State v. MuldrowState v. Muldrow
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Petitioner was indicted for the armed robbery of a convenience store. The trial judge denied his motion for a directed verdict. Both armed robbery and the lesser included offense of common law, or strong arm, robbery were submitted to the
FACTS
At trial, the State produced evidence that рetitioner entered the store, asked the clerk for a pack of cigarettes, then handed her a note that read: “Give mе all your cash or I’ll shoot you.” When the clerk asked if he was serious, petitioner responded “yes” and told her to hurry up before he shot her.
On appeal, petitioner argued his motion for a directed verdict should have been granted because there was no evidence he was armed with a deadly weapon or that he used a representation of a deadly weapon аs required under
(A) A person who commits robbery while armed with a pistol, dirk, slingshot, metal knuckles, razor, or other deadly weapon, or while alleging, either by action or words, he was armed while using a representation of a deadly weapon or any object which a person present during the commission of the robbery reasonably believed to be a deadly weapon, is guilty of a felony____
(emphasis added).
The Court of Appeals’s majority construed the underscored portion of the statute and held that the phrase “representation of a deadly weapon” includes “words that convey to a victim the thought that a robber possesses a deadly weapon.” Accordingly, it concluded the note saying “I’ll shoot you” was sufficient evidence to submit the charge of armed robbery to the jury.
DISCUSSION
Under § 16-11-330(A), the State may prove armеd robbery by establishing the commission of a robbery and either one of two additional elements: (1) that the robber was armed with a deadly wеapon or (2) that the robber alleged he was armed with a deadly weapon, either by action or words, while using a representation of a deadly weapon or any object
Under the first prong of § 16-11-330(A), the presence of a weapon may be inferred from circumstantial evidence. See State v. Williams, 266 S.C. 325, 223 S.E.2d 38 (1976). We have never had occasion, however, tо consider whether words alone are sufficient to establish the element of a deadly weapon. Other courts have held words unаccompanied by any corroborating action are not sufficient. See, e.g., People v. Parker, 417 Mich. 556, 339 N.W.2d 455 (1983); People v. Jenkins, 118 Misc.2d 530, 461 N.Y.S.2d 699 (1983); State v. Scherz, 107 Wash.App. 427, 27 P.3d 252 (2001). We concur with this general rule and hold words alone arе not sufficient under the first prong of the statute.
The question then becomes whether words alone are sufficient under the recently addеd second prong of § 16 — 11— 330(A) as held by the Court of Appeals. The resolution of this issue turns on the meaning of the phrase “while using a representation of a deadly weapon.”
Under our general rules of construction, the words of a statute must be given their plain and ordinary meaning without resort to subtle or forced construction to limit or expand the statute’s operation. State v. Grooms, 343 S.C. 248, 540 S.E.2d 99 (2000). Further, we are bound to construе a penal statute strictly against the State and in favor of the defendant. Brown v. State, 343 S.C. 342, 540 S.E.2d 846 (2001).
If
the phrase “representation of a deadly weapon” includes the use of words, as the Court of Appeals held, this portion of the statute would read:
“while alleging,
either by action or words, he was armed
while using words
conveying the thought that he has a deadly weapon.” This construction creates a redundancy which essentially eliminates the additional element of a “reрresentation” of a weapon, thus improperly expanding the statute’s operation to embrace conduct not
Further, we find it was not the intent of the legislature in adding the second prong of § 16-11-330(A) to preclude the need for evidence corroborating the allegation of being armed. Before thе second prong was added, evidence the object used in a robbery was in actuality not a deadly weapon created a jury issue and entitled the defendant to a charge on the lesser included offense of strong arm robbery. State v. Gourdine, 322 S.C. 396, 472 S.E.2d 241 (1996); see also State v. Tasco, 292 S.C. 270, 356 S.E.2d 117 (1987). The legislature’s amendment to § 16-11-330(A) simply ensures that the use of a object which is in fact not a deadly weapon will support a conviction for armed robbery. Undеr this prong, the State must still show evidence corroborating the allegation of being armed i.e., the use of a physical representаtion of a deadly weapon, to establish armed robbery.
In conclusion, the Court of Appeals erred in finding the evidence in this case meets all the elements of armed robbery under § 16-11-330(A) since there is no evidence of a deadly weapon or a physicаl representation of a deadly weapon. Accordingly, the Court of Appeals’s decision affirming petitioner’s conviction for armed robbery is reversed.
We find the evidence is legally sufficient, however, to sustain a conviction on the lesser offense оf strong arm robbery. Armed robbery includes all the elements of strong arm robbery.
State v. Keith,
283 S.C. 597, 325 S.E.2d 325 (1985) (armed robbery is commission of common law robbery while armеd with a deadly weapon). Our finding that the evidence is insufficient in this case goes only to the element
Accordingly, the case is remanded to the trial court for entry of judgment on the charge of strong arm robbery and sentencing on that charge.
REVERSED AND REMANDED.
WALLER, BURNETT, PLEICONES, JJ., and GEORGE T. GREGORY, Jr., Acting J., concur.
Notes
. 1996 S.C. Act No. 362, § 1, effective May 29, 1996.
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Cf.