                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner
Argued at Salem, Virginia


ANTHONY VINSON LOVING
                                          MEMORANDUM OPINION * BY
v.   Record No. 0606-98-2             JUDGE RUDOLPH BUMGARDNER, III
                                              APRIL 13, 1999
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
               Arthur W. Sinclair, Judge Designate

          Scott Goodman for appellant.

          Daniel J. Munroe, Assistant Attorney General
          (Mark L. Earley, Attorney General; Leah A.
          Darron, Assistant Attorney General, on
          brief), for appellee.


     Anthony Vinson Loving appeals his conviction of robbery

after a bench trial.    He contends the evidence was insufficient

to prove violence toward or intimidation of the victim.   We

conclude that the evidence was sufficient to prove intimidation

and affirm the conviction.

     On appeal, we view the evidence in the light most favorable

to the Commonwealth, granting to it all reasonable inferences

fairly deducible therefrom.    See Archer v. Commonwealth, 26 Va.

App. 1, 11, 492 S.E.2d 826, 831 (1997).   The victim drove to the

Barracks Road Market to buy a soft drink.   When she returned,


    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
she put her change in her pocketbook, and put the pocketbook on

the back seat of her two-door car.      She rolled her window down

and was about to leave the parking lot when the defendant and

codefendant Greg Cook drove up.    They parked “kind of

catty-cornered” to the victim’s car, exited the vehicle, and

went up to her.   The victim did not know either of them or their

names, but she had seen them before.     The defendant leaned in

the driver’s window resting his hand on the steering wheel.

Cook was toward the back of the victim’s window with his arm on

the roof leaning on the car.

     The defendant began talking to the victim “to distract

[her] attention.”   He talked for a few minutes asking her name

and where she lived, commenting on her looks, and then he began

asking aggressive questions such as whether she had ever had

sexual relations with three men.   The victim said she could not

drive off because she would have dragged them with her.     “I

didn’t know exactly, you know, what to do or—or if something was

going to happen to me if I did do it.”     “There was nothing I

really could do.”   “I just froze.”

     Cook reached into the back of the car while the defendant

kept talking to the victim.    When asked what he was doing, Cook

denied doing anything, but he walked to the back of her car

before returning to the victim’s window.     She testified that she

did not turn around while Cook was reaching in the back and did



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not ask additional questions “because I was the only one there.”

She was aware her purse was on the back seat.

     There was only one other car in the store lot and it was

unoccupied.   The victim was alone at dusk, and she “was really

scared.”   Finally, a friend of the victim came up and called out

“Anthony” to the defendant.   The defendant looked up, saw that

the person knew him, then he and Cook “scrambled and got in

their car and—and took off behind the store.”   The victim

immediately turned and looked for her pocketbook, but it was not

there.   It contained about ten dollars in cash, jewelry valued

between seven and eight hundred dollars, and her bank and credit

cards.   None of the items were recovered.

     The defendant does not contest that a larceny took place,

but claims that he neither took the pocketbook nor participated

in the crime.   We find his argument unpersuasive.   The defendant

admits that the pocketbook was stolen while he engaged the

victim in “crude conversation.”   The trial court held that the

defendants were engaged in a “joint venture.”   The trial court’s

judgment will not be disturbed on appeal unless plainly wrong or

without evidence to support it, see Josephs v. Commonwealth, 10

Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en banc), and the

evidence supports such a finding.   “[P]roof that a person is

present at the commission of a crime without disapproving or

opposing it, is evidence from which, . . . the jury [can] infer



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that he assented thereto, . . . and was thereby aiding and

abetting the same.”     Foster v. Commonwealth, 179 Va. 96, 99-100,

18 S.E.2d 314, 315-16 (1942).     See McGill v. Commonwealth, 24

Va. App. 728, 733, 485 S.E.2d 173, 175 (1997).

     The defendant’s main contention is that the robbery

conviction cannot stand because his conduct did not constitute

the use of violence or intimidation directed at the victim.    We

agree that the defendant’s conduct did not constitute the use of

violence, force, or threat.    However, it is not necessary that

threats be made for a robbery conviction to stand.     See Bivins

v. Commonwealth, 19 Va. App. 750, 753, 454 S.E.2d 741, 742

(1995) (“Intimidation differs from threat in that it occurs

without an express threat by the accused to do bodily harm.”

