dissenting.
My concern with the opinion of the court is the effect it will have on future cases of this kind. After a recitation of facts, the court concludes that appellant did not “intentionally [put the victim] in fear of immediate bodily injury,” per W.S. 6-2-401(a)(ii) and, therefore, was not guilty of robbery. Factual determinations and the inferences to be drawn from facts are for the trier of fact and not for the appellate court. The court, quoting from Mangerich v. State, 93 Nev. 683, 572 P.2d 542, 543 (1977) states, “ ‘If the fact be attended with circumstances of terror, such [as a] threatening word or gesture as in common experience is likely to create an apprehension of danger and induce [another] to part with his property for the safety of his person, it is robbery.’ ” A summary of the fact situation recited by the court is that appellant entered the motel office not seeking to register or obtain a room, he mumbled, looked around the lobby, stepped back and forth in a continuous circle, asked if there was a rest room, his voice was getting louder and agitated, put his hands in his pockets as though he had a gun, walked toward the counter, and looked over the glass partition at the cash register. The clerk thought appellant was going to rob the motel, grabbed the cash register key, locked it but could not get another key hidden under the counter as she hurriedly left the registration area to enter a back office, where she slammed a door that locked automatically. What she feared appellant intended to do is exactly what he did. He came behind the counter, opened the cash register, stuffed the cash in his pocket and robbed the motel.
From this scenario, a trial judge who observed the witnesses and assessed their credibility could reasonably conclude that what occurred between appellant and the motel clerk was such as in common experience would be “likely to create an apprehension of danger and induce [another] to part with his property for the safety of his person.” If the fact trier could reasonably reach that conclusion, this was a robbery.
The alternative action for Ms. Montoya, the desk clerk in this case, was to stand her ground, face up to appellant, and face possible serious injury by a man who intended to rob the motel and who in fact did rob the motel after he had scared her off by threatening gestures and mannerisms. I would affirm.