TERRY GLENN HOBSON V. COMMONWEALTH OF KENTUCKY
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RENDERED : MARCH 18, 2010
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TERRY GLENN HOBSON
V.
ON REVIEW FROM COURT OF APPEALS
CASE NO . 2006-CA-000582-MR
BOYD CIRCUIT COURT NO . 05-CR-00241
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE VENTERS
REVERSING AND REMANDING
Following a jury trial, Appellant Terry Glenn Hobson was convicted in
Boyd Circuit Court of first-degree robbery, receiving stolen property, and giving
a peace officer a false name . For these crimes Appellant was sentenced to a
total of ten years.' The Court of Appeals affirmed Appellant's conviction and
sentence. We granted discretionary review and now reverse the first-degree
robbery conviction and sentence .
FACTUAL AND PROCEDURAL BACKGROUND
In the light most favorable to the verdict, the facts are as follows. On
July 11, 2005, Appellant broke into Rod Stamper's pick-up truck and took,
among other items, his driver's license and several credit cards. After
Appellant used one of the stolen credit cards at an Ohio Wal-Mart, other area
1 The individual sentences are as follows: for robbery,
ten years ; for receiving stolen
property, six months; and for giving a false name to a peace officer, 45 days, all to
be served concurrently .
Wal-Mart stores, including the one located at Town Center Mall in Ashland,
Kentucky, were notified to be alert for repeat attempts .
On the evening of July 11, 2005, Appellant entered the Town Center WalMart, placed various items in a cart, went to a check-out register, and
presented one of the stolen cards to pay for the merchandise . The cashier,
recognizing the card as stolen, employed the ruse of acting as if her register
was malfunctioning so that she could report the situation to her manager.
As it so happened, Ashland Police Officer J . R. Schoch was at the store
on an unrelated police matter . The officer and the manager went to the
register, and Schoch asked Appellant his name. Appellant identified himself as
Rod Stamper and produced the stolen driver's license as verification . When
challenged that he looked nothing like the person pictured on the license,
Appellant changed his story to claim that he was Stamper's cousin and that
Stamper had given him permission to use the card.
Schoch asked Appellant if they were to call Stamper would he confirm
this . Appellant responded affirmatively and agreed to accompany the officer
and the manager to the loss prevention office to make the call . The office was
occupied so Schoch and Appellant waited outside while the manager went into
the office to see about using it. The office was located near a door used to
bring shopping carts from the parking lot into the store. Meanwhile, all of the
merchandise Appellant had planned to steal by the fraudulent use of the stolen
credit card remained back at the checkout counter.
After a brief wait, Appellant suddenly bolted through the shopping cart
door into the parking lot, and Schoch gave chase . When the officer caught
Appellant, a scuffle ensued . Appellant concedes that he used force against
Schoch to avoid capture. In the course of the scuffle, Schoch's ankle was
broken in three places . With the help of others, Appellant was ultimately
restrained and arrested .
Appellant was indicted for first-degree robbery, receiving stolen property,
giving a peace officer a false name or address, and being a first-degree
persistent felony offender. Following a. jury trial, he was convicted of all
charges except the persistent felony offender charge. He was sentenced to a
total of ten years imprisonment .
First-degree robbery requires that one use, or threatens to use, force
upon another person with intent to accomplish a theft. Because the evidence
established that Appellant had abandoned the theft before he used force
against the police officer attempting to prevent his escape, the Commonwealth
failed to prove an essential element of first-degree robbery. Accordingly, we
reverse the first-degree robbery conviction.
DISCUSSION
Appellant contends that he was entitled to a directed verdict on the firstdegree robbery charge because the proof failed to establish the elements of
first-degree robbery as defined in KRS 515.020 . He argues that at the time he
used force against Schoch there had been an interruption of the theft, he had
abandoned the theft, and thus the use of force did not occur during "the course
of committing a theft." We agree with Hobson that all elements necessary to
sustain a first-degree robbery conviction were not proven ; however, as
explained below, our reasoning is slightly different from his .
The first-degree robbery statute, KRS 515 .020 provides as follows :
(1) A person is guilty of robbery in the first degree when, in the
course of committing theft, he uses or threatens the immediate use
of physical force upon another person with intent to accomplish
the theft and when he:
(a) Causes physical injury to any person who is not a participant in
the crime ;
(b) Is armed with a deadly weapon;, or
(c) Uses or threatens the immediate use of a dangerous instrument
upon any person who is not a participant in the crime.
