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HANIE v. COMMONWEALTH OF VA


HANIE v. COMMONWEALTH OF VA

(unpublished)


DECEMBER
8, 1998

Record
No. 0002-98-1

 

BERRY
ALI HANIE, S/K/A

BARRY A.
HAYNIE

v.

COMMONWEALTH
OF VIRGINIA

 

MEMORANDUM
OPINION
[1] BY JUDGE RICHARD S. BRAY

FROM THE
CIRCUIT COURT OF THE CITY OF NEWPORT NEWS

Robert
W. Curran, Judge

Present:
Judges Bray, Overton and Senior Judge Baker

Argued
at Norfolk, Virginia

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
Sect. 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
.

 

 

FOOTNOTES:

[1] Pursuant to Code
Sect. 17.1-413, recodifying Code Sect. 17-116.010, this
opinion is not designated for publication.

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