dissenting.
I respectfully dissent from the majority opinion because I believe it reaches the wrong result. I believe the majority misinterprets KRS 515.020(l)(c) which provides that robbery in the first degree occurs when one uses or threatens the immediate use of a dangerous instrument on any person.
The majority opinion appears to state that a victim of a robbery must have visual or physical contact with something tangible before the victim is entitled to experience fear. The majority cites the reasoning of Merritt v. Commonwealth, Ky., 386 S.W.2d 727, 729 (1965) and Travis v. Commonwealth, Ky., 457 S.W.2d 481 (1970) in a correct manner but reaches the wrong conclusion. The open brandishing of an object should not be dispositive of the degree of criminal culpability. Here the victim saw a bulge in Williams’ pocket which he believed to be a gun. Williams stated that if the victim valued his life he would turn over the money and that if he failed to comply, he would be killed with the object hidden in Williams’ pants. It is obvious that the bulge, coupled with Williams’ threats, was an object intended by its user to convince the victim that it was a pistol or another deadly weapon, and did so convince him. See Merritt, supra.
*714In my view, the majority opinion implicitly concedes that the victim’s subjective feeling should control the degree of criminal responsibility but improperly concludes that the victim’s subjective feeling was not dispositive in this case because of the mere want of a seen or felt tangible object upon which to base the subjective reaction.
The victim/clerk was working alone in a convenience store in the early morning hours of June 9, 1984. Williams entered the store at approximately 4:15 a.m. and went to the cooler for a six-pack of beer. The clerk informed him that beer could not be sold after 2 a.m. Williams became angry and threw the beer on the floor and said “Do you want your life?” The clerk first believed Williams to be joking. The same threat was then repeated and Williams reached to his back pocket and said to lie down on the floor if the clerk wanted his life. The victim quickly complied believing that Williams had a weapon. The defendant then went to the cash register and unsuccessfully attempted to open it. The clerk then jumped up and ran out of the store. Williams threatened the clerk as he ran out and the victim replied “If you’re going to shoot me, you’ll have to shoot me in the back.” Once outside, the victim shouted to a man who had just made a purchase in the store to call police. A few moments later, a frequent customer rode up on his bike and was warned by the victim not to enter the store because it was being robbed. Williams came out of the store and almost ran into the would-be customer. Williams reached for his back pocket as if he were going for a gun. The would-be customer jumped the hedge and cut his leg in his flight. By that time, police arrived and a foot chase ensued. Williams was apprehended when he fell into a drainage ditch.
The victim testified that he did not see a gun but that he believed Williams had a gun because of the bulge he saw in Williams’ pocket, coupled with the threats and the acts of reaching toward the pocket. The would-be customer also testified that he did not see a gun but believed that Williams had one in his back pocket.
It is my opinion that the trial judge did not commit reversible error in overruling the motion by Williams for a directed verdict. There was sufficient evidence to permit the question of first-degree robbery to be submitted to the jury. There was sufficient evidence that Williams committed first-degree robbery by threatening the victim with immediate physical harm with a dangerous, although unseen, instrument. Both the victim and the would-be customer believed that Williams was carrying a gun. Such belief was based on a combination of the threats against their lives and his gestures of reaching towards his back pocket as if he had the means of making the threat a reality.
The culpability of Williams’ intent is demonstrated by his threats of physical violence and danger to the victim exists from the response to fear which he perceives as reasonable.
It was a reasonable inference from the evidence presented to conclude that Williams had an instrument capable of inflicting deadly harm on the victim.
Williams clearly intended to and did instill a deadly fear in the victim and the would-be customer through which he accomplished compliance from his victim and completed the theft which was his criminal objective.
I would affirm the conviction in all respects.
STEPHENS, C.J., and STEPHENSON, J., join in this dissent.