Steven Thomas Waters v Commonwealth of Virginia

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COURT OF APPEALS OF VIRGINIA
Present : Judges Benton, Annunziata and Senior Judge Overton" Argued at Norfolk, Virginia
STEVEN THOMAS WATERS v. Record No. 2613-97-1
COMMONWEALTH OF VIRGINIA
OPINION BY JUDGE JAMES W. BENTON, JR. FEBRUARY 2, 1999
FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY Fred W. Bateman, Judge Designate
Sydney K. L. West (Horne, West and McMurtrie, P.C., on brief) , for appellant.
Robert H. Anderson, III, Assistant Attorney General (Mark L. Earley, Attorney General, on brief) , for appellee.
Steven Thomas Waters appeals from convictions for robbery, statutory burglary, and conspiracy to commit robbery. He contends the robbery indictment was defective, that the evidence was insufficient to prove robbery, and that the burglary and conspiracy convictions must fail because they are dependent upon the sufficiency of the evidence to prove robbery. For the reasons that follow, we affirm the convictions.
I.
Marie Smith, who was a manager at a Pizza Hut restaurant at the time of the events at issue, testified that Steven Thomas Waters and Philip Danforth, an employee of the restaurant, told
Judge Overton participated in the hearing and decision of this case prior to the effective date of his retirement on January 31, 1999 and thereafter by his designation as a senior judge pursuant to Code § 17.1-401, recodifying Code § 17-116.01:1.

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her they intended to rob employees of the restaurant. 	They asked
for her cooperation and assured her that she would not be harmed.
Several weeks later, on a Saturday night, Smith learned that
Waters would commit the robbery that night. 	Smith was in the
restaurant with Danforth, Brett Cahoon, who was training to be a
manager, and William Richardson, who had formerly worked at the
restaurant and managed another Pizza Hut restaurant.
After the restaurant closed at 11:00 p.m., Smith left a door
unlocked to facilitate Waters' entry into the restaurant. 	Waters
entered the restaurant wearing a hooded sweatshirt drawn around
his face and displaying a knife. 	Waters put the knife close to
Richardson's face and ordered everyone to move toward the rear of
the restaurant. 	During the commotion, Waters cut Richardson's
chin. 	When they arrived at the rear of the restaurant, Waters
locked Cahoon, Danforth, and Richardson in a closet and ordered
Smith to remain outside the closet. 	Accompanied by Waters, Smith
opened the safe and put money from the safe into a bag. 	Smith
also opened the cash registers. 	After Waters left the restaurant
with approximately $2,400, Smith opened the closet to release the
three people and activated an alarm.
Later that night, Smith and Danforth left the restaurant
together. 	Danforth stopped and telephoned Waters at a hotel.
Danforth then drove Smith home. 	A few weeks later, Waters gave
Smith and Danforth $1,000 of the money.
The trial judge convicted Waters of robbery, statutory

burglary, and conspiracy to commit robbery.

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II.
One indictment charged that "Waters did unlawfully and
feloniously rob Pizza Hut, Gloucester Pt., Virginia" in violation
of Code § 18.2-58. 	Relying upon Falden v. Commonwealth, 167 Va.
542, 189 S.E. 326 (1937), Waters contends the indictment was
defective because the victim of a robbery cannot be an inanimate
object. 	Although Waters objected before the verdict was
rendered, see Code § 19.2-227, the Commonwealth argues that we
should not reach the merits of this claim because Waters failed
to earlier object as required by Rule 3A:9(b)(1).
In pertinent part, Rule 3A:9(b)(1) provides that "[d]efenses
and objections based on defects . . . in the written charge upon
which the accused is to be tried, other than that it fails to
show jurisdiction in the court or to charge an offense, must be
raised by motion made [before a plea is entered and, in a circuit
court, at least 7 days before the day fixed for trial]." 	See
also Rule 3A:9(c). 	By its explicit terms, the Rule excepts from
its time requirement an objection based on the claim that the
indictment fails "to charge an offense." 	Rule 3A:9(b)(1).
In Falden, the Supreme Court ruled as follows:
The fatal defect in the indictment is that
it does not charge a crime. 	The offense
which was intended to be charged was robbery.
The alleged offense charged is a conspiracy
entered into between the accused and others
for the purpose of robbing a certain United
States mail truck.
There is in Virginia no such crime as
statutory robbery.

