Robbery — Virginia's Common-Law Offense Under § 18.2-58

Va. Code § 18.2-58 (2021 graded structure) — Preliminary Hearing & Circuit Court Trial Reference

Class 2 through Class 6 Felony (gradation-dependent)
1 yr to life depending on grade; § 18.2-53.1 adds 3- or 5-yr mandatory consecutive
Primary statute: § 18.2-58
Last verified: 2026-06-24

Charges at a Glance

Va. Code § 18.2-58(B) — Graded Structure (2021 Amendment) with Companion Offenses

Statute	Conduct	Class / Penalty	Mandatory Minimum
§ 18.2-58(B)(1)	Robbery causing serious bodily injury (§ 18.2-51.4(E) definition) or death	Class 2 felony (20 yrs to life; ≤$100,000 fine)	None under § 18.2-58; see § 18.2-53.1 if firearm involved
§ 18.2-58(B)(2)	Robbery by using or displaying a firearm (§ 18.2-308.2:2 definition) in a threatening manner	Class 3 felony (5–20 yrs; ≤$100,000 fine)	None under § 18.2-58; § 18.2-53.1 adds 3/5-yr mandatory consecutive
§ 18.2-58(B)(3)	Robbery by physical force not resulting in serious bodily injury OR by using or displaying a deadly weapon other than a firearm in a threatening manner	Class 5 felony (1–10 yrs, or ≤12 mo./$2,500 at jury/court discretion; ≤$2,500 fine)	None
§ 18.2-58(B)(4)	Robbery by threat or intimidation or any other means not involving a deadly weapon	Class 6 felony (1–5 yrs, or ≤12 mo./$2,500 at jury/court discretion; ≤$2,500 fine)	None
§ 18.2-58.1	Carjacking — intentional seizure of a motor vehicle by the same statutory means-of-force list	Felony, life or term not less than 15 yrs	None statutory in § 18.2-58.1; § 18.2-53.1 also lists carjacking as a predicate
§ 18.2-53.1	Use, attempt to use, or display in a threatening manner of a firearm while committing or attempting robbery	Separate and distinct felony	3 yrs mandatory minimum (1st conviction); 5 yrs (2nd or subsequent); consecutive to underlying felony
§ 18.2-26	Attempted robbery	Punished as attempt of the underlying class — see § 18.2-26 grade table	Attached to grade of completed offense
§ 18.2-22	Conspiracy to commit robbery	Felony graded by § 18.2-22	None

Common-Law Elements — Unchanged by the 2021 Amendment

Virginia robbery remains a common-law offense with the statute supplying only the punishment. Every charging variant under § 18.2-58(B)(1)–(4) requires proof of the same five common-law elements:

A taking — any movement of the property, however slight (asportation). The taking is complete when the accused has obtained dominion and control as distinct from mere custody. Pritchard v. Commonwealth, 225 Va. 559, 562–63, 303 S.E.2d 911, 913 (1983).
With intent to steal — the animus furandi, an intent to permanently deprive the owner. The intent must exist at the time of the taking. Pierce v. Commonwealth, 205 Va. 528 (1964); Mason v. Commonwealth, 200 Va. 253, 256, 105 S.E.2d 149, 151 (1958).
Of the personal property of another — the property need not be that of the immediate victim. The Commonwealth need only prove the property was taken from someone whose right of possession was superior to the robber's. Johnson v. Commonwealth, 215 Va. 495, 211 S.E.2d 71 (1975).
From his person or in his presence — broadly construed to include taking from the custody or actual or constructive possession of another. Durham v. Commonwealth, 214 Va. 166, 168, 198 S.E.2d 603, 605–06 (1973); Johnson, 215 Va. at 498. An empty premises cannot be robbed — "a store empty of persons cannot be robbed; it can be burglarized and larceny can be committed therein, but it cannot be robbed." Crawford v. Commonwealth, 217 Va. 595, 600 (1977).
Against his will, by violence or intimidation — the violence or intimidation must precede or be concomitant with the taking. Mason, 200 Va. at 256, 105 S.E.2d at 151; Bivins v. Commonwealth, 19 Va. App. 750, 752, 454 S.E.2d 741, 742 (1995).

The four gradations under § 18.2-58(B) are sentencing gradations that turn on the manner of the force or weapon used. They do not modify the common-law elements above.

The Doctrinal Battleground — Intimidation, Force, and the Larceny Line

Defining 'Intimidation,' 'Threat,' and 'Violence'

The Court of Appeals laid out the operative definitions in Bivins v. Commonwealth, 19 Va. App. 750, 454 S.E.2d 741 (1995):

Violence — physical force used against the victim's person.
Threat — "an overt expression, by words or conduct, of a present intention to commit an immediate act of violence or force against the victim." Bivins, 19 Va. App. at 753 (citing Parnell v. Commonwealth, 15 Va. App. 342, 345–47 (1992)).
Intimidation — "[u]nlawful coercion; extortion; duress; putting in fear." Bivins, 19 Va. App. at 753. "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.

