Assuming the worst: eliminating the forcibly steals element from second-degree robbery.

• Author: Valore, Ross
• Position: Case note

State v. Brooks, 446 S.W.3d 673 (Mo. 2014) (en banc).

1. INTRODUCTION

   The Supreme Court of Missouri recently decided two cases dealing with the troubling distinction between second-degree robbery and stealing. (1) The crimes of second-degree robbery and stealing are distinguished by whether the defendant uses or threatens the immediate use of physical force in the commission of the offense. (2) After three decades of disagreement within Missouri appellate courts over what standard should be applied when determining whether the defendant used or threatened the immediate use of physical force, the Supreme Court of Missouri stepped in to resolve the conflict in the case of State v. Brooks. (3) Unfortunately, the objective standard the court articulated was unclear in its application and will likely cause more confusion in the lower courts that try to interpret it. In an attempt to resolve the confusion surrounding the court's decision in Brooks, this Note attempts to define the standard articulated by the court, while also looking at alternative ways the Missouri General Assembly can resolve the conflict between robbery and stealing.

   This Note begins with an exploration of the factual circumstances that gave rise to the court's determination that an objective standard should be applied when determining whether a threat of the immediate use of physical force exists in second-degree robbery cases. This Note then discusses the conflict among Missouri appellate courts regarding the determination of whether a threat of force exists, while also looking at how other states have handled this issue. Next, this Note provides an analysis of the Supreme Court of Missouri's reasoning in Brooks and, finally, explores how the objective standard articulated by the court will be applied, along with a possible alternative solution to the conflict between stealing and robbery in bank theft cases.

2. FACTS AND HOLDING

   On August 25, 2011, Claude Dale Brooks entered a Regions Bank in St. Charles County dressed in a baggy sweatshirt, baseball hat, sunglasses, and dreadlocked wig. (4) When Brooks arrived at the counter, he handed the bank teller a note. (5) The note read, "Fifties, hundreds, no bait money and bottom drawer." (6) The bank teller, Angela Ebaugh, typically worked at the drivethrough window, but had moved to the lobby that day because the bank was busy. (7) After reading the note, Ebaugh slowly began to walk away from the counter to retrieve the money from her drawer near the drive-through window. (8) Unsure of what Ebaugh was doing, Brooks slammed his hand on the counter and told her to "get back here." (9)

   Brooks then instructed Ebaugh to take the money from her drawer in the lobby, and Ebaugh explained that there was no money in that drawer and that she would have to go to the drawer by the drive-through to retrieve the cash. (10) Brooks watched intently as Ebaugh walked to the drive-through window, collected the bills from the bottom drawer, and laid the money on the counter in front of him. (11) Brooks also requested his note back, and Ebaugh complied. (12) Brooks then took the money, put it in a shopping bag, and left the bank. (13)

   Once Brooks exited the bank, Ebaugh signaled the police by putting her bait bills on the counter. (14) When the police arrived, Ebaugh provided a description of Brooks and the events that had taken place at the bank. (15) The police noted that Ebaugh seemed quite nervous and upset. (16)

   Meanwhile, a separate officer also responded to the call and began patrolling the area where Brooks was last seen. (17) The officer noticed Brooks walking down the sidewalk on a street near the bank, but he did not have dreadlocks or a hat as the description provided. (18) Nevertheless, the officer stopped Brooks to ask him whether he had seen anyone matching the description the officer provided. (19) Brooks replied that he saw someone matching that description running in the area and told the officer what direction he was heading. (20) While questioning Brooks, the officer noticed that he appeared to be nervous and out of breath, and as Brooks began to walk away, the officer told him to stop.21 Brooks ignored the officer's request, and after the officer told him to stop a second time, Brooks began running. (22)

   The officer notified the patrol officer in the area that the suspect was running in his direction, and the second officer stopped Brooks and put him in handcuffs. (23) Upon searching Brooks, the officer found a brown plastic bag with money inside that matched the amount Ebaugh believed was stolen from the bank. (24) Shortly after Brooks was placed under arrest, the dread-locked wig and baseball hat were found in a storm drain nearby. (25)

   Brooks was charged with robbery in the second degree. (26) In a bench trial, Brooks admitted to stealing money from the bank, but he denied committing a robbery in the second degree, arguing that he did not use or threaten the use of immediate physical force. (27) A person commits robbery when, "in the course of stealing, ... he uses or threatens the immediate use of physical force upon another person." (28) Based on this argument, Brooks moved for acquittal at the close of the evidence. (29) The trial court denied the motion and found Brooks guilty of robbery in the second degree. (30) The trial court reasoned that "his disguise, the note he handed the teller, his unusual knowledge of bank procedure, and the gesture of slamming his hand down on the bank counter 'show[ed] ... an actual immediate threat of physical force.'" (31) The trial court handed down a twenty-five-year sentence to Brooks, classifying him as a prior and persistent offender because of