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Falden, 167 Va. at 545, 189 S.E. at 327-28. 	This is precisely
the type of claim Waters made when he objected to the indictment
prior to the verdict. 	We, therefore, conclude that Waters'
objection was not untimely.
The Commonwealth next argues that the indictment was not
defective because it satisfied the requirements of Crawford v.
Commonwealth, 217 Va. 595, 231 S.E.2d 309 (1977). 	In Crawford,
the indictment charged that the accused "rob[bed] the Southland
Corporation, t/a 7-11 Store of United States currency." 	Id. at
595, 231 S.E.2d at 309. 	The Supreme Court distinguished that
indictment from the one it declared defective in Falden. 	The
Court stated "that [in Crawford] the indictment does not charge
that a store, an inanimate thing, was robbed. 	It charges the
robbery of a corporation which can only act through persons
-- its agents, servants, employees and officers." 	217 Va. at
597, 231 S.E.2d at 310-11. 	The Supreme Court also noted that, at
the time of the offense, the Code of Virginia had a statutory
provision that extended the word "person" to include "bodies
. . . corporate." 	Id. at 598 n.2, 231 S.E.2d at 311 n.2. 	See
also Alger v. Commonwealth, 19 Va. App. 252, 256, 450 S.E.2d 765,
767 (1994) (noting that "[a] corporation may be the 'victim' of a
robbery, although the agents or employees are the direct
victims").
We must decide in this appeal whether the charge that Waters
"rob[bed] Pizza Hut, Gloucester Pt., Virginia" is more analogous

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to "robbing a certain United States mail truck," Falden, 167 Va.
at 543, 189 S.E. at 326, or to "rob[bing] the Southland
Corporation, t/a 7-11 Store," Crawford, 217 Va. at 595, 231
S.E.2d at 309. 	We conclude this case is analogous to Crawford.
As the Supreme Court observed in Falden, robbery is a common
law crime in Virginia and "is a crime against the person." 	167
Va. at 545, 189 S.E. at 328. 	See also Jones v. Commonwealth, 26
Va. App. 736, 738, 496 S.E.2d 668, 669 (1998). 	As did the Court
in Crawford, we also note that the current Code of Virginia
broadly defines "'person' . . . [to] include any individual,
corporation, partnership, association, company, business, trust,
joint venture or other legal entity." 	Code § 1-13.19. 	Although
the indictment against Waters does not specify whether "Pizza
Hut, Gloucester Pt., Virginia" is a corporation, we conclude that
it minimally provided notice to Waters that the entity is a
business. 	The indictment charged the robbery of a business
entity, "which can only act through persons -- its agents,
servants, employees and officers." 	Crawford, 217 Va. at 597, 231
S.E.2d at 310-11.
We concede that the indictment in this case comes
uncomfortably close to alleging "that a store . . . was robbed,"
a charge which the Supreme Court implied might be defective. 	Id.
However, because the indictment in this case named the entity,
i.e., "Pizza Hut, Gloucester Pt., Virginia" and because the
definition of "person" under Code § 1-13.19 is broader than when

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Falden and Crawford were decided, see 1988 Acts of Assembly,
c. 36, we conclude that the offense of robbery was sufficiently
stated in the indictment. 	When the indictment charged that
Waters robbed the "Pizza Hut, Gloucester Pt., Virginia," it
charged, in effect, that he robbed the agents of that business
entity.
III.
Waters also contends the evidence was insufficient to
convict him of robbery because the money was taken only from
Smith, his co-conspirator, and the taking was not accomplished by
placing Smith in fear. 	We disagree with that view of the
evidence.
"Robbery at common law 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."
Pierce v. Commonwealth, 205 Va. 528, 532, 138 S.E.2d 28, 31
(1964). 	Recently, we applied the well established principle that
"[w]hen [an accused] takes property 'from the presence of a
person whose right to possession is superior to that of the
[accused], the robbery is complete.'" 	Lebedun v. Commonwealth,
27 Va. App. 697, 718, 501 S.E.2d 427, 437 (1998) (citation
omitted). 	See also Johnson v. Commonwealth, 215 Va. 495, 496,
211 S.E.2d 71, 72 (1975).
Although Waters focuses his analysis upon Smith's role in
assisting him to take the restaurant's money, the evidence

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clearly proved that Waters used violence and intimidation to
secure Cahoon in the closet as a means of facilitating the taking
of money. 	Holding a knife close to Richardson and using the
threat of injury to Richardson, Waters forced Cahoon and two
other persons to enter the closet. 	Cahoon, a manager trainee,
was an employee of the restaurant and had earlier deposited money
in the restaurant's safe. 	As an employee, Cahoon had a duty to
exercise "reasonable diligence . . . to protect the company's
property from damage or larceny by strangers." 	Id. at 497, 211
S.E.2d at 73. 	Thus, the evidence was sufficient to prove beyond
a reasonable doubt the elements of robbery. 	See id. at 496-97,
211 S.E.2d at 72-73; Lebedun, 27 Va. App. at 718-19, 501 S.E.2d
at 437-38.
IV.
Waters further contends the evidence was insufficient to
prove conspiracy to commit robbery and burglary (entering the
building with intent to commit robbery). 	However, this
contention is contingent upon Waters' ability to successfully
establish either that the robbery indictment was defective or the
evidence was insufficient to prove robbery. 	Because we affirm
the robbery conviction, Waters' contention lacks merit.
Accordingly, we affirm the convictions.
Affirmed.