The 'Atmosphere of Intimidation' Framework

The intimidation element is satisfied by the totality of the circumstances, not by any single overt threat. The leading verified authority is Pressley v. Commonwealth, 54 Va. App. 380, 386, 679 S.E.2d 551 (2009), a carjacking case analyzed expressly under robbery doctrine ("carjacking is a species of robbery," id. at 385 (quoting Spencer v. Commonwealth, 42 Va. App. 443, 448 (2004))). Three propositions follow:

Threats of violence are not indispensable to 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." Pressley, 54 Va. App. at 386 (quoting Harris v. Commonwealth, 3 Va. App. 519, 521, 351 S.E.2d 356, 357 (1986)).
An "atmosphere of intimidation" can supply the element. In Pressley the court held the totality — a masked man, partially lit street, defendant running at the victim with "a great degree of speed," persistent demands — was enough to overbear the victim's will, even though the defendant made no explicit threat and displayed no weapon. Id. at 386–87.
Brave-victim fortitude is not a defense. "A brave victim maintains her fortitude despite intimidation — but it is intimidation nonetheless." Bivins, 19 Va. App. at 753. The test is the conduct of the accused, not the temperament of the victim. Pressley, 54 Va. App. at 386–87 (the victim refused to give up his keys two or three times before relinquishing them; refusal did not defeat intimidation).

For the bank-teller / demand-note case in particular, Pressley cites with approval United States v. Gilmore, 282 F.3d 398, 403 (6th Cir. 2002), for the proposition that "unequivocal written and verbal demands for money to bank tellers were sufficient basis for a finding of intimidation." The demand note plus surrounding conduct suffices.

The Line Between Robbery and Larceny from a Person — The Snatching Cases

The single most important contested line at the lower grades is whether the manner of the taking crossed from larceny from a person (§ 18.2-95 — felony based on the from-the-person taking regardless of value) into robbery (§ 18.2-58(B)(3) or (4)). Three Court of Appeals cases frame it:

Case	Facts	Holding
Winn v. Commonwealth, 21 Va. App. 179, 462 S.E.2d 911 (1995)	Defendant 'very strongly' took the purse but 'there was no struggle between her and appellant'	Not robbery. Record was 'devoid of even slight violence against the victim or resistance from the victim.' Conviction reversed — should have been larceny from the person.
Jones v. Commonwealth, 26 Va. App. 736, 496 S.E.2d 668 (1998)	Defendant approached victim from rear, 'jerked her around by pulling her shoulder,' and 'snatched her purse'	Robbery affirmed. 'Sudden physical confrontation' that 'violated her person' supplied the force element.
Mills v. Commonwealth, 52 Va. App. 214, 662 S.E.2d 637 (2008)	Defendant grabbed pocketbook hooked on victim's arm; victim was dragged 'over thirty feet' before her purse slipped from her arm	Robbery affirmed. Key rule: 'a taking does not occur until an owner loses physical (or constructive) possession of his property.' Id. at 217. Force was antecedent to or contemporaneous with the taking.

The articulable test: was there resistance by the victim — or violence overcoming resistance — separate from the mere movement needed to dispossess the property? Pure stealth or unresisted snatching is larceny from the person; the moment the defendant overcomes the victim's hold by physical confrontation, by jerking the victim's body, or by dragging the victim, it is robbery. A snatching with physical force across the Winn / Jones / Mills line is at minimum a Class 5 felony under § 18.2-58(B)(3) ("physical force not resulting in serious bodily injury").

The Contemporaneity Rule — and How Shoplifting Can 'Ripen' Into Robbery

The violence or intimidation must precede or be concomitant with the taking. Mason, 200 Va. at 256. Violence used only to retain property already obtained or to effect escape does not convert a completed larceny into robbery. Id. (reversing robbery conviction where defendant had already handed the merchandise to a confederate before any violence toward the owner). But the line between "still taking" and "completed taking" is broadly construed in the Commonwealth's favor. Two key Supreme Court decisions:

Pritchard v. Commonwealth, 225 Va. 559, 303 S.E.2d 911 (1983) — Defendant had gasoline pumped into his tank and, when payment was demanded, produced a firearm. The Court held this was robbery: as a customer with possession-conditional-on-payment, Pritchard had only bare custody of the gasoline while the proprietor retained constructive possession. When Pritchard introduced intimidation, his custody had not yet ripened into possession. The force preceded the conversion of custody into possession — robbery.
Commonwealth v. Jones (James Sylvester Jones), 267 Va. 532, 593 S.E.2d 204 (2004) — Shoplifter who concealed boots and was then confronted by the store manager produced a firearm and fled with the boots. The Court reaffirmed Pritchard: while the shoplifter had custody by concealment, the store manager retained constructive possession until the merchandise left the store. When the defendant introduced the firearm to overcome the manager's interposition, custody had not yet ripened into possession — the larceny was "continuing" — and the crime was robbery.

