Larry Gene Moore appeals his conviction of armed robbery. He argues the evidence does not show he used force or intimidation in his asportation of stolen property. We affirm. 1
FACTUAL/PROCEDURAL BACKGROUND
On January 17, 2004, Mark Hayes, a loss prevention officer at a Wal-Mart store in Spartanburg, was on duty when he observed a shopper, Larry Gene Moore, exhibiting suspicious behavior. Only minutes earlier, Hayes noticed the customer had placed several items of merchandise in his shopping cart, and thus became alarmed when he realized Moore’s cart was presently vacuous. Hayes witnessed Moore pick up a package of over-the-counter medication from the shelf, place it inside his jacket, and begin walking toward the door.
Hayes approached Moore shortly, after he stepped outside onto the store’s sidewalk. After identifying himself and his position with Wal-Mart, Hayes informed Moore he needed to speak with him regarding some unpaid merchandise. During *473 the time Hayes was talking, Moore began digging around in his back pocket. At first, Hayes believed Moore might be looking for a receipt. However, when Moore stated, “What this, are you sure,” Hayes looked down at Moore’s hand to discover the thief was brandishing a semiautomatic .22 caliber handgun.
Fearing for his own safety and that of Wal-Mart’s customers, Hayes immediately ended the encounter and went back into the building to make certain the police were apprised of the situation. Moore walked off of Wal-Mart’s premises but was apprehended by police a short time later. $454.60 in unpaid Wal-Mart merchandise was recovered from Moore’s possession.
Moore was charged with armed robbery. At the close of the State’s case, he moved for a directed verdict and requested the charge be lowered to petty larceny. Moore argued, inter alia, that armed robbery could not be proven because asportation of the property occurred before the confrontation and no force or threat of force was used to take the merchandise. After extensive arguments, the trial judge denied the motion for a directed verdict, finding the offense of armed robbery requires asportation, which includes the escape. It was during the commission of the crime that Moore threatened use of the weapon. At the close of the evidence, Moore renewed his directed verdict motion. The motion was denied. Moore was convicted of armed robbery and sentenced to fifteen years.
STANDARD OF REVIEW
In criminal cases, an appellate court sits to review errors of law only.
State v. Baccus,
“The appellate court may reverse the trial judge’s denial of a motion for a directed verdict only if there is no evidence to support the judge’s ruling.”
State v. Zeigler,
When ruling on a motion for a directed verdict, the trial judge is concerned with the existence or nonexistence of evidence, not its weight.
State v. Weston,
A defendant is entitled to a directed verdict when the State fails to produce evidence of the offense charged.
State v. McKnight,
On appeal from the denial of a directed verdict in a criminal case, an appellate court must view the evidence and all reasonable inferences in the light most favorable to the State.
State v. Curtis,
LAW/ANALYSIS
Moore argues the trial court erred in refusing to direct a verdict of acquittal on the charge of armed robbery. He alleges the charge of armed robbery was improper because the evidence does not show he used force or intimidation to take Wal-Mart’s merchandise, but only to retain the property and escape. We disagree.
1. THE LAW EXTANT AS TO ARMED ROBBERY
Armed robbery occurs when a person commits robbery while either armed with a deadly weapon or alleging to be armed by the representation of a deadly weapon. S.C.Code Ann. § 16-11-330 (2003);
see also State v. Al-Amin,
“Robbery is defined as the felonious or unlawful taking of money, goods, or other personal property of any value from the person of another or in his presence by violence or by putting such person in fear.”
Al-Amin,
The elements of robbery and armed robbery include asportation of the property.
State v. Keith,
“The common-law offense of robbery is essentially the commission of larceny with force.”
State v. Brown,
Thus, it is the use or alleged use of a deadly weapon that distinguishes armed robbery from robbery, and the employment of force or threat of force that differentiates a robbery from a larceny.
See Scipio
2. THE CONTINUOUS OFFENSE THEORY
State v. Keith,
[W]e hold that when a defendant commits robbery without a deadly weapon, but becomes armed with a deadly weapon before asportation of the victim’s property, a conviction for armed robbery will stand. “[T]he robber need not be armed at all times during the robbery in order to be guilty of (armed robbery). [H]e is guilty ... if he arms himself or becomes armed with a deadly weapon at any time during the progress of the taking or while the robbery is being perpetrated ... [T]he crime of robbery is not completed the moment the stolen property is in the possession of the robbers, but may be deemed to continue during their attempt to escape.” 77 C.J.S. Robbery, § 25 (1952). See also, State v. Bridges,444 So.2d 721 (La.App.1984); People v. Heller,131 Ill.App.2d 799 ,267 N.E.2d 685 (1971).
Id.,
Keith
pellucidly adopts the “continuous offense theory.” In the context of robbery, the continuous offense theory provides that the crime has occurred “not only if the perpetrator uses force or intimidation to ‘take’ possession of the property, but also if force or intimidation is used to retain possession immediately after the taking, or to carry away the property, or to facilitate escape.”
State v. Meyers,
American Jurisprudence elucidates:
The other basic perspective is that the use of force or intimidation in retaining the property generally, or in effecting retention of the property in an escape attempt, or even merely as a means of escaping after the property has been abandoned supply the element of force or intimidation necessary to make the offense a robbery.
