a feeling
we’re about to get robbed.” However, when he was about fifteen
feet away from the cash register, he saw McBride withdraw a
weapon from his waistband. The weapon gave Rinehart “some
concern,” and he “stopped right where [he] was.” He thought the
weapon was a “semi-automatic pistol . . . probably a nine
millimeter or a forty-five.” Rinehart then “dialed the phone to
911.”
When McBride approached the defendant, he said, “[y]ou know
what this is,” withdrew the weapon from his waistband, and
pointed it at the defendant. The latter “emptied the register
and put the money in a bag” which he handed to McBride, who then
ran out of the building without ever having looked back at
Rinehart. Rinehart followed “at a safe distance without leaving
the store,” meanwhile reporting McBride’s actions while “on the
phone with 911.”
It just so happened that Jason Kolar, a sergeant on the
Virginia Beach police force, was sitting in his cruiser outside
Dick’s when he saw a man running from the store “at a high rate
of speed” with his face “partially covered, and . . . carrying
4
something in his hand.” Kolar followed the man and saw him
“jump into a gold Dodge Stratus.” Kolar followed the vehicle
and called into dispatch and received a “no” response when he
asked whether there had been any kind of robbery at Dick’s, but
shortly was notified that a robbery “had, in fact, . . . [j]ust
occurred” at Dick’s. Kolar continued to follow the vehicle
until it pulled into a driveway and stopped.
Kolar radioed for assistance and Sergeant Richard Wallace
of the Virginia Beach police force soon arrived. When the
officers went up to the stopped vehicle, there were two people
in it, Edwards, the driver, and McBride, a passenger. The
officers observed “a large quantity of money in the driver’s
door panel,” totaling approximately $1,195.00, as well as “two
grayish-colored bandannas that were used in the robbery” and “a
pullover sweatshirt type.” The officers also found “what turned
out to be an air pistol” that looked “[l]ike a semi-automatic
handgun.”
Testifying in his own defense, the defendant maintained
that that he had never discussed the subject of robbery with
either Edwards or McBride. He said he was shocked “when all
this happened.” However, at the end of the trial, the court
stated that it “just [did] not place a lot of credibility in the
defendant’s testimony.”
5
ANALYSIS
The Commonwealth’s sole assignment of error is that “[t]he
Court of Appeals erred in finding that the Commonwealth had not
proven intimidation of the robbery victim.” Since this
assignment challenges the sufficiency of the evidence, we will
view the evidence in the light most favorable to the
Commonwealth, the prevailing party in the circuit court,
according it the benefit of all reasonable inferences fairly
deducible therefrom. Dowden v. Commonwealth, 260 Va. 459, 461,
536 S.E.2d 437, 438 (2000). We will disturb the judgment of the
circuit court only upon a showing that it is plainly wrong or
without evidence to support it. Viney v. Commonwealth, 269 Va.
296, 299, 609 S.E.2d 26, 28 (2005).
Robbery at common law 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.” The phrase “of the
personal property of another, from his person or in
his presence,” has been broadly construed to include
the taking of property from the custody of, or in the
constructive possession of, another.
Durham v. Commonwealth, 214 Va. 166, 168, 198 S.E.2d 603, 605-06
(1973) (citations omitted).
[When] 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.
6
Jones v. Commonwealth, 267 Va. 284, 289, 591 S.E.2d 68, 71
(2004).
Intimidation is defined as follows:
Unlawful coercion; extortion; duress; putting in
fear.
To take, or attempt to take, by intimidation
means willfully to take, or attempt to take, by
putting in fear of bodily harm . . . . Intimidation
. . . means putting a victim in fear of bodily harm by
exercising such domination and control of her as to
overcome her mind and overbear her will.
Sutton v. Commonwealth, 228 Va. 654, 663, 324 S.E.2d 665, 670
(1985) (internal quotation marks omitted); see also Bivens v.
Commonwealth, 19 Va. App. 750, 752-53, 454 S.E.2d 741, 742
(1995). And, as the Commonwealth acknowledges on brief, “[t]o
sustain a robbery conviction, force or intimidation must be
directed at the person of the victim.” Spencer v. Commonwealth,
42 Va. App. 443, 449, 592 S.E.2d 400, 403 (2004).
The Commonwealth contends that Rinehart, Dick’s “department
lead” in its golf department, “was the real victim of the
robbery [in this case] and was intimidated by the display of a
firearm.” The Commonwealth maintains that Rinehart “had
constructive possession of the property” which was stolen, that
“in relation to [the defendant], [he] had equal or superior
authority over the cash in the defendant’s register,” and that
he was under a duty to his employer to protect its property from
being stolen.