(citations omitted)).

     Robbery, a common law offense, 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.”   Johnson v. Commonwealth, 209 Va. 291, 293, 163

S.E.2d 570, 572-73 (1968).     See Mason v. Commonwealth, 200 Va.

253, 255-56, 105 S.E.2d 149, 151 (1958).    “The alternative

elements of violence or intimidation have been further defined

as the use of ‘force, threat or intimidation.’”     Bivins, 19 Va.

App. at 752, 454 S.E.2d at 742 (emphasis added) (citation

omitted).   Therefore, the issue is whether defendant’s conduct



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placed the victim in fear of bodily harm.      See United States v.

Wagstaff, 865 F.2d 626, 628 (4th Cir.), cert. denied, 491 U.S.

907 (1989); Chappelle v. Commonwealth, 28 Va. App. 272, 275, 504

S.E.2d 378, 379 (1998); Winn v. Commonwealth, 21 Va. App. 179,

181-82, 462 S.E.2d 911, 912-13 (1995); Bivins, 19 Va. App. at

752, 454 S.E.2d at 742.

     “Intimidation results when words or conduct of the accused

exercise such domination and control over the victim as to

overcome the victim’s mind and overbear the victim’s will,

placing the victim in fear of bodily harm.”      Bivins, 19 Va. App.

at 753, 454 S.E.2d at 742.   “It is only necessary that the

victim actually be put in fear of bodily harm by the willful

conduct or words of the accused.”      Harris v. Commonwealth, 3 Va.

App. 519, 521, 351 S.E.2d 356, 357 (1986) (citations omitted).

“The test in this circuit for intimidation under [the bank

robbery statute] is whether ‘“an ordinary person in the

[victim’s] position reasonably could infer a threat of bodily

harm from the defendant’s acts.”’”      United States v. Woodrup, 86

F.3d 359, 363 (4th Cir.), cert. denied, 117 S. Ct. 332 (1996)

(quoting United States v. Wagstaff, 865 F.2d 626, 628 (4th

Cir.), cert. denied, 491 U.S. 907 (1989)).     Where the

defendant’s conduct amounts to intimidation or is reasonably

calculated to produce fear, see United States v. Amos, 566 F.2d

899, 901 (4th Cir. 1977), and is concomitant with a taking, the



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evidence is sufficient to support a conviction for robbery.       See

Mason, 200 Va. at 256, 105 S.E.2d at 151.

     Here, the defendant and Cook created an atmosphere of

intimidation.    The victim was alone in her car, at dusk, in a

deserted parking lot.   Two males unexpectedly appeared at her

door, leaned into her car, and made aggressive sexual

conversation.    The victim was afraid, did not know what was

going to happen, and “just froze.”      The fact finder was entitled

to infer that defendant’s intimidating words and conduct induced

the victim’s fear, was intended to distract her while Cook stole

the pocketbook, and resulted in the victim’s unwilling

acquiescence in the taking.    See Harris, 3 Va. App. at 521, 351

S.E.2d at 357.

     The victim did not need to know exactly what Cook was doing

when he reached in the back of the car.     The victim does not

need to know that her property is being taken for robbery to be

committed.   See Bunch v. Commonwealth, 225 Va. 423, 440, 304

S.E.2d 271, 280, cert. denied, 464 U.S. 977 (1983) (irrelevant

whether victim was dead when taking occurred).      See also

Williams v. Kelly, 816 F.2d 939, 948 (4th Cir. 1987) (“Under

Virginia law, the absence of direct evidence of the timing of

the intimidation or violence in relation to the taking of the

property is not necessarily fatal to a finding that the

defendant committed a robbery.”).



                                - 6 -
     The victim did not resist Cook’s reaching into the back of

the car, did not look to see what he was doing, and did not

check whether her pocketbook was gone.   These are facts “from

which a reasonable and justifiable inference could have been

drawn” that the taking of the pocketbook was accomplished by

defendant’s intimidating words and conduct.   Williams, 816 F.2d

at 948.   See Mason, 200 Va. at 256, 105 S.E.2d at 151.   She took

no action to secure her property because of the intimidating

confrontation with the defendant.

     We find that the evidence establishes that the defendant’s

intimidating conduct and words occasioned the taking.

Accordingly, we affirm the conviction for robbery.

                                                          Affirmed.




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