PEOPLE OF MI V KALVIN RANDOLPH
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Michigan Supreme Court
Lansing, Michigan 48909
_____________________________________________________________________________________________
C hief Justice
Justices
Maura D. Cor rigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
O pinion
____________________________________________________________________________________________________________________________
FILED JULY 11, 2002
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff,
v
Nos. 117750, 118078
KALVIN RANDOLPH,
Defendant.
___________________________________
BEFORE THE ENTIRE BENCH
KELLY, J.
On
appeal
from
defendant's
conviction
for
unarmed
robbery, the Court of Appeals reversed the judgment for
insufficient evidence and remanded for entry of a conviction
of larceny in a building.
242 Mich App 417; 619 NW2d 168
(2000). It provided that the prosecutor could retry defendant
on the original unarmed robbery charge if it had additional
evidence. Both the prosecution and defendant appeal from that
decision.
We conclude that defendant could not be convicted of
unarmed robbery under the facts of this case.
We also
reassert that a defendant cannot be retried on a charge not
previously supported by sufficient evidence where additional
evidence is discovered to support it.
Therefore, we affirm
the Court of Appeals decision in part, reverse it in part, and
remand for entry of a judgment of conviction of larceny in a
building and for resentencing.
I.
Factual and Procedural History
Defendant took merchandise valued at approximately $120
from a Meijer store.
After purchasing other items, he left
the store with a rotary tool, a battery, a battery charger,
and a thermostat without paying for them.
The store's loss
prevention staff observed the theft and acted to apprehend
defendant when he emerged from the store.
There are several versions of what happened next. Taking
the evidence in the light most favorable to the prosecution,
when the plain-clothed security guards identified themselves,
defendant lunged forward to run.
At least one guard seized
him, putting him in an "escort hold."
Defendant broke free
and swung his arm at the guards, physically assaulting at
least one of them.1
1
In his efforts to escape, defendant lost
Defendant claimed he used no force at all.
2
possession of the merchandise.
The prosecutor charged him
with unarmed robbery, and a jury convicted him as charged.
MCL 750.530.
When it reviewed defendant's unarmed robbery conviction,
the Court of Appeals applied the "transactional approach,"
which it adopted explicitly in People v LeFlore, 96 Mich App
557, 561-562; 293 NW2d 628 (1980).2
Under this approach, a
defendant has not completed a robbery until he has escaped
with stolen merchandise.
Thus, a completed larceny may be
elevated to a robbery if the defendant uses force after the
taking and before reaching temporary safety.
See People v
Newcomb, 190 Mich App 424, 430-431; 476 NW2d 749 (1991);
People v Turner, 120 Mich App 23, 28; 328 NW2d 5 (1982);
People v Tinsley, 176 Mich App 119, 120; 439 NW2d 313 (1989).
Applying that test, the Court of Appeals reasoned "there
was insufficient evidence to support defendant's conviction of
unarmed robbery because defendant was unsuccessful in escaping
and thus he never completed the larcenous transaction."
Mich App 421.
242
Therefore, it reversed the unarmed robbery
conviction and remanded for entry of a conviction of larceny
in a building, "unless the prosecutor opts to retry defendant
2
Although the Court of Appeals did not identify its
holding in People v Sanders, 28 Mich App 274; 184 NW2d 269
(1970), as employing the "transactional approach," the concept
originated there.
3
on the original charge based on additional evidence."
423.
Id. at
We granted both parties' applications for leave to
appeal.
465 Mich 885 (2001).
II.
Michigan's
Unarmed Robbery
unarmed
robbery
statute,
MCL
750.530,
provides:
Any person who shall, by force or violence, or
by assault or putting in fear, feloniously rob,
steal and take from the person of another, or in
his presence, any money or other property which may
be the subject of larceny, such robber not being
armed with a dangerous weapon, shall be guilty of a
felony, punishable by imprisonment in the state
prison not more than 15 years. [Emphasis added.]
Robbery is a crime against a person. People v Hendricks,
446 Mich 435, 451; 521 NW2d 546 (1994).
As the Court of
Appeals acknowledged in LeFlore,3 "Both the armed and unarmed
robbery statutes are clear that the forceful act must be used
to accomplish the taking."
We base our holding on the language of the unarmed
robbery statute and the common-law history of unarmed robbery.
From that we conclude that the force used to accomplish the
taking
underlying
a
charge
of
contemporaneous with the taking.
unarmed
3
cases
that
have
held
Supra at 562.
4
must
be
The force used later to
retain stolen property is not included.
Appeals
robbery
Those Court of
otherwise,
applying
a
"transactional
approach"
to
unarmed
robbery,
are
herein
overruled.
A.
Robbery at Common Law
Michigan's unarmed robbery statute is derived from the
common law.
The first robbery statutes, enacted in 1838,
adopted the common-law definition of robbery, but divided the
offense
by
levels
of
perpetrator was armed.
NW 851 (1886).4
severity,
depending
on
whether
a
People v Calvin, 60 Mich 113, 120; 26
The 1838 codification of unarmed robbery is
nearly identical to our current statute.5
4
If there were any doubt that the unarmed robbery statute
codified the common law, this Court dispelled it in Stout v
Keyes, 2 Doug 184, 188 (Mich, 1845). In Stout, this Court
rejected a claim that the common law had been supplanted by
our constitution and the revised statutes. It explained that
our constitution did not abrogate, but rather retained, the
common law. Our revised statutes repealed only earlier laws
that were repugnant to the provisions of the revised statutes.
The Stout Court concluded:
"In almost every part of the
Revised Statutes of 1838 relating to rights and remedies, the
common law is incidentally or otherwise recognized." Id.
5
1838 RS, tit 1, ch 3, § 12 provided, with regard to
unarmed robbery:
If any person shall, by force and violence, or
by assault or putting in fear, feloniously rob,
steal and take from the person of another any money
or property, which may be the subject of larceny,
(such robber not being armed with a dangerous
weapon,) he shall be punished by imprisonment in
the state prison not more than life, or for any
term of years. [Emphasis added.]
Other
than
stylistic
changes,
5
the
only substantive
(continued...)
At common law the elements of the offense of robbery were
"the
felonious
and
forcible
taking,
from
the
person
of
another, of goods or money to any value by violence or putting
him in fear."
4 Blackstone, Commentaries, p 241; see also,
People v Covelesky, 217 Mich 90, 96; 185 NW 770 (1921).
The
force or violence had to be applied before or during the
taking.
See id. at 242. ("[T]he taking must be by force, or
a previous putting in fear. . . .")6
(Emphasis added.)
5
(...continued)
modification since the first statute is the addition of the
phrase "or in his presence."
This modification is itself
consistent with the common-law definition of robbery. See 4
Blackstone, Commentaries, p 242 ("But if the taking be not
either directly from his person, or in his presence, it is no
robbery").
6
See, also, the encyclopedic work by Joel Prentiss
Bishop, a leading nineteenth century legal commentator, who
stated the common law as follows: "The violence must precede
or be contemporaneous with the taking. When no force is used
to obtain the property[,] force used to retain it will not
make the crime robbery." 2 Zane & Zollman, Bishop, Criminal
Law (9th ed), § 1168.2, p 865.
Other commentators concur with Blackstone’s view of the
common law. See, e.g., 2 LaFave & Scott, Substantive Criminal
Law, § 8.11, p 452 ("Thus, under the traditional view it is
not robbery to steal property without violence or intimidation
(e.g., to obtain it by stealth or fraud or sudden snatching),
although the thief later, in order to retain the stolen
property or make good his escape, uses violence or
intimidation upon the property owner. The defendant's acts of
violence or intimidation must occur either before the taking
(though continuing to have an operative effect until the time
of the taking) or at the time of the taking."); 4 Torcia,
Wharton, Criminal Law (15th ed), § 463, pp 33-36 ("At common
law, and in some states, force or threatened force (putting a
(continued...)
6
6
(...continued)
victim in fear of injury) amounts to robbery only if it is
used to 'take' property from the possession of another. Force
or threatened force used thereafter, in order to retain
possession of the property taken or to facilitate escape, does
not qualify. At best, in such cases, the separate offenses of
larceny and assault or larceny and battery are committed.").
The dissent offers the views of several other common-law
commentators.
However, read carefully, these commentators
support the definition of robbery under the common law that we
have related above. For example, Odgers states that common
law robbery consisted of "the unlawful taking possession of
the goods of another by means of violence or threats of
violence" and that the violence must occur "at the time of or
immediately before or immediately after such robbery . . . ."
1 Odgers, The Common Law of England (2d ed), ch 8, p 331.
This definition acknowledges that the taking must be by
violence or the threat of violence. In this case, the taking
occurred without violence.
Contrary to the dissent's assertion, the use of the
phrase "immediately before or immediately after" is consistent
with our view that the use of force must be contemporaneous
with the taking.
Possibly, the dissent missapprehends the
immediacy of the term "immediately." Odgers illustrated the
point with the following: "[W]here the prisoner seized the
prosecutor's watch and, on finding that it was secured by a
chain around his neck, violently pulled and jerked until it
broke, and then ran away with the watch, this was held to
amount to robbery."
Id. at 332, quoting Rex v Harman
(Harman's Case), 1 Hale, PC 534.
Thus, force applied
immediately after the taking is sufficiently contemporaneous.
In this case, defendant did not use force until after he had
completed the taking and left the store. Therefore, the use
of force did not occur immediately after the taking.
Similarly,
the
dissent's
reliance
on
Rapalje's
explanation of the common law of robbery is unavailing. The
dissent fails to quote Rapalje's statement of the common-law
definition of robbery:
Feloniously taking the property of another in
his presence and against his will, by putting him
(continued...)
7
Accordingly,
the
common
law
concerning
robbery
that
was
received by the drafters and ratifiers of our constitution
required (1) a taking from the person, (2) accomplished by an
earlier or contemporaneous application of force or violence,
or the threat of it.
If force was used later to retain the
property, the crime committed did not constitute robbery.
Thus, consistently with the rule under common law, MCL
750.530 must be read to require a taking accomplished by
"force or violence, or by assault or putting in fear."
The
statute excludes a nonforceful taking, even if force were
later used to retain the stolen property.
By the same
reasoning, force used to escape with stolen property is
insufficient to sustain a robbery charge under our statute.
Nonetheless, over the past thirty years, the Court of Appeals
6
(...continued)
in fear of immediate personal injury, is robbery at
common law.
The taking must be either directly
from the person or in the presence of the party
robbed, and must be by force, or a previous putting
in fear.
It is the previous violence or
intimidation
that
distinguishes
robbery
from
larceny. [Rapalje, Larceny & Kindred Offenses
(1892), § 445, p 633.]
The remainder of Rapalje's statement on robbery is no more
availing to the dissent's position.
Carefully read, the
entire passage supports the majority's view rather than the
dissent's view of the common law. See id. at § 446, pp 633
637. The dissent is simply incorrect in asserting that the
common-law
understanding
of
robbery
supports
the
"transactional approach" to unarmed robbery.
8
has created a doctrine that strayed from the language of MCL
750.530 and its historical common-law context.
B.
The Court of Appeals and the "Transactional Approach"
This
Court
approach."
has
never
recognized
the
"transactional
In 1971, the Court of Appeals began to expand the
codified common-law requirements of robbery.