7
The Commonwealth asserts that two factual findings made by
the circuit court support the proposition that Rinehart was
attempting to discharge his duty to his employer when he was
stopped by the display of the firearm. The first of these
findings was that “Rinehart was on his way over there to help
stop this thing” and the second was that Rinehart “interpose[d]
himself to prevent a theft of the property.”
“[W]e will not disturb the factual findings of the trial
court unless plainly wrong or unsupported by the evidence.”
Commonwealth v. Jackson, 276 Va. 184, 192, 661 S.E.2d 810, 813-
14 (2008) (citation and internal quotation marks omitted).
According to the Commonwealth, its evidence showed that Rinehart
“was planning to approach more closely to attempt to forestall
the robbery,” but stopped when “McBride, having seen Rinehart,
displayed the weapon to him when he withdrew it from his pocket
and pointed it at [the defendant].” Thus, the Commonwealth
says, the “money was taken from [Rinehart’s] possession through
intimidation directed at him.”
The Commonwealth further avows that Rinehart was “put in
fear,” that he “surrendered the property because he was afraid
that otherwise he would be shot,” and that “[h]is fear . . .
overcame [his] mind and overbore his will.” Finally, the
Commonwealth claims that Rinehart “testified that he was
8
intending to intervene in what appeared to be a robbery but
stopped when he saw the gun.”
We disagree with the Commonwealth. In the first place, we
take issue with the Commonwealth’s assertion that “[t]he money
was taken from [Rinehart] through intimidation directed at him.”
Here, the Commonwealth misstates the record when it says that
“McBride, having seen Rinehart, displayed the weapon to him when
he withdrew it from his pocket and pointed it at [the
defendant].” (Emphasis added.) Nothing in the record supports
the statement that McBride displayed the weapon to Rinehart.
The latter may have seen the weapon when it was displayed to the
defendant, but it is not correct to say that it was displayed to
Rinehart.
With respect to what McBride did in relation to Rinehart,
all the Commonwealth has to rely upon is the “eye contact”
McBride had with Rinehart and Rinehart’s view of the weapon when
McBride reached the cash register and displayed it to the
defendant. But McBride kept his back turned to Rinehart the
whole time after the “eye contact” and never again even looked
in his direction or otherwise paid him any attention before
leaving the store.
Furthermore, we take issue with what the Commonwealth says
about Rinehart’s reaction to the situation. Rinehart never
testified “that he was intending to intervene in what appeared
9
to be a robbery.” The words “intending” and “intervene” or
anything close to them do not appear anywhere in his testimony.
Nor did he ever say that he “was planning to approach more
closely to attempt to forestall the robbery” or that he “was on
his way to help stop this thing.” The record does not show what
his intent or plan, if any, may have been, nor does it permit a
reasonable inference to be drawn as to what he intended or
planned to do, even when the evidence is viewed in the light
most favorable to the Commonwealth. And he did not “interpose[]
himself” to stop the theft. To interpose means to “put
(oneself) between.” Webster’s Third New International
Dictionary 1182 (1993). Rinehart stopped fifteen feet short of
putting himself between McBride and the defendant.
But perhaps the Commonwealth’s most inaccurate
characterization of Rinehart’s reaction to what was taking place
is found in the Commonwealth’s assertion that he was “put in
fear” by the display of the weapon. Rinehart did not say he was
put in fear at the sight of the weapon. All he said was that he
stopped “[b]ecause there was a weapon involved” and “that [gave
him] some concern,” a mild reaction, indeed, from someone the
Commonwealth would have us believe had been traumatized by his
experience. Having “some concern” is certainly not tantamount
10
to being “put in fear.” ∗ It is also inaccurate for the
Commonwealth to say that Rinehart’s “fear . . . overcame his
mind and overbore [his] will.” Rinehart did not even suggest
that he suffered such disabilities.
In the end, about all the Commonwealth is left with is
McBride’s “eye contact” with Rinehart and the latter’s testimony
that he stopped “[b]ecause there was a weapon involved” and
“that [gave him] some concern.” Thus, the evidence is
insufficient to support the circuit court’s factual findings, to
establish that Rinehart was intimidated, or to support the
circuit court’s judgment convicting the defendant of robbery and
use of a firearm in the commission of robbery. Accordingly, we
will affirm the judgment of the Court of Appeals.
Affirmed.
