COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Annunziata and Senior Judge Overton*

Argued at Norfolk, Virginia 

STEVEN THOMAS WATERS 

 OPINION BY 

v. Record No. 2613-97-1 JUDGE JAMES W. BENTON, JR. 

 FEBRUARY 2, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY 

Fred W. Bateman, Judge Designate 

 Sydney K. L. West (Horne, West and McMurtrie, 

P.C., on brief), for appellant. 

 Robert H. Anderson, III, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Steven Thomas Waters appeals from convictions for robbery, 

statutory burglary, and conspiracy to commit robbery. He 

contends the robbery indictment was defective, that the evidence 

was insufficient to prove robbery, and that the burglary and 

conspiracy convictions must fail because they are dependent upon 

the sufficiency of the evidence to prove robbery. For the 

reasons that follow, we affirm the convictions. 

 I. 

 Marie Smith, who was a manager at a Pizza Hut restaurant at 

the time of the events at issue, testified that Steven Thomas 

Waters and Philip Danforth, an employee of the restaurant, told 

 

 *Judge Overton participated in the hearing and decision of 

this case prior to the effective date of his retirement on 

January 31, 1999 and thereafter by his designation as a senior 

judge pursuant to Code § 17.1-401, recodifying Code 

§ 17-116.01:1. 
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her they intended to rob employees of the restaurant. They asked 

for her cooperation and assured her that she would not be harmed. 

 Several weeks later, on a Saturday night, Smith learned that 

Waters would commit the robbery that night. Smith was in the 

restaurant with Danforth, Brett Cahoon, who was training to be a 

manager, and William Richardson, who had formerly worked at the 

restaurant and managed another Pizza Hut restaurant. 

 After the restaurant closed at 11:00 p.m., Smith left a door 

unlocked to facilitate Waters' entry into the restaurant. Waters 

entered the restaurant wearing a hooded sweatshirt drawn around 

his face and displaying a knife. Waters put the knife close to 

Richardson's face and ordered everyone to move toward the rear of 

the restaurant. During the commotion, Waters cut Richardson's 

chin. When they arrived at the rear of the restaurant, Waters 

locked Cahoon, Danforth, and Richardson in a closet and ordered 

Smith to remain outside the closet. Accompanied by Waters, Smith 

opened the safe and put money from the safe into a bag. Smith 

also opened the cash registers. After Waters left the restaurant 

with approximately $2,400, Smith opened the closet to release the 

three people and activated an alarm. 

 Later that night, Smith and Danforth left the restaurant 

together. Danforth stopped and telephoned Waters at a hotel. 

Danforth then drove Smith home. A few weeks later, Waters gave 

Smith and Danforth $1,000 of the money. 

 The trial judge convicted Waters of robbery, statutory 
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burglary, and conspiracy to commit robbery. 
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 II. 

 One indictment charged that "Waters did unlawfully and 

feloniously rob Pizza Hut, Gloucester Pt., Virginia" in violation 

of Code § 18.2-58. Relying upon Falden v. Commonwealth, 167 Va. 

542, 189 S.E. 326 (1937), Waters contends the indictment was 

defective because the victim of a robbery cannot be an inanimate 

object. Although Waters objected before the verdict was 

rendered, see Code § 19.2-227, the Commonwealth argues that we 

should not reach the merits of this claim because Waters failed 

to earlier object as required by Rule 3A:9(b)(1). 

 In pertinent part, Rule 3A:9(b)(1) provides that "[d]efenses 

and objections based on defects . . . in the written charge upon 

which the accused is to be tried, other than that it fails to 

show jurisdiction in the court or to charge an offense, must be 

raised by motion made [before a plea is entered and, in a circuit 

court, at least 7 days before the day fixed for trial]." See

also Rule 3A:9(c). By its explicit terms, the Rule excepts from 

its time requirement an objection based on the claim that the 

indictment fails "to charge an offense." Rule 3A:9(b)(1). 

 In Falden, the Supreme Court ruled as follows: 

 The fatal defect in the indictment is that 

it does not charge a crime. The offense 

which was intended to be charged was robbery. 

 The alleged offense charged is a conspiracy 

entered into between the accused and others 

for the purpose of robbing a certain United 

States mail truck. 

 There is in Virginia no such crime as 

statutory robbery. 
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Falden, 167 Va. at 545, 189 S.E. at 327-28. This is precisely 

the type of claim Waters made when he objected to the indictment 

prior to the verdict. We, therefore, conclude that Waters' 

objection was not untimely. 

 The Commonwealth next argues that the indictment was not 

defective because it satisfied the requirements of Crawford v. 

