Anthony Vinson Loving v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner
Argued at Salem, Virginia
ANTHONY VINSON LOVING
MEMORANDUM OPINION * BY
v. Record No. 0606-98-2 JUDGE RUDOLPH BUMGARDNER, III
APRIL 13, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Arthur W. Sinclair, Judge Designate
Scott Goodman for appellant.
Daniel J. Munroe, Assistant Attorney General
(Mark L. Earley, Attorney General; Leah A.
Darron, Assistant Attorney General, on
brief), for appellee.
Anthony Vinson Loving appeals his conviction of robbery
after a bench trial. He contends the evidence was insufficient
to prove violence toward or intimidation of the victim. We
conclude that the evidence was sufficient to prove intimidation
and affirm the conviction.
On appeal, we view the evidence in the light most favorable
to the Commonwealth, granting to it all reasonable inferences
fairly deducible therefrom. See Archer v. Commonwealth, 26 Va.
App. 1, 11, 492 S.E.2d 826, 831 (1997). The victim drove to the
Barracks Road Market to buy a soft drink. When she returned,
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
she put her change in her pocketbook, and put the pocketbook on
the back seat of her two-door car. She rolled her window down
and was about to leave the parking lot when the defendant and
codefendant Greg Cook drove up. They parked “kind of
catty-cornered” to the victim’s car, exited the vehicle, and
went up to her. The victim did not know either of them or their
names, but she had seen them before. The defendant leaned in
the driver’s window resting his hand on the steering wheel.
Cook was toward the back of the victim’s window with his arm on
the roof leaning on the car.
The defendant began talking to the victim “to distract
[her] attention.” He talked for a few minutes asking her name
and where she lived, commenting on her looks, and then he began
asking aggressive questions such as whether she had ever had
sexual relations with three men. The victim said she could not
drive off because she would have dragged them with her. “I
didn’t know exactly, you know, what to do or—or if something was
going to happen to me if I did do it.” “There was nothing I
really could do.” “I just froze.”
Cook reached into the back of the car while the defendant
kept talking to the victim. When asked what he was doing, Cook
denied doing anything, but he walked to the back of her car
before returning to the victim’s window. She testified that she
did not turn around while Cook was reaching in the back and did
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not ask additional questions “because I was the only one there.”
She was aware her purse was on the back seat.
There was only one other car in the store lot and it was
unoccupied. The victim was alone at dusk, and she “was really
scared.” Finally, a friend of the victim came up and called out
“Anthony” to the defendant. The defendant looked up, saw that
the person knew him, then he and Cook “scrambled and got in
their car and—and took off behind the store.” The victim
immediately turned and looked for her pocketbook, but it was not
there. It contained about ten dollars in cash, jewelry valued
between seven and eight hundred dollars, and her bank and credit
cards. None of the items were recovered.
The defendant does not contest that a larceny took place,
but claims that he neither took the pocketbook nor participated
in the crime. We find his argument unpersuasive. The defendant
admits that the pocketbook was stolen while he engaged the
victim in “crude conversation.” The trial court held that the
defendants were engaged in a “joint venture.” The trial court’s
judgment will not be disturbed on appeal unless plainly wrong or
without evidence to support it, see Josephs v. Commonwealth, 10
Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en banc), and the
evidence supports such a finding. “[P]roof that a person is
present at the commission of a crime without disapproving or
opposing it, is evidence from which, . . . the jury [can] infer
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that he assented thereto, . . . and was thereby aiding and
abetting the same.” Foster v. Commonwealth, 179 Va. 96, 99-100,
18 S.E.2d 314, 315-16 (1942). See McGill v. Commonwealth, 24
Va. App. 728, 733, 485 S.E.2d 173, 175 (1997).
The defendant’s main contention is that the robbery
conviction cannot stand because his conduct did not constitute
the use of violence or intimidation directed at the victim. We
agree that the defendant’s conduct did not constitute the use of
violence, force, or threat. However, it is not necessary that
threats be made for a robbery conviction to stand. See Bivins
v. Commonwealth, 19 Va. App. 750, 753, 454 S.E.2d 741, 742
(1995) (“Intimidation differs from threat in that it occurs
without an express threat by the accused to do bodily harm.”
(citations omitted)).