"From His Person or In His Presence" — The Constructive-Possession Agent Rule

The "presence" element is broadly construed. Durham, 214 Va. at 168; Johnson, 215 Va. 495.

Property taken from an agent of the true owner is taken from a person in possession. "[T]he property must be taken by force and violence, not necessarily from the owner, but from any person in possession thereof whose right of possession is superior to that of the robber. The very fact that property is taken from a person by the use of firearms, violence or threatened violence, is, within and of itself, sufficient to show that the person from whom it was taken was in possession thereof." Johnson, 215 Va. at 497.
A corporation can be the property owner; its employees are the agents through whom the robbery occurs. Crawford v. Commonwealth, 217 Va. 595 (1977) (robbery indictment of "The Southland Corporation, t/a 7-11 Store" sufficient where the agents were in fear and in possession). Critical limit: "a store empty of persons cannot be robbed." Id. at 600.
A non-cashier employee can be the victim of the robbery — e.g., the saleslady forced down at gunpoint in Johnson whose duties did not include handling company money. Her right of possession of company money under the duress was nonetheless superior to the robbers'.

For charging: name the human victim or victims in the indictment. The presence/possession element follows from the human's superior right of possession, not from formal title.

Pinning the Gradation — § 18.2-58(B) Decision Tree

Charge the highest gradation the evidence will support beyond a reasonable doubt; charge lesser-included gradations in the alternative or be prepared for the fact-finder to step down. The element-by-element framework:

(B)(1) Class 2 — Serious Bodily Injury or Death. Apply the § 18.2-51.4(E) definition: "bodily injury that involves substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty." Document medical proof — ER records, surgical intervention, imaging, permanence opinions. The "serious" qualifier is doing work; a black eye is not enough. Death is a separate trigger.
(B)(2) Class 3 — Firearm Used or Displayed in a Threatening Manner. "Firearm" is defined by cross-reference to § 18.2-308.2:2: "any handgun, shotgun, or rifle that will or is designed to or may readily be converted to expel single or multiple projectiles by action of an explosion of a combustible material." This is narrower than the Holloman "appearance" test that governs § 18.2-53.1 — see the firearm add-on section for the mismatch. Prove (a) the object met the statutory definition, (b) display or use, (c) in a threatening manner.
(B)(3) Class 5 — Physical Force (not SBI) OR Deadly Weapon Other than Firearm Displayed in a Threatening Manner. Two alternative routes. The "physical force" route is the post-2021 home of the snatching-with-resistance / shoving / striking case where injury is minor or absent. The "deadly weapon other than a firearm" route covers knives, bats, hammers, etc. Confirm the indictment specifies which alternative the Commonwealth proceeds on; lesser-included instructions matter.
(B)(4) Class 6 — Threat or Intimidation Not Involving a Deadly Weapon. Verbal demand, demand note, or atmosphere-of-intimidation cases (Pressley, Bivins, the Gilmore bank-teller framework cited with approval in Pressley). No weapon displayed — no actual or implied weapon presentation.

The § 18.2-53.1 Add-On — Holloman / § 18.2-58(B)(2) Mismatch

§ 18.2-53.1 in Brief

§ 18.2-53.1 makes it unlawful to use, attempt to use, or display in a threatening manner any pistol, shotgun, rifle, or other firearm while committing or attempting to commit robbery (among other listed felonies). Mandatory minimum: 3 years first conviction; 5 years second or subsequent. Sentence is separate, distinct, and consecutive to the underlying felony. A defendant may be convicted of both robbery and § 18.2-53.1 from the same transaction without double-jeopardy issue — they are separate and distinct offenses.

The Mismatch the Prosecutor Must Understand

Under Holloman v. Commonwealth, 221 Va. 196, 269 S.E.2d 356 (1980), an instrument that gives the appearance of having a firing capability is a firearm under § 18.2-53.1, regardless of whether the object actually can propel a bullet by gunpowder. Holloman sustained the conviction where the object was a spring-driven BB pistol. The statute's purpose is to "discourage criminal conduct that produces fear of physical harm," and "fear of harm results just as readily from employment of an instrument that gives the appearance of having a firing capability as from use of a weapon that actually has that capability." Holloman, 221 Va. at 198–99.

The Supreme Court required the Commonwealth to prove the defendant actually had such an instrument in his possession while committing the predicate felony — mere suspicion is not enough. Yarborough v. Commonwealth, 247 Va. 215, 218, 441 S.E.2d 342, 343–44 (1994). In Courtney v. Commonwealth, 281 Va. 363, 706 S.E.2d 344 (2011), the Court reversed where the actual instrument was a toy gun that did not adequately resemble an actual firearm; the defendant's statement that "I have a gun" did not save the conviction. By contrast, the 2021 amendment to § 18.2-58 imported the narrower § 18.2-308.2:2 firearm definition: "any handgun, shotgun, or rifle that will or is designed to or may readily be converted to expel single or multiple projectiles by action of an explosion of a combustible material."

