Com. v. Anderson

• Decision Date: 18 September 2009
• Docket Number: Record No. 081720.
• Citation: 683 S.E.2d 536,278 Va. 419
• Parties: COMMONWEALTH of Virginia v. Jason William ANDERSON.
• Court: Virginia Supreme Court

683 S.E.2d 536

278 Va. 419

COMMONWEALTH of Virginia v. Jason William ANDERSON.

Record No. 081720.

Supreme Court of Virginia.

September 18, 2009.

Eugene Murphy, Senior Assistant Attorney General (William C. Mims, Attorney General, on briefs), for appellant.

Gregory B. Turpin (Clarke, Brunick & Garriott, on brief), for appellee.

Present: HASSELL, C.J., KEENAN, KOONTZ, LEMONS, KINSER, and GOODWYN, JJ., and CARRICO, S.J.

OPINION BY Senior Justice HARRY L.CARRICO.

PROCEDURAL BACKGROUND

In a bench trial held in the Circuit Court of the City of Virginia Beach, the defendant, Jason William Anderson, was convicted under indictments charging him with conspiracy to commit robbery (Code § 18.2-22), robbery with the use of a gun or simulated gun (Code § 18.2-58), and use of a firearm in the commission of a felony (Code § 18.2-53.1). The circuit court sentenced the defendant to incarceration in the Virginia Department of Corrections for terms of five years for conspiracy, seven years for robbery, and three years for use of a firearm in the commission of a felony, with all but three years suspended.

In a published opinion, the Court of Appeals of Virginia affirmed the defendant's conviction for conspiracy to commit robbery but reversed his convictions for robbery and use of a firearm in the commission of robbery. The Court of Appeals remanded the case to the circuit court for imposition of a new sentence on the conspiracy conviction. Anderson v. Commonwealth, 52 Va.App. 501, 509-10, 664 S.E.2d 514, 518-19 (2008). The Commonwealth appeals from the Court of Appeals' reversal of the defendant's convictions for robbery and the use of a firearm in the commission of robbery.

FACTUAL BACKGROUND

The Commonwealth's evidence shows that the defendant and a friend, Corey Edwards, were both cashiers at a Dick's Sporting Goods store in the City of Virginia Beach. On several occasions prior to the events in question, they discussed staging a robbery at the store. On one morning in early November 2006, the plan was for the defendant "to come in and rob [Edwards while he] was working downstairs." The defendant "walked in the store like normal people" and looked around, but "then walked out" without taking any money from Edwards. The defendant later explained to Edwards that he left because he "didn't see [him] downstairs."

On the morning of November 18, 2006, the defendant was on duty at a second floor cash register and telephoned Edwards at his home and told him that "it was time," that there was "enough money," and that Edwards "should come [and] get it." Edwards said he was sleeping and the defendant should call back later.

Approximately an hour and a half later, the defendant called Edwards again and said that he had been instructed to go to the cash register "downstairs to relieve somebody's lunch break," that they "had an hour" to stage the robbery, and that the defendant "would take his register and everything ... he had—his receipts, his checks, everything—down to that register." The defendant said it "would be easy ... just show them the gun, and ... threaten somebody." Edwards replied that he did not want to use a "real gun" and "wasn't going to do it" but that he would "get somebody to do it and we'd be up there."

Edwards enlisted the assistance of Noel McBride, a juvenile, who was a friend of both Edwards and the defendant. McBride had been present when Edwards and the defendant discussed "the topic of the robbery ... a week or two" before it was actually staged. Edwards had McBride secure from a neighbor "an airsoft gun" that holds "CO2 and shoots plastic pellets."

Edwards drove McBride to Dick's and parked on "the next street over away from [the store]." McBride "hopped out [of] the car and proceeded to go in [the store]."

At that point in time, Edward Lee Rinehart, Jr., an employee of Dick's and "the department lead" in the store's first-floor golf department, was standing some thirty-five to forty feet from the store entrance discussing a matter with a fellow employee. Rinehart saw McBride enter the store wearing a hooded sweatshirt with a bandanna over his face. McBride made "eye contact" with Rinehart but then turned his back to him and walked sideways to the cash register manned by the defendant.

Rinehart started to walk toward the cash register because he thought "something didn't look right" and he had "a feeling we're about to get robbed." However, when he was about fifteen feet away from the cash register, he saw McBride withdraw a weapon from his waistband. The weapon gave Rinehart "some concern," and he "stopped right where [he] was." He thought the weapon was a "semi-automatic pistol ... probably a nine millimeter or a forty-five." Rinehart then "dialed the phone to 911."

