Present: Hassell, C.J., Keenan, Koontz, Lemons, Kinser, and 

Goodwyn, JJ., and Carrico, S.J. 

COMMONWEALTH OF VIRGINIA 

 OPINION BY 

v. Record No. 081720 SENIOR JUSTICE HARRY L. CARRICO 

 September 18, 2009 

JASON WILLIAM ANDERSON 

FROM THE COURT OF APPEALS OF VIRGINIA 

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 

2
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 

3
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 

4
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.” 

5
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. 

6
Jones v. Commonwealth, 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. 

7
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” and the second was that Rinehart “interpose[d] 

himself to prevent a theft of the property.” 

“[W]e will not disturb the factual findings of the trial 

court unless plainly wrong or unsupported by the evidence.” 

Commonwealth v. Jackson, 276 Va. 184, 192, 661 S.E.2d 810, 813-

14 (2008) (citation and internal quotation marks omitted). 

According to the Commonwealth, its evidence showed that Rinehart 

“was planning to approach more closely to attempt to forestall 

the robbery,” but stopped when “McBride, having seen Rinehart, 

displayed the weapon to him when he withdrew it from his pocket 

and pointed it at [the defendant].” Thus, the Commonwealth 

says, the “money was taken from [Rinehart’s] possession through 

intimidation directed at him.” 

 The Commonwealth further avows that Rinehart was “put in 

fear,” that he “surrendered the property because he was afraid 

that otherwise he would be shot,” and that “[h]is fear . . . 

overcame [his] mind and overbore his will.” Finally, the 

Commonwealth claims that Rinehart “testified that he was 

8
intending to intervene in what appeared to be a robbery but 

stopped when he saw the gun.” 

 We disagree with the Commonwealth. In the first place, we 

take issue with the Commonwealth’s assertion that “[t]he money 

was taken from [Rinehart] through intimidation directed at him.” 

Here, the Commonwealth misstates the record when it says that 

“McBride, having seen Rinehart, displayed the weapon to him when 

he withdrew it from his pocket and pointed it at [the 

defendant].” (Emphasis added.) Nothing in the record supports 

the statement that McBride displayed the weapon to Rinehart. 

The latter may have seen the weapon when it was displayed to the 

defendant, but it is not correct to say that it was displayed to 

Rinehart. 

With respect to what McBride did in relation to Rinehart, 

all the Commonwealth has to rely upon is the “eye contact” 

McBride had with Rinehart and Rinehart’s view of the weapon when 

McBride reached the cash register and displayed it to the 

defendant. But McBride kept his back turned to Rinehart the 

whole time after the “eye contact” and never again even looked 

in his direction or otherwise paid him any attention before 

leaving the store. 

 Furthermore, we take issue with what the Commonwealth says 

about Rinehart’s reaction to the situation. Rinehart never 

testified “that he was intending to intervene in what appeared 

9
to be a robbery.” The words “intending” and “intervene” or 

anything close to them do not appear anywhere in his testimony. 

Nor did he ever say that he “was planning to approach more 

closely to attempt to forestall the robbery” or that he “was on 

his way to help stop this thing.” The record does not show what 

his intent or plan, if any, may have been, nor does it permit a 

reasonable inference to be drawn as to what he intended or 

planned to do, even when the evidence is viewed in the light 

most favorable to the Commonwealth. And he did not “interpose[] 

himself” to stop the theft. To interpose means to “put 

(oneself) between.” Webster’s Third New International 

Dictionary 1182 (1993). Rinehart stopped fifteen feet short of 

putting himself between McBride and the defendant. 

 But perhaps the Commonwealth’s most inaccurate 

characterization of Rinehart’s reaction to what was taking place 

is found in the Commonwealth’s assertion that he was “put in 

fear” by the display of the weapon. Rinehart did not say he was 

put in fear at the sight of the weapon. All he said was that he 

stopped “[b]ecause there was a weapon involved” and “that [gave 

him] some concern,” a mild reaction, indeed, from someone the 

Commonwealth would have us believe had been traumatized by his 

experience. Having “some concern” is certainly not tantamount 

10
to being “put in fear.”∗

 It is also inaccurate for the 

Commonwealth to say that Rinehart’s “fear . . . overcame his 

mind and overbore [his] will.” Rinehart did not even suggest 

that he suffered such disabilities. 

In the end, about all the Commonwealth is left with is 

McBride’s “eye contact” with Rinehart and the latter’s testimony 

that he stopped “[b]ecause there was a weapon involved” and 

“that [gave him] some concern.” Thus, the evidence is 

insufficient to support the circuit court’s factual findings, to 

establish that Rinehart was intimidated, or to support the 

circuit court’s judgment convicting the defendant of robbery and 

use of a firearm in the commission of robbery. Accordingly, we 

will affirm the judgment of the Court of Appeals. 