Because there was no evidence that Appellant was armed with a deadly
weapon, or that he used or threatened to use a dangerous instrument,
subsections (1) (b) and (1) (c) are not implicated. Appellant was charged under
KRS 515 .020(1) (a), with Schoch being the non-participant to whom Appellant
caused physical injury. 2 The force he allegedly used to accomplish the theft
was the force used against Schoch .
Since the adoption of KRS 515.020, three published cases have
considered situations in which the use of force by the defendant did not occur
prior to or contemporaneous with the attempted theft, but, as here, occurred
2 We note that the elements of second-degree robbery as defined in KRS 515 .030
mirror the language contained in KRS 515 .020(1), without the aggravators
contained in KRS 515 .020(1)(a)-(c)) . Thus our discussion of the relevant issues will
also be applicable to second-degree robbery .
during an attempt to escape from the scene : Williams v. Commonwealth, 639
S .W.2d 786 (Ky. App. 1982) ; Mack v. Commonwealth, 136 S .W .3d 434 (Ky.
2004) ; and Bumphis v. Commonwealth, 235 S.W.3d 562 (Ky. App. 2007) . To lay
the groundwork for our discussion, we begin with a review of these cases .
In Williams, the defendant broke into a dry cleaning business and was in
the process of stealing items when he was interrupted by a store employee .
The defendant fled out the back door and discarded the stolen items in a
dumpster . When the pursuing employee caught up to him, the defendant
brandished a knife, and the employee retreated to the store, retrieving the
stolen items along the way. Williams, 639 S .W.2d at 787. Thus, Williams is
squarely on point with the present case - the theft was unsuccessful, the use of
force occurred during the escape phase after the stolen items had been
abandoned, and after any expectation of accomplishing the contemplated theft
had been given up . Williams concluded that conviction was proper under KRS
515 .020, stating as follows:
In 1975, K.R.S . 515 .020 became effective; and in essence the
statute says that if force or the threat of force is used, then a
robbery has been committed. It is the Commonwealth's argument
that the statutory clause, "in the course of committing theft,"
encompassed Williams' flight from the scene, and that the theft
was not complete because Williams was still in the escape stage.
The Commonwealth cites the Kentucky Penal Code, Final Draft
(L.R.C .1971), Commentary to Section 1600(iii) at 180:
Sections 1605 and 1606 (K.R. S. 515 .020 and K.R.S .
515 .030) change this law by expanding robbery to
include all situations involving the use of force "in the
course of committing theft ." As indicated above, this is
intended to extend all the way from the attempt stage
of theft through the escape stage .
While the commentary to the Code is not binding upon us under
the authority of Kennedy v. Commonwealth, Ky., 544 S .W.2d 219
(1977), we are entitled to use the commentary as an aid in
construing the provisions of the statute pursuant to K.R.S .
500 . 100 . Further, K.R.S. 500 .030 mandates that "All provisions of
this code shall be liberally construed according to the fair import of
their terms, to promote justice, and to effect the objects of the law."
Therefore, we conclude that robbery in the first degree was
committed. The fact that force was used sometime after and some
distance from the taking is only incidental . The force used was in
the course of committing the theft because it happened during the
escape stage. We construe the fair import of the term "in the
course of committing theft" to include the time, place and
circumstances surrounding a theft or attempted theft.
This
encompasses the escape stage. We believe the fair import of the
meaning of "escape stage" to be all steps or events in the process of
escape which would fall within the active or continuous pursuit of
the criminal actor . See K. Brickey, Kentucky Criminal Law, 3 15 .02
(1974). We find no error of the trial court in overruling the motions
for directed verdict of acquittal.
Id. at 787-788 .
Thus, under Williams, though force was not used until after the theft had
been abandoned (the defendant had thrown the items into a dumpster before
pulling the knife), a robbery conviction was sustained. It follows that
application of Williams would require us to sustain Appellant's conviction .
The next case addressing the use of force in the escape phase, Mack v.