Critical Distinction — Yarborough Footnote 2 Yarborough's actual-possession requirement applies only to § 18.2-53.1 (the firearm enhancement). For the robbery offense itself — the intimidation/violence element under § 18.2-58 — the victim's perception that the assailant was armed is sufficient. The Supreme Court said this expressly: "With respect to the crime of robbery, however, a victim's perception that the assailant was armed is sufficient to establish the necessary element of violence or intimidation. Johnson v. Commonwealth, 209 Va. 291, 296, 163 S.E.2d 570, 574 (1968)." Yarborough, 247 Va. at 219 n.2, 441 S.E.2d at 344 n.2. Practical consequence: the hand-in-the-pocket case where no gun is ever seen or recovered may still be robbery (intimidation element met by victim's reasonable perception), even though it will not support § 18.2-53.1 (no proof the defendant actually possessed a firearm). Victim perception alone is enough for at least (B)(4) intimidation; whether it supports (B)(2) is doubtful absent proof the object met the § 18.2-308.2:2 definition.

Charging Consequences by Object Type

Object	§ 18.2-53.1 (Holloman appearance test)	§ 18.2-58(B)(2) (§ 18.2-308.2:2 combustion definition)
Spring-driven BB pistol that looks like a real handgun	Very likely satisfies § 18.2-53.1 under Holloman	Likely does NOT satisfy § 18.2-308.2:2 (no explosion of combustible material) — grade as (B)(3) or (B)(4)
Real but inoperable firearm (e.g., rusted-shut revolver)	Satisfies § 18.2-53.1 under Cox / Holloman	Probably satisfies § 18.2-308.2:2 via 'designed to' or 'may readily be converted' language — litigable at trial
Convincing replica without firing mechanism	May fail § 18.2-53.1 if object does not adequately resemble a real firearm (Courtney)	Almost certainly fails § 18.2-308.2:2 — charge (B)(3) 'deadly weapon' theory or (B)(4)

What § 18.2-53.1 Still Buys You When (B)(2) Is Unavailable

(B)(2) Class 3 + § 18.2-53.1 → 5–20 years + 3-year mandatory minimum consecutive (real firearm satisfying both definitions)
(B)(3) Class 5 + § 18.2-53.1 → 1–10 years + 3-year mandatory minimum consecutive (BB pistol with firing capability appearance satisfying Holloman but not § 18.2-308.2:2)
(B)(4) Class 6 alone → 1–5 years (toy gun without appearance, or no weapon — § 18.2-53.1 fails under Courtney)

Common Defenses and Prosecution Responses

Defense attack	Prosecution response
'This is larceny from the person, not robbery — there was no force beyond what was needed to take the property' (the Winn defense)	Frame the case under Jones v. Commonwealth, 26 Va. App. 736 (1998) — sudden physical confrontation, jerking the victim's body, dragging the victim, or any force overcoming the victim's hold satisfies the violence element. Where the victim resists at all, or where the defendant's physical contact extends beyond the property to the victim's person, Winn does not apply.
'The violence came after the taking — Mason says that's not robbery'	If the property had not yet ripened from custody into possession at the time of the force, the offense is robbery under Pritchard and Commonwealth v. Jones (James Sylvester Jones, 267 Va. 532 (2004)). Identify where the property still sat — on the premises, in plain view of the constructive possessor, with the victim still able to interpose — and tie the force to the moment of conversion, not retention or escape. The "taking" is not complete until the owner has lost physical or constructive possession. Mills, 52 Va. App. at 217.
'My client had a bona fide claim of right to the property'	Per Pierce v. Commonwealth, 205 Va. 528 (1964), bona fide claim of right defeats the intent-to-steal element. Rebut with evidence the claim was not in good faith — e.g., the defendant knew the property was not his, knew the dispute was contested and could not be self-help-resolved, or used force disproportionate to any plausible recovery. Document the underlying transaction or relationship; the defense is fact-specific.
'The victim wasn't intimidated — she didn't testify she was afraid'	The Pressley / Bivins / Harris "atmosphere of intimidation" line answers this directly. A brave victim's lack of subjective terror does not defeat the element; the test is whether the defendant's words or conduct were calculated to overcome the will of an ordinary person. Bank-teller demand-note cases satisfy intimidation per Pressley, 54 Va. App. at 386 (citing Gilmore with approval).
'This was just larceny from the cashier; my client never touched the manager / the named victim'	Crawford and Johnson — robbery of a corporation through its agents; the named victim's superior right of possession (not ownership) is what matters. Argue the named victim was the person from whose presence the property was taken and whose right of possession to the cash drawer or merchandise was superior to the defendant's.
'The gun was a toy / didn't fire'	Two-step rebuttal. For § 18.2-58(B)(2) Class 3: the firearm must satisfy § 18.2-308.2:2 — argue actual firearm, design or readily convertible to expel projectiles by combustion. If unavailable, step down to (B)(3) ("deadly weapon other than a firearm" or "physical force"). For § 18.2-53.1: under Holloman, the test is appearance of firing capability — BB pistols, inoperable firearms, and items adequately resembling real guns all qualify; only the Courtney-class toy fails. Recover and introduce the object where possible.
'No gun was ever seen or recovered — the case is at most larceny / intimidation'	The Yarborough footnote 2 distinction. For § 18.2-53.1 the Commonwealth must prove actual possession of a firearm; mere victim perception is insufficient. But for robbery's own intimidation element under § 18.2-58, the victim's perception that the assailant was armed is sufficient. Yarborough, 247 Va. at 219 n.2 (citing Johnson v. Commonwealth, 209 Va. 291, 296 (1968)). The robbery conviction (at least at the (B)(4) level) can stand on the hand-in-pocket facts even when the § 18.2-53.1 stacking charge fails.
'My client was at most an accomplice / not the principal'	Aiding and abetting principles apply; presence + shared purpose + an act in furtherance suffices for principal-in-the-second-degree liability for the robbery and for § 18.2-53.1 if the firearm use was reasonably foreseeable in the joint criminal venture. Develop the planning evidence and the actor's role at scene.
'It was an attempt, at most'	Per Jay v. Commonwealth, 275 Va. 510 (2008), attempt requires intent + a direct overt act "well calculated to accomplish the result intended." If the evidence shows an actual taking — even brief or recovered — the completed offense is established. If the defense is right that the case is at most an attempt, plead in the alternative under § 18.2-26.