In People v
Sanders,7 it concluded that the defendant, having completed
his theft "by stealth," was guilty of armed robbery because he
fired
a
gunshot
into
the
air
to
frighten
off
pursuers.
Although it recognized the general rule that "an assault must
be concomitant with the taking in order to support a charge of
armed
robbery,"
jurisdictions.
the
panel
Id. at 276.
relied
on
the
law
of
other
It held that there was "no valid
basis for isolating the incidents of the entire event when the
taking is not effectively completed until after the assault.
. . . [A]nd the incident of the taking must be viewed in its
totality in order to ascertain the intent of the defendant
when the assault occurs."
Id. at 277.
Thus, with the
decision in Sanders, the Court of Appeals began its shift
toward the "transactional approach."
In LeFlore, the concept was identified by name and
applied in the context of unarmed robbery.
7
Supra at 561-563.
28 Mich App 274; 184 NW2d 269 (1970).
9
In that case, the defendant took money from the victim after
physically assaulting her.
On appeal, he claimed that there
was insufficient evidence to support the unarmed robbery
conviction because the taking had been a mere afterthought.
He claimed to have had no larcenous intent at the time of the
assault. The LeFlore panel held that the "larceny transaction
should be viewed as a whole to determine the defendant's
intent."
LeFlore, supra at 562.
In Turner, the "transactional approach" was extended
further to express that a robbery is incomplete until the
defendant escapes with the stolen property:
We
agree
that
a
completed
escape
is
unnecessary
to
constitute
asportation.
"Any
movement of goods, even if by the victim under the
direction
of
defendant
.
.
.
constitutes
asportation . . . ." However, robbery is also a
continuous offense: it is not complete until the
perpetrators reach temporary safety. As such, while
the essential elements were completed, the offense
continued during the escape.
[120 Mich App 28
(citations omitted; emphasis added).]
The Turner holding was repeated in Tinsley. The fiction found
there, that a robbery is not complete until a defendant
reaches temporary safety, gave rise to the Court of Appeals
holding in the instant case: that the defendant must complete
his
escape
with
the
stolen
merchandise
or
he
cannot
be
not
be
harmonized
convicted of unarmed robbery.
This
"transactional
approach"
10
can
either with the language of MCL 750.530 or with the common-law
history of our unarmed robbery statute.8
As Judge William
Blackstone stated:
This previous violence or putting in fear is
the criterion that distinguishes robberies from
other larcinies.
For, if one privately steals
sixpence from the person of another, and afterwards
keeps it by putting in fear, this is no robbery,
for the fear is subsequent . . . . [Blackstone,
supra at 242.][9]
8
The dissent appears to agree that our unarmed robbery
statute directly adopts and implements the common-law
definition of robbery.
Slip op at 11, n 6.
However, it
diverges from us when claiming that robbery is a continuing
offense that is not complete until the thief reaches a place
of temporary safety. This definition finds no support in the
common law.
None of the commentators cited by either the
majority or the dissent identifies the "place of temporary
safety" as an aspect of robbery. It finds no support, either,
in the plain language of the statute which fails to mention,
or even allude to, a "place of temporary safety." In light of
the history and text of the statute, the dissent is inaccurate
in attempting to justify its preferential interpretation as
true to the common law.
9
The dissent contends that we make "much of [this]
quotation." Slip op at 28. It asserts that Perkins states
that "this quotation has been misapplied." Id. However, the
dissent misunderstands the point that Perkins was making.
Perkins indicated that certain courts, in certain factual
situations, had occasionally misapplied Blackstone’s view of
the common law. In one case, a thief obtained a gun on the
pretext of wishing to inspect it, turned it on the owner and
threatened to use it before fleeing with it. Perkins
criticized the court that reversed the thief's conviction for
robbery. He noted that the thief initially had mere custody
of the weapon, but his possession of it was secured by the
threat of force. Perkins, supra at 348-349.
had
The dissent claims that, in the case on appeal, defendant
only custody of the items when the security guard
(continued...)
11
Thus did Blackstone identify the real difficulty with the
"transactional approach":
it
inappropriately characterizes
a completed larceny as a robbery.
It is useful to recall that at common law simple larceny
was defined as "the felonious taking, and carrying away, of
the personal goods of another." Blackstone, supra, p 229; see
also, People v Johnson, 81 Mich 573, 576; 45 NW 1119 (1890).
Larceny was contrasted with robbery in that common-law larceny
was a robbery minus the use of force to accomplish the taking
9
(...continued)
attempted to stop him.
This view is unsupportable.
In
Perkin's example, the owner willingly parted with physical
control of the gun in response to the robber's nonthreatening
request.
It was only after the robber obtained temporary
consensual custody of the weapon that he threatened the owner
and exercised possession that was inconsistent with the
owner's rights. In this case, defendant took the items and
concealed them under his coat. Thus, wrongful possession and
custody that were inconsistent with the owner's rights were
asserted at the time of the taking.
Defendant never had
rightful possession and custody of these items with the
owner's consent.
Furthermore, the quotation relied on by the dissent again
supports, rather than contradicts, the interpretation of
Blackstone that we have related above: "[I]f subsequent to
the larceny the owner should come upon the thief and be
prevented from retaking his property by force or violence, the
thief would be guilty of larceny and assault, but not
robbery." Id. at 349. The use of "res gestae" in the Perkins
quotation, considered in context and in light of the comments
of
commentators (Blackstone, Bishop, LaFave and Scott,
Wharton, Odgers, and Rapalje), does not suggest an expansive
"transactional" view of robbery. Rather it narrowly refers to
the events occurring contemporaneously with the taking,
precisely the time frame in which the application of force
must occur.
12
and absent the requirement that the taking be "from the
person."
Blackstone stated this cogently when he summarized:
"This previous violence or putting in fear, is the criterion
that distinguishes robberies from other larcinies."
Id. at
242.10
We emphasize that a larceny is complete when the taking
occurs.
The
offense
does
not
continue.
This
fact
is
10
Other distinguished commentators have opined similarly.
Professor Charles Torcia, current author of Wharton, Criminal
Law, the well-known and often cited contemporary exposition on
the criminal law, explains that at common law the use of force
"amounts to robbery only if it is used to 'take' the property
from the possession of another." Wharton, § 463, p 33. He
then continues:
Force or threatened force used thereafter, in
order to retain possession of the property taken or
to facilitate escape, does not qualify. At best,
in such a case, the separate offenses of larceny
and assault or larceny and battery are committed.
[Id. at 33-36.]
Similarly, Bishop in his previously cited work on
criminal law states:
"The fear of physical ill must come
before the relinquishment of the thing to the thief, not
after; else the taking is not robbery." Bishop, § 1175, p
869.
Even the Court of Appeals recognized this rule while
declining to follow it in favor of its "transactional
approach": "Both the armed and unarmed robbery statutes are
clear that the forceful act must be used to accomplish the
taking. . . .
Unless there is a purposeful relationship
between these two elements, the criminal episode is merely two
isolated crimes of larceny and perhaps assault and battery."
LeFlore, supra at 562, quoting LaFave, supra.
13
illustrated in People v Bradovich,11 in which two defendants
in a store concealed two suits under their own clothing and
attempted to leave.
Realizing that store personnel were
following them and that they would be apprehended, they
abandoned the stolen clothing and departed.
When later
charged with larceny, they claimed to have abandoned the
property before leaving the store, and therefore, not to have
completed the offense. This Court disagreed, holding that the
larceny was complete when the thieves concealed the store’s
clothing under their own.
Id. at 332.
The dissent acknowledges that larceny and robbery are
distinct crimes.
That the two crimes are distinct offenses
indicates nothing more than that they have different elements:
robbery is a larceny aggravated by the fact that the taking is
from the person, or in his presence, accomplished with force
or the threat of force.
People v Wakeford, 418 Mich 95, 127
128; 341 NW2d 68 (1983) (opinion of Levin, J.).
However, the dissent asserts without supporting authority
that "for the purpose of the crime of robbery, the relevant
act encompasses a broader spectrum of time, and includes not
simply an initial larcenous taking, 'by force and violence' or
'by assault,' but a robbing of the victim 'by assault' when
11
305 Mich 329; 9 NW2d 560 (1943).
14
the property remains in the victim's presence."
13.
Neither
the
common
law
nor
contemporary
Slip op at
authority
supports the view that the taking that establishes the larceny
element of robbery continues until the robber reaches a place
of temporary safety.
We reject the dissent's reliance on cases from other
jurisdictions because they are either distinguishable on their
facts or inconsistent with the common-law view of robbery
adopted by Michigan.
We also find particularly instructive
State v Manchester, 57 Wash App 765; 790 P2d 217 (1990).
There, the Washington Court of Appeals, noting the split in
jurisdictions on the question of the timing of the use of
force, cited Sanders, supra, and People v Beebe, 70 Mich App
154; 245 NW2d 547 (1976). Manchester placed Michigan with the
majority of jurisdictions that do not consider a robbery
complete until the robber has reached a place of temporary
safety.
The Court observed:
"Because this approach does not
follow the common law, courts focus on the language of the
robbery statute to reach this result."
Id. at 770.
We agree that the "transactional approach" used by our
Court of Appeals is contrary to the common law.
As we have
explained above, the language of our statute does not permit
us to adopt the view espoused by the Court of Appeals and the
dissent.
15
We are also persuaded by Tennessee v Owens,12 where the
Tennessee Supreme Court was faced with the question, "[H]ow
closely connected in time must the taking and the violence
be?"
By way of response, the court compared the language of
Tennessee’s robbery statute with the language of other states'
robbery statutes.
The court noted that many jurisdictions
have rejected the common-law rule in favor of the “continuous
offense theory.”
However,
Id. at 638-639, 639, n 7.
most
of
those
states
have
statutes
that
specifically define robbery to include the use of force to
retain property or to escape.
Id. at 639.
Many of the
statutes provide that a person commits robbery if he uses
force "in the course of committing" a theft or larceny.
See
Ala Code 1975, § 13A-8-43; Ariz Rev Stat, §§ 13-1901-1904;
Conn Gen Stat, § 53a-133; Del Code Ann, tit 11, § 831; Fla
Stat, § 812.13; Haw Rev Stat, § 708-841; Minn Stat, § 609.24;
Mont Code Ann, § 45-5-401; NJ Stat Ann, § 2C:15-1; NY Penal
Laws, § 160.00; ND Cent Code, § 12.1-22-01; Or Rev Stat,
§ 164.395; Tex Penal Code Ann, § 29.02; Utah Code Ann, § 76-6
301.
All the statutes define "in the course of" to include
either "escape," "flight," "retention," or "subsequent to the
12
20 SW3d 634 (Tenn, 2000).
16
taking."
In other jurisdictions that follow this approach,
the statutes specifically include the expressions "resisting
apprehension,"13 "facilitate escape,"14 "fleeing immediately
after,"15 or used to "retain possession."16
By
contrast,
other
jurisdictions
have
statutes
that
follow the common-law rule requiring that the force, violence,
or putting in fear occur before or contemporaneous with the
larcenous taking.
These states have statutes substantially
similar to Michigan's.
See Ga Code Ann, § 16-8-40; Ind Code,
§ 35-42-5-1; Kan Stat Ann, § 21-3426; Miss Code Ann, § 97-3
73; NM Stat Ann, § 30-16-2; Tenn Code Ann, § 39-13-401; see
also 93 ALR3d 647-649.
