Appellant, a persistent offender 1 serving probation for robbery, was charged with robbing eight convenience stores. After waiving a jury, he was acquitted on Count VII and found guilty of the others. We affirm six convictions, but reverse and remand as to Count V.
Background
Robbery is stealing by force.
See State v. Jolly,
As to Counts I, II, III, IV, VI, and VIII, the trial court specifically found that Appellant struggled with or used force against each store clerk in stealing the money. Appellant concedes the sufficiency of the evidence supporting those convictions, so we need not detail those six crimes.
The two points on appeal focus on the evidence and guilty finding as to Count V. The evidence on that count was that Appellant entered an Express Lane store about midnight, got a beverage from the cooler, approached the counter, and handed the clerk a $5 bill. According to the clerk, she opened the cash register and
At trial, Appellant agreed he was guilty of stealing on this count, but argued that “he did not rob anybody.” The trial court noted that the clerk “did not fight back. She backed away from the register. She couldn’t remember for sure if there was contact or not, but she backed away because she had been trained to back away.” Nonetheless, the court found that robbery had occurred:
In this case, the defendant did put his hand into the cash register when opened by the clerk. The act of the defendant reaching into the drawer is an act of actual force. Without him putting his hands into the drawer, he would not be able to steal that money.
That — The drawer was in the possession of the victim. The victim would not have had — would not have had to have given the money to him except his actions was that he took the money. She had been trained not to resist if someone was robbing the store. And this is a robbery, not a shoplifting that escalated to a robbery.
In the State versus Jolly case, the defendant was convicted of robbery when he pulled the bank bag from the grip of the clerk without ever touching the clerk. This case is figuratively similar because the drawer belonged to the clerk. And when she is in possession of that, he has to reach in and take money from that drawer, which is the same as taking the bank bag from the person. And that clerk only relented to him putting his hand in the drawer and backing away because of that threat of force of the defendant, that he was going to take the money.
Point I
Point I seeks to reverse all seven robbery convictions. Appellant claims the trial court used an erroneous legal standard, citing its Count V finding that “reaching into the [cash] drawer” was adequate force for robbery. Appellant concedes the trial court “did specifically articulate evidence of struggles when it rendered its findings” on other counts, and those convictions “could have been justified even under a correct standard.” “Nevertheless,” Appellant urges, “despite the existence of sufficient evidence, if the findings were made under an incorrect legal standard,” none of the convictions can stand.
The State maintains that Point I should be denied as to Counts I, II, III, IV, VI, and VIII, given the evidence and court findings that Appellant struggled with or used force against these clerks. However, the State would grant Point I as to Count V, arguing that “the mere taking or snatching of property is not sufficient,” and “[f]or the purpose of finding Appellant guilty under Count V, the trial court interpreted Jolly as being satisfied by Appellant reaching into a drawer that was in the possession of the cashier.”
Counts I, II, III, IV, VI, and VIII
We agree with the State that the Count I, II, III, IV, VI, and VIII convictions
Count V
We also agree that the trial court’s analogy to
Jolly
was flawed. There, a bank employee was carrying bank deposits when the defendant “grabbed the bag and pulled with both hands.”
These quotes show the error in equating Count V with Jolly. Count V was essentially a snatching; the defendant and victim in Jolly “actually struggled” during the theft.
Count V is more like
State v. Tivis,
Tivis did not express any threat against Ms. Tagel and the only evidence of force was that the purse was “yanked” from her shoulder. However, Ms. Tagel specifically testified that there was no struggle over the purse. Tivis grabbed the strap of the purse and took it from her shoulder without touching or injuring Ms. Tagel. The evidence is insufficient to support Tivis’ conviction for robbery in the second degree.
Id.
at 30. Contrast
State v. Childs,
There was evidence that the clerk’s arm was “brushed” during the Count V theft. This was
de minimus
contact incidental to the money snatch, not a threat or use of force to overcome resistance. The trial court did not base the Count V conviction on it, nor could we.
Compare Tivis,
Thus, we reverse the Count V conviction. This moots Point II of the appeal, which seeks to reverse the same conviction for insufficient proof of force.
Conclusion
The Count I, II, III, IV, VI, and VIII convictions are affirmed. We reverse the Count V conviction, and inasmuch as Appellant admitted he was guilty of stealing
Notes
. See § 558.016. Statutory references are to RSMo 2000.
. From the clerk’s other testimony and surveillance videos admitted into evidence, it is plain that Appellant did not jump across or otherwise cross over to the clerk's side of the counter. He simply reached across the counter, grabbed money from the cash drawer, and ran.
. Although Jolly's conviction was affirmed, the case was remanded for resentencing under a separate point of error. Id.
. The State cites
Childs
and other cases to support its view that forcible stealing requires "only a minimal level of force.” Since the State is urging us to reverse and remand Count V nonetheless, we note these cases solely for the reader’s benefit.
See Hughes v. State,