Carjacking § 18.2-58.1 — Sibling Treatment

Carjacking is a statutory separate offense, not a robbery aggravator. It is included here as a closely related sibling for the prosecutor weighing charging options when a vehicle is taken. § 18.2-58.1 defines carjacking as the intentional seizure or seizure of control of a motor vehicle of another with intent to permanently or temporarily deprive another in possession or control of the vehicle, by means of: partial strangulation or suffocation; striking or beating; other violence to the person; assault or putting a person in fear of serious bodily harm; threat or presenting of firearms; or other deadly weapon or instrumentality whatsoever.

Key Features

Penalty. Felony, life or term not less than 15 years. § 18.2-58.1(A). This is a far harsher minimum than even Class 2 robbery, so carjacking will almost always be the more serious charge where it fits.
Means-of-force list. The statute uses the pre-2021 robbery means-of-force language verbatim. There is no graded structure parallel to § 18.2-58.
No requirement that the vehicle be operated. 'Seizure or seizure of control' suffices.
Temporary deprivation enough. Unlike common-law robbery's intent-to-permanently-deprive element, carjacking is satisfied by intent to permanently or temporarily deprive.
No statutory bar to charging carjacking alongside robbery if other property was also taken. § 18.2-58.1(C) states the section "shall not preclude the applicability of any other provision of the criminal law of the Commonwealth which may apply to any course of conduct which violates this section."
§ 18.2-53.1 lists carjacking as a predicate — the firearm enhancement applies to carjacking on the same terms as robbery.

If carjacking volume grows, consider splitting into its own cheatsheet. For now, the prosecutor should always ask: was a motor vehicle the principal object? If yes, carjacking is the lead charge.

Attempted Robbery and Conspiracy

Attempted Robbery — § 18.2-26

Punished as an attempt to commit a noncapital felony under § 18.2-26. The Commonwealth must prove:

The specific intent to commit the underlying robbery, and
A direct overt act done in furtherance of the offense that was "well calculated to accomplish the result intended."

Jay v. Commonwealth, 275 Va. 510, 525–26, 659 S.E.2d 311, 320 (2008) (reversing attempted robbery where defendant repeatedly asked the undercover detective to enter his vehicle but never displayed the firearm, never demanded money, and never used force or threat). The overt act is the contested element; mere preparation is insufficient.

Conspiracy — § 18.2-22

The Commonwealth must prove an agreement between two or more persons to commit the robbery under § 18.2-22. No overt act in furtherance is required to prove conspiracy. Gray v. Commonwealth, 260 Va. 675, 680 (2000); conspiracy is a separate and complete offense at the moment of the agreement. The two-charge structure is common: attempted robbery + conspiracy to commit robbery + § 18.2-53.1 if a firearm was displayed or used during the attempt.

Preliminary Hearing vs. Circuit Court Posture

	GDC Preliminary Hearing	Circuit Court Trial
Burden	Probable cause that a felony was committed and this defendant committed it	Beyond a reasonable doubt
Element focus	Identify the highest gradation supported by the PC evidence; certify the felony — lesser gradations follow at trial	Pin the specific gradation; ensure record supports the highest grade the Commonwealth seeks
Victim posture	Lock in the victim's account of force/intimidation; have the victim describe what was seen and felt with enough detail to support the chosen gradation	Full direct exam covering all five common-law elements + the specific gradation's force element + identification
Weapon evidence	Recovered weapon, photographs, or victim/officer testimony about appearance sufficient to support the firearm element if Class 3 is sought	Chain of custody; if recovered, ballistics or design evidence to anchor the § 18.2-308.2:2 definition for (B)(2); independent corroboration for § 18.2-53.1 under Holloman/Yarborough
§ 18.2-53.1 stacking	Plead and put on the firearm appearance / use / display evidence at PC level — the Holloman test is more forgiving than § 18.2-308.2:2	Full proof; preserve the firearm-appearance record for Yarborough; recover the object where possible