In summary, at common law, a robbery required that the
force,
violence,
or
putting
in
fear
contemporaneous with the larcenous taking.
occur
before
or
If the violence,
force, or putting in fear occurred after the taking, the crime
was not robbery, but rather larceny and perhaps assault.
Hence, the "transactional approach" espoused by the Court of
Appeals is without pedigree in our law and must be abandoned.
Sanders, LeFlore, Turner, and Tinsley are overruled.
13
Ark Code Ann, § 5-12-102.
14
Nev Rev Stat, § 200.380.
15
Ohio Rev Code Ann, § 2911.01.
16
Wash Rev Code, § 9A.56.190.
17
III.
Analysis of the Case on Appeal
Turning to the facts of this case, the prosecution seeks
to extend the transaction that began with the in-store taking
to include the struggle in the parking lot.
We point out that
defendant not only failed to escape, but, more importantly,
did not accomplish his taking by the use of force, violence,
assault, or putting in fear.17
While store security personnel observed him, defendant
removed several items from the display shelves of the Meijer
store and concealed them beneath his coat.
He continued to
retain possession of this property as he picked up two quarts
of oil, went to a checkout lane, paid for the oil and walked
from the store.
The first use of force or violence was in the
parking lot when a security guard attempted to restrain him.
Hence, his use of force or violence was not to take the
property, but to retain it and escape apprehension.
It
follows that defendant did not commit the offense of unarmed
robbery.
The dissent makes much of the fact that the unarmed
robbery statute applies to a taking from "the person of
17
We agree with the dissent that escape is not an element
of robbery, and this statement should not be construed to
imply otherwise. We merely point out that the circumstances
of this case go beyond what the Court of Appeals deemed
significant, the irrelevant fact that defendant did not
escape.
18
another, or in his presence," but overlooks the context of
that language.
The dissent relies heavily on the notion of
constructive possession and the intent to permanently deprive.
However, we are left without a satisfactory explanation of why
the use of force that does not accomplish a taking would
escalate the offense of larceny to unarmed robbery.
The dissent asserts that force used after a taking, while
the victim has constructive possession of stolen property or
while it is in the victim's presence, supports a charge of
robbery. Notably, however, in each of the dissent's examples,
the force used was to accomplish the ultimate taking.
did not occur in this case.
That
The dissent attempts to merge a
subsequent force not used to accomplish a taking with the
completed taking that preceded the force.18
We think it significant that the statute identifies
unarmed robbery as the taking of another's property in the
other's presence "by force and violence, or by assault or
putting in fear."
MCL 750.530 (emphasis added).
If the
physical taking were accomplished without force, assault, or
fear, the statute does not permit treating the larcenous crime
18
Certainly, as the dissent asserts, it may be wise to
wait to apprehend a thief who has not used force or violence
until after he has left a populated store.
In so doing,
however, one would be apprehending a thief who committed
larceny, not a robber.
19
as a robbery because of a subsequent forceful act. Such force
used to retain stolen property is simply outside the scope of
MCL 750.530.19
That defendant cannot be convicted of unarmed
robbery is particularly clear here, because his force by no
means accomplished a severing of the store's constructive
possession of the merchandise.
We note that defendant's taking of the merchandise in
this case is indistinguishable from the taking in Bradovich.
Therefore, when defendant placed the merchandise under his
clothing, he committed a taking without force, and his conduct
constituted a completed larceny.
The concealment evidences
that, at the time he took the merchandise, defendant intended
to permanently deprive the owner, Meijer, of it.
Defendant’s
later acts, whether viewed as an unsuccessful attempt to
retain the property or as an attempt to escape, are too
removed
from
the
completed
19
taking
to
be
considered
The dissent's reliance on Sir Edward Coke's definition
of common-law robbery is no more illuminating. It quotes Coke
for the proposition that one who begins to steal by stealth
but, then, "uses force in order to complete the taking" has
committed robbery. Slip op at 36. Again, we agree that one
who uses force to take the property of another has committed
unarmed robbery. We simply will not extend that proposition
to force used after the taking, when the force does not serve
to accomplish the taking.
The dissent is incorrect in
extending Coke's definition to force used in an attempt to
retain property where the taking has already been completed.
Nowhere in the dissent is this significant leap supported with
any legal or analytical foundation.
20
contemporaneous.20
The
dissent's
misplaced.
In
reliance
Podolski,
on
this
People
Court
v
held
Podolski21
the
is
defendant
responsible for felony murder when, after a robbery, one
police officer shot and killed another while the robbers
exchanged fire with the police.
This Court did not base the
felony murder on a "transactional" notion of robbery.
Rather,
the
unanimous
Court
asserted
that
"'when
a
felon's attempt to commit robbery or burglary sets in motion
a chain of events which were or should have been within his
contemplation when the motion was initiated, he should be held
responsible
for
any
death
which
by
20
direct
and
almost
The decisions of this Court and the Court of Appeals
provide no support for the dissent's view, slip op at 24, that
store security's continued observation of defendant extends
the larcenous transaction. Nor do they support the view that
the cessation of such observation can sever the owner's
constructive possession of the stolen property. These views,
asserted without authority, directly contradict the common-law
assessment of larceny illustrated by Bradovich that a larceny
is complete upon the taking and concealment of the property.
As we have endeavored to show, they are also inconsistent with
the common-law view of robbery because the taking is
accomplished without force.
Certainly, the owner's legal
right to such property will always be superior to the thief's.
However, the fact remains that physical custody and control of
the property, actual possession, has been acquired by the
thief when he conceals the property. The property has been
"robbed, stolen and taken" from the owner and that felonious
taking has been accomplished without force or the threat of
force.
21
332 Mich 508; 52 NW2d 201 (1952).
21
inevitable sequence results from the initial criminal act.'"
Id. at 515-516, quoting Commonwealth v Moyer, 357 Pa 181, 190
191; 53 A2d 736 (1947).
Where the issue is whether the force
exerted during a robbery was used in taking the property of
another,
not
whether
it
Podolski is not on point.
was
a
foreseeable
consequence,
Therefore Podolski and its progeny
are not persuasive by analogy as the dissent contends.
Finally, we disagree with the dissent's claim that we
have created an impractical framework for unarmed robbery.
The dissent greatly exaggerates the confusion generated by
overruling the transactional approach.
The rule is simple:
a defendant commits an unarmed robbery when he takes the
property of another by the use of force, violence, or putting
in fear.
After the initial larcenous act has been completed,
the use of force against the victim to retain the property
taken does not transform it into armed robbery.22
The force,
22
The dissent claims that the Legislature could not have
intended that the theft of under $200 of property, followed by
the thief's violent assault on the victim, be "merely [a]
third-degree retail fraud and assault, rather than the greater
crime of robbery." Slip op at 40-41. The dissent further
expresses surprise that a potential fifteen-year sentence
could be reduced to "punishment of no more than 93 days in
jail." Id. at 41.
As we have indicated, and as the commentators uniformly
agree, at common law, a theft accomplished without force was
a larceny; where the larceny was followed by the application
of force, it was a larceny and an assault.
It should be
(continued...)
22
violence
or
putting
in
fear
must
be
used
before
or
contemporaneous with the taking.
We
overrule
the
"transactional
approach"
to
unarmed
robbery and reassert that the force, violence, assault or
putting in fear underlying the robbery must occur before or
contemporaneously with the felonious taking.
Because this
defendant did not use force, violence, assault, or putting in
fear to accomplish his taking of property, he did not commit
unarmed robbery.23
Accordingly, we agree with the Court of
22
(...continued)
concluded that our Legislature was well aware of the common
law view and intended to incorporate it into the statute when
it codified the common law.
Finally, the sentencing prospect contemplated by the
dissent, that the potential sentence would drop from fifteen
years to one year, is incorrect. We are remanding this case
for entry of a conviction of larceny in a building.
The
maximum sentence for that offense is four years, not one year.
MCL 750.360 and MCL 750.503. Depending on the facts of the
crime, a defendant who commits an assault following a larceny
could be charged with a ninety-day misdemeanor, MCL 750.81, a
one-year misdemeanor, MCL 750.81a, a four-year felony, MCL
750.82, a ten-year felony, MCL 750.84, MCL 750.86, or MCL
750.87, or life or, if the defendant intended to murder his
victim, a term up to life in prison, MCL 750.83.
23
As the dissent agrees, defendant accomplished a
chargeable crime of larceny when he concealed the merchandise
with the intent to steal it.
When the security guards
initiated contact with him and a physical struggle ensued,
defendant lost possession of the merchandise. It defies logic
to say that, when a defendant commits larceny, but loses
possession of the property during a struggle, defendant's
crime can be elevated to unarmed robbery.
(continued...)
23
Appeals panel, albeit using a different analysis, that the
charge of unarmed robbery was not supported by the evidence.
Therefore, we affirm its decision insofar as it reverses
defendant's conviction.
IV.
The Remedy
We find that the Court of Appeals erred when it provided
that, with new evidence, the prosecution could retry defendant
on the originally charged offense. See Burks v United States,
437 US 1, 18; 98 S Ct 2141; 57 L Ed 2d 1 (1978); People v
Bullock, 440 Mich 15, 26, n 7; 485 NW2d 866 (1992); People v
Murphy,
416
Mich
453,
467;
331
NW2d
152
prosecution concedes that this was error.24
(1982).
The
Defendant agrees
23
(...continued)
We recognize that one who commits retail fraud,
essentially a larceny of merchandise for sale in a store open
to the public, cannot be charged with larceny in a building.
See MCL 750.356c(3). However, People v Ramsey, 218 Mich App
191, 194-195; 553 NW2d 360 (1996), holds that one charged with
unarmed robbery can be convicted of larceny in a building,
even where the underlying facts would support a finding of
retail fraud. In this case defendant was charged with unarmed
robbery. The jury was instructed on that and on larceny in a
building, not retail fraud. Defendant concedes that he is
guilty of larceny in a building. For those reasons, we remand
for entry of a judgment of conviction of larceny in a
building, rather than for a conviction of retail fraud. See
part IV.
24
Another panel of the Court of Appeals has already
disavowed this portion of the Court of Appeals opinion, citing
the United States Supreme Court in Burks v United States, 437
US 1, 11; 98 S Ct 2141; 57 L Ed 2d 1 (1978):
(continued...)
24
that, if defendant's unarmed robbery conviction is overturned,
the proper remedy is a remand for entry of a conviction for
larceny in a building.
MCL 750.360.25
The prosecution proposes, as an alternate position, that
this case be remanded to the trial court for retrial on the
lesser offense of assault with intent to commit unarmed
robbery.
On the basis of our construction of the unarmed
robbery statute, we reject that approach. To support a charge
of
assault
with
intent
to
commit
unarmed
robbery,
the
prosecutor would again merge the initial taking with the force
used to retain possession of the merchandise.
The taking and
the force are too attenuated to support those charges.
The
24
(...continued)
Indeed, "affording the prosecution another
opportunity to supply evidence which it failed to
muster in the first proceeding" is the chief evil
against which the Double Jeopardy Clause protects.
[People v Watson, 245 Mich App 572, 597; 629 NW2d
411 (2001).]