Robbery, a common law offense, is defined as “the taking,
with intent to steal, of the personal property of another, from
his person or in his presence, against his will, by violence or
intimidation.” Johnson v. Commonwealth, 209 Va. 291, 293, 163
S.E.2d 570, 572-73 (1968). See Mason v. Commonwealth, 200 Va.
253, 255-56, 105 S.E.2d 149, 151 (1958). “The alternative
elements of violence or intimidation have been further defined
as the use of ‘force, threat or intimidation.’” Bivins, 19 Va.
App. at 752, 454 S.E.2d at 742 (emphasis added) (citation
omitted). Therefore, the issue is whether defendant’s conduct
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placed the victim in fear of bodily harm. See United States v.
Wagstaff, 865 F.2d 626, 628 (4th Cir.), cert. denied, 491 U.S.
907 (1989); Chappelle v. Commonwealth, 28 Va. App. 272, 275, 504
S.E.2d 378, 379 (1998); Winn v. Commonwealth, 21 Va. App. 179,
181-82, 462 S.E.2d 911, 912-13 (1995); Bivins, 19 Va. App. at
752, 454 S.E.2d at 742.
“Intimidation results when words or conduct of the accused
exercise such domination and control over the victim as to
overcome the victim’s mind and overbear the victim’s will,
placing the victim in fear of bodily harm.” Bivins, 19 Va. App.
at 753, 454 S.E.2d at 742. “It is only necessary that the
victim actually be put in fear of bodily harm by the willful
conduct or words of the accused.” Harris v. Commonwealth, 3 Va.
App. 519, 521, 351 S.E.2d 356, 357 (1986) (citations omitted).
“The test in this circuit for intimidation under [the bank
robbery statute] is whether ‘“an ordinary person in the
[victim’s] position reasonably could infer a threat of bodily
harm from the defendant’s acts.”’” United States v. Woodrup, 86
F.3d 359, 363 (4th Cir.), cert. denied, 117 S. Ct. 332 (1996)
(quoting United States v. Wagstaff, 865 F.2d 626, 628 (4th
Cir.), cert. denied, 491 U.S. 907 (1989)). Where the
defendant’s conduct amounts to intimidation or is reasonably
calculated to produce fear, see United States v. Amos, 566 F.2d
899, 901 (4th Cir. 1977), and is concomitant with a taking, the
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evidence is sufficient to support a conviction for robbery. See
Mason, 200 Va. at 256, 105 S.E.2d at 151.
Here, the defendant and Cook created an atmosphere of
intimidation. The victim was alone in her car, at dusk, in a
deserted parking lot. Two males unexpectedly appeared at her
door, leaned into her car, and made aggressive sexual
conversation. The victim was afraid, did not know what was
going to happen, and “just froze.” The fact finder was entitled
to infer that defendant’s intimidating words and conduct induced
the victim’s fear, was intended to distract her while Cook stole
the pocketbook, and resulted in the victim’s unwilling
acquiescence in the taking. See Harris, 3 Va. App. at 521, 351
S.E.2d at 357.
The victim did not need to know exactly what Cook was doing
when he reached in the back of the car. The victim does not
need to know that her property is being taken for robbery to be
committed. See Bunch v. Commonwealth, 225 Va. 423, 440, 304
S.E.2d 271, 280, cert. denied, 464 U.S. 977 (1983) (irrelevant
whether victim was dead when taking occurred). See also
Williams v. Kelly, 816 F.2d 939, 948 (4th Cir. 1987) (“Under
Virginia law, the absence of direct evidence of the timing of
the intimidation or violence in relation to the taking of the
property is not necessarily fatal to a finding that the
defendant committed a robbery.”).
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The victim did not resist Cook’s reaching into the back of
the car, did not look to see what he was doing, and did not
check whether her pocketbook was gone. These are facts “from
which a reasonable and justifiable inference could have been
drawn” that the taking of the pocketbook was accomplished by
defendant’s intimidating words and conduct. Williams, 816 F.2d
at 948. See Mason, 200 Va. at 256, 105 S.E.2d at 151. She took
no action to secure her property because of the intimidating
confrontation with the defendant.
We find that the evidence establishes that the defendant’s
intimidating conduct and words occasioned the taking.
Accordingly, we affirm the conviction for robbery.
Affirmed.
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