Terrance Chaney v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 97-KA-00900-COA
TERRANCE CHANEY A/K/A TERRANCE DEWAYNE CHANEY A/K/A "TBOO"
v.
STATE OF MISSISSIPPI
APPELLANT
APPELLEE
DATE OF JUDGMENT:
06/10/97
TRIAL JUDGE:
HON. LARRY EUGENE ROBERTS
COURT FROM WHICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:
DAVID A. STEPHENSON
ATTORNEY FOR APPELLEE:
OFFICE OF THE ATTORNEY GENERAL
BY: MICHAEL C. MOORE
WAYNE SNUGGS
W. GLENN WATTS
DISTRICT ATTORNEY:
BILBO MITCHELL
NATURE OF THE CASE:
CRIMINAL - FELONY
TRIAL COURT DISPOSITION:
ROBBERY: SENTENCED TO 15 YRS WITH THE MDOC
W/O PROBATION, PAROLE, SUSPENSION, OR
REDUCTION & PAY COURT COSTS OF $245.50.
DISPOSITION:
AFFIRMED - 04/20/99
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
5/11/99
BEFORE SOUTHWICK, P.J., COLEMAN, AND THOMAS, JJ.
SOUTHWICK, P.J., FOR THE COURT:
¶1. Terrance Chaney was convicted of robbery by a Lauderdale County Circuit Court jury. On appeal he
argues that the evidence was insufficient and that an instruction inadequately explained the elements of
robbery. We find no error and affirm.
FACTS
¶2. Samuel Gaines, who was 87 years old, was alone at home in Lauderdale County on the night of
December 17, 1996, when Terrance Chaney knocked on the door. Mr. Gaines had paid Chaney in the
past to drive him when that was needed, so he allowed Chaney entrance. Once inside, Chaney without
saying anything just reached into Mr. Gaines's pocket, took his billfold, and left. Mr. Gaines was aware of
Chaney's actions, did not grant permission to have his wallet taken, but also did not try to stop him. Only
two dollars in food stamps were in the wallet, so Chaney immediately re-entered the home and asked Mr.
Gaines where he kept his money. Mr. Gaines responded that he had no money. Chaney again reached into
Mr. Gaines's pants' pocket, turned it inside out and got the change that was inside, and caused Mr. Gaines
to fall to the floor. After these events, Chaney broke the telephone line.
¶3. Mr. Gaines testified that while he was not afraid, Chaney had made him nervous and upset.
¶4. The trial court gave an instruction on the crime of robbery and also on the lesser included offense of
larceny. Chaney was convicted of robbery.
DISCUSSION
1. Sufficiency of evidence
¶5. Chaney challenges the sufficiency of the evidence, alleging that he was entitled to a peremptory
instruction or judgment notwithstanding the verdict on the charge of robbery. The contention is that the
evidence did not establish that Chaney took Mr. Gaines's money "against his will, by violence to his person
or by putting such person in fear of some immediate injury to his person," which is necessary for proof of
robbery. Miss. Code Ann. § 97-3-73 (Rev. 1994).
¶6. The statute creates two alternative bases upon which to find guilt: violence or placing in fear. Here, the
jury instruction relied solely on violence as the means to cause the robbery, perhaps because Mr. Gaines
stated that he had not been afraid of Chaney.
¶7. Chaney argues that there was no evidence of violence. There are two possibilities to consider under this
evidence, either that a robbery occurred or that Chaney was guilty only of what is commonly called
pickpocketing. The Mississippi Supreme Court addressed the distinction between robbery and a
pickpocket offense by quoting a Pennsylvania case at some length:
The force used in taking the purse from the victim's arm was a harmful touching of the person,
accompanied with sufficient force to compel the victim to part with the conscious control of her
property, and supports a robbery conviction under § 3701. This conduct substantially differs from the
case of the thief who merely takes the property of another with intent permanently to deprive him
thereof, using no force or threat of force on the victim--like the pickpocket.... Such conduct is nonviolent, poses no threat to the victim who is unaware of the taking, and is accordingly graded less
severely than robbery. A victim who is aware of the taking of property from his person is apt to reflex
action to protect himself and his property and thus may be injured by the felon. ... [R]obbery has
always been considered a greater harm against society because violence is caused or threatened. The
ordinary citizen has the right to go about his way free from the fear of attack to his person from those
who would deprive him of control over his goods. That right is violated even by the slight tug on the
arm by the purse thief who must use force to wrench the purse from the arm of the victim without
regard to her safety.