Pre-Trial Evidence and Foundation Checklist

Documentary / Records

Victim's written or recorded statement (911 call, on-scene officer statement, hospital intake)
Surveillance video — store/ATM/bank/ring camera; preserved with metadata and timestamp
Medical records and ER documentation if serious bodily injury alleged (Class 2)
Stolen property records — receipts, store inventory, ATM withdrawal logs
For bank robbery cases: bait money records, dye-pack documentation, FBI / Federal Reserve reporting

Physical Evidence and Forensics

Recovered firearm or weapon with complete chain of custody
If firearm, design documentation supporting § 18.2-308.2:2 definition for (B)(2); operability or readily-convertible-to-fire opinion for the appearance test under § 18.2-53.1
Clothing, mask, getaway vehicle, fingerprints, DNA
Demand note (bank robbery) — original, with handling chain
Photographs of the scene showing the spatial layout supporting 'from person or in his presence'

Witnesses

Victim(s) — primary on force/intimidation, identification, property, presence
Bystander or co-employee witnesses — corroborate intimidation atmosphere; cover gaps in victim's account
Responding officer(s) — first observations, victim demeanor, fresh statements
Investigating detective — identification process, recovered evidence, defendant statements
Forensic examiner(s) — fingerprint, DNA, firearms, video
Custodian(s) of record for surveillance and medical records (Confrontation)

Anticipated Defenses to Pre-Empt

Mere snatching (Winn) — marshal the resistance / physical confrontation evidence
Larceny-not-robbery on contemporaneity (Mason) — pin the moment of force to the conversion of custody into possession
Bona fide claim of right (Pierce) — rebut with evidence the dispute was contested or fabricated
Toy or BB gun (Courtney) — recover the object; if not recovered, prepare to argue § 18.2-58(B)(3) or (B)(4) as fallback while still pursuing § 18.2-53.1 under Holloman
Identification challenge — line-up procedure; show-up timing; surveillance corroboration
Intoxication / specific-intent challenge — develop the planning evidence and the specificity of demands

Key Authorities

Mason v. Commonwealth 200 Va. 253, 256, 105 S.E.2d 149, 151 (1958)

binding

Common-law definition of robbery; violence/intimidation must precede or be concomitant with the taking.

Pierce v. Commonwealth 205 Va. 528, 532–33, 138 S.E.2d 28, 31 (1964)

binding

Common-law definition; intent to steal as essential element; bona fide claim of right defense; aider-and-abettor as principal in the second degree.

Johnson v. Commonwealth 215 Va. 495, 497–98, 211 S.E.2d 71 (1975)

binding

Property may be taken from any person whose right of possession is superior to the robber's; constructive possession through employee/agent.

Durham v. Commonwealth 214 Va. 166, 168, 198 S.E.2d 603, 605–06 (1973)

binding

'From person or in his presence' broadly construed to include actual or constructive possession of another; intent to commit robbery may occur momentarily.

Crawford v. Commonwealth 217 Va. 595, 600, 231 S.E.2d 309 (1977)

binding

Robbery of a corporation through its agents; 'a store empty of persons cannot be robbed.'

Pritchard v. Commonwealth 225 Va. 559, 562–63, 303 S.E.2d 911, 913 (1983)

binding

Bare custody vs. constructive possession; force at the point of conversion of custody into possession is robbery, not retained-property larceny.

Commonwealth v. Jones (James Sylvester Jones) 267 Va. 532, 593 S.E.2d 204 (2004)

binding

Extends Pritchard: shoplifter who produces a firearm when interposed-upon by store manager has committed robbery, not just larceny.

Commonwealth v. Jones (Eric Cherron Jones) 267 Va. 284, 289, 591 S.E.2d 68, 71 (2004)

binding

'A taking does not occur until an owner loses physical (or constructive) possession of his property.' Different case from James Sylvester Jones at 267 Va. 532. Cited in Mills.

Bivins v. Commonwealth 19 Va. App. 750, 752–53, 454 S.E.2d 741, 742 (1995)

binding

Defines 'intimidation' and 'threat' in the robbery context; mere reaching across counter to take cash drawer without force or threat is larceny, not robbery.

Parnell v. Commonwealth 15 Va. App. 342, 345–47, 423 S.E.2d 834, 836–37 (1992)

binding

'Threat' defined in instructional context (§ 18.2-83 prosecution); cited in Bivins for the robbery-context threat definition. Use as a 'see also' cite to Bivins.