67 Am.Jur.2d Robbery § 27 (2003) (internal footnotes omitted).
The Model Penal Code espouses the theory, focusing on whether the force or intimidation asserted against the victim is part of the entire act, and includes the use of force or intimidation to retain possession of the thing taken or to escape or prevent pursuit. Model Penal Code § 222.1(1) (2001). The code has adopted the position that a robbery occurs if the force or intimidation takes place “in the course of committing a theft” and specifies that the commission of a theft includes the flight after the attempt or commission. Id.
The efficacy of the rule is to distinguish the perpetration of a robbery from the commission of a larceny and a subsequent assault, limiting the latter to cases where the intimidation or force is not directly related to the taking. The rationale behind the differentiation of robbery and larceny buttresses the adoption of the continuous offense approach:
[T]he purpose of the force or intimidation element of the crime of robbery is to distinguish, by imposition of a more severe penalty, those takings which pose a greater risk to the victim. The danger to the victim, however, is identical whether the force or intimidation is employed against the victim immediately before or immediately after the actual taking. We therefore conclude that the force or intimidation element of robbery is satisfied by evidence that force *480 or intimidation directly related to the taking occurred in the course of completing the crime.
State v. Meyers,
In instances when a thief must use force to retain the stolen property, the thief does not acquire full possession of the property until the force or threat of force has overcome the custodian’s resistance to the taking.
See Wharton’s Criminal Law
§ 463, at 39-40 (15th ed.1996). Thus, a “taking” is not complete — that is to say, has not come to an end — until the perpetrator has neutralized any immediate interference with his or her possession.
Id.
This does not mean, of course, that a thief has not committed a robbery or larceny unless and until resistance to his possession has been overcome. Indubitably, the point of asportation is not absolutely determinative. A criminal is guilty of the crime, and not merely of an attempt, if he moves the stolen goods a short distance, and concomitantly, the crime is ongoing until the thief has reached a place of temporary safety.
See Ball v. State,
An exhaustive review of the relevant authorities reveals plenitudinous jurisdictions adopting the continuous offense theory by statute. See, e.g., Ala.Code § 13A-8-43 (LexisNexis 2005); Alaska Stat. § 11.41.510 (2006); Ariz.Rev.Stat.Ann. §§ 13-1901 to -1902 (2001); Ark.Code Ann. § 5-12-102 (2005); Conn. Gen. Stat. Ann. § 53a-133 (West 2001); Del.Code Ann. tit. 11, § 831 (2001); Fla. Stat. Ann. § 812.13 (West 2006); Haw.Rev. Stat. Ann. §§ 708-841 to -842 (LexisNexis Supp.2006); Iowa Code Ann. § 711.1 (West 2003); Ky.Rev.Stat. Ann. §§ 515.020 to .030 (LexisNexis 1999); Me.Rev.Stat. Ann. tit. 17-A, § 651 (2006); Minn.Stat. Ann. § 609.24 (West 2003); Mont.Code Ann. § 45-5-401 (2005); Nev.Rev.Stat. Ann. § 200.380 (Lexis-Nexis 2006); NJH.Rev.Stat. Ann. § 636.1 (1996); N.J. Stat. Ann. § 2C:15-1 (West 2005); N.Y. Penal Law § 160.00 (McKinney 1999); N.D. CentCode § 12.1-22-01 (1997); Ohio Rev.Code Ann. § 2911.02 (LexisNexis 2006); Okla. Stat. Ann. tit. 21, §§ 791 to 792 (West 2002); Or.Rev.Stat. Ann. § 164.395 (West 2005); Pa. Cons.Stat. Ann. § 3701 (West 2000); S.D. Codified Laws §§ 22-30-1 to -2 (LexisNexis 1998); Tex. Penal Code Ann. § 29.01 to .02 (Vernon 2003); Utah Code Ann. § 76-6-301 (Supp.2006); Wash. Rev.Code Ann. § 9A.56.190 (West 2000); Wyo. Stat. Ann. § 6-2-401 (2005).
*481
Multitudinous states have, by judicial fiat, embraced the theory.
See, e.g., People v. Chambliss,
3. A TEMPORAL AND SPATIAL ANALYSIS OF THE EVIDENTIARY RECORD
Citing the Tennessee case of
State v. Owens,
A priori the reasoning and analysis in Owens is bottomed and premised upon the minority view in this country. Owens plucks its rationale from a flawed and defective academic exercise. The minority view does not give any credence to the criminal activity in totality. Rather, the minority rule restricts and insulates the criminal activity to the zone of coinstantaneous and synchronous conduct.
In contrariety to Moore’s contention, the crime was not “complete” prior to his confrontation with Hayes. Hayes confronted Moore immediately after he walked out the front doors of the store but before he left the retailer’s parking lot. If not for Moore’s display of a handgun, Hayes would likely have been able to thwart the thief at that time. However, while still standing on Wal-Mart’s grounds, Moore employed the weapon to threaten Hayes with force and create fear. The gun allowed Moore to actually remove the merchandise from Wal-Mart’s domain. Perspicuously, the threat of weapon was contemporaneous to and not separable with his taking of the goods from the premises of the merchant.
Simplistically put, the requisite elements of larceny are met at the point when a thief possesses an item of stolen property.
See State v. Keith,
CONCLUSION
We adopt the continuous offense theory based on the efficacy and rationale of the doctrine and our supreme court’s decision in
State v. Keith,
AFFIRMED.
Notes
. We decide this case without oral argument pursuant to Rule 215, SCACR.