Affirmed. 

JUSTICE LEMONS, with whom JUSTICE KINSER joins, dissenting. 

 In my opinion, the only legal principles controlling this 

appeal are the following: 

We have stated that “[o]n appeal, great deference 

is given to the factfinder who, having seen and 

heard the witnesses, assesses their credibility 

and weighs their testimony. Thus, a [circuit] 

court's judgment will not be disturbed on appeal 

unless it is plainly wrong or without evidence to 

support it.” Young v. Commonwealth, 275 Va. 587, 

 ∗

 The dissent quotes the following from the circuit court’s 

summary of its basis for finding the defendant guilty of 

robbery: “Was Mr. Rinehart put in fear? He said yes.” We have 

yet to find such a response by Rinehart anywhere in the record. 

11
590-91, 659 S.E.2d 308, 310 (2008); accord Walton 

v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d 

869, 871 (1998). The issue that we consider, 

upon appellate review, is “ ‘whether, after 

viewing the evidence in the light most favorable 

to the prosecution, any rational trier of fact 

could have found the essential elements of the 

crime beyond a reasonable doubt.’ ” Maxwell v. 

Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 

502 (2008) (quoting Jackson v. Virginia, 443 U.S. 

307, 319 (1979)). 

McMillan v. Commonwealth, 277 Va. 11, 18-19, 671 S.E.2d 396, 399 

(2009). “When a defendant challenges the sufficiency of the 

evidence, the Court reviews the evidence in the light most 

favorable to the Commonwealth, drawing all reasonable inferences 

in its favor as the prevailing party below.” Jones v. 

Commonwealth, 277 Va. 171, 182, 670 S.E.2d 727, 734 (2009) 

(citing Perez v. Commonwealth, 274 Va. 724, 728, 652 S.E.2d 95, 

97 (2007)). I do not believe the majority has followed these 

principles. 

The facts and permissible inferences viewed in the light 

most favorable to the Commonwealth in this case are as follows. 

In November of 2006, Anderson and Edwards were both employed at 

a Dick’s Sporting Goods store in Virginia Beach. The two of 

them “had talked previously about possibly robbing Dick’s 

Sporting Goods and it would be easy and it was nothing 

basically.” They schemed to stage a robbery of Anderson while 

he was working as a cashier at the store. Anderson had stated, 

“[w]e could go in there, just show them the gun, and it would be 

12
simple as one, two, three to threaten somebody and get us some 

money.” On the appointed day for the commission of the crime, 

Edwards involved McBride in the plan. Anderson, Edwards and 

McBride had previously discussed the plan approximately one to 

two weeks earlier. 

On the day of the criminal offense, Anderson called Edwards 

on the telephone to alert him to the precise time that Anderson 

would be at a particular cash register in the store. Edwards 

enlisted the help of McBride and drove him to the store. 

McBride entered the store with a CO2 powered pellet gun. He was 

wearing a black hooded sweatshirt, with the hood pulled up and a 

bandanna over his face. When McBride entered the store, he made 

eye contact with Rinehart, an employee of the store who was 

titled as a “departmental lead” in the golf department. 

 Rinehart testified that he observed McBride walk to the 

register where Anderson was waiting. Rinehart stated that 

“something didn’t look right” and he had “a feeling we’re about 

to get robbed.” He and another employee, identified as “J.B.” 

began walking toward the register. Rinehart testified that he 

stopped about “[f]ifteen, sixteen” feet from the gunman when he 

“saw a weapon come out of [McBride’s] waistband.” The following 

colloquy took place at trial: 

Q Did you continue to walk towards the register when you 

saw the hooded man pull the gun out of his waistband? 

13
A No, sir. I stopped right where I was. 

Q Why did you stop? 

A Because there was a weapon involved. 

Q Did that give you some concern? 

A Absolutely. 

Q What did the weapon look like? 

A I would say it was obviously a semi-automatic pistol. 

My first impression it was probably a nine millimeter 

or a forty-five. 

Q Do you have any familiarity with firearms? 

A Yes, sir. Spent six years in the United States 

Marines. 

Q Did it look like a real gun to you? 

A Yes, sir. 

Q So you didn’t go any closer? 

A No, sir. 

 In the court’s rendition of judgment, the trial judge 

stated:

[T]he court finds the following: Number 1, it 

appears to the court from a credibility 

standpoint of the witnesses and all the evidence 

that I’ve heard that a conversation took place 

between the perpetrators of the robbery and the 

defendant. 

. . . . 

 So I’m convinced and there’s no doubt in my 

mind that the parties talked about this robbery 

on the telephone – Number 1. 

 So then we go to, Is there a conspiracy? 

Absolutely. In my opinion there’s no doubt in my 

14
mind that there was a conspiracy to rob Dick’s 

Sporting Goods. 

