PEOPLE v RANDOLPH
Docket Nos. 117760, 118078
Supreme Court of Michigan
Argued January 24, 2002. Decided July 11, 2002.
466 Mich. 532
In an opinion by Justice KELLY, joined by Justices CAVANAGH, TAYLOR, and YOUNG, the Supreme Court held:
The defendant could not be convicted of unarmed robbery under the circumstances of the case and cannot be retried on a charge not previously supported by sufficient evidence where additional evidence is discovered to support the charge.
- Robbery is a crime against a person. Both armed and unarmed robbery involve a forceful act used to accomplish the taking. The force used must be contemporaneous with the taking. Force used later to retain stolen property is insufficient.
MCL 750.530 requires a taking accomplished by force or violence or by assault or putting in fear. It excludes a nonforceful taking, even if force were later used to retain the stolen property. It cannot be construed to provide that the use of force in order to escape with stolen property constitutes robbery. The Supreme Court has never recognized the transactional approach to robbery. It is without pedigree in Michigan law and must be abandoned. - In this case, the prosecution seeks to extend the transaction that began with the taking of property in the store to include the struggle in the parking lot. However, the defendant not only did not escape, but, more importantly, did not accomplish a taking by the use of force, violence, assault, or putting in fear. The first force or violence that the defendant used 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. It follows
that he did not commit the offense of unarmed robbery. Force used to retain property is outside the scope of MCL 750.530 . 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. The force, violence, or putting in fear must be used before or contemporaneous with the taking. - The Court of Appeals erred when it provided that, with new evidence, the prosecution could retry defendant on the originally charged offense. Because the defendant completed a taking without using force, violence, assault, or putting fear, he could not be convicted of unarmed robbery. Thus, remand is required for entry of a conviction for larceny in a building and for resentencing.
Affirmed in part, reversed in part, and remanded.
Justice MARKMAN, joined by Chief Justice CORRIGAN and Justice WEAVER, dissenting, stated that the transactional view of robbery supports the defendant‘s conviction. A person is guilty of the crime of robbery if, before reaching a place of temporary safety, the person uses force to permanently deprive the victim of property that is in his presence. Such force may be employed in initially taking the property, in attempting to retain the property, or in attempting to escape with the property, as long as the forceful act occurs while the property is in the victim‘s presence.
The robbery statute and the common law support the view that a person can be convicted of robbery even if the required element of force occurs after the initial taking of the property, but before the perpetrator has reached a place of temporary safety. Neither the statute nor the common law requires that the victim be in actual possession of the property when the force is exercised. As long as there is a purposeful relationship between the elements of robbery, i.e., the larceny that establishes the intent to permanently deprive the victim of the property, and the force that aggravates the crime into robbery, the robbery is complete. In this case, the defendant assaulted the victim in an attempt either to retain the property or to escape with the property, while the property was in the victim‘s presence. This conduct satisfied
Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Michael E. Duggan, Prosecuting Attorney, Timothy A. Baughman, Chief, Research, Training and Appeals, and Carolyn M. Breen, Assistant Prosecuting Attorney, for the people.
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
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.” 242 Mich App 421. 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 on the original charge based on addi-
II. UNARMED ROBBERY
Michigan‘s unarmed robbery statute,
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 unarmed robbery must be contemporaneous with the taking. The force used later to retain stolen property is not included. Those Court of Appeals cases that have held otherwise, applying a “transactional approach” to unarmed robbery, are herein overruled.
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 severity, depending on whether a perpetrator was armed. People v Calvin, 60 Mich 113, 120; 26 NW 851 (1886).4 The 1838 codification of unarmed robbery is nearly identical to our current statute.5
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, Public Wrongs, ch 17, p 241; see also, People v Covelesky, 217 Mich 90, 96; 185 NW 770 (1921).
Thus, consistently with the rule under common law,
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 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.
This Court has never recognized the “transactional approach.” 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,” the panel relied on the law of other jurisdictions. Id. at 276. 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. Id. at 561-563. 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.” Id. at 562.
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 convicted of unarmed robbery.
This “transactional approach” can not be harmonized either with the language of
This previous violence or putting in fear is the criterion that distinguishes robberies from other larcenies. 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
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 carry-
We emphasize that a larceny is complete when the taking occurs. The offense does not continue. This fact is 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
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 the property remains in the victim‘s presence.” Post at 563. Neither the common law nor contemporary 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
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.
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.” Id. at 638-639, 639, n 7.
However, 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
All the statutes define “in the course of” to include either “escape,” “flight,” “retention,” or “subsequent to the 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
In summary, at common law, a robbery required that the force, violence, or putting in fear occur before or contemporaneous with the larcenous taking. 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.
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 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.
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.”
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 taking to be considered contemporaneous.20
The dissent‘s reliance on People v Podolski21 is misplaced. In Podolski, this Court held the 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.
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, violence or putting in fear must be used before or contemporaneous with the taking.
