dissenting.
The double jeopardy clauses of the federal and state constitutions provide that no person shall be twice put in jeopardy of life or limb for the same offense. U.S. Const, amend. V; Va. Const, art. I, § 8.
*849It is now well recognized that [the double jeopardy] clause affords an accused three distinct constitutional guarantees. “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.”
Brown v. Commonwealth, 230 Va. 310, 312-13, 337 S.E.2d 711, 713 (1985) (quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969)). Kevin Patrick Sullivan’s convictions for the charge of robbing Curtis Meade violated the third of these constitutional guarantees: the “protection] against multiple punishments for the same offense.”
In Jordan v. Commonwealth, 2 Va. App. 590, 347 S.E.2d 152 (1986) , this Court specifically addressed the issue of multiple punishments for the crime of robbery when several individuals are present. We noted that, in Virginia, robbery remains a common law crime defined as “[1] the taking, with the intent to steal, [2] of the personal property of another, [3] from his person or in his presence, [4] against his will, by violence or intimidation.” Id. at 595, 347 S.E.2d at 155. Relying on the elements of the common law offense, we held that “[b]ecause the essential character of both Code § 18.2-58 and common-law robbery is violence against a person for the purpose of theft, ... the appropriate ‘unit of prosecution’ is determined by the number of persons from whose possession property is taken separately by force or intimidation.” Id. at 596, 347 S.E.2d at 156 (citations omitted) (emphasis added).
Sullivan was separately indicted for the robberies of Curtis Meade and Tommy Foster. The evidence proved, however, that Sullivan committed only one robbery. In the circuit court, Sullivan pled guilty to the robbery of Foster. The Commonwealth and Sullivan stipulated that the testimony given at the preliminary hearing would constitute the facts regarding the Foster robbery charge. The transcript of the testimony proved that Sullivan entered the store, displayed a gun, and directed the employees to the back corner of the store. According to Meade’s own testimony, Sullivan “[t]hen . . . directed Tommy [Foster] to do everything.” Foster collected the money from the cash drawer and gave it to Sullivan. The testimony did not prove that Sullivan took any money from Meade. On these facts, the trial judge found Sullivan guilty of the robbery of Foster.
*850The evidence offered by the Commonwealth in its prosecution of Sullivan for the robbery of Meade was based on the evidence of the property taken from Foster. The Commonwealth never proved a second taking from the person of Meade. In Jordan, multiple prosecutions were permissible because the facts in that case proved that the defendant used violence to extract money separately from the physical possession of several distinct victims. In the case before us, however, only one person surrendered money to Sullivan. A single taking gives rise to a single robbery. Contrary to the rule established in Jordan, the Commonwealth sought to prove that Sullivan robbed Meade by using as its “unit of prosecution” the number of employees present during the robbery. We clearly stated in Jordan that “the appropriate ‘unit of prosecution’ is determined by the number of persons from whose possession property is taken separately by force or intimidation.” 2 Va. App. at 596, 347 S.E.2d at 156 (citation omitted). Therefore, the evidence in this case proved that only one robbery occurred.
Jordan does not stand for the proposition that the appropriate “unit of prosecution” is determined by the number of persons from whose “constructive” possession property is taken by force or intimidation. Such an interpretation would fix the number of prosecutions by the number of employees present in the store at the time of the robbery. Under the majority’s holding, had there been twenty employees who were forced to move to the rear of the store, the defendant could have been convicted of twenty robberies if he made one employee turn over money belonging to the store. Such a result would ‘ ‘be absurd and one that would serve no useful purpose.” State v. Johnson, 740 P.2d 337, 340 (Wash. Ct. App. 1987). Because there was only one taking in this case, defendant committed only one robbery. To allow multiple prosecutions for robbery based solely on constructive possession by the additional “victims” would be constitutionally impermissible.
Although the resolution of this matter may have been clearer if Sullivan had raised it in the context of the sufficiency of the evidence to support the conviction for robbery of Meade, it is beyond dispute that, as a consequence of Jordan, the trial judge’s imposition of separate convictions and sentences for the Foster and Meade charges punished Sullivan twice for the same offense. Such punishment is explicitly barred by the double jeopardy clauses of the Fifth Amendment to the United States Constitution, as well as Article I, § 8 of the Virginia Constitution. Therefore, I would reverse the convictions of robbery and use of a firearm in the commission of a robbery against Meade.