JUSTICE LEMONS, with whom JUSTICE KINSER joins, dissenting.
In my opinion, the only legal principles controlling this
appeal are the following:
We have stated that “[o]n appeal, great deference
is given to the factfinder who, having seen and
heard the witnesses, assesses their credibility
and weighs their testimony. Thus, a [circuit]
court's judgment will not be disturbed on appeal
unless it is plainly wrong or without evidence to
support it.” Young v. Commonwealth, 275 Va. 587,
∗
The dissent quotes the following from the circuit court’s
summary of its basis for finding the defendant guilty of
robbery: “Was Mr. Rinehart put in fear? He said yes.” We have
yet to find such a response by Rinehart anywhere in the record.
11
590-91, 659 S.E.2d 308, 310 (2008); accord Walton
v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d
869, 871 (1998). The issue that we consider,
upon appellate review, is “ ‘whether, after
viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact
could have found the essential elements of the
crime beyond a reasonable doubt.’ ” Maxwell v.
Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499,
502 (2008) (quoting Jackson v. Virginia, 443 U.S.
307, 319 (1979)).
McMillan v. Commonwealth, 277 Va. 11, 18-19, 671 S.E.2d 396, 399
(2009). “When a defendant challenges the sufficiency of the
evidence, the Court reviews the evidence in the light most
favorable to the Commonwealth, drawing all reasonable inferences
in its favor as the prevailing party below.” Jones v.
Commonwealth, 277 Va. 171, 182, 670 S.E.2d 727, 734 (2009)
(citing Perez v. Commonwealth, 274 Va. 724, 728, 652 S.E.2d 95,
97 (2007)). I do not believe the majority has followed these
principles.
The facts and permissible inferences viewed in the light
most favorable to the Commonwealth in this case are as follows.
In November of 2006, Anderson and Edwards were both employed at
a Dick’s Sporting Goods store in Virginia Beach. The two of
them “had talked previously about possibly robbing Dick’s
Sporting Goods and it would be easy and it was nothing
basically.” They schemed to stage a robbery of Anderson while
he was working as a cashier at the store. Anderson had stated,
“[w]e could go in there, just show them the gun, and it would be
12
simple as one, two, three to threaten somebody and get us some
money.” On the appointed day for the commission of the crime,
Edwards involved McBride in the plan. Anderson, Edwards and
McBride had previously discussed the plan approximately one to
two weeks earlier.
On the day of the criminal offense, Anderson called Edwards
on the telephone to alert him to the precise time that Anderson
would be at a particular cash register in the store. Edwards
enlisted the help of McBride and drove him to the store.
McBride entered the store with a CO2 powered pellet gun. He was
wearing a black hooded sweatshirt, with the hood pulled up and a
bandanna over his face. When McBride entered the store, he made
eye contact with Rinehart, an employee of the store who was
titled as a “departmental lead” in the golf department.
Rinehart testified that he observed McBride walk to the
register where Anderson was waiting. Rinehart stated that
“something didn’t look right” and he had “a feeling we’re about
to get robbed.” He and another employee, identified as “J.B.”
began walking toward the register. Rinehart testified that he
stopped about “[f]ifteen, sixteen” feet from the gunman when he
“saw a weapon come out of [McBride’s] waistband.” The following
colloquy took place at trial:
Q Did you continue to walk towards the register when you
saw the hooded man pull the gun out of his waistband?
13
A No, sir. I stopped right where I was.
Q Why did you stop?
A Because there was a weapon involved.
Q Did that give you some concern?
A Absolutely.
Q What did the weapon look like?
A I would say it was obviously a semi-automatic pistol.
My first impression it was probably a nine millimeter
or a forty-five.
Q Do you have any familiarity with firearms?
A Yes, sir. Spent six years in the United States
Marines.
Q Did it look like a real gun to you?
A Yes, sir.
Q So you didn’t go any closer?
A No, sir.
In the court’s rendition of judgment, the trial judge
stated:
[T]he court finds the following: Number 1, it
appears to the court from a credibility
standpoint of the witnesses and all the evidence
that I’ve heard that a conversation took place
between the perpetrators of the robbery and the
defendant.
. . . .
So I’m convinced and there’s no doubt in my
mind that the parties talked about this robbery
on the telephone – Number 1.
So then we go to, Is there a conspiracy?
Absolutely. In my opinion there’s no doubt in my
14
mind that there was a conspiracy to rob Dick’s
Sporting Goods.
Number 2, What about the robbery? Well, we
know that the perpetrator went in with a gun.
