dissents by separate opinion:
I respectfully dissent. The Majority has concluded herein that the elements of second-degree robbery in KRS 515.030(1) were satisfied by Birdsong’s aggressive demand for money, and his use of force against inanimate objects. Because he never used physical force against another person, and made no words or gesture to express or imply that he would use such force upon a person if his demand for money was denied, he did not commit second-degree robbery. The Majority cites a number of different meanings that the English language ascribes to the word *53“threaten,” which, in effect, acknowledges the ambiguity inherent in KRS 515.030(l)’s use of the word. Rather than construing the statute to incorporate all of the possible meanings of “threaten” as does the Majority opinion, I submit for reasons stated below that the General Assembly intended the word “threaten” as an active verb, describing the conduct of the accused. Used accordingly, to “threaten” means to express or imply by words or gestures, a warning that physical force will be employed to achieve an objective, for example, to enforce the demand for money. It is not, in the context of KRS 515.030(1), used as a passive verb describing one’s state of being, as a source of danger perceived by another, for the possibility of some unpleasant consequence. The Majority’s use of the latter definition to the facts of this case enables its conclusion that Birdsong’s behavior and aggressive demand for money posed a threat of harm to those around him, even though he never expressed or implied with words or gestures in any conceivable way that physical force might be used upon anyone. I believe that interpretation is inconsistent with the legislative intent implicit in KRS 515.030, and therefore dissent.
The Majority leans heavily upon our opinion in Lawless v. Commonwealth, 323 S.W.3d 676 (Ky.2010). I respectfully submit that in Lawless, we applied the very same definition of “threaten” that I suggest should be applied here, although its application to the facts of Lawless compelled a different result. Lawless was subject to a second-degree robbery charge because she actively communicated an implied threat of physical force when she held her hand in her pocket and made gestures to imply that she had a gun. Such a gesture is without question a specific threat to use of physical force upon the persons present. In Williams v. Commonwealth, 721 S.W.2d 710 (Ky.1986), also relied upon by the Majority, the robber said to the victims, “Do you want your life?” That too, is an unambiguous communication that expresses or implies an intention to do harm to a person if his demands were resisted. Birdsong made no such gestures and spoke no such words, nor did he otherwise express or imply any intention to use force against anyone. To be sure, Birdsong’s conduct put those present in fear, but he did not “threaten the immediate use of physical force upon another person.”
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, 721 S.W.2d. at 712, 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 an*54other 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, because 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 Anger 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 “threatening] the immediate use of physical force upon a 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.