United States Court of Appeals

For the Eighth Circuit

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No. 16-3341

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

David E. Clark

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Western District of Missouri - Kansas City

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 Submitted: June 5, 2017

 Filed: August 21, 2017

[Unpublished]

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Before LOKEN, MURPHY, and MELLOY, Circuit Judges.

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PER CURIAM.

Defendant David Clark was convicted of bank robbery and sentenced to 60

months imprisonment. He appeals, challenging the sufficiency of the evidence. We

affirm.
I.

David Clark walked into the Plaza branch of Commerce Bank in Kansas City,

Missouri on the afternoon ofJuly 28, 2014 wearing a baseball hat, an orange vest, and

sunglasses. Teller Justin Souza at once sensed that Clark was there to rob the bank. 

Clark walked right up to Souza's station and tried to give him a piece of paper. In a

tone loud enough to be heard by others, Souza asked Clark several times if he could

help him. Clark demanded Souza open his cash drawer, and Souza told him the

drawer was locked and he did not have the key. Clark then ordered Souza to get the

key. After Souza asked another worker for help, Clark told him, "No, don't do it." 

Clark demanded specific types of bills when the cash drawer was opened. Souza then

turned over $3,037 to Clark who left the bank. Souza reported the robbery to the

police and later testified at trial that he had feared that Clark might have been

reaching for a weapon. Souza said he had been concerned for his own safety as well

as for the other people in the bank.

After Clark was charged with one count of bank robbery under 18 U.S.C.

§ 2113(a), he waived his right to a jury trial. The case was tried to the court, and the

evidence was mainly undisputed. Clark argued, however, that the government had

not shown that he had taken the funds "by intimidation," an element of bank robbery

under § 2113(a). He stipulated to the other elements of the offense, and the district

court found that the evidence did establish intimidation. Clark was sentenced to 60 1

months. He appeals, arguing that the evidence was insufficient to prove the offense

of bank robbery.

The Honorable Gary A. Fenner, United States District Judge for the Western 1

District of Missouri.

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II.

We review the sufficiency of the evidence de novo and examine the record in

the light most favorable to the government while resolving conflicts in its favor and

"accepting all reasonable inferencesthatsupport the verdict." United States v. Koch,

625 F.3d 470, 478 (8th Cir. 2010) (quoting United States v. Scofield, 433 F.3d 580,

584–85 (8th Cir. 2006)). The same standard applies as in a jury case, and we "will

reverse only 'if no reasonable [factfinder] could have found [the defendant] guilty

beyond a reasonable doubt.'" Id. (alteration in original) (quoting United States v.

Gray, 369 F.3d 1024, 1028 (8th Cir. 2004)).

In order to convict Clark of bank robbery, the government was required to

prove that he had taken the funds by intimidation or force and violence. 18 U.S.C.

§ 2113(a). The element of intimidation can be satisfied by showing that "an ordinary

person in the bank teller's position" could have reasonably perceived "a threat of

bodily harm from the bank robber's words and actions." United States v. Pickar, 616

F.3d 821, 825 (8th Cir. 2010). Evidence of the teller's subjective fear and

intimidation "is probative of whether [the robber's] acts were objectively

intimidating." Id. (alteration in original) (quoting United States v. Caldwell, 292 F.3d

595, 596 (8th Cir. 2002)). One example of intimidation is found in United States v.

Smith, 973 F.2d 603 (8th Cir. 1992).

In Smith, the defendant sought to withdraw $2,500 although he did not have

an account at the bank. 973 F.2d at 603. After yelling, "[Y]ou can blame this on the

president, you can blame this on whoever you want," the defendant leaned only a foot

away from the teller who feared that he might have a weapon in his fanny pack. Id.

at 603–04. Several days later the defendant approached a different teller, again

seeking to make a withdrawal. Id. at 604. When that teller refused, the defendant

moved on to a second who recognized him from his previous visit but who was

unable to see both of the defendant's hands. Id. When the defendant leaned over the

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second teller's counter and twice demanded $5,000, the teller complied. Id. The

defendant was later convicted of two counts of bank robbery, the evidence having

established that he took money by intimidation on both occasions. Id. at 604–05. 

The intimidation element of bank robbery was also illustrated in United States v.

Caldwell, 292 F.3d 595, 596 (8th Cir. 2002), where that defendant first slammed his

hands on a bank counter and then jumped over it. After the adjacent teller screamed,

the defendant moved to another counter and emptied its cash drawer before leaving

the bank without saying anything or showing any weapon. Id. 

In the case now before our court, Clark approached Souza's teller station with

a piece of paper and told the teller to open his cash drawer and give him its contents. 

The teller tried to seek assistance from a coworker, but Clark ordered him to stop. 

The teller and Clark were only an arm's length apart at this point without any physical

barrier between them. The district court found that Clark had intimidated Souza by

approaching closely to a point from which he could have grabbed or hit the teller. 

Clark's manner also made Souza think he might have a gun. We agree with the

district court that an ordinary person in the teller's position could have reasonably

feared "a threat of bodily harm." See Pickar, 616 F.3d at 825. We conclude that the

evidence of intimidation was sufficient to support Clark's conviction.

III.

For these reasons we affirm.

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