Record No. 0314-90-1.Court of Appeals of Virginia. Norfolk.
January 22, 1991.
Appeal from the Circuit Court of the City of Virginia Beach, Philip L. Russo, Judge.
Dale Vernon Berning (Office of the Public Defender, on brief), for appellant.
Janet F. Rosser, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Judges Baker, Barrow, and Willis
MEMORANDUM OPINION[*] BY JUDGE BERNARD G. BARROW
This is an appeal of a conviction of attempted robbery. The appellant contends that the evidence failed to show that he used violence or intimidation to accomplish the offense. We conclude that there was sufficient evidence of violence or intimidation to support the conviction.
The victim, Kristen Dove, age 12, was sitting on a bus stop bench with two friends, Heather and Christine, ages 13 and 15, while waiting for a ride between 10:00 and 11:00 p.m. The defendant, 33, a six-foot-one, 170-pound male, approached the three girls and said, “I’m not the type of guy to abuse or harass a woman.” He told them that even though he did not know them, he loved them. The defendant told Heather and Kristen to keep eating (Kristen was eating chips), and then he looked at Christine and said to her, “I want to fuck you.” The defendant told the girls he wanted each of them to give him seventy-five cents.[1] Heather and Christine both testified that when the girls said that they did not have any money, the defendant told them to “shut the fuck up.” Kristen testified that when the defendant asked for the money, “[h]e was being very rude. He was cussing at us. He told us to shut the fuck up. . . .” She said that the defendant was standing up in front of them and had a jacket draped over his arm. Kristen also testified that the defendant “was holding an umbrella in front of us, and it was threatening to me . . . because he’s a lot bigger than us and we were sitting down.” Heather and Christine testified that they were afraid the defendant was concealing a weapon under his jacket.
Christine gave the defendant some change, fifty to seventy-five cents. He started talking to Heather and asked Kristen to scoot over. Kristen did not comply; instead, she stood up, “threw something away” and “went over to a guy sitting on another bench.” She asked this man if he could help them “because obviously something was wrong with [the defendant] and we didn’t really like the way we felt.”
Officer Pennypacker and Officer Sheridan were on foot patrol that night when they were approached by the three girls. Officer Pennypacker testified that the girls were “crying and clinging to each other, and they had . . . a look of terror on their faces.”
In Virginia, robbery is “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. Harris v. Commonwealth, 3 Va. App. 519, 521, 351 S.E.2d 356, 356 (1986). The only necessary component of “intimidation” is that “the victim actually be put in fear of bodily harm by the willful conduct or words of the accused.” Id. There is no requirement that the fear of bodily harm be reasonable. Id. at 522, 351 S.E.2d at 356. However, it “must result from the words or conduct of the accused rather than the temperamental timidity of the victim.” Id. at 521, 351 S.E.2d at 356.
There was evidence that the victim was actually put in fear of bodily harm by the willful conduct and words of the accused. Evidence that the defendant, age 33 and of relatively large stature, confronted a twelve-year-old child, threatening her with an umbrella and verbally abusing her and her companions was evidence of the defendant’s willful conduct which had the capacity to put the victim in fear of bodily harm. Her attempt to get help and the emotional distress exhibited to the police officer were evidence of the effect of this conduct on the victim. This evidence sufficiently supported the finding that the defendant had put the victim in fear of bodily harm through his own willful conduct and words. Therefore, we conclude that the conviction of attempted robbery should be affirmed.
Affirmed.
45.)