Commonwealth, 136 S .W.3d 434, followed the reasoning expressed in Williams
(the escape being "in the course of committing theft"), but under a factual
scenario with a distinguishing difference . In Mack, the 71 year-old victim was
returning to her car from shopping. She opened the door, climbed into the
vehicle, and placed her purse on the passenger seat. Before she was able to
close the car door, the defendant appeared and reached across the victim,
grabbed her purse from the passenger seat, and ran to his own car. The victim
pursued the defendant and reached for her purse as he jumped in his car. The
defendant slammed the door on her hand . The defendant then opened the
door and shoved the victim away from the vehicle, knocking her to the ground,
before driving away. As a result of the force used on her, the victim suffered
lacerations and bruising on her hands, as well as a broken finger. Id. at 435436 . On appeal, the defendant contended that his use of force against the
victim was not in the course of committing the theft of her purse and with the
intent to accomplish the theft because it was not until after he had gained
control over the purse that she was injured. Id. at 437 .
We disagreed, stating "a use or threat of force during escape from a
completed or attempted theft will . . . satisfy the requirement [of "in the course
of committing theft"] and support a conviction ." Id. at 438 (quoting Robert G.
Lawson 8s William H . Fortune, Kentucky Criminal Law ยง 13-7(b)(2) (LEXIS,
1998)) . The decision cited with approval the holding from Williams that "the
fair import of the term `in the course of committing theft' . . . include[s] the
time, place and circumstances surrounding a theft or attempted theft. This
encompasses the escape stage . We believe the fair import of the meaning of
`escape stage' to be all steps or events in the process of escape which would fall
within the active or continuous pursuit of the criminal actor." Id. a t 437 n .10 .
Similarly, the opinion approved of the Official Commentary to KRS 515.020 as
set forth in the excerpt from Williams quoted above . Id.
In Mack, defendant's use of force during the escape phase was clearly for
the purpose of accomplishing the theft, i.e., he had possession of the purse and
injured the victim as she attempted to reclaim it. Mack had in no way
abandoned his intent to commit a theft . His effort to escape was "in the course
of committing theft" and he used force "with the intent to accomplish the theft",
satisfying the essential elements of robbery first degree . As further explained
below, this was a proper application of the law.
Finally, in Bumphis, 235 S.W.3d 562, the victim was eating lunch in his
store when he noticed the defendant standing beside two purses, stuffing a
wallet down the front of his pants. The defendant, realizing that he was
caught, took the wallet out of his pants and threw it down . The victim blocked
the defendant's escape route and accused him of stealing. The defendant
denied taking anything. The victim called out to his employees to call the
police . When the defendant attempted to flee, a scuffle ensued during which
the defendant repeatedly struck the victim across the back with his hands . As
a result of that conduct, the defendant was convicted of second degree robbery.
Applying Williams and Mack, the Court of Appeals upheld the conviction,
stating, "we hold that a charge of robbery is established when a defendant, in
the course of committing a theft, exercises or threatens physical force during
an attempted escape in an effort to prevent or otherwise overcome resistance
exerted by the victim." Id. a t 565 . Thus, like Williams, Bumphis holds that the
"force with intent to accomplish a theft" element may be satisfied even if the
force is used after the defendant has abandoned his plans to commit a theft.
Unlike Mack, but similar to Williams, Bumphis's only use of force occurred
after he had abandoned his attempt to steal property, and his only apparent
objective was escape .
We agree with Williams, Mack, and Bumphis to the extent they recognize
that an act of theft extends through the thief's getaway attempt, or escape.
This interpretation is consistent with the Model Penal Code's conception of
robbery, the Official Commentary to KRS 515 .020, and the plain language of
the statute. Thus, if a defendant commits or attempts to commit a theft
(obtains property of another with the intent to deprive the owner, KRS 513 .010
et. seq.) without using or threatening to use force against another,3 and does so
for the first time only in the escape phase, while still intending to accomplish
the theft, the elements of robbery are met, as we held in Mack. The escape is
still "in the course of committing theft." But, we are not at liberty to divorce
that phrase from the remainder of the sentence. The statute could not be
clearer on that point. As previously noted, it reads as follows :
(1) A person is guilty of robbery in the first degree when, in the
course of committing theft, he uses or threatens the immediate use
ofphysical force upon anotherperson with intent to accomplish the
theft . . . .