25
The elements of larceny in a building are: (1) the
actual or constructive taking of goods or property of another,
(2) without the consent and against the will of the owner, and
(3) a carrying away or asportation of the goods, (4) with a
felonious intent, (5) the taking having occurred within the
confines of the building. MCL 750.360; People v Sykes, 229
Mich App 254, 278; 582 NW2d 197 (1998). Defendant admits that
he committed larceny in a building. Also, the jury's decision
necessarily included a finding that defendant committed every
element of the crime of larceny in a building. Therefore, a
remand for entry of a conviction of that offense is
appropriate. See People v Bearss, 463 Mich 623, 632-633; 625
NW2d 10 (2001).
25
larceny in a building conviction better fits the facts of this
case.
Because the Court of Appeals decision to allow retrial is
in error, we reverse that portion of the opinion, but remand
the case to the trial court.
That court is to enter a
conviction on the lesser offense of larceny in a building, on
which the jury was charged and that was necessarily subsumed
in its verdict.
V.
Conclusion
In conclusion, the Court of Appeals correctly determined
that there was insufficient evidence to support defendant's
conviction
for
unarmed
robbery.
Because
the
defendant
completed a taking without using force, violence, assault or
putting in fear, he could not be convicted of unarmed robbery.
We remand to the trial court for entry of a conviction
for larceny in a building and for resentencing.
cannot be retried for unarmed robbery.
Defendant
The opinion of the
Court of Appeals is affirmed in part and reversed in part.
CAVANAGH , TAYLOR , and YOUNG , JJ., concurred with KELLY , J.
26
S T A T E
O F
M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff,
v
Nos. 117750, 188078
KALVIN RANDOLPH,
Defendant.
______________________________
MARKMAN, J. (dissenting).
I respectfully dissent.
In affirming the Court of
Appeals, the majority concludes that this Court has never
adopted the “transactional approach” to robbery.
9.
Slip op at
The majority then proceeds to overrule more than thirty
years of precedent in the Court of Appeals applying this view.
In doing so, the majority states that “the force used to
accomplish the taking underlying a charge of unarmed robbery
must be contemporaneous with the taking.”
Slip op at 4.
The
majority concludes that defendant in this case “did not
accomplish his taking by use of force, violence, assault, or
putting in fear.”
concludes
robbery.
that
Slip op at 18.
defendant
cannot
Therefore, the majority
be
convicted
of
I strongly disagree with this analysis.
unarmed
In my judgment, a person is guilty of the crime of
robbery if, before reaching a place of temporary safety, the
person uses force either to effect his initial taking of the
property, or to retain possession of the property or to escape
with the property, as long as the property remains “in [the]
presence” of the victim.
robbery
statute,
MCL 750.530.
Michigan
case
law,
The language of the
and
the
common-law
understanding of robbery each support the view that a person
can be convicted of robbery even if the required element of
force occurs after the perpetrator’s initial seizure of the
property, but before he has reached a place of temporary
safety.
Therefore, I would reverse the judgment of the Court
of Appeals.
I. SUMMARY
OF THE ARGUMENT
In the criminal law, a crime is not complete until the
act element and the mental element of the particular crime
have concurred. People v Patskan, 387 Mich 701, 714; 199 NW2d
458 (1972).1
In the case of unarmed robbery, the act element
is the “felonious[] rob[bing], steal[ing] and tak[ing]” of
1
See also Parker, The economics of mens rea, 79 Va L R
741, 741 (1993), citing Hall, General Principles of Criminal
Law (2d ed), pp 133-141.
See also Blakey, The RICO civil
fraud action in context: Reflections on Bennett v Berg, 58
Notre Dame L Rev (1982), 237, 290, n 151, stating that
“generally, there must be a concurrence between a specified
state of mind and prohibited conduct, the mens rea and the
actus reus.”
2
property from the person of another or of property that is “in
his presence.” MCL 750.530. Further, the act element must be
accomplished “by force and violence, or by assault or putting
in fear.”
Id., see also People v Johnson, 206 Mich App 122,
125-126; 520 NW2d 672 (1994).
I will refer to this in the
shorthand as the force element.
The mental element or intent
element of unarmed robbery is the intent to permanently
deprive the owner of his property.
App 425, 428; 534 NW2d 534 (1995).
People v King, 210 Mich
Thus, the act element and
the force element must concur with the perpetrator’s intent to
permanently deprive the owner of his property.
Because the statute, and the case law interpreting the
statute, provide that the property may be “in the presence” of
the victim, “actual possession” of the property by the victim
at the time that the force is used is not required.
MCL
750.530, see also People v Newcomb, 190 Mich App 424, 430-431;
476 NW2d 749 (1991).
The property continues to be “in [the]
presence” of the victim where the property remains under his
personal protection and control.
Id., see also People v
Covelesky, 217 Mich 90, 97; 185 NW 770 (1921).
It follows
that, as long as the victim exercises this protection and
control over the property, the requisite force element of
robbery may still be used against him, because the property is
still “in his presence”. MCL 750.530. Thus, where an assault
3
occurs at any time during which the property can be said to be
in the victim’s presence, a robbery within the meaning of the
statute
occurs.
In
this
case,
although
defendant
had
initially seized items from the shelf of the Meijer’s store,
the security guards continued to exercise protective custody
and control over that property, because they continued to
monitor defendant and they still had the right to take the
property back.
Therefore, the property was “in [their]
presence within the meaning of MCL 750.530 when defendant, by
assault, attempted to unlawfully deprive the security guards
of the property.
This “transactional view” of robbery,2 as it
has been applied in Michigan, is consistent with both the
common-law definition and the statute defining robbery, and
supports defendant’s conviction.
II. STATUTE
The majority, in my judgment, errs in its analysis of the
crime of robbery by interpreting too narrowly the statute’s
requirements of the force element, the act element, and the
concept of possession.
conclusion
assault
or
that
As a consequence, the majority’s
defendant
putting
in
“did
fear
to
2
not
use
force,
accomplish
his
violence,
taking
of
The “transaction” designates the events occurring
between the time of the initial seizure of the property and
the eventual removal of such property from the victim’s
presence.
4
property” is also in error.
Slip op at 23.
The statute requires only that the force and violence or
the assault occur at some point during which the property is
“in the presence” of the victim.3
The statute does not limit
the force element to the initial seizure of the property.
A
robbery may occur “by force and violence” or “by assault” as
long as the property remains “in [the] presence” of the
victim.
The property is in the presence of the victim,
3
Michigan case law has long held that it is unnecessary
that the victim be the actual owner of the property that is
the subject of the larceny. An employee or security guard of
the owner of property who is assaulted during the course of a
larceny is as susceptible to the crime of robbery as the
owner. Durand v People, 47 Mich 332, 334; 11 NW 184 (1882).
See also People v Cabassa, 249 Mich 543, 546-547; 229 NW2d
442 (1930), sustaining a conviction of robbery where a
gasoline station attendant, “[al]though not the actual owner
of the property stolen, was in custody and control of it,” and
stating the rule to be that “[a]s against a wrong-doer an
actual possession or custody of the goods [is] sufficient,”
and People v Gould, 384 Mich 71, 79-80; 179 NW2d 617 (1970).
Other jurisdictions have come to a similar conclusion. To
suggest that anyone other than the lawful owner of property
cannot be the victim of a robbery, of course, would render
even force used contemporaneous with a taking something other
than robbery unless the force was used directly against the
owner.
No force used against a security guard or other
employee could ever amount to a robbery.
Indeed, consistent with this long-held view, the
complaint, warrant, and information in this case showed the
complainants or victims as Aaron Wilmoth (one of the two
security guards) and Meijer’s. The charge of unarmed robbery
against defendant charged that he: “[D]id feloniously rob,
steal and take from the person of another, to-wit: Aaron
Wilmoth and Nicole Lewis [the second security guard and the
one who was injured by defendant] or in his/her presence,
certain property . . . by force and violence or by assault or
putting in fear . . . contrary to MCL 750.530.”
5
although it is in the actual physical possession of the
perpetrator, where the victim exercises protective custody and
control over the property.4
This is in accord with the
statute.
MCL 750.530 provides:
Any person who shall, by force and violence,
or by assault or putting in fear, feloniously rob,
steal and take from the person of another, or in
his presence, any money or other property which may
be the subject of larceny, such robber not being
armed with a dangerous weapon, shall be guilty of a
felony . . . .
It is a settled rule of statutory construction that,
unless otherwise defined in a statute, this Court will ascribe
every statutory word or phrase its plain and ordinary meaning.
See MCL 8.3a.
Further, this Court shall ensure that words in
a statute are not ignored, treated as surplusage, or rendered
nugatory.
Hoste v Shanty Creek Mngt, Inc, 459 Mich 561, 574;
592 NW2d 360 (1999).
Here, to describe the element of force, the Legislature
used the words “by force and violence, or by assault or
4
The judge instructed the jury, without defense
objection, that to prove the charge the prosecutor had to
prove, in addition to the other articulated elements, “that
this property was taken from the person of Aaron Wilmoth and
Nicole Lewis or in their presence. This can occur even if the
property was not in the same immediate area as Aaron Wilmoth
and Nicole Lewis.”
The charge and the instructions
demonstrate that the jury was informed of the elements in a
manner consistently, not only with MCL 750.530, but also with
the dissent’s analysis of the crime of unarmed robbery.
6
putting in fear”.
MCL 750.530.
be
the
accomplished,
To describe the act that must
Legislature
used
the
words
“rob,”
“steal,” and “take,” and to describe the allowable possession
of
the
property
that
is
subject
to
the
robbery,
the
Legislature used the words “in his presence.”
The majority argues that a robbery occurs only when a
person, by force and violence, or by assault or putting in
fear, uses that force initially to seize the property from the
person of another, or in his presence.
plainly allows for more.
But, the statute
A robbery occurs under the statute
where, by force and violence or by assault, the perpetrator
takes property from the person or in his presence.
That is,
where the robber initially seizes the property by force and
violence or by assault.
However, the statute also allows for
a conviction of robbery where, “by assault” the perpetrator
“robs” property that is “in [the] presence” of the victim.
The phrase “by assault” cannot mean the same thing as “by
force and violence.”
Rather, “assault” is defined simply as
“a sudden violent attack.”
Dictionary (1991).
“illegal force.”
Random House Webster’s College
The term is also defined more broadly as
Black’s Law Dictionary (6th ed).
Further, the word “rob” cannot encompass merely the
taking of the property, because the term “take” is already
used in the statute.
The Legislature is not presumed to have
7
used different terms to mean the same thing.
Here, the
Legislature used the words “rob,” “steal,” and “take.”
“Rob”
means to “[u]nlawfully deprive (a person) of or of something,
esp. by force or the threat of force.”
The New Shorter Oxford
English Dictionary (1993).
Thus, the statute, summarized, provides: “Any person who
shall . . . by assault . . . rob . . . [property] from the
person of another or in his presence . . . shall be guilty
. . .”
That is, a person may be guilty of robbery if “by
assault” he “robs” property that is “in [the] presence” of the
victim.
As the majority recognizes, the defendant in this
case committed an assault upon the security guards.
Because
the security guards exercised protective custody and control
over that property, it remained in their “presence”.
Viewing
the evidence in a light most favorable to the prosecutor, the
assault was committed so that the defendant could remove the
property
“from
[the]
presence”
of
the
security
guards.
Defendant’s violent act of assault evidenced his intent to
unlawfully and permanently deprive the guards of the property.
The majority asserts that the dissent misapprehends the
context of the statutory phrase “in his presence”.
