dissents by separate opinion:
For two reasons I respectfully disagree with Majority’s opinion on three of the five second-degree robbery charges: namely, the incident at the Fifth-Third bank on May 1, 2006, the incident at the Central Bank on June 29, 2006, and the incident at the - National City bank on October 23, 2006.14 First, I believe the Majority expands the interpretation of the statutory language “threatens the immediate use of physical force” beyond the intent of the legislature. Second, even under the Majority’s broad interpretation of that phrase, on the three incidents cited above, Appellant was entitled to an instruction on the lesser offense of theft by unlawful taking.
I. A Theft Inst'ruction Was Required Because Appellant’s Conduct Was Ambiguous With Regard to the Element of Threatening the Use of Force
Because I see it as the more egregious oversight, I will address the second point first. It is undisputed that no weapon or dangerous instrument was involved in any of three incidents. No physical force was used upon anyone. The perpetrators did not flourish or brandish a weapon or a dangerous object of any kind. They did not by words or gestures express or imply the presence of a weapon so as to threaten any person present. There were no words spoken or written, nor gestures made, to communicate the notion that physical force of any kind would' be employed against any person if the theft was resisted. There was an aggressive demand for money under frightful circumstances. A reasonable jury could reasonably believe from the evidence introduced at trial and from the second-degree robbery instruction given, that neither Appellant nor any accomplice had “threaten[ed] the immediate use of physical force upon another person” as required by KRS 515.030(1).
Even under the Majority’s, interpretation of what constitutes a threat to use immediate physical force, the facts here do not compel the finding that such a threat was made. In effect, by affirming the denial of a theft instruction, the majority opinion grants the Commonwealth a summary judgment on the essential element of robbery in question here: did Appellant, in the course of stealing money from the banks, “threaten the immediate use of physical force upon another person?” Reasonable jurors could very well disagree on the answer to that question. Yet the Majority has decreed it to be so. A reasonable juror could conclude that Appellant did not so threaten, in which case he should have been exposed to criminal culpability for theft. By denying that option, the trial court forced the jury to choose between acquitting a thief and convicting him of robbery despite the lack of a threat to use immediate physical force against another person.
Fidelity to the principles set by this Court in Swain v. Commonwealth, 887 S.W.2d 346 (Ky.1994) compels the giving of a theft instruction. There, on three separate incidents to steal money from convenience stores, “appellant did not reveal or refer to any weapon. He merely demanded money while keeping his hands in his pockets.” Id. at 347. We agreed that *593such evidence would not support a first-degree robbery charge (requiring the possession of a weapon). However, because the menacing gesture of keeping a hand in the pocket might imply the possession of a weapon and the intent to use physical force if necessary to complete the theft, we held that an instruction on second-degree robbery and theft were required.
As to the count in which appellant merely stated that he had a gun but did not flourish it, the trial court should have instructed on second degree robbery. It would not have been unreasonable for the jury to believe that appellant had no gun and if it so believed, a conviction for second degree robbery would have been authorized. Upon retrial of this count, the jury should be so instructed and authorized to find appellant guilty of first degree robbery or second degree robbery, depending upon what it believes from the evidence. As to the three counts in which no weapon was seen or mentioned hut in which appellant demanded money while having at least one hand inside his clothing, the jury should have been instructed on robbery in the second degree and theft by unlawful taking. As to robbery in the second degree, the facts presented here are sufficient to constitute a threat of immediate physical force if the jury believes from the evidence there was stick, or theft by unlawful taking if it believes there was no threat of physical force.
Id. at 348. (Emphasis added.)
Swain is compelling and squarely on point, but the Majority opinion relegates it to a footnote and declares it to be “an anomaly and limited to its own facts.” Inconveniently, Swain’s “own facts” differ in no material way from the facts present here. Swain is an “anomaly” that, according to Westlaw, has been favorably cited in subsequent appellate opinions at least 30 times, 10 of which are related to the very paragraph quoted above. We do no service to the dignity of this Court, much less to the litigants before us, by sweeping our binding precedent under the rug in such a cavalier fashion.
Instead of relying upon Swain, the majority rests its case upon Lawless v. Commonwealth, 323 S.W.3d 676 (Ky.2010). However, in Lawless we voiced no disagreement with Swain and cited it favorably. We differentiated Swain, where the simple “hand-in-the-pocket” did not accompany any other gesture implying possession of a weapon and its inherent threat of force, from Lawless, where “not only did Lawless keep her hand in her pocket but that, she made gestures as though she had a gun.” Id. at 678. Those additional distinguishing gestures, we concluded, were “clearly intended to further the theft by creating the impression that she was armed.” Id. at 681. Lacking the ambiguity present in Swain concerning the expression of a threat, Lawless properly concluded that the unambiguous gestures were calculated by Lawless to express the threat of bodily harm implicit in the possession of a weapon, leaving no room for a theft instruction.
Here, we have not even a hand in the pocket, nor any other gesture, to constitute the expression of a threat to use physical force. The conduct of Appellant and his accomplices at the three banks was, at most, ambiguous with respect to the expression of a threat to use force upon a person. The giving of a theft instruction is compelled by Swain and it is consistent with Lawless.
