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COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Overton and Senior Judge Baker
Argued at Norfolk, Virginia

BERRY ALI HANIE, S/K/A
BARRY A. HAYNIE
MEMORANDUM OPINION BY
v. Record No. 0002-98-1 JUDGE RICHARD S. BRAY
DECEMBER 8, 1998
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Robert W. Curran, Judge

Barry G. Logsdon (Mitchell & Logsdon, P.C.,
on brief), for appellant.

Robert H. Anderson, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.

Berry Ali Hanie was convicted in a bench trial for the
robberies of Clifton Taylor and Renaldo Davila. On appeal,
defendant challenges the sufficiency of the evidence to prove the
robbery of Davila. We agree and reverse the conviction.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to
disposition of the appeal.
In reviewing the sufficiency of the evidence on appeal, we
examine the evidence in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom. See Martin v. Commonwealth, 4 Va. App. 438,
443, 358 S.E.2d 415, 418 (1987). The judgment of a trial court,
sitting without a jury, is entitled to the same weight as a jury
verdict and will be disturbed only if plainly wrong or without
evidence to support it. See Code 8.01-680; id.
On the evening of April 10, 1997, Clifton Taylor and Renaldo
Davila were walking together near the entrance to an apartment
complex when defendant approached in an automobile and inquired
if either man "had any money." After both Taylor and Davila
answered in the negative, defendant "stopped the car in the
middle of traffic," exited the vehicle, and walked to Taylor and
Davila, again asking "the same question," provoking the same
response. Defendant then remarked, "What about your jackets? I
like those jackets." Taylor noticed that defendant concealed one
hand under his shirt and, uncertain "if [he] had a gun or
whatever," surrendered his jacket to defendant.
As Davila began to walk away, defendant asked Davila "if he
could have [his] jacket," and Davila refused. However, when
defendant repeated the request, Davila "hesitated," and Taylor
"told [him] to give [defendant] the jacket." Davila testified
that he was "a little mad," not afraid, but, nevertheless, gave
defendant the jacket at Taylor's direction, although he "didn't
understand." After passing the jacket to defendant, Davila also
"saw [defendant's] hand under his shirt, . . . thought he might
have a gun," and "then . . . was scared."
Defendant challenges the sufficiency of the Commonwealth's
evidence to establish a robbery of Davila.
"Robbery, a common law offense in Virginia, 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.'" Bivins v. Commonwealth, 19 Va. App.
750, 752, 454 S.E.2d 741, 742 (1995) (quoting Johnson v.
Commonwealth, 209 Va. 291, 293, 163 S.E.2d 570, 572-73 (1968));
see Mason v. Commonwealth, 200 Va. 253, 254, 105 S.E.2d 149, 150
(1958). "From this definition it is manifest that robbery is a
crime against the person." Falden v. Commonwealth, 167 Va. 542,
545, 189 S.E. 326, 328 (1937). "All elements of the common law
offense must be proved beyond a reasonable doubt in order to
establish that a robbery has occurred." Mitchell v.
Commonwealth, 213 Va. 149, 149, 191 S.E.2d 261, 261 (1972)
(citation omitted).
The element of violence or intimidation "is satisfied when a
defendant instills fear in the heart of his victim, when he
perpetrates violence against the victim, or both." Chappelle v.
Commonwealth, 28 Va. App. 272, 275, 504 S.E.2d 378, 379 (1998).
"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." Bivins, 19 Va. App.
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 v.
Commonwealth, 3 Va. App. 519, 521, 351 S.E.2d 356, 357 (1986)
(quoting Falden, 167 Va. at 554, 189 S.E. at 331).
Here, absent the element of violence in the offense, the
Commonwealth asserts that defendant employed intimidation to
obtain Davila's jacket. Davila testified, however, that he
"wasn't scared" when he surrendered his jacket to defendant, but
acted only in response to Taylor's request. Thus, the
Commonwealth established neither violence nor intimidation of
Davila by defendant in taking the jacket.
Accordingly, the robbery conviction must be reversed and the
case remanded for further proceedings if the Commonwealth be so
advised.
Reversed and remanded.

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