                  COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Clements and Senior Judge Hodges
Argued at Chesapeake, Virginia


JOHN BROOKS
                                         MEMORANDUM OPINION * BY
v.   Record No. 2852-99-1             JUDGE JEAN HARRISON CLEMENTS
                                             OCTOBER 24, 2000
COMMONWEALTH OF VIRGINIA


       FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                       John K. Moore, Judge

          Ben Pavek, Assistant Public Defender, for
          appellant.

          Thomas M. McKenna, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     John Brooks was convicted in a jury trial of robbery.     On

appeal, he contends (1) the trial court erred in permitting the

Commonwealth to refresh the memory of the victim and (2) the

evidence was not sufficient to sustain the conviction.    We

disagree and affirm the conviction.

     As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, this opinion recites only those facts necessary to a

disposition of this appeal.




     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                   A.   REFRESHED RECOLLECTION

     Appellant contends that the trial court erred in allowing

the Commonwealth to refresh the recollection of Stephanie

Ferebee, the victim herein, following her unequivocal testimony

that Brooks entered the store only twice because she had given

no indication that her memory needed to be refreshed.    It was,

of course, important to the Commonwealth's case that Ms. Ferebee

testify that Brooks entered the store a third time as that is

when the robbery occurred.

     In addressing the issue of "present recollection

refreshed," this Court has held that

          when a witness has a memory lapse on the
          stand and "forgets some portion (or even
          all) of the facts of the matter about which
          [he or she is] called to testify," a party
          may attempt to "refresh" the witness's
          memory by having the witness examine
          materials relating to the matter for which
          they are testifying.

McGann v. Commonwealth, 15 Va. App. 448, 451-52, 424 S.E.2d 706,

709 (1992) (alteration in original) (quoting Charles E. Friend,

The Law of Evidence in Virginia § 18 (3d ed. 1988)).     The issue

here then is whether the victim had a memory lapse on the stand.

     Admittedly, if Ms. Ferebee's original responses to the

prosecutor's questions regarding what took place following

Brooks's second departure from the store are viewed in

isolation, it is difficult to imagine a memory lapse on her




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part.    More than once she stated with no apparent equivocation

that Brooks did not enter the store a third time.

        A review of the victim's testimony as a whole, however,

convinces us that Ms. Ferebee did indeed suffer a memory lapse

while testifying.    Much of her testimony prior to having her

memory refreshed was confused.    She initially testified that

Brooks, after entering the store a second time, left the store

and came back in again.    Shortly thereafter, though, she

testified that Brooks came into the store only twice.      She also

testified that she left the store immediately after Brooks left

the second time.    However, when she returned to the store, her

register was inexplicably on the floor and broken open, despite

having been intact and on the counter when she left.

        The prosecutor then asked Ms. Ferebee, without objection,

about the state of her memory:

                  Q. Ma'am, let me ask you this. How
             clearly are you able to recall today the
             events of –

                  A. It was awhile – awhile ago, so I
             can remember as much as I can. You know, it
             was awhile ago. So –

                  Q. Okay. Can you tell the court
             whether or not there's parts today you're
             not – may not be able to remember that
             happened day?

                  A. Probably, because I'm going through
             some stuff right now; and I only had like
             two hours of sleep. So –




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     We find, therefore, that the victim's confused testimony

and her admission on the stand that she was probably forgetting

something that happened that night sufficiently demonstrated

that Ms. Ferebee forgot when testifying some portion of the

facts of the matter about which she was called to testify.

Hence, the trial court did not err in allowing the Commonwealth

to refresh her recollection.

                  B.   SUFFICIENCY OF THE EVIDENCE

     Appellant also contends that the jury verdict cannot be

sustained because there was insufficient evidence to convict him

of robbery.   Specifically, he maintains that the evidence

presented to the jury was not sufficient to prove beyond a

reasonable doubt that the taking of the victim's property by

appellant was achieved through the use of violence or

intimidation.