I would therefore reverse the three second-degree robbery convictions cited above and remand for a retrial with instructions incorporating the lesser offense of theft, provided the evidence upon retrial so warrants.
*594 II. The Majority Misconstrues KRS 515.030(1) With Respect To the Phrase “Threatens the Immediate Use of Physical Force”
The phrase “threatens the immediate use of physical force” is ambiguous. In one sense, “threaten” is an active verb. As so used, to “threaten” would require an act, in words or gestures, to express or imply a warning that physical force will be employed to achieve an objective, for example, to enforce the demand for money. In another sense, “threaten” can be used as a passive verb, to mean simply a presence that imparts to others concern for the possibility of some unpleasant consequence. The Majority applies the latter construction to the facts of this case to reach its conclusion that Appellant’s aggressive demands were threatening to those present and instilled in them a fear of physical harm, even if Appellant never expressed or implied with words or gestures that physical force might be employed. I believe that interpretation is inconsistent with the legislative intent implicit in KRS 515.030, and therefore dissent.
Prior to the 1974 enactment of the Kentucky Penal Code (KRS Chapters 500 through 534), robbery was defined by our common law as “the act of feloniously and forcibly taking from the person of another, goods or money by violence or by putting him in fear.” Correll v. Commonwealth, 317 S.W.2d 886 (Ky.1958) (Citations omitted; Emphasis added). Our pre-penal code law was consistent with the interpretation the Majority now reads into the Kentucky Penal Code. In Williams v. Commonwealth, 721 S.W.2d 710, 712 (Ky.1986), we noted that the sections of the Model Penal Code (Article 222.1), which informed the drafters of the Kentucky Penal Code, used the following phrase as an element of robbery: “(b) threatens another with or purposely puts him in fear of immediate serious bodily injury.” (Emphasis added.) Thus, the Model Penal Code is consistent with our pre-penal code notion of robbery to the extent that both include among the elements of robbery, conduct putting someone in fear of injury. If, with conscious awareness of the Model Penal Code language and our common law definition, our legislature intended to retain within Robbery in the Second Degree (KRS 515.030) the element of putting another in fear, it would have used that essential language. By omitting that phrasing, and using the verb “threatens” in conjunction with another active verb, “uses,” the General Assembly intended “threatens” to mean the expressed or implied communication by the perpetrator of an intent to use force, not merely any conduct that puts another person in fear.
Our criminal code attains fairness and justice because it attempts to establish objective criteria by which we must judge the conduct of others. It does so in the case of robbery second-degree by identifying the specific conduct that will subject one to punishment as a robber. The Majority conflates the objective act of making a threat to use physical force with the subjective effect that may be felt by others. An aggressive demand expressed under scary circumstances is not an objective substitute for the actual expression, by words or gestures, of threat to use immediate physical force. The Majority unhinges the conduct of the accused from objective requirements of our statute as it is now written, and binds it to the subjective response of others, contrary to the language of the statute. Where, along the sliding scale between a polite request for money to which one is not entitled and the aggressively hostile and frightening demand does theft or attempted theft become robbery? Does the vagrant in a dark street at night become a robber if, *595because of his scary countenance, a passerby is too frightened to deny his request for a handout? The Majority opinion cannot answer that question, and we are left with a case-by-case process to determine what circumstances may authorize a robbery prosecution. Prosecutors, judges, and juries, will differ in their respective views, and so we can have uneven or discriminatory prosecution. The answer can be found where it ought to be found, in the statute. If the vagrant, by words or gestures, expresses or implies an intention to use physical force if his request is denied, then he is a robber. The conduct qualifying him as such can be ascertained from the clear', concrete and objective evidence, and is not dependent upon the degree of fear that one might infer from his presence.
Prior to our decision in Wilburn v. Commonwealth, 312 S.W.3d 321, (Ky.2010), we had allowed the objective element of “deadly weapon” for first-degree robbery to be satisfied by the victim’s subjective fear that the robber had a weapon, even when there was no evidence that a weapon actually existed. After years of adhering to our common law conception of armed robbery despite clear statutory language to the contrary, in Wilburn we restored the objectivity to robbery first degree by requiring evidence that an actual, not imaginary, weapon was used. We recognized in Wilburn that no amount of intimidation by the robber can turn a finger in the pocket into a gun. By the same token, no amount of fear on the part of the victim can turn an aggressive demand for money into a specific threat of immediate force against a person. As we did in Wilburn with the deadly weapon element of robbery first degree, we should now remove the vestiges of our common law past from second-degree robbery, and recognize that the statutory language “threaten[ing] the immediate use of physical force upon another person” does not mean “putting another in fear.” It requires an expressed or implied threat, communicated by gestures or words, of force upon another person. A frightfully aggressive appearance from which one might infer the use of such force does not satisfy the requirement of our statute.
For the foregoing reasons, I respectfully dissent.
MINTON, C.J., joins.
. The incident in which a weapon was displayed and the incident in which force was actually used upon the bank teller very clearly satisfy the elements of robbery, and those charges were properly submitted to the jury.