The
majority emphasizes the words “by force and violence, or by
assault or putting in fear,” slip op at 19, and assumes that
these words apply only to the initial taking itself, and
8
therefore, concludes: “the statute identifies unarmed robbery
as taking another’s property in the other’s presence ‘by force
and violence, or by assault or putting in fear,’” and “[i]f
the physical taking was accomplished without force, assault,
or fear, the statute does not permit treating the larcenous
crime as a robbery because of a subsequent forceful act.” Id.
However, as I have indicated, I believe that, although
property may be in the actual and wrongful possession of the
perpetrator, it may still be “in [the] presence” of the victim
such that the perpetrator may still, “by assault,” “rob” the
victim. MCL 750.530. While the statute provides that the act
must be accomplished “by force and violence, or by assault,”
the requisite act is more than a mere taking or initial
larceny
of
the
property
as
employment of the word “rob.”
evidenced
by
the
statute’s
As we have already indicated,
“rob” means more broadly an unlawful deprivation of property
by force.5
5
The majority approaches the statute in a piecemeal
fashion, restricting its application to the initial act of
defendant’s seizure of the property, and ignoring the
significance of the terms “by assault”, “rob” and “in his
presence.” Indeed, in People v Calvin, 60 Mich 113, 119; 26
NW 851 (1886), the offense of robbery was described by this
Court as separating these two phrases. Describing the robbery
statute, the Court stated, of unarmed robbery, that “the
offense is perpetrated by force and violence . . . and
robbing, stealing, and taking from the person of another, the
robber not being armed with a dangerous weapon.” Id., citing
How Stat § 9091.
(continued...)
9
Therefore, although a larceny may be complete when the
perpetrator
initially
wrongfully
takes
and
conceals
the
property, the statute encompasses not merely a larceny, but a
“rob[bing], steal[ing], and tak[ing]” by force and violence,
or by assault or putting in fear, of property, that is “in
[the] presence” of the victim.
MCL 750.530.
Thus, while
through an initial larceny the perpetrator may steal property,
he may not yet have “rob[bed]” that same property.
Thus, an
assault to “rob” may occur after the initial seizure of the
property.
Further, the phrase “from the person of another, or in
his presence” has been defined by this Court, in a manner
consistent with this interpretation, to mean that the victim
must merely maintain personal protection over the property for
it to be considered “in his presence.” In Covelesky, supra at
97, this Court stated:
“[T]he words ‘taking from the person of
another,’ as used in connection with the common-law
definition of robbery, are not restricted in
application to those cases in which the property
taken is in actual contact with the person of the
one from whom it is taken, but include within their
meaning the taking by violence or intimidation from
the person wronged, in his presence, of property
which either belongs to him or which is under his
5
(...continued)
10
personal protection and control.
And where such
words have been incorporated into statutes defining
robbery,
they
have
received
the
same
construction.”[6]
In Covelesky, this Court further adopted the interpretation by
the Iowa Supreme Court of the prepositional phrase “from the
person of another” in the Iowa robbery statute, which “closely
resembles” that of Michigan:
“The preposition ‘from’ does not convey the
idea of contact or propinquity of the person and
property. It does not imply that the property is
in the presence of the person. The thought of the
statute, as expressed in the language, is that the
property must be so in the possession or under the
control of the individual robbed that violence or
putting in fear was the means used by the robber to
take it.” [Id. at 99, quoting State v Calhoun, 72
Iowa 432; 34 NW 194, 196 (1887).]
As evidenced by this analysis, the majority takes too
narrow a view of the concept of “possession” when it states
that “this defendant did not did not use force, violence,
assault
or
property.”
putting
in
fear
Slip op at 23.
to
accomplish
his
taking
of
Neither the statute nor the common
6
As noted by the Court in Covelesky, the phrase “in his
presence” was part of the definition of robbery at common law.
Id. at 97, quoting 34 Cyc 1796. The actual words “or in his
presence” were not added to the statute until 1931 with the
adoption of the Michigan Penal Code, 1931 PA 328, § 529.
People v Moore, 13 Mich App 320, 323, n 6; 164 NW2d 423
(1968). As the majority acknowledges, Michigan incorporated
the common-law crime of robbery into the statute. Slip op at
5, n 4.
11
law requires that the victim be in actual possession of the
property when the force is exercised.
Although in the actual
possession of the thief, the property may still be in the
“presence” of the victim, because it is “under his personal
protection and control,” Covelesky, supra at 97-99, and the
use
of
force
at
the
time
the
perpetrator
attempts
to
ultimately remove the property from the presence of the
victim, sufficiently establishes the force necessary to commit
robbery.7
For
a
“thief
does
not
obtain
the
complete,
independent and absolute possession and control of money or
property adverse to the rights of the owner where the taking
is immediately resisted by the owner before the thief can
remove it from the premises or from the owner’s presence.”
State v Long, 234 Kan 580, 586; 675 P2d 832 (1984), see also
People v Clark, 113 Mich App 477, 480; 317 NW2d 664 (1982);
Newcomb, supra at 430-431.
The dissent does not disagree that the crimes of larceny
7
“A thief who finds it necessary to use force or
threatened force after a taking of property in order to retain
possession may in legal contemplation be viewed as one who
never had the requisite dominion and control of the property
to qualify as a ‘possessor.’” 4 Wharton, Criminal Law (14th
ed), § 463, at 39-40.
12
and robbery are distinct.8
However, for the purpose of the
crime of robbery, the relevant act encompasses a broader
spectrum of time, and includes not simply an initial larcenous
taking, “by force and violence” or “by assault,” but a robbing
of the victim “by assault” when the property remains in the
victim’s presence.
Thus, as long as the property is in the presence of the
victim, that is, before the perpetrator reaches a place of
“temporary safety,” a robbery can occur when the perpetrator
with actual possession attempts to sever the property from the
victim’s presence “by force and violence, or by assault or
putting in fear.”
MCL 750.530.9
8
The universal view at common law was that robbery was
an aggravated form of larceny. 1 Odgers, The Common Law of
England (2d ed), p 331. See also Rapalje, Larceny & Kindred
Offenses (1892), § 58, p 64, noting that the “distinction
[between larceny and robbery] lies in the presence in one of
them and the absence in the other of the elements of force and
putting in fear.”
That common-law robbery is a larceny
aggravated by the use of force has continued to be the view in
more modern times. See LaFave & Scott, Criminal Law (1972),
§94, p 692; Perkins, Criminal Law (2d ed), § 2, at 280.
9
The concept of “temporary safety” describes the point
beyond which the property is no longer in the presence of the
victim. Practically, the perpetrator has escaped. At this
point, the perpetrator has consummated his wrongful possession
by fully converting the property to his own use and may,
unless apprehended, do with the property as he sees fit. Upon
reaching a place of temporary safety, the perpetrator finally
exercises full “dominion and control” over the property.
(continued...)
13
III. INTENT
TO
“PERMANENTLY DEPRIVE ”
That the “transactional view” constitutes the proper view
of robbery under the statute is reinforced, in my judgment, by
the fact that the “intent to permanently deprive” element may
occur after the initial taking. Unarmed robbery is a specific
intent crime.
People v Dupie, 395 Mich 483, 487; 236 NW2d 494
(1975), citing People v McKeighan, 205 Mich 367; 171 NW 500
(1919).
The focus of the intent element of robbery is on the
perpetrator’s intent to permanently deprive the owner of his
property.
King, supra at 428.
While, ordinarily, the taking and the use of force in a
robbery are relatively contemporaneous so that the requisite
intent may be readily inferred from these events, the act of
force nonetheless may precede or follow the taking.
People v
LeFlore, 96 Mich App 557, 561-562; 293 NW2d 628 (1980).
example, a typical
For
robbery occurs when, by the threat or use
of force, the robber forces the victim to turn over property
directly to him.
initial
taking
However, that the force occurs after the
does
nothing
permanently deprive” element.
9
to
negate
the
“intent
to
In other words, when the
(...continued)
Wharton, note 7, supra. However, until that point, the victim
is viewed as continuing to exercise protective custody and
control over his property. Covelesky, supra at 97-98.
14
perpetrator, by assault, intends still to permanently deprive
the victim of property that remains in the victim’s presence,
a
robbery
can
be
said
to
have
occurred.
It
is
the
perpetrator’s intent at the time of the use of force–either to
preserve his unlawful possession of the goods or to effect his
escape (at least where these occur while the property remains
“in the presence” of the victim)–that completes the crime of
robbery.10
As long as there is a “purposeful relationship” between
the elements of the crime of robbery: the act, whether that be
robbing, stealing or taking, which establishes the intent to
permanently deprive the victim of his property, and the force,
which aggravates that crime into robbery, the robbery is
complete.
Criminal
LeFlore, supra at 562, citing LaFave & Scott,
Law,
§
94,
p
701-702.
10
“The
entire
larcenous
Further, the perpetrator’s “willingness to use force
against those who would restrain him in flight suggests that
he would have employed force to effect the theft had the need
arisen,” in other words, that he has the specific intent to
permanently deprive the owner of his property. 2 LaFave &
Scott, Substantive Criminal Law, § 8.11, p 453. This view of
robbery recognizes that robbery is a crime against the person,
and its prosecution is intended to protect the person robbed.
People v Hendricks, 446 Mich 435, 449-450; 521 NW2d 546
(1994). Where a perpetrator uses force against a person with
the intent to permanently deprive that person of property over
which he has protective custody and control, the perpetrator
evidences the conduct that the statute seeks to punish.
15
transaction should be reviewed to determine if there is a
continuity of intent between the forceful act and the taking
(or vice versa).”
Id.11
To clarify, consider the perpetrator who is observed
shoplifting and manages to escape from the store before being
apprehended.
larceny.
In such a case, the only crime that occurs is a
The larceny is complete upon the perpetrator’s
concealment of the item, for it is at that time that the
intent to deprive the owner of the property merged with the
actual taking.
Next consider the perpetrator who is observed shoplifting
and who is followed out into the parking lot.
Before being
confronted by the security guards, he drops the property onto
the ground or he is apprehended. Again, the crime is larceny,
for no further criminal intent may be inferred from his acts.
Finally, consider the perpetrator who uses force in the
parking lot, as in this case, while he is still in actual
possession of the property.
The perpetrator is still viewed
under the robbery statute as having robbed the victim because
11
See Briley v Commonwealth, 221 Va 532, 543; 273 SE2d
48 (1980), stating that “[i]n a robbery prosecution, where the
violence against the victim and the trespass to his property
combine in a continuing, unbroken sequence of events, the
robbery itself continues as well for the same period of time.”
16
the property was still in the victim’s presence when the
assault occurred. The property was at the time of the thief’s
initial taking of it, and is still at the time of the assault,
“in [the] presence” of the victim. MCL 750.530. The security
guards continued to exercise “protective custody and control”
over the property.
Covelesky, supra at 97-98.
IV. TRANSACTIONAL
Having
established
that
the
VIEW
statute
encompasses
not
merely an initial taking of property “by force and violence”
or “by assault”, but rather, a robbing of the victim by
assault, where property continues to be in the presence of the
victim, the question next to be addressed is whether this
Court should recognize the transactional view of robbery as it
has hitherto been applied in Michigan.
A. COURT
While
this
Court
OF
has
APPEALS DECISIONS
never
expressly
adopted
the
“transactional view” of robbery, Michigan jurisprudence on
this issue is no tabula rasa. The Court of Appeals, including
the panel in this case, has expressly applied this view to
robbery for at least thirty years.12
12
See, e.g., People v
The deep rootedness of the “transaction approach” is
further reflected by its regular articulation in recent
opinions of the Court of Appeals which were not even viewed as
(continued...)