Pressley v. Commonwealth 54 Va. App. 380, 386, 679 S.E.2d 551 (2009)

binding

Carjacking case applying robbery doctrine; atmosphere-of-intimidation framework; threats of violence not indispensable; brave victim's fortitude not a defense; cites Gilmore (6th Cir.) with approval on bank-teller demand notes.

Winn v. Commonwealth 21 Va. App. 179, 183, 462 S.E.2d 911, 913 (1995)

binding

Purse-snatching without resistance is larceny from person, not robbery.

Jones v. Commonwealth 26 Va. App. 736, 740, 496 S.E.2d 668, 670 (1998)

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Sudden physical confrontation + jerking the victim by the shoulder distinguishes Winn; supplies force element.

Mills v. Commonwealth 52 Va. App. 214, 217, 662 S.E.2d 637 (2008)

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Robbery affirmed where defendant grabbed victim's purse and dragged her over thirty feet before she lost possession; 'a taking does not occur until an owner loses physical (or constructive) possession of his property.'

Holloman v. Commonwealth 221 Va. 196, 198–99, 269 S.E.2d 356, 358 (1980)

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Under § 18.2-53.1, an instrument giving the appearance of firing capability is a firearm — BB pistol case.

Yarborough v. Commonwealth 247 Va. 215, 218–19 & n.2, 441 S.E.2d 342, 343–44 & n.2 (1994)

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For § 18.2-53.1, Commonwealth must prove the accused actually had a firearm in possession; suspicion is insufficient. Footnote 2: for robbery's intimidation element, victim's perception that assailant was armed is sufficient.

Cox v. Commonwealth 218 Va. 689, 690–92, 240 S.E.2d 524, 525–26 (1978)

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Pistol loaded with wooden bullets is still a firearm under § 18.2-53.1.

Courtney v. Commonwealth 281 Va. 363, 706 S.E.2d 344 (2011)

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Toy gun lacking the appearance of an actual firearm is insufficient under § 18.2-53.1; defendant's statement that he had a gun does not save the conviction.

Jay v. Commonwealth 275 Va. 510, 525–26, 659 S.E.2d 311, 320 (2008)

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Attempted robbery requires intent + direct overt act 'well calculated to accomplish the result intended'; conversation alone is insufficient.

Harris v. Commonwealth 3 Va. App. 519, 521, 351 S.E.2d 356, 357 (1986)

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Threats of violence or bodily harm are not an indispensable ingredient of intimidation. Cited in Pressley; useful supporting authority for intimidation-by-totality cases.

13. Key Authorities & Case Annotations

Annotated authority — research layer, not printed on the PDF

Johnson v. Commonwealth 209 Va. 291, 293, 163 S.E.2d 570, 572-73, Va., 1968

The definition the Court of Appeals still quotes: robbery is "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."

Practical value: The starting point for any robbery instruction. Note what the definition does NOT contain — no weapon, no injury, no resistance requirement. Grading under § 18.2-58(B) is a separate question from whether a robbery occurred at all.

Green v. Commonwealth 133 Va. 695, 699, 112 S.E. 562, 563, Va., 1922

"The degree of asportation necessary to constitute a taking under the common law definition of robbery NEED ONLY BE SLIGHT."

Practical value: The answer to "he never got away with it". Movement of the property is enough; the defendant does not have to leave the premises. Pair with Mason for the outer limit — slight movement completes the taking, and once it is complete, later violence cannot convert larceny into robbery.

Mason v. Commonwealth 200 Va. 253, 255-57, 105 S.E.2d 149, 151-52, Va., 1958

THE LIMIT AGAINST THE COMMONWEALTH. "Severance of the goods from the owner and absolute control of the property by the taker, EVEN FOR AN INSTANT, constitutes an asportation" — so the taking can be complete very early. And once it is: "[n]o violence, no excitation of fear, resorted to MERELY FOR THE PURPOSE OF RETAINING A POSSESSION ALREADY ACQUIRED, OR TO EFFECT ESCAPE, will, in point of time, supply the element of force or intimidation." Mason broke a store display window, handed a television set to a confederate outside, and only then threw a radio at the owner and shot at him; the robbery conviction was held unsupported.

Practical value: Read this before charging robbery on a shoplift-plus-struggle. If the goods passed out of the owner's control before any force, the case is larceny plus an assault, not robbery — and Mason is what the defence will cite.

Durham v. Commonwealth 214 Va. 166, 169-70, 198 S.E.2d 603, 606-07, Va., 1973

The other side of Mason: "Where the owner of personal property, or another having custody or constructive possession of the same, INTERPOSES HIMSELF TO PREVENT A THIEF FROM TAKING the property, and the force and violence used TO OVERCOME THE OPPOSITION to the taking is concurrent or concomitant with the taking, the thief's action constitutes ROBBERY." Durham had moved a television and a chair but was surprised by the owner, whom his accomplice stabbed and killed.

Practical value: The controlling frame where the victim walks in on the theft. The question is not whether the property had been touched first, but whether the force was used to overcome the victim's interposition rather than merely to escape.