 Number 2, What about the robbery? Well, we 

know that the perpetrator went in with a gun. 

Was Mr. Rinehart put in fear? He said yes. He 

was going – He said, Something’s going to happen. 

I’m going over to the cash register; and he 

started walking towards the cash register, saw 

the person pull a gun out, and stopped. He had 

an obligation to protect the assets of the 

company. And so he, in essence, was put in fear 

because there was a gun. Otherwise he would have 

gone over there. 

 So I find from a factual standpoint that the 

defendant’s testimony corroborates the fact that 

he’s guilty and how. 

Commenting upon the case of Durham v. Commonwealth, 214 Va. 

166, 198 S.E.2d 603 (1973), the trial judge stated: 

But in the Durham case it says where the owner of 

the personal property, or another having custody 

or constructive possession of same, interposes 

himself to prevent a theft of the property – and 

I think that’s exactly what we have right here. 

I think Mr. Rinehart was on his way over there to 

help stop this thing and he saw the gun and he 

stopped. 

Revisiting the issue at sentencing the trial court observed: 

The court has found as a matter of fact that the 

defendant in this case was obviously conspiring 

with others to commit this act. He went to the 

extent of calling – making a phone call saying, 

I’ll be down in the downstairs cash register for 

the next hour, I think, or something like that. 

At any rate, the evidence is pretty clear that 

this, in fact, was a robbery. The – they’re 

willing participants in it. 

 And the question is was anybody placed in 

fear? I guess that’s one of the issues. And the 

answer is yes. Mr. Rinehart was an employee of 

the store, and he certainly has an obligation not 

to allow people to be taking stuff out of the 

store. And he was walking over, and he saw the 

15
gunman come in with the gun and a hood; and he 

knew there was a robbery. Eye contact was made. 

And so if he was not afraid, he would have 

continued to walk. He stopped and he was in 

fear. He had an obligation to make sure that the 

money was not taken. The money was taken. And 

therefore I find nothing to – that has been 

presented to change the ruling of the prior 

ruling of the court, and that’s it. 

 As previously stated at the outset of this discussion, the 

only real issue in this appeal is whether this Court will 

properly apply our appellate rules of review. I do not believe 

the majority has done so. 

In Virginia the punishment for robbery is 

fixed by Code § 18.1-91, but there is no 

statutory definition of robbery. Hence we look 

to the common law for its definition. Butts v. 

Commonwealth, 145 Va. 800, 811, 133 S.E. 764, 767 

(1926); Mason v. Commonwealth, 200 Va. 253, 254, 

105 S.E.2d 149, 150 (1958). 

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.” Jones v. Commonwealth, 172 Va. 

615, 618, 1 S.E.2d 300, 301 (1939); Mason v. 

Commonwealth, supra, 200 Va. at 254, 105 S.E.2d 

at 150. 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. Falden v. 

Commonwealth, 167 Va. 542, 545, 189 S.E. 326, 328 

(1937); State v. Butler, 27 N.J. 560, 589, 143 

A.2d 530, 547 (1958). 

. . . . 

Where 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 

16
violence used to overcome the opposition to the 

taking is concurrent or concomitant with the 

taking, the thief’s action constitutes robbery. 

State v. Butler, supra, 27 N.J. at 591, 143 A.2d 

at 547, 548; State v. Culver, 109 N.J. Super. 

108, 112, 262 A.2d 422, 425 (1970); Brown v. 

State, 61 So. 2d 640 (Fla. 1952), cert. denied, 

345 U.S. 913 (1953); State v. Burzette, 208 Iowa 

818, 222 N.W. 394 (1928). 

Durham, 214 Va. at 168-69, 198 S.E.2d at 605-06. 

 The Commonwealth’s theory of the case is relatively simple: 

1. Anderson conspired with others to fake a robbery; he 

intended the scheme to involve the presentation of a 

handgun which served the purpose of intimidating any 

other employees who may have intervened; 

2. Rinehart was an employee who had constructive 

possession of the money that was ultimately taken and 

had a responsibility to preserve the assets of his 

employer; 

3. Rinehart saw what he thought was a robbery of the 

cashier and moved to intervene, but he was stopped 

when a gun was introduced to the situation; 

4. Rinehart, who had constructive possession of the 

money, was intimidated and ceased his intervention, 

and consequently, under Virginia law, Rinehart was a 

victim of robbery. Anderson was a principal in the 

commission of the crime. 