When McBride approached the defendant, he said, "[y]ou know what this is," withdrew the weapon from his waistband, and pointed it at the defendant. The latter "emptied the register and put the money in a bag" which he handed to McBride, who then ran out of the building without ever having looked back at Rinehart. Rinehart followed "at a safe distance without leaving the store," meanwhile reporting McBride's actions while "on the phone with 911."

It just so happened that Jason Kolar, a sergeant on the Virginia Beach police force, was sitting in his cruiser outside Dick's when he saw a man running from the store "at a high rate of speed" with his face "partially covered, and ... carrying something in his hand." Kolar followed the man and saw him "jump into a gold Dodge Stratus." Kolar followed the vehicle and called into dispatch and received a "no" response when he asked whether there had been any kind of robbery at Dick's, but shortly was notified that a robbery "had, in fact, ... [j]ust occurred" at Dick's. Kolar continued to follow the vehicle until it pulled into a driveway and stopped.

Kolar radioed for assistance and Sergeant Richard Wallace of the Virginia Beach police force soon arrived. When the officers went up to the stopped vehicle, there were two people in it, Edwards, the driver, and McBride, a passenger. The officers observed "a large quantity of money in the driver's door panel," totaling approximately $1,195.00, as well as "two grayish-colored bandannas that were used in the robbery" and "a pullover sweatshirt type." The officers also found "what turned out to be an air pistol" that looked "[l]ike a semi-automatic handgun."

Testifying in his own defense, the defendant maintained that that he had never discussed the subject of robbery with either Edwards or McBride. He said he was shocked "when all this happened." However, at the end of the trial, the court stated that it "just [did] not place a lot of credibility in the defendant's testimony."

ANALYSIS

The Commonwealth's sole assignment of error is that "[t]he Court of Appeals erred in finding that the Commonwealth had not proven intimidation of the robbery victim." Since this assignment challenges the sufficiency of the evidence, we will view the evidence in the light most favorable to the Commonwealth, the prevailing party in the circuit court, according it the benefit of all reasonable inferences fairly deducible therefrom. Dowden v. Commonwealth, 260 Va. 459, 461, 536 S.E.2d 437, 438 (2000). We will disturb the judgment of the circuit court only upon a showing that it is plainly wrong or without evidence to support it. Viney v. Commonwealth, 269 Va. 296, 299, 609 S.E.2d 26, 28 (2005).

Robbery at common law 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." The phrase "of the personal property of another, from his person or in his presence," has been broadly construed to include the taking of property from the custody of, or in the constructive possession of, another.

Durham v. Commonwealth, 214 Va. 166, 168, 198 S.E.2d 603, 605-06 (1973) (citations omitted).

[When] the owner of personal property, or another having custody or constructive possession of the same, interposes himself to prevent a thief from taking the property, and the force and violence used to overcome the opposition to the taking is concurrent or concomitant with the taking, the thief's action constitutes robbery.

Commonwealth v. Jones, 267 Va. 284, 289, 591 S.E.2d 68, 71 (2004).

Intimidation is defined as follows:

Unlawful coercion; extortion; duress; putting in fear.

To take, or attempt to take, by intimidation means willfully to take, or attempt to take, by putting in fear of bodily harm.... Intimidation ... means putting a victim in fear of bodily harm by exercising such domination and control of her as to overcome her mind and overbear her will.

Sutton v. Commonwealth, 228 Va. 654, 663, 324 S.E.2d 665, 670 (1985) (internal quotation marks omitted); see also Bivens v. Commonwealth, 19 Va.App. 750, 752-53, 454 S.E.2d 741, 742 (1995). And, as the Commonwealth acknowledges on brief, "[t]o sustain a robbery conviction, force or intimidation must be directed at the person of the victim." Spencer v. Commonwealth, 42 Va.App. 443, 449, 592 S.E.2d 400, 403 (2004).

The Commonwealth contends that Rinehart, Dick's "department lead" in its golf department, "was the real victim of the robbery [in this case] and was intimidated by the display of a firearm." The Commonwealth maintains that Rinehart "had constructive possession of the property" which was stolen, that "in relation to [the defendant], [he] had equal or superior authority over the cash in the defendant's register," and that he was under a duty to his employer to protect its property from being stolen.

The Commonwealth asserts that two factual findings made by the circuit court support the proposition that Rinehart was attempting to discharge his duty to his employer when he was stopped by the display of the firearm. The first of these findings was that "Rinehart was on his way over there to help stop this thing"...