17
Sanders, 28 Mich App 274, 277; 184 NW2d 269 (1970) (stating
that, in the context of armed robbery, “the incident of the
taking must be viewed in its totality in order to ascertain
the intent of the defendant when the assault occurs”); People
v Beebe, 70 Mich App 154, 158; 245 NW2d 547 (1976) (stating
that the view of the majority of other jurisdictions considers
robbery as an “ongoing transaction” rather than one “broken up
into its component acts”); LeFlore, supra at 562, stating that
the “assault may follow the taking if that force is used to
completely sever the victim’s possession”); Clark, supra at
12
(...continued)
warranting publication. People v Garrett, unpublished opinion
per
curiam,
issued
March
26,
2002
(Docket
No.
227944)(affirming the following instruction: “The use of force
in retaining property taken or in attempting to escape rather
than in the taking of property itself is sufficient to supply
the element of force essential to the offense of robbery”);
People v Scruggs, unpublished opinion per curiam, issued March
19, 2002 (Docket No. 225337)(affirming an armed robbery
conviction where defendant brandished a knife during his
escape from the scene of a larceny); People v Cherry,
unpublished opinion per curiam, issued March 8, 2002 (Docket
No. 224544) (affirming a conviction in an almost-identical
case involving a parking lot fight with security guards);
People v Garza, unpublished memorandum opinion, issued July
27, 2001 (Docket No. 223543)(observing that the “use of force
in retaining the property taken or in attempting to escape is
sufficient to supply the element of force or coercion
essential to the offense of robbery”); People v Wimbush,
unpublished opinion per curiam, issued April 28, 2000 (Docket
No. 210709) (asserting that “Michigan has adopted a
transactional approach for analyzing robbery”).
18
480 (stating that Michigan employs the “‘transaction’ test for
armed robbery, which provides that a taking is not considered
complete until the assailant has effected his escape because
the
victim
is
still
considered
in
possession
of
his
property”); People v Denny, 114 Mich App 320, 324; 319 NW2d
574 (1982); People v Turner, 120 Mich App 23, 28; 328 NW2d 5
(1982); People v Tinsley, 176 Mich App 119, 121; 439 NW2d 313
(1989); Newcomb, supra at 430-431; People v Velasquez, 189
Mich App 14, 17; 472 NW2d 289 (1991).
Thus, the Court of Appeals has consistently interpreted
the statutes defining robbery and armed robbery as “continuous
offense[s], which [are] not complete until the perpetrator
reaches a place of temporary safety.”
Tinsley, supra at 121.
This line of precedent, with its attendant reasoning, provides
considerable
support
for
the
proposition
that
the
“transactional view” of robbery is consistent with Michigan
jurisprudence.13
B. ANALOGOUS PRINCIPLES
IN SUPREME COURT
In addition to being consistent with the robbery statute,
13
Cases in other jurisdictions with similar statutory
language have also found sufficient evidence of robbery in
strikingly similar factual circumstances to the instant case.
See, e.g., People v Estes, 147 Cal App3d 23, 26; 194 Cal Rptr
909 (1983)[Cal Penal Code § 211]; State v Long, supra at 2
[Kan Stat Ann § 21-3426].
19
Michigan case law, and the common law, the “transactional
view” of robbery has been implicitly accepted by this Court in
other contexts.
While the majority asserts, correctly, that
this Court has never recognized the “transactional approach”
in the specific context of robbery, slip op at 9, this Court
has adopted a “transactional view” of robbery in the context
of felony murder, where the murder occurs after commission of
the robbery.
People v Podolski, 332 Mich 508, 515-518; 52
NW2d 201 (1952). There, the Court stated that “the robber may
be said to be engaged in the commission of the crime while he
is endeavoring to escape and make away with the goods taken.”
Id. at 518.
In Podolski at 515-518, this Court expressly
adopted the reasoning of the Pennsylvania Supreme Court in
Commonwealth v Moyer, 357 Pa 181, 190-191; 53 A2d 736 (1947),
which stated:
“It is equally consistent with reason and
sound public policy to hold that when a felon’s
attempt to commit robbery or burglary sets in
motion a chain of events which were or should have
been within his contemplation when the motion was
initiated, he should be held responsible for any
death which by direct and almost inevitable
sequence results from the initial criminal act . .
. . Every robber or burglar knows that a likely
later act in the chain of events he inaugurates
will be the use of deadly force against him on the
part of the selected victim. For whatever results
follow from that natural and legal use of
retaliating
force,
the
felon
must
be
held
responsible.”
20
Further,
the
Podolski
Court
at
517-518
agreed
with
the
reasoning asserted by the prosecutor, quoting from Wharton,
Homicide (3d ed), p 186:
“Where a homicide is committed within the res
gestae of a felony, however, it is committed in the
perpetration of, or attempt to perpetrate, a felony
within the meaning of such statutes.
That the
attempt to commit the felony was not far advanced
does not lessen the offense.
And a burglar who
breaks into a building, or who shoots a person who
discovers him in an effort to escape, cannot avoid
punishment for murder in the first degree, upon the
theory that the burglary consisted in breaking in,
and was consummated before the killing. A burglar
may be said to be engaged in the commission of the
crime of burglary while making away with the
plunder, and while engaged in securing it. So, a
robbery within the meaning of a rule that a
homicide committed in the perpetration of a robbery
is murder in the first degree is not necessarily
concluded by the removal of the goods from the
presence of the owner; and it is not necessary that
the homicide should be committed at the precise
time and place of the robbery.”[14]
14
The majority criticizes the dissent’s use of Podolski.
The majority states that in that case “[t]his Court did not
base the felony murder on a ‘transactional’ notion of
robbery.” Slip op at 21. The dissent does not assert that
Podolski adopted a transactional approach to robbery.
The
case is cited only to illustrate that a felony murder
conviction can be based on a killing that occurs after the
predicate crime of robbery. Further, this case is cited to
illustrate that the concept of an ongoing criminal
transaction, in which the elements of the crime may be viewed
as part of an unbroken chain of events, is an appropriate
method for analyzing the conduct of individuals under the
criminal law. The transactional approach to robbery merely
recognizes the premise of Podolski that the use of force after
a taking of property is sufficient to consummate the crime of
(continued...)
21
In my judgment, it is altogether reasonable to extend, by
analogy, this reasoning with respect to felony murder for a
killing committed after a burglary or after a robbery, to the
case of an assault committed after an initial taking, but
before the perpetrator’s escape.
In People v Gimotty, 216 Mich App 254, 257-259; 549 NW2d
39 (1996), the Court of Appeals held that the defendant had
not reached a place of temporary safety in his escape from the
scene of retail fraud, defined in the chapter on larceny, MCL
750.356, and, thus, that the death of a child in a vehicle
struck by the defendant’s vehicle during a high-speed police
chase
from
the
store
was
sufficiently
connected
underlying offense to support felony murder.
to
the
See also People
v Oliver, 63 Mich App 509, 523; 234 NW2d 679 (1975); People v
Smith, 55 Mich App 184, 189; 222 NW2d 172 (1974).
analogy,
these
cases
support
the
view
that
Again, by
an
assault
following an ordinary larceny elevates the crime to robbery
and that a perpetrator who uses that force at any time before
reaching a place of temporary safety in an effort to retain
the property or escape with the property can be charged with
14
(...continued)
robbery.
22
robbery.15
Finally, we would observe that the “transactional view”
of robbery is also consistent with the premises that underlie
the greater culpability of the perpetrator who resorts to
violence in an attempt to steal property.16
victim,
but
the
perpetrator
who
responsibility for his actions.
should
It is not the
bear
the
full
“‘Every robber or burglar
knows that a likely later act in the chain of events he
inaugurates will be the [attempted] use of deadly force
against him on the part of the selected victim.
For whatever
results follow from that natural and legal use of retaliating
force, the felon must be held responsible.’”
Podolski, supra
15
Surely, it is not because a larceny occurred that the
property in this case can said to be out of the victim’s
presence.
Indeed, because the security guards maintained
uninterrupted surveillance over defendant and because they
converged on him in a place where they were authorized to
confront him and recover the property, the property was very
much
within
their “protective
custody
and
control.”
Covelesky, supra at 97-98.
For the purposes of some
larcenies, the property may be removed from the victim’s
presence, but the bare fact that a larceny occurs cannot, in
every case, be deemed such removal.
16
Blackstone observed that the “force . . . makes the
violation of the person more atrocious than privately
stealing.” 4 Blackstone, Commentaries, Public Wrongs, ch 17,
p 242. Blackstone refers also to the parallel view of robbery
in the civil law:
“qui vi rapuit, fur improbior esse
videtur,” he who steals by violence must be judged with
greater culpability as a robber.
Id.
See also Rapalje,
supra, § 444, pp 632-633.
23
at
516
(citations
omitted).
The
use
of
force
by
the
perpetrator against the owner of property who discovers his
deed is an act, the need for which should not take the
perpetrator
by
surprise.
The
use
of
force
in
such
a
circumstance should not be viewed as unusual or uncommon, but
rather as a typical incident of the crime of larceny.17
V. APPLICATION
When
analyzing
whether
OF PRINCIPLE
sufficient
evidence
has
been
presented to sustain a criminal conviction, this Court reviews
the evidence in a light most favorable to the prosecutor and
determines whether any rational trier of fact could have found
that the essential elements of the crime were proven beyond a
reasonable doubt.
People v Nowak, 462 Mich 392, 399-400; 614
NW2d 78 (2000). In that case, the Court articulated that this
“standard of review is deferential:
required
to
draw
all
reasonable
a reviewing court is
inferences
and
credibility choices in support of the jury verdict.”
17
make
Id. at
“Robbery, while containing elements of theft of
property, is primarily an assaultive crime . . . “Robbery
violates the social interest in the safety and security of the
person as well as the social interest in the protection of
property rights.
In fact, as a matter of abstract
classification, it probably should be grouped with offenses
against the person . . . .’” [Hendricks, supra at 449.]
24
400.
The “transactional view” of robbery, as explained in this
opinion, and in light of the facts and charges presented to
the jury, supports defendant’s conviction in the instant case.
The
record
establishes
that
the
Meijer
security
guards
observed defendant commit a larceny when he concealed items
that
he
had
taken
from
a
Meijer’s
department
store
proceeded to leave the store without paying for them.
and
The
security guards continued to surveil defendant during this
entire transaction, from the moment he took the property and
concealed it until the altercation in the parking lot. During
their observation of defendant, the security guards continued
to exercise protective custody and control over the property.
That is, the security guards had the authority and the right
to take it back.
Thus, the property was for all purposes “in
[the] presence” of the guards.
MCL 750.530.
As security
guards for the property’s owner, Meijer’s, these guards had a
right and the authority to regain possession of the property.
In the moments prior to the confrontation, defendant had a
choice either to surrender peacefully or to attempt to remove
the property from their presence by force, in this particular
case, by assault.
He chose the latter, and his conduct
thereby evidenced an intent to forcefully and permanently
25
deprive Meijer’s of its property.
By assault, defendant
robbed the security guards of property that was in their
presence.