3 For example, as in a shoplifting, or as was attempted here, by the fraudulent use of a
credit card .
KRS 515 .020; KRS 515 .030 . (Emphasis added) If the literal language of a
statute is clear and unambiguous, it must be given effect as written . Bailey v.
Commonwealth, 70 S.W.3d 414, 416 (Ky. 2002) .
If, at the time a defendant first uses or threatens force, he has
abandoned his intention to accomplish a theft, the plain language of the
robbery statutes constrains us to conclude that the elements of robbery are not
met. The language admits to no interpretation other than that the force (or
threat of force) be contemporaneous with an intent to accomplish the theft. It
follows that once the intent to accomplish a theft is abandoned, any force used
would not be for the purpose of accomplishing a theft, and, in the usual case
would be for the unrelated purpose of effecting an escape. Under such
circumstances, the use of force to accomplish a theft element is simply not
met. In Williams, and consequently in Bumphis, the Court of Appeals
misconstrued the penal code commentary and misinterpreted the language of
the robbery statute, and are accordingly, overruled . Mack represents a proper
application of the law.
In the present case, it is undisputed that Appellant neither used, nor
threatened to use, force against another until his struggle with Schoch in the
parking lot after he fled the store. At that juncture, Appellant knew that his
purpose had been foiled. The merchandise he intended to steal had long been
left at the checkout counter. It is beyond doubt that the attempted theft had
ended . It cannot be reasonably disputed that when Appellant fought with
Schoch, he had no intention to "accomplish the theft," but, rather, was
attempting to avoid arrest and prosecution .
Since Appellant's use of force against Schoch was not "with intent to
accomplish the theft," the altercation cannot satisfy the physical force element
of the statute, and a reasonable jury could not conclude otherwise . It follows
that the conviction for first-degree robbery cannot be sustained .
Commonwealth v. Benham, 816 S .W.2d 186, 187 (Ky. 1991) .
While an instruction was given on second-degree robbery, the definition
of second-degree robbery contained in KRS 515 .030(1) is identical to the
language of KRS 515 .020(1) as quoted above, except without the aggravating
factors contained in KRS 515 follows by the same rationale,
.It
.020(1)(a)-(c)
that a conviction under the second-degree robbery statute cannot be sustained
under the facts of this case . No other lesser included offense instructions were
given, and, thus, no theory of prosecution remains for retrial .
As stated above, Williams and Bumphis, were correct to the extent that
they held that force used or threatened in the getaway, or escape, phase is still
"in the course of committing theft." Williams and Bumphis erred in
disconnecting that element from the requirement that the use or threat of force
be done with the "intent to accomplish the theft ." As in Mack, had Appellant
held on to the merchandise instead of leaving it at the register, a jury might
reasonably conclude that his use of force against the officer was as much to
protect his hold on the stolen goods as to make good his escape . Thus, this
decision does not hold that using or threatening to use force during the escape
phase of a theft does not supply the ingredient that converts the theft into a
robbery. We note further that the abandonment of the property would not
negate a robbery conviction based upon the use of force or threat of force in an
earlier phase of an attempted theft, so long as its use can reasonably be
regarded as concurrent with intent to accomplish the theft. Lastly, we observe
that this opinion does not mean that force used after the intent to accomplish a
theft has dissolved must go unpunished. Other provisions of the penal code
adequately cover such occurrences.
CONCLUSION
For the foregoing reasons Appellant's conviction upon the charge of firstdegree robbery is reversed and the case is remanded to the trial court for entry
ofjudgment consistent with this opinion.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Erin Hoffman Yang
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane Suite 302
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
William Robert Long, Jr.
Assistant Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
,,vuyrrmr Courf of
-mifuAv
2007-SC-000645-DG
TERRY GLENN HOBSON
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
CASE NO . 2006-CA-000582-MR
BOYD CIRCUIT COURT NO. 05-CR-00241
COMMONWEALTH OF KENTUCKY
APPELLEE
ORDER CORRECTING
The Opinion of The Court by Justice Venters rendered March 18,
2010, is corrected on its face by substitution of the attached page 5 in
lieu of page 5 of the original opinion. Said correction does not affect the
holding of the original Opinion of the Court.
ENTERED : April 15, 2010 .
CHIEF JUSTICE
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