Was Mr. Rinehart put in fear? He said yes. He
was going – He said, Something’s going to happen.
I’m going over to the cash register; and he
started walking towards the cash register, saw
the person pull a gun out, and stopped. He had
an obligation to protect the assets of the
company. And so he, in essence, was put in fear
because there was a gun. Otherwise he would have
gone over there.
So I find from a factual standpoint that the
defendant’s testimony corroborates the fact that
he’s guilty and how.
Commenting upon the case of Durham v. Commonwealth, 214 Va.
166, 198 S.E.2d 603 (1973), the trial judge stated:
But in the Durham case it says where the owner of
the personal property, or another having custody
or constructive possession of same, interposes
himself to prevent a theft of the property – and
I think that’s exactly what we have right here.
I think Mr. Rinehart was on his way over there to
help stop this thing and he saw the gun and he
stopped.
Revisiting the issue at sentencing the trial court observed:
The court has found as a matter of fact that the
defendant in this case was obviously conspiring
with others to commit this act. He went to the
extent of calling – making a phone call saying,
I’ll be down in the downstairs cash register for
the next hour, I think, or something like that.
At any rate, the evidence is pretty clear that
this, in fact, was a robbery. The – they’re
willing participants in it.
And the question is was anybody placed in
fear? I guess that’s one of the issues. And the
answer is yes. Mr. Rinehart was an employee of
the store, and he certainly has an obligation not
to allow people to be taking stuff out of the
store. And he was walking over, and he saw the
15
gunman come in with the gun and a hood; and he
knew there was a robbery. Eye contact was made.
And so if he was not afraid, he would have
continued to walk. He stopped and he was in
fear. He had an obligation to make sure that the
money was not taken. The money was taken. And
therefore I find nothing to – that has been
presented to change the ruling of the prior
ruling of the court, and that’s it.
As previously stated at the outset of this discussion, the
only real issue in this appeal is whether this Court will
properly apply our appellate rules of review. I do not believe
the majority has done so.
In Virginia the punishment for robbery is
fixed by Code § 18.1-91, but there is no
statutory definition of robbery. Hence we look
to the common law for its definition. Butts v.
Commonwealth, 145 Va. 800, 811, 133 S.E. 764, 767
(1926); Mason v. Commonwealth, 200 Va. 253, 254,
105 S.E.2d 149, 150 (1958).
Robbery at common law 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.” Jones v. Commonwealth, 172 Va.
615, 618, 1 S.E.2d 300, 301 (1939); Mason v.
Commonwealth, supra, 200 Va. at 254, 105 S.E.2d
at 150. The phrase “of the personal property of
another, from his person or in his presence” has
been broadly construed to include the taking of
property from the custody of, or in the
constructive possession of, another. Falden v.
Commonwealth, 167 Va. 542, 545, 189 S.E. 326, 328
(1937); State v. Butler, 27 N.J. 560, 589, 143
A.2d 530, 547 (1958).
. . . .
Where 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
16
violence used to overcome the opposition to the
taking is concurrent or concomitant with the
taking, the thief’s action constitutes robbery.
State v. Butler, supra, 27 N.J. at 591, 143 A.2d
at 547, 548; State v. Culver, 109 N.J. Super.
108, 112, 262 A.2d 422, 425 (1970); Brown v.
State, 61 So. 2d 640 (Fla. 1952), cert. denied,
345 U.S. 913 (1953); State v. Burzette, 208 Iowa
818, 222 N.W. 394 (1928).
Durham, 214 Va. at 168-69, 198 S.E.2d at 605-06.
The Commonwealth’s theory of the case is relatively simple:
1. Anderson conspired with others to fake a robbery; he
intended the scheme to involve the presentation of a
handgun which served the purpose of intimidating any
other employees who may have intervened;
2. Rinehart was an employee who had constructive
possession of the money that was ultimately taken and
had a responsibility to preserve the assets of his
employer;
3. Rinehart saw what he thought was a robbery of the
cashier and moved to intervene, but he was stopped
when a gun was introduced to the situation;
4. Rinehart, who had constructive possession of the
money, was intimidated and ceased his intervention,
and consequently, under Virginia law, Rinehart was a
victim of robbery. Anderson was a principal in the
commission of the crime.