It is at the moment when the defendant turned to
force (which caused one of the guards to suffer a fractured
bone in her face and two broken teeth) that his intent to
deprive the owner of its property and the use of force merged
to satisfy the elements of the crime of robbery.
VI. COMMON LAW
A. FORCE AFTER INITIAL TAKING
Finally, an analysis of the common law supports the view
that force used after an initial wrongful seizure of property,
to prevent the victim’s resistance or to escape with the
property, is sufficient to satisfy the elements of the crime
of robbery.
The common-law crime of robbery was defined as
“the unlawful taking possession of the goods of another by
means of violence or threats of violence, used with the object
of obtaining those goods from the owner, without his consent
and with the intention of depriving him permanently of all the
benefits of his ownership.”
1 Odgers,
England (2d ed), ch VIII, p 331.
The Common Law of
In this work, which is a
compilation of “all important statutes and decisions,” the
authors
declare
that
where
a
person
“used
any
personal
violence at the time of or immediately before or immediately
26
after such robbery, he may be sentenced” as a robber was at
that time, “to penal servitude for life.” Id. The difference
between larceny and robbery is further explained: “If the only
violence used occurs accidentally and unintentionally in the
prisoner’s efforts to obtain possession of the property, the
offence is larceny from the person and not robbery.
But if
violence
obtain
is
necessary
to
enable
the
prisoner
to
possession of the property, and the prisoner on discovering
this intentionally resorts to violence with that object, this
is robbery.”
Id. at 332.
In an example that follows, the
author sets out the distinction between the successful escape
and the violent altercation before the robber completes the
escape:
Thus, the snatching of a purse from a
prosecutor, who is unaware of what is happening
until after the purse is gone from his possession,
cannot amount to robbery; but it will be otherwise
if the prisoner does something to put the
prosecutor in bodily fear before snatching the
purse, for here the fear precedes the taking.
So, if the prisoner obtains possession of the
property without actual violence or threats of
violence, the crime is only larceny from the
person, unless the prisoner immediately after
taking possession of the property uses personal
violence.” [Id.]
Finally, the common-law indictment for robbery was pled
as follows:
27
A.B., on the ___day of __, in the county of
,
robbed C.D. of a watch, and at the time of or
immediately before or immediately after such
robbery did use personal violence to the said C.D.
[2 Odgers, at 1478.]
Compare the view expressed by Rapalje in 1892, which also
supports the view that the force element of robbery can occur
after the initial seizure of the property: “To constitute
robbery, the force used must be either before or at the time
of the taking and of such a nature as to show that it was
intended
to
overpower
the
party
robbed,
or
to
prevent
resistance on his part, and not merely to get possession of
the property.”
Rapalje, Larceny & Kindred Offenses (1892), §
446, p 637 (emphasis added).
These views are more precise
with regard to the actual nature of the crime of robbery as
one of force against the victim to remove property from his
presence.
It
is
the
use
of
force
“not
merely
to
get
possession,” but also, “to prevent resistance” that satisfies
the elements of the crime. Id.18 In my judgment, the majority
18
The majority is incorrect in suggesting that this
quotation does not reflect Rapalje’s view of the common law.
Slip op at 8, n 6.
While Rapalje uses this quotation in
discussing a North Carolina state court decision, he is merely
repeating language from his own earlier statement cited by the
majority, id., and then describing what he believes to be the
consistent North Carolina view. Rapalje does not suggest in
any way that the North Carolina view is inconsistent with his
earlier statement. The phrase “not merely to get possession
(continued...)
28
errs in concluding that the common law of robbery would not
support defendant’s conviction in the instant case.
The
common law, which, as the majority acknowledges, has been
incorporated into MCL 750.530, supported a conviction for
robbery when a perpetrator used force against the victim even
after the property had already been taken by the perpetrator,
if the perpetrator used that force to prevent the victim’s
resistance or to escape with the property.
This is what
occurred in this case.19
B. BLACKSTONE
In contending that the common law supports its view, the
18
(...continued)
. . . [but also] to prevent resistance” fully supports his
view that, even where a robber first possesses “the goods, up
to the time of the felonious violence,” the property is still
in “the possession of the owner; and the taking, being in [the
owner’s] presence, is . . . from [the owner’s] person.”
Rapalje, supra, § 445, at 633. When read in its entirety,
Rapalje’s quote is entirely consistent with the dissent’s view
that the property may already be in the possession of the
perpetrator, that is, it may already have been initially
“taken” when the forceful act necessary to complete the
robbery occurs.
19
By its approval of Odgers, slip op at 7, n 6, the
majority appears to concede that the force used in a robbery
may occur after the taking. Somehow, however, in the very
same breath, the majority asserts that Odgers offers support
for its view that the force and the taking must be
contemporaneous. If the force may occur immediately after the
initial taking, it is hard to understand the basis for the
majority’s
proposition
that
there
must
be
absolute
contemporaneousness.
29
majority makes much of the quotation from Blackstone that “if
one privately steals sixpence from the person of another, and
afterwards keeps it by putting him in fear, this is no
robbery, for the fear is subsequent . . . .”
Commentaries, Wrongs, ch 17, p 242.
4 Blackstone,
However, as pointed out
by Perkins, Criminal Law (2d ed), p 348, this quotation has
been misapplied:
If the two transactions are essentially
distinct–if subsequent to the larceny the owner
should come upon the thief and be prevented from
retaking his property by force or violence-- the
thief would be guilty of larceny and assault, but
not robbery. But if the violence or intimidation
is part of the res gestae of the larceny the
offense is generally held to be elevated to the
category of robbery . . . . [Id. at 349.]
The majority attempts to distinguish this quotation from
Perkins in three ways, all of which are unavailing.
First,
the majority states that the dissent “fails to set forth the
full quotation from Perkins and therefore misunderstands the
point that Perkins was making.”
demonstrate
that
the
Slip op at 11, n 9.
“transactional
view”
is
not
To
only
consistent with the statute and Michigan case-law, but also
consistent with the common law as reflected by Blackstone, we
set forth the language from Perkins in full.
Following the
disputed quotation from Blackstone, Perkins writes:
Occasionally this has been misapplied.
30
For
example, during a chance meeting D suggested he
might be interested in buying the gun X was
carrying and asked permission to examine it, which
was granted. Finding the gun loaded D then pointed
it at X and told him to run for his life. As X
backed away, D ran off with the weapon.
A
conviction of robbery was reversed on the theory
that the resort to intimidation was after the
This completely
acquisition of the gun.[20]
overlooks the distinction between possession and
custody.
When D received the gun to examine
momentarily in the presence of X, D had custody
only. Had he run off with the gun without violence
or intimidation he would have been guilty of
larceny because this would have been a trespassory
taking and carrying away with all the elements of
that offense. And since he actually did this under
a threat to kill he clearly committed robbery, as
the same court had held earlier under an equivalent
set of facts. And a motorist whose tank had been
filled with gas at his request, after which he held
off the attendant at gunpoint, under threat to
shoot while he drove away without making payment,
was properly convicted of robbery. Furthermore, if
one snatches property from the hand of another and
uses force or intimidation to prevent an immediate
retaking by the other, this is all one transaction
and constitutes robbery. If the two transactions
are essentially distinct,–if subsequent to the
larceny the owner should come upon the thief and be
prevented from retaking his property by force or
violence, the thief would be guilty of larceny and
assault, but not robbery. But if the violence or
intimidation is part of the res gestae of the
larceny the offense is generally held to be
elevated to the category of robbery, although there
is still some authority for the earlier view that
20
As the majority points out, Perkins disagrees with the
reversal of this conviction, and the basis of his disagreement
lies in the rationale supporting the reversal that “resort to
intimidation was after the acquisition of the gun.”
This
supports the view that the force required to convict one of
robbery may occur subsequent to the initial wrongful taking.
31
force or intimidation used to retain possession of
property taken without it, is not sufficient.
[Perkins, supra at 348-349.]
The majority concedes that, in the first example given by
Perkins, “the thief initially had mere custody of the weapon,
but his possession of the weapon was secured by threat of
force.”
Slip op at 11, n 9.
In this case, defendant,
likewise, had mere custody of the items, and the attempt to
gain complete possession of the items, that is, to remove the
items from the presence of the security guards, was secured by
the use of force.
As explained elsewhere, the successful
escape with the property, or the complete removal of the
property from the presence of the victim, is not a necessary
element of robbery.
Rather, escape and such removal merely
indicate the end point of the “transaction.”21
Second, the majority states that Perkins’ use of the
21
The majority asserts that defendant’s “use of force
or violence was not to take the property, but to retain it and
escape apprehension. It follows that defendant did not commit
the offense of unarmed robbery.” Slip op at 18. However,
defendant attempted to escape apprehension with the property.
Thus, defendant did use force in an attempt to complete his
wrongful possession of the property. Further, we do not, as
the majority suggests, support “the fiction . . . that a
robbery is not complete until a defendant reaches temporary
safety.” Slip op at 10. Rather, we believe that a robbery
may be completed whenever a perpetrator uses force to resist
or to escape before the time that he reaches a place of
temporary safety.
32
words “‘res gestae’ . . . does not suggest an expansive
‘transactional’ view of robbery, rather it narrowly refers to
the
events
occurring
contemporaneously
with
the
taking–precisely the time frame in which the application of
force must occur.”
Slip op at 12, n 9.
However, “res gestae”
in terms of the law, and in the context in which Perkins used
it,
simply
means
“[t]he
whole
of
the
investigation and every part of it.”
transaction
under
It means “things or
things happened.”
Indeed, a res gestae witness is defined as
“[a]n
to
eyewitness
some
event
in
the
continuum
of
the
criminal transaction and one whose testimony will aid in
developing a full disclosure of the facts surrounding the
alleged commission of the charged offense.”
Dictionary (6th ed).
owner
of
wrongful
property
acts
of
Black’s Law
Thus, that the use of force against the
occurs
the
after
the
perpetrator
latter
would
observes
seem
not
to
the
be
particularly relevant to analyzing whether a robbery occurs
because the conduct of the perpetrator occurs as part of an
unbroken sequence of events.
the
context
in
which
it
The concept of res gestae, in
is
used
by
Perkins,
is
wholly
consistent with the view that the perpetrator’s use of force
before, contemporaneously with, or immediately after he is
observed
taking
property
in
the
33
presence
of
the
victim
provides
the
requisite
force
required
to
convict
the
perpetrator of robbery.
Third,
the
majority
states
that
the
quotation
from
Perkins supports, rather than contradicts, the interpretation
of Blackstone’s quotation.
Slip op at 12, n 9.
We do not
disagree that Perkins’ quotation supports Blackstone’s concept
of
robbery.
misapplied.
As
Perkins
notes,
the
quotation
has
been
And as explained in this dissent, it has been
misapplied in the same manner that the majority seeks to apply
it in their opinion.
The quotation has been misapplied to
mean that force used at any time after an initial seizure of
property
from
the
person
or
from
his
presence
by
the
perpetrator cannot constitute the crime of robbery.
However, a closer analysis of the common-law crime of
robbery explains the misunderstanding. Blackstone’s quotation
contemplates a “private stealing”, one which is not discovered
until the perpetrator and the property have left the presence
of the victim.
Use of the words “private stealing” is
significant, because it specifies what, at common law, was a
theft by stealth, or a theft completed without the victim’s
knowledge. Blackstone explicitly contemplates that force used
by
one
after
he
“privately
steals”
is
not
considered
a
robbery. The quotation from Perkins likewise contemplates the
34
distinction between a private stealing, and the use of force
during the time that the property is being taken.
