Opinion
Record No. 0420-92-4
July 13, 1993
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY RICHARD B. POTTER, JUDGE.
Daniel J. Morissette (Depolo Morissette, on brief), for appellant.
Leah A. Darron, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Judges Baker, Bray and Fitzpatrick.
Argued at Alexandria, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
William R. Gicker (appellant) appeals his conviction of robbery in violation of Code § 18.2-58. He argues that the trial judge erred in refusing to grant his motion to strike the Commonwealth's evidence as insufficient as a matter of law to prove robbery. We agree and reverse the conviction.
Because the parties are familiar with the facts of this case, we restate only those facts necessary to explain our holding. Appellant and Thomas Gespersen (the alleged victim) both worked as cashiers for a service station in Prince William County. On June 25, 1991, at approximately 9:00 p.m., Gespersen was working in the attendant's booth when he received a telephone call from appellant. Appellant told Gespersen that he needed money; that he was sending someone to the station to get the money; and to call the police five minutes after the person left "and say that some tall, scraggly, black dude did it." Gespersen replied that he was not going to jeopardize his job. Appellant said that he would call back in ten minutes for a yes or no answer and promised Gespersen $500 if he cooperated.
Gespersen contacted his employer and was instructed to "go along" with appellant's scheme. The police were called and they staked-out the gas station for a possible robbery. When appellant called back, Gespersen agreed to the scheme at the direction of his employer. Appellant then said he would send someone for the money. Gespersen did not expect appellant to come himself.
Shortly thereafter, appellant walked up to the gas station and approached the locked attendant's booth where Gespersen was working. "He knocked on the door [and shouted 'open the door' and Gespersen] unlocked the door; and then [appellant] opened the door and made his way in." Appellant pushed Gespersen aside and said, "give me the money." Appellant "jerked" open the cash drawer, and Gespersen gave him in excess of $500.
Gespersen testified that he intended to give defendant the money regardless of whether he was threatened because he was acting in accordance with the owner's instructions and because he did not want "to get hurt." After receiving the money, appellant pushed past Gespersen and exited the booth. He walked across the station lot for approximately one hundred feet and then back to the booth, where he told Gespersen that if he was given any trouble that Gespersen and his family would die. Appellant then struck Gespersen on the head with his clinched fist.
As appellant left the station, he was confronted by police and ordered to stop. Appellant fled, but was soon apprehended by the police while hiding in some nearby weeds. The gas station's money was recovered from his jacket pocket.
"When passing upon the sufficiency of the evidence to support a conviction, we must view the evidence in the light most favorable to the Commonwealth, granting it all reasonable inferences fairly deducible therefrom." Crumble v. Commonwealth, 2 Va. App. 231, 233, 343 S.E.2d 359, 361 (1986);see Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). The judgment is not to be disturbed unless plainly wrong or without evidence to support it. Id.
"The elements of robbery, a common law offense in Virginia, include a 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 which precedes or is concomitant with the taking." Jones v. Commonwealth, 13 Va. App. 566, 572, 414 S.E.2d 193, 196 (1992).
Appellant clearly devised a scheme to steal money from his employer; however, the evidence fails to meet the traditional tests of robbery. Gespersen, with the consent of the station owner, agreed to give appellant the money before he ever appeared at the station. Therefore, when Gespersen surrendered the money, the taking was not accomplished by "violence or intimidation," because Gespersen was following the station owner's direction to "go along" with appellant's scheme and surrender the money.
Because we conclude that an essential element of robbery was not proved, the judgment of conviction is reversed and dismissed.
Reversed and dismissed.