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.
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 (1982). The prosecution concedes that this was error.24 Defendant agrees 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.
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
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. Defendant cannot be retried for unarmed robbery. The opinion of the Court of Appeals is affirmed in part and reversed in part.
CAVANAGH, TAYLOR, and YOUNG, JJ., concurred with KELLY, J.
MARKMAN, J. I respectfully dissent. In affirming the Court of Appeals, the majority concludes that this Court has never adopted the “transactional approach” to robbery. Ante at 540. The majority then proceeds
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.
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
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.
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. As a consequence, the majority‘s conclusion that defendant “did not use force, violence, assault or putting in fear to accomplish his taking of property” is also in error. Ante at 551.
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
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 . . . .
Here, to describe the element of force, the Legislature used the words “by force and violence, or by assault or putting in fear.”
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. But, the statute plainly allows for more. 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”
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 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
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.
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
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 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
“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 use force, violence, assault or putting in fear to accomplish his taking of property.” Ante at 551. Neither the statute nor the common 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
The dissent does not disagree that the crimes of larceny 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.”
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). For example, a typical robbery occurs when, by the threat or use of force, the robber forces the victim to turn over property directly to him. However, that the force occurs after the initial taking does nothing to negate the “intent to permanently deprive” element. In other words, when the 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. LeFlore, supra at 562, citing LaFave & Scott, Criminal Law (1972), § 94, p 701-702. “The entire larcenous transaction should be reviewed to determine if there is a continuity of intent between the forceful act and the taking (or vice versa).”
To clarify, consider the perpetrator who is observed shoplifting and manages to escape from the store before being apprehended. In such a case, the only crime that occurs is a larceny. 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 appre-
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 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.
IV. TRANSACTIONAL VIEW
Having established that the 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 OF APPEALS DECISIONS
While this Court has 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
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, 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, ante at 540, 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
“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.”
Further, the Podolski Court at 517-518 agreed with the reasoning asserted by the prosecutor, quoting from Wharton, Homicide (3d ed), ch 9, § 126, 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
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,
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 It is not the victim, but the perpetrator who should bear the full responsibility for his actions. “‘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 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
When analyzing whether 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 Nowack, 462 Mich 392, 399-400; 614 NW2d 78 (2000). In that case, the Court articulated that this “standard of review is deferential: a reviewing court is required to draw all reasonable inferences and make credibility choices in support of the jury verdict.” Id. at 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 department store and proceeded to leave the store without paying for them. 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]
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, The Common Law of England (2d ed), ch 8, p 331. In this work, which is a compilation of
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:
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.]
B. BLACKSTONE
In contending that the common law supports its view, the 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 . . . .” 4 Blackstone, Commentaries, Public Wrongs, ch 17, p 242. However, as pointed out by Perkins, Criminal Law (3d ed), ch 4, § 2, 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 “misunderstands the point that Perkins was making.” Ante at 542, n 9. To demonstrate that the “transactional view”
Occasionally this has been misapplied. 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 acquisition of the gun.20 This completely 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 rob-
bery. 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 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 it was secured by threat of force.” Ante at 542, 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 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.” Ante at 542, n 9.
Third, the majority states that the quotation from Perkins supports, rather than contradicts, the interpretation of Blackstone‘s quotation. Ante at 542, n 9. We do not disagree that Perkins’ quotation supports Blackstone‘s concept of robbery. As Perkins notes, the quotation has been misapplied. 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.
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, Institutes (1797), pt 3, p 68.]
Coke explains the difference between the private stealing and the use of force by the robber by distin-
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 privately steal, is discovered in the process, and uses force in order to complete the taking, is the distinction between the cutpurse and
Clearly, the common-law description of robbery also supports a conviction in the present case. The defendant, like the cutpurse, first took the property in an attempt to secretly steal it. However, here there was no “private stealing.” 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 The perpetrator took possession of the property while it remained in the presence of the security guards, and there is no necessity that he used force to initially take the property, but only that he strove to keep it, however unsuccessfully.27 Thus, both at common law,
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 com-
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 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,
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
Notes
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, the only substantive 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, Public Wrongs, ch 17, p 242 (“But if the taking be not either directly from his person, or in his presence, it is no robbery“). 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.”
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 33-35 (“At common law, and in some states, force or threatened force [putting a 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 misapprehends 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 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. Ante at 537, n 4.
The dissent claims that, in the case on appeal, defendant had only custody of the items when the security guard attempted to stop him. This view is unsupportable. In Perkins‘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. 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. 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.
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. [Id. at 33-35.]
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.” 2 Zane & Zollman, Bishop, Criminal Law (9th ed), § 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. Further, the perpetrator‘s “willingness to use force against those who would restrain him in flight suggests that he would have employed force
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 concluded that our Legislature was well aware of 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).
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
“To keep secret, to conceal or hide.” The New Shorter Oxford English Dictionary (1993).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).]