Commonwealth, 217 Va. 595, 231 S.E.2d 309 (1977). In Crawford, 

the indictment charged that the accused "rob[bed] the Southland 

Corporation, t/a 7-11 Store of United States currency." Id. at 

595, 231 S.E.2d at 309. The Supreme Court distinguished that 

indictment from the one it declared defective in Falden. The 

Court stated "that [in Crawford] the indictment does not charge 

that a store, an inanimate thing, was robbed. It charges the 

robbery of a corporation which can only act through persons 

-- its agents, servants, employees and officers." 217 Va. at 

597, 231 S.E.2d at 310-11. The Supreme Court also noted that, at 

the time of the offense, the Code of Virginia had a statutory 

provision that extended the word "person" to include "bodies 

. . . corporate." Id. at 598 n.2, 231 S.E.2d at 311 n.2. See

also Alger v. Commonwealth, 19 Va. App. 252, 256, 450 S.E.2d 765, 

767 (1994) (noting that "[a] corporation may be the 'victim' of a 

robbery, although the agents or employees are the direct 

victims"). 

 We must decide in this appeal whether the charge that Waters 

"rob[bed] Pizza Hut, Gloucester Pt., Virginia" is more analogous 
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to "robbing a certain United States mail truck," Falden, 167 Va. 

at 543, 189 S.E. at 326, or to "rob[bing] the Southland 

Corporation, t/a 7-11 Store," Crawford, 217 Va. at 595, 231 

S.E.2d at 309. We conclude this case is analogous to Crawford. 

 As the Supreme Court observed in Falden, robbery is a common 

law crime in Virginia and "is a crime against the person." 167 

Va. at 545, 189 S.E. at 328. See also Jones v. Commonwealth, 26 

Va. App. 736, 738, 496 S.E.2d 668, 669 (1998). As did the Court 

in Crawford, we also note that the current Code of Virginia 

broadly defines "'person' . . . [to] include any individual, 

corporation, partnership, association, company, business, trust, 

joint venture or other legal entity." Code § 1-13.19. Although 

the indictment against Waters does not specify whether "Pizza 

Hut, Gloucester Pt., Virginia" is a corporation, we conclude that 

it minimally provided notice to Waters that the entity is a 

business. The indictment charged the robbery of a business 

entity, "which can only act through persons -- its agents, 

servants, employees and officers." Crawford, 217 Va. at 597, 231 

S.E.2d at 310-11. 

 We concede that the indictment in this case comes 

uncomfortably close to alleging "that a store . . . was robbed," 

a charge which the Supreme Court implied might be defective. Id.

 However, because the indictment in this case named the entity, 

i.e., "Pizza Hut, Gloucester Pt., Virginia" and because the 

definition of "person" under Code § 1-13.19 is broader than when 
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Falden and Crawford were decided, see 1988 Acts of Assembly, 

c. 36, we conclude that the offense of robbery was sufficiently 

stated in the indictment. When the indictment charged that 

Waters robbed the "Pizza Hut, Gloucester Pt., Virginia," it 

charged, in effect, that he robbed the agents of that business 

entity. 

 III. 

 Waters also contends the evidence was insufficient to 

convict him of robbery because the money was taken only from 

Smith, his co-conspirator, and the taking was not accomplished by 

placing Smith in fear. We disagree with that view of the 

evidence. 

 "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." 

Pierce v. Commonwealth, 205 Va. 528, 532, 138 S.E.2d 28, 31 

(1964). Recently, we applied the well established principle that 

"[w]hen [an accused] takes property 'from the presence of a 

person whose right to possession is superior to that of the 

[accused], the robbery is complete.'" Lebedun v. Commonwealth, 

27 Va. App. 697, 718, 501 S.E.2d 427, 437 (1998) (citation 

omitted). See also Johnson v. Commonwealth, 215 Va. 495, 496, 

211 S.E.2d 71, 72 (1975). 

 Although Waters focuses his analysis upon Smith's role in 

assisting him to take the restaurant's money, the evidence 
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clearly proved that Waters used violence and intimidation to 

secure Cahoon in the closet as a means of facilitating the taking 

of money. Holding a knife close to Richardson and using the 

threat of injury to Richardson, Waters forced Cahoon and two 

other persons to enter the closet. Cahoon, a manager trainee, 

was an employee of the restaurant and had earlier deposited money 

in the restaurant's safe. As an employee, Cahoon had a duty to 

exercise "reasonable diligence . . . to protect the company's 

property from damage or larceny by strangers." Id. at 497, 211 

S.E.2d at 73. Thus, the evidence was sufficient to prove beyond 

a reasonable doubt the elements of robbery. See id. at 496-97, 

211 S.E.2d at 72-73; Lebedun, 27 Va. App. at 718-19, 501 S.E.2d 

at 437-38. 

 IV. 

 Waters further contends the evidence was insufficient to 

prove conspiracy to commit robbery and burglary (entering the 

building with intent to commit robbery). However, this 

contention is contingent upon Waters' ability to successfully 

establish either that the robbery indictment was defective or the 

evidence was insufficient to prove robbery. Because we affirm 

the robbery conviction, Waters' contention lacks merit. 

 Accordingly, we affirm the convictions. 

 Affirmed.