Perkins
states: “If the two transactions are essentially distinct,—if
subsequent to the larceny the owner should come upon the thief
and be prevented from retaking his property by force or
violence, the thief would be guilty of larceny and assault,
but not robbery.”
Id. at 349.
Blackstone’s use of the phrase “private stealing” is
perhaps better understood by the definition of the common-law
crime of robbery given by Sir Edward Coke, the preeminent
chief justice of England, and author of the comprehensive
Institutes of the Laws of England.
In defining the crime of
robbery, Coke stated:
Robbery is a felony by the common law,
committed by a violent assault, upon the person of
another, by putting him in fear, and taking from
his person his money or other goods of any value
whatsoever. [Coke (1797), pt 3, p 68.]
Coke explains the difference between the private stealing
and the use of force by the robber by distinguishing between
the “cutpurse”22 and the “robber.”
In this regard, he states
that:
22
A “cutpurse” is defined by the Oxford English
Dictionary as “[a] person who stole by cutting purses from the
girdles from which they were suspended; a pickpocket, a
thief.” The New Shorter Oxford English Dictionary (1993).
35
both take [property] from the person,[23] but [the
cutpurse] takes it clam et secrete,[24] without
assault or putting in fear, and the robber by
violent assault, and putting in fear. [Id. at 68.]
Next, in defining the term “taking,” Coke describes the
situation in which the cutpurse cuts the strings of the
victim’s purse and the purse then falls to the ground.
In
this situation, there is no robbery because the perpetrator
never has possession.
Id.
However, if the perpetrator picks
up the purse, and then, “in striving . . . let[s] it fall and
never [takes] it again,”[25] this, according to Coke, is a
“taking” within the meaning of common-law robbery, “because he
had it in his possession; the continuance of his possession is
not required by the law” and after it was secretly in his
possession, the use of force occurred.
Id.
It is evident from this explanation by Coke, that the
distinction between one who successfully “privately steals,”
as referenced by Blackstone, and the one who, attempting to
23
As explained, both at common law, and under Michigan’s
statutes, this includes property “in the presence” of the
victim.
24
“To keep secret, to conceal or hide.” The New Shorter
Oxford English Dictionary (1993).
25
The word “striving” is defined as to “[e]ngage in
violent conflict, struggle (with or against an opponent, for
a thing). The New Shorter Oxford English Dictionary (1993).
36
privately steal, is discovered in the process, and uses force
in order to complete the taking, is the distinction between
the cutpurse and the robber.
It is also evident, from Coke’s
description, that force used after the initial taking of the
property may still give rise to the crime of robbery.
The
common-law description of the crime of robbery is, as the
dissent demonstrates, consistent with the above quotation from
Perkins, and consistent with MCL 750.530.
Clearly,
the
common-law
description
supports a conviction in the present case.
of
robbery
also
The defendant,
like the cutpurse, first took the property in an attempt to
secretly steal it.
stealing”.
However, here there was no “private
After being observed taking the property and upon
being confronted by the security guards, defendant assaulted
them in an effort to remove the property from their presence.
In striving with the guards, the property fell to the ground.26
26
The majority wishes to assert that there were two
separate incidents here, a larceny and an assault.
While
legally, there was an initial larceny, that crime was elevated
to a robbery when the perpetrator used force in order to
finally exercise possession of the property. That defendant
was observed taking the property in the store, and chose to
use force only after being confronted by the security guards,
does not in any way transform the defendant’s use of force to
permanently deprive the owner of his property. Furthermore,
the completed larceny in this case in no way removed the
property from the presence of the security guards, as they
(continued...)
37
The perpetrator took possession of the property while it
remained in the presence of the security guards, and there is
no
necessity
property,
but
that
he
only
unsuccessfully.27
used
that
force
he
to
strove
initially
to
keep
it,
take
the
however
Thus, both at common law, and consistent
26
(...continued)
continued to exercise protective custody and control over the
property.
27
The majority states that the dissent leaves the
majority “without a satisfactory explanation” why it would
permit a use of force that does not accomplish a taking to
increase an offense of larceny to unarmed robbery. Slip op at
19. However, we reiterate that robbery is a crime against the
person and not against property. Hendricks, supra at n 10.
That the security guards waited to confront defendant in the
parking lot does nothing to negate the fact that, in
furthering his criminal purpose, defendant assaulted them
while the property was still in their presence. This incident
satisfied the criminal conduct that the statute seeks to
punish. Thus, it is entirely reasonable to conclude that,
under the statute, the crime of robbery is complete when the
perpetrator uses force at any time during the transaction
before his reaching a place of temporary safety, i.e., before
escape.
There is no necessity of escape, nor is there a
necessity that the perpetrator successfully sever the victim’s
possession, which, as we explain is the same as a successful
escape.
A person may not be convicted of robbery if he
successfully escapes, thereby, in fact removing the property
from the presence of the victim, and afterwards uses force
against those who attempt to apprehend him.
A successful
escape simply designates the end point of the transaction, and
it is that point in time after which the property is no longer
in the victim’s presence and after which the use of force
against those seeking to apprehend the perpetrator for the
earlier larceny would be merely an assault. Therefore, it
does not, as the majority asserts, “def[y] logic to say that,
when a defendant commits larceny but loses possession of the
(continued...)
38
with the statute, there is no necessity that the force element
of robbery occur before or contemporaneously with the initial
taking. Force used after the initial taking, where the latter
occurs under the observation of the victim, and while the
property can be said to remain in the victim’s presence, is
sufficient to constitute the crime of robbery.
Finally,
I
would
point
out
that
the
transactional
approach to robbery has the added practical advantage of being
defined by a fixed beginning and end. Where does the majority
draw this line?
Can one never be convicted of robbery if he
uses force to retain property or to escape simply because such
force occurs after he has initially taken the property?
When
does the majority believe that a taking is completed?
If a
27
(...continued)
property during a struggle, defendant’s crime can be elevated
to unarmed robbery.” Slip op at 23, n 23.
Further, the decision by the victim of a robbery to wait
to confront one who has unlawfully taken property may be, in
the case of a business, at least in part a matter of practical
business judgment. It does not seem unreasonable for such a
business to wait until the perpetrator is outside its store in
order to avoid a violent confrontation within the store and to
protect its property and customers.
Because robbery is a
crime against the person, it is the conduct of the perpetrator
who resorts to violence to further his criminal design, and
not the judgment of the business when to confront the
perpetrator, that should be analyzed in considering whether a
robbery has occurred.
39
perpetrator does not use force at the moment he physically
removes property from the shelf of a market and conceals it,
would it be sufficient if he uses force when he is prevented
from leaving the proximity of that shelf; when attempting to
leave the particular aisle or department; when passing through
the checkout area; or when attempting to leave the store
itself? Is the fact that one purports to conceal the property
beneath his clothes sufficient to find that he could not
thereafter commit a robbery?
In contrast to the lack of the
majority’s definition of “contemporaneous”, the transactional
approach to robbery recognizes that the use of force that
occurs at any time before the perpetrator of a larceny has
reached a place of temporary safety transforms such larceny
into a robbery.28
Quite in addition to the fact that it is wrong in its
understanding of the law of robbery in Michigan, the practical
consequence of the majority’s opinion is as follows: in every
instance in which a person who has stolen property from a
28
The majority states that this dissent “asserts,
without supporting authority, that ‘for the purpose of the
crime of robbery, the relevant act encompasses a broader
spectrum of time . . . .” Slip op at 14. (emphasis added).
Although perhaps this dissent has not persuaded the majority
of the merits of its position, see, nonetheless, pp 1-38,
supra.
40
store in an amount less than $200,29 as in this case, and who,
before escaping with such property is confronted by and
engages in violence against the victim, such person will be
guilty merely of third-degree retail fraud and assault, rather
than the greater crime of robbery.
Instead of being subject
to a potential 15-year sentence for robbery, MCL 750.530, the
perpetrator will be subject to punishment of no more than 93
days in jail for the third degree retail fraud, MCL 750.356(5)
and MCL 750.356d(4)(b), and no more than one year in jail if
the subsequent assault is a serious assault under MCL 750.81
and MCL 750.81a.
Further, the majority fails to take into
account MCL 750.356d(5), which expressly prohibits prosecution
under MCL 750.360, larceny from a building, where a person
commits third-degree retail fraud.30 See also People v Ramsey,
218 Mich App 191, 195; 553 NW2d 360 (1996).
majority
holds,
there
can
be
no
robbery
If, as the
under
these
circumstances, and there can be no independent prosecution of
29
See MCL 750.356d(4)(b).
30
Defendant in the instant case took property from the
store offered for sale for approximately $120.
MCL
750.356d(3) also prohibits prosecution for larceny from a
building under MCL 750.360, of one who is guilty of second
degree retail fraud, defined in MCL 750.356d(a) as occurring
where a person steals items from a store that have a value of
greater than $200 but less than $1000.
41
defendant for larceny from a building where the perpetrator
commits second or third degree retail fraud as in the instant
case, then the disparity in penalties between robbery and what
the defendant here can be charged with is quite substantial.31
We do not criticize the majority on account of this
disparity,
because
it
is
their
obligation
to
faithfully
interpret the law as they see it, and they have done that
here.
It is not their obligation to correct what they might
(or might not) view as inexplicable disparities in criminal
punishments.
We do suggest, however, that such a substantial
disparity in punishments, based upon whether the violence
occurred contemporaneously with the taking, or immediately
31
While the majority is correct in citing Ramsey for the
proposition that “one charged with unarmed robbery can be
convicted of larceny in a building even where the underlying
facts would support a finding of retail fraud,” slip op at 24,
n 23, that was a case that applied the transactional view of
robbery to facts nearly identical to those in the instant
case.
There, the court correctly held that larceny in a
building is a cognate lesser included offense of unarmed
robbery and that one charged with unarmed robbery can be
convicted of larceny in a building, even where the underlying
facts support a finding of retail fraud. However, the court
also clearly stated that this scenario is true, only “where
the facts support ... a charge [of unarmed robbery].” Id. at
194. Because the majority is holding that there can be no
unarmed robbery in cases such as Ramsey and this case, and
because, where a person commits retail fraud in the second or
third degree, he cannot be charged with larceny from a
building under MCL 750.356d, our analysis of the disparity in
penalties remains correct.
42
thereafter as part of the same transaction, could never
reasonably have been contemplated by the Legislature.
CONCLUSION
In my judgment, the “transactional view” of robbery as it
has been described in this opinion, is deeply rooted both in
the common law, and in the Michigan statute and case law.
Under the “transactional view”, a person can be convicted of
robbery if, before reaching a place of temporary safety, such
person uses force to permanently deprive an owner of the
actual or constructive possession of his property. Such force
may either be employed in initially taking the property, in
attempting to retain the property, or in attempting to escape
with the property.
Defendant here used force in an attempt
either to retain the property or to escape with the property.
Therefore, I would reverse the judgment of the Court of
Appeals and reinstate defendant’s unarmed robbery conviction.32
CORRIGAN , C.J., and WEAVER , J., concurred with MARKMAN , J.
32
Because sufficient evidence existed to sustain
defendant’s conviction, there is no need here to address the
majority’s conclusion that the Court of Appeals erred in
affording the prosecutor the opportunity to retry defendant.
43
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