Pritchard v. Commonwealth 225 Va. 559, 560, 562, 303 S.E.2d 911, 912-13, Va., 1983

Robbery conviction UPHELD where the defendant had taken POSSESSION of the property but HAD NOT COMPLETED THE ASPORTATION. Pritchard had his car fuelled at a service station, refused to pay, threatened the owner with a gun and drove away.

Practical value: The gas-drive-off and dine-and-dash answer. Possession without completed asportation leaves the taking still in progress, so a threat made at that point precedes the taking and the offence is robbery, not larceny — distinguishing Mason, where the goods were already gone.

Beard v. Commonwealth 19 Va. App. 359, 451 S.E.2d 698, 701-02, Va. Ct. App., 1994

Conviction AFFIRMED. Beard was found going through a wallet in a co-worker's office; when the branch manager confronted him and tried to recover it, he threw her against the wall and forced past her. Held: "no ABSOLUTE SEVERANCE of the property from Payne's possession had occurred and Beard's taking and asportation of it CONTINUED until, by exercising violence against Payne, he removed it from her dominion and control" — that is robbery. Separately, the manager CONSTRUCTIVELY POSSESSED an absent co-worker's property in the office.

Practical value: The case for the office, shop-floor or store-room theft interrupted by a manager. Two independent points: the taking is not complete while someone with a superior possessory right is still contesting it, and the victim of the force need not own the property. Elder, J., dissented on the first point — expect the defence to argue the dissent.

Jones v. Commonwealth 13 Va. App. 566, 572 & n.3, 414 S.E.2d 193, 196 & n.3, Va. Ct. App., 1992

The act of violence or intimidation MUST PRECEDE OR BE CONCOMITANT WITH the taking. Footnote 3 adds that "from his person or in his presence" is broadly construed to reach property taken from the custody of anyone WHOSE RIGHT OF POSSESSION IS SUPERIOR TO THAT OF THE THIEF.

Practical value: Use the footnote where the named victim is an employee, bailee or passenger rather than the owner. The Commonwealth never has to prove who owned the property, only that the person robbed had a better right to it than the defendant.

Branch v. Commonwealth 225 Va. 91, 94-95, 300 S.E.2d 758, 759-60, Va., 1983

A LIMIT AGAINST THE COMMONWEALTH — the robbery conviction was REVERSED AND THE INDICTMENT DISMISSED. There is a "TEMPORAL CORRELATION" among the elements: the violence must occur before or at the time of the taking, the intent to steal and the taking must coexist, and "the offense is not robbery unless the ANIMUS FURANDI WAS CONCEIVED BEFORE OR AT THE TIME THE VIOLENCE WAS COMMITTED." Branch shot his victim during an argument and only afterwards took property; the Attorney General conceded he had "no intent to steal" when he shot. Footnote 1 states the accomplice rule: "all who are present at the commission of a robbery, rendering it countenance and encouragement . . . are liable as principal actors," and "the accused need not have taken anything from the victim with his own hands."

Practical value: The afterthought-theft problem. Where the violence came first for non-acquisitive reasons, the correct charges are the assault or homicide plus larceny — not robbery. Screen for this before indicting a killing-then-taking case, and see Whitley for when the sequence still supports robbery.

Whitley v. Commonwealth 223 Va. 66, 73-74, 286 S.E.2d 162, 166-67, Va., 1982

"While the violence or intimidation must precede or be concomitant with the taking, IT IS IMMATERIAL THAT THE VICTIM IS DEAD WHEN THE THEFT OCCURS. For purposes of the common-law definition, A CORPSE IS A 'PERSON' if 'the taking occurs minutes after the victim is killed.'" The question is whether ROBBERY WAS THE MOTIVE for the killing, which may be proved circumstantially.

Practical value: The answer to "everything was taken after she was already dead" on a capital or felony-murder theory. Whitley and Branch are the two poles and the dividing line is MOTIVE, not sequence: Whitley's history and his need for a car supported the inference that he killed in order to steal; Branch's conduct negated it.

Pritchett v. Commonwealth 219 Va. 927, 928-29, 252 S.E.2d 352, 353, Va., 1979

Adopts the general Virginia definition of a DEADLY WEAPON — "an instrument or weapon which is likely to, or which will, cause or produce death or great bodily harm when used in the manner contemplated by its design and construction" — and holds that unless a weapon is deadly PER SE, whether it is deadly "DEPENDS MORE ON THE MANNER IN WHICH IT HAS BEEN USED THAN ON ITS INTRINSIC CHARACTER," which is a question for the fact finder. A wooden club qualified.

Practical value: Reaches robbery through the § 18.2-58(B)(3) / (B)(4) line — a Class 5 felony where a deadly weapon other than a firearm was used or displayed, a Class 6 felony where it was not. Pritchett is what carries a bat, a brick or a box-cutter over that line, and it puts the question to the jury on the MANNER OF USE. Read the caption before citing it: Pritchett is a STATUTORY BURGLARY case under § 18.2-91, not a robbery case, and the definition it adopts is the general one.