Mackbee v. State, 575 So. 2d 16, 36 (Miss. 1990), quoting Commonwealth v. Brown, 484 A.2d 738,
742 (Penn. 1984). The court also cited approvingly another Pennsylvania case that held that the "force
however slight [necessary for robbery] does not include the taking by stealth alone because a taking by
stealth alone is not as likely to result in injury to the victim as the taking by force." Mackbee, 575 So. 2d at
36, citing Commonwealth v. Smith, 481 A.2d 1352 (Penn. 1982).
¶8. Thus robbery requires only extremely slight force or violence, but does not include stealth. Pickpocket
offenses are generally prosecuted under larceny statutes because of the lack of violence. LaFave and Scott,
2 Substantive Criminal Law § 8.11 (d)(1) (1986). When the victim is aware that someone is attempting
to take property from their person and does not indicate any consent to the taking, the crime of
pickpocketing or larceny is elevated to robbery because violence or the threat of violence, even though
slight, was a factor in the taking. Id.
¶9. In this case, there was nothing stealthful about Chaney's actions. Mr. Gaines did not give Chaney
permission to take his billfold or to turn his pocket inside out and take the coins. There was force in the
reaching into Mr. Gaines's pocket, in extracting the wallet, and then later in turning the pocket inside out and
taking the coins. Mr. Gaines was asked at trial whether Chaney's taking of money from his pocket
"cause[d] you to fall down?" He responded, "Yes sir. That's what caused me to fall down." It is also true
that Mr. Gaines testified that he fell because he was "old" and that Chaney had not pushed him. Still, it was
evident that Chaney's actions are what caused Mr. Gaines to fall even if there was no pushing of the victim
to the floor.
¶10. Taking all the evidence together the jury could conclude, despite Mr. Gaines's perhaps laudatory
refusal to concede fear from Chaney's actions, that the money was taken by removal from the pocket with
enough force to cause the victim to lose his balance or otherwise fall, with Mr. Gaines aware of the taking
but in no physical condition to resist. That is robbery.
2. Jury instruction
¶11. Chaney also complains of error in instruction S-lB that was given to the jury:
The Court instructs the jury that should you find from the evidence in this case, beyond a reasonable
doubt, that:
1. On or about January 16, 1997 in Lauderdale County, Mississippi
2. The Defendant, Terrance D. Chaney, did wilfully and unlawfully take the personal property
(money) of Samuel Gaines from his person or presence and against his will by violence causing him to
fall to the floor, then it is your sworn duty to find the Defendant Terrance D. Chaney, guilty of
Robbery. Should the state fail to prove any one (1) or more of these essential elements beyond a
reasonable doubt, then you shall find the Defendant, Terrance D. Chaney, not guilty of Robbery.
¶12. Chaney argues that this instruction could be read as peremptorily instructing the jury that Mr. Gaines's
fall constituted the necessary violence. Chaney insists that the jury should have been told that the violence
must be what caused the taking, not just that a fall occurred during the taking.
¶13. By analogy, Chaney relies upon a precedent in which the court required that an instruction on robbery
set forth the cause and effect relationship between the taking and the putting into fear if fear was the means
alleged for the robbery. Jones v. State, 567 So. 2d 1189, 1191-92 (Miss. 1990). Chaney argues that the
same reasoning applies requiring a causal relation between the violence and the taking. This instruction
explained that Chaney must have taken "the personal property (money) of Samuel Gaines from his person
or presence and against his will by violence causing him to fall to the floor. . . ." A reasonable interpretation
of what the jury had to find is that the taking was by violence that also caused Mr. Gaines to fall.
¶14. The jury could find that Chaney's reaching into Mr. Gaines's pocket was in order to get any valuables
there, and that the action caused the elderly man either to lose his balance or otherwise to fall. Chaney did
not have to push Mr. Gaines in order to be responsible for the fall; the commencement of the fall did not
have to be a split-second before the money was taken as opposed to simultaneous with or a split-second
after. The whole event was continuous. The slight force necessary to remove the money without Gaines's
consent together with causing the fall is the violence of the robbery. That makes a causal relation between
the violence and the taking. The trial court did not err in giving the instruction
¶15. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY OF
ROBBERY AND SENTENCE AS AN HABITUAL OFFENDER TO 15 YEARS IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED.
COSTS OF THIS APPEAL ARE ASSESSED TO LAUDERDALE COUNTY.
McMILLIN, C.J., KING, P.J., BRIDGES, COLEMAN, DIAZ, IRVING, LEE, PAYNE, AND
THOMAS, JJ., CONCUR.
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