The majority reduces this entire case to two questions: Is
the evidence sufficient to prove that Rinehart was intervening
on behalf of his employer and whether Rinehart was intimidated
by the events in question? It is important to note at the outset
that even the defendant does not argue that the evidence was
insufficient to prove that Rinehart was intervening on behalf of
his employer. Indeed, Anderson, in his brief before this Court
states, “Whether McBride or Anderson . . . took the property of
17
Dicks from the person or presence of Rinehart need not be
addressed at great length here.” Not only was it not addressed
“at great length here,” it was not addressed at all in the trial
court, the Court of Appeals, or in Anderson’s brief before this
Court. The majority opinion raises this issue for the first
time on appeal in this court. Not only is the issue without
merit, but we would never allow the defendant to raise such an
issue for the first time on appeal in this Court. It seems
inappropriate for the Court to do so sua sponte.
The issue that Anderson raised at all times constitutes the
only legitimate issue before the Court. Is the evidence
sufficient to prove that Rinehart was intimidated? And on
review in this Court the question is, based upon the evidence
and reasonable inferences drawn therefrom, taken in the light
most favorable to the Commonwealth, was the trial court plainly
wrong or without evidence to support its judgment that Rinehart
was intimidated and consequently, that Anderson was guilty as a
principal to the crime of robbery?
The trial court heard Rinehart’s testimony that he saw what
he thought was a robbery in the making – clearly a reasonable
conclusion from observing McBride come into the store with a
hooded sweatshirt over his head and a bandanna on his face.
Rinehart stated that McBride approached the cash register and
that as a result of these movements and his concern that a
18
robbery was about to take place, he and another employee moved
toward the cash register as well. Rinehart stopped within
fifteen to sixteen feet from McBride when McBride produced a
handgun from his waistband. When asked if the presentation of a
weapon concerned him, Rinehart understandably stated,
“Absolutely.” His testimony indicated that the production of
the gun is the reason that he stopped his intervention. It is
also important to note that Rinehart stopped his intervention at
the register and did not try to prevent McBride from exiting the
store with the money. The reason why is quite clear – McBride
had a gun.
The majority makes much of the fact that McBride did not
point the gun at Rinehart. But this conclusion involves a
fundamental misunderstanding of the law of robbery in Virginia.
The weapon only needs to be introduced into the equation;
pointing the weapon at the victim is not required – presentment
is sufficient. Code § 18.2-58 codifies this understanding:
If any person commit robbery by 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, he shall be guilty of
a felony.
Additionally, McBride did point the gun at Anderson, and
Rinehart’s concern for his fellow employee would be sufficient
19
to satisfy this element of the offense. With regard to the
elements of robbery, “the threat of immediate bodily injury or
death need not be directed at the owner himself; it may be made
to a member of his family, or other relative, or even to someone
in his company, though there be no threat to do harm to the
owner himself.” Wayne R. LaFave, Substantive Criminal Law
§ 20.3(d)(2), at 186 (2nd ed. 2003). Of great importance here,
and never mentioned by the majority, the trial court viewed a
video of the robbery itself. As the trier of fact without a
jury, the trial judge was able to observe McBride’s actions and
Anderson’s reactions during the event.
Perhaps most puzzling of all is the majority’s attempt to
distinguish between “being put in fear” and “having some
concern,” a distinction that, in this context, is without
substance. This case was tried by the court without a jury. The
trial court stated, “Rinehart was on his way . . . to help stop
this thing and he saw the gun and he stopped. . . Well, we know
the perpetrator went in with a gun. Was Mr. Rinehart put in
fear? He said yes.” As the majority correctly notes, Rinehart
did not use the word “fear.” However, criminal juries in
Virginia are routinely instructed that they are entitled to “use
their common sense” in consideration of the evidence and that
they may “draw reasonable inferences” from the evidence. Here
the trial judge, as fact-finder did just that – utilized common
20
sense and reasonable inferences to conclude that “[Rinehart] was
walking over, and he saw the gunman come in with the gun and a
hood; and he knew there was a robbery. Eye contact was made. And
so if he was not afraid, he would have continued to walk. He
stopped and he was in fear.”
The trial court’s determination on the facts of this case,
including observation of the videotape of the event itself,
cannot be said to be plainly wrong or without evidence to
support it. Either Rinehart himself was intimidated or pointing
a weapon at his fellow employee satisfied the element of the
offense.
Anderson told Edwards that the robbery “would be easy and
it was nothing basically.” He said “[w]e could go in there,
just show them the gun, and it would be simple as one, two,
three to threaten somebody and get us some money.” (Emphasis
added.) Clearly, Anderson intended that threat or intimidation
of “somebody” be used to commit the crime. That “somebody” was
Rinehart. That crime is called robbery.
I dissent.
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