     The elements of common law robbery include the taking of a

victim's property "'against his will, by violence or

intimidation.'"   Harris v. Commonwealth, 3 Va. App. 519, 521,

351 S.E.2d 356, 356 (1986) (quoting Johnson v. Commonwealth, 209

Va. 291, 293, 163 S.E.2d 570, 572-73 (1968) (emphasis added)).

Thus, a robbery can occur when a defendant employs either

violence or intimidation against the victim, or both.   See

Chappell v. Commonwealth, 28 Va. App. 272, 275, 504 S.E.2d 378,

379 (1998).


                                - 4 -
     "Violence or force requires a physical touching or

violation of the victim's person."      Bivins v. Commonwealth, 19

Va. App. 750, 752, 454 S.E.2d 741, 742 (1995).     "Intimidation

results when the 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."   Id. at 753, 454 S.E.2d at 742.

"Threats of violence or bodily harm are not an indispensable

ingredient of intimidation.   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, 3 Va. App. at 521,

351 S.E.2d at 357.

     When the sufficiency of the evidence is challenged on

appeal, we view the evidence "in the light most favorable to the

Commonwealth, granting to it all reasonable inferences fairly

deducible therefrom."   Bright v. Commonwealth, 4 Va. App. 248,

250, 356 S.E.2d 443, 444 (1987).    In addition, the "credibility

of a witness, the weight accorded the testimony, and the

inferences to be drawn from proven facts are matters solely for

the factfinder's determination."     Keyes v. City of Virginia

Beach, 16 Va. App. 198, 199, 428 S.E.2d 766, 767 (1993).

Furthermore, a conviction will not be reversed unless "it

appears from the evidence that it is plainly wrong or without




                               - 5 -
evidence to support it."   Sutphin v. Commonwealth, 1 Va. App.

241, 243, 337 S.E.2d 897, 898 (1985).

     Here, Ms. Ferebee testified that Brooks, upon re-entering

the store a third time after previously grabbing money from her

open register drawer, walked around behind the counter, started

banging on the keys of the victim's register, and told her to

"open the fucking register."   The victim then stepped away from

her register out of "instinct" 1 and ran out of the store.

     The assistant manager, who had called the police after

Brooks's second exit from the store, testified that she was "in

shock" when Brooks came back in, went around the counter, and

started hitting the buttons on the register.   She stopped

talking to the police at that point, put the phone down, and ran

to a nearby store because she had been robbed before and did not

"know what was going to happen."

     Another clerk testified that Brooks, upon returning to the

store the third time, went behind the counter, commanded Ms.

Ferebee to "open the fucking register," "pushed [Ms. Ferebee]




     1
       "Instinct" is defined in Webster's Third New International
Dictionary 1171 (1993), as "a natural or inherent aptitude,
tendency, impulse, or capacity." Clearly, the jury could have
reasonably found, given the circumstances described by the
victim, that the victim's use of the word "instinct" to explain
why she stepped back from her register encompassed a feeling of
fear on her part and an inherent impulse to avoid bodily harm.
She did not elaborate in her testimony.

                               - 6 -
out of the way" when she refused to move, and "started punching

buttons on [Ms. Ferebee's] register to try to get it open."

     The jury, having had the opportunity to observe the

witnesses and weigh the evidence, was certainly entitled to

infer from such evidence that Brooks's words and actions were

intimidating and placed the victim in fear of bodily harm and

induced her to unwillingly relinquish the property taken by

Brooks.   Moreover, if satisfied beyond a reasonable doubt that

Brooks pushed Ms. Ferebee, the jury could have properly found

that the taking of property was by an act of violence

perpetrated against the victim.

     We therefore conclude (1) that the evidence in the record

is sufficient as a matter of law to prove beyond a reasonable

doubt that the victim's property was taken by Brooks through the

use of intimidation or violence, or both, and (2) that

appellant's conviction of robbery is not plainly wrong.

Consequently, we will not disturb that conviction.

     Accordingly, appellant's robbery conviction is affirmed.

                                                          Affirmed.




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