The majority reduces this entire case to two questions: Is 

the evidence sufficient to prove that Rinehart was intervening 

on behalf of his employer and whether Rinehart was intimidated 

by the events in question? It is important to note at the outset 

that even the defendant does not argue that the evidence was 

insufficient to prove that Rinehart was intervening on behalf of 

his employer. Indeed, Anderson, in his brief before this Court 

states, “Whether McBride or Anderson . . . took the property of 

17
Dicks from the person or presence of Rinehart need not be 

addressed at great length here.” Not only was it not addressed 

“at great length here,” it was not addressed at all in the trial 

court, the Court of Appeals, or in Anderson’s brief before this 

Court. The majority opinion raises this issue for the first 

time on appeal in this court. Not only is the issue without 

merit, but we would never allow the defendant to raise such an 

issue for the first time on appeal in this Court. It seems 

inappropriate for the Court to do so sua sponte. 

 The issue that Anderson raised at all times constitutes the 

only legitimate issue before the Court. Is the evidence 

sufficient to prove that Rinehart was intimidated? And on 

review in this Court the question is, based upon the evidence 

and reasonable inferences drawn therefrom, taken in the light 

most favorable to the Commonwealth, was the trial court plainly 

wrong or without evidence to support its judgment that Rinehart 

was intimidated and consequently, that Anderson was guilty as a 

principal to the crime of robbery? 

 The trial court heard Rinehart’s testimony that he saw what 

he thought was a robbery in the making – clearly a reasonable 

conclusion from observing McBride come into the store with a 

hooded sweatshirt over his head and a bandanna on his face. 

Rinehart stated that McBride approached the cash register and 

that as a result of these movements and his concern that a 

18
robbery was about to take place, he and another employee moved 

toward the cash register as well. Rinehart stopped within 

fifteen to sixteen feet from McBride when McBride produced a 

handgun from his waistband. When asked if the presentation of a 

weapon concerned him, Rinehart understandably stated, 

“Absolutely.” His testimony indicated that the production of 

the gun is the reason that he stopped his intervention. It is 

also important to note that Rinehart stopped his intervention at 

the register and did not try to prevent McBride from exiting the 

store with the money. The reason why is quite clear – McBride 

had a gun. 

The majority makes much of the fact that McBride did not 

point the gun at Rinehart. But this conclusion involves a 

fundamental misunderstanding of the law of robbery in Virginia. 

The weapon only needs to be introduced into the equation; 

pointing the weapon at the victim is not required – presentment 

is sufficient. Code § 18.2-58 codifies this understanding: 

If any person commit robbery by partial 

strangulation, or suffocation, or by striking or 

beating, or by other violence to the person, or 

by assault or otherwise putting a person in fear 

of serious bodily harm, or by the threat or 

presenting of firearms, or other deadly weapon or 

instrumentality whatsoever, he shall be guilty of 

a felony. 

Additionally, McBride did point the gun at Anderson, and 

Rinehart’s concern for his fellow employee would be sufficient 

19
to satisfy this element of the offense. With regard to the 

elements of robbery, “the threat of immediate bodily injury or 

death need not be directed at the owner himself; it may be made 

to a member of his family, or other relative, or even to someone 

in his company, though there be no threat to do harm to the 

owner himself.” Wayne R. LaFave, Substantive Criminal Law 

§ 20.3(d)(2), at 186 (2nd ed. 2003). Of great importance here, 

and never mentioned by the majority, the trial court viewed a 

video of the robbery itself. As the trier of fact without a 

jury, the trial judge was able to observe McBride’s actions and 

Anderson’s reactions during the event. 

Perhaps most puzzling of all is the majority’s attempt to 

distinguish between “being put in fear” and “having some 

concern,” a distinction that, in this context, is without 

substance. This case was tried by the court without a jury. The 

trial court stated, “Rinehart was on his way . . . to help stop 

this thing and he saw the gun and he stopped. . . Well, we know 

the perpetrator went in with a gun. Was Mr. Rinehart put in 

fear? He said yes.” As the majority correctly notes, Rinehart 

did not use the word “fear.” However, criminal juries in 

Virginia are routinely instructed that they are entitled to “use 

their common sense” in consideration of the evidence and that 

they may “draw reasonable inferences” from the evidence. Here 

the trial judge, as fact-finder did just that – utilized common 

20
sense and reasonable inferences to conclude that “[Rinehart] was 

walking over, and he saw the gunman come in with the gun and a 

hood; and he knew there was a robbery. Eye contact was made. And 

so if he was not afraid, he would have continued to walk. He 

stopped and he was in fear.” 

The trial court’s determination on the facts of this case, 

including observation of the videotape of the event itself, 

cannot be said to be plainly wrong or without evidence to 

support it. Either Rinehart himself was intimidated or pointing 

a weapon at his fellow employee satisfied the element of the 

offense. 

Anderson told Edwards that the robbery “would be easy and 

it was nothing basically.” He said “[w]e could go in there, 

just show them the gun, and it would be simple as one, two, 

three to threaten somebody and get us some money.” (Emphasis 

added.) Clearly, Anderson intended that threat or intimidation 

of “somebody” be used to commit the crime. That “somebody” was 

Rinehart. That crime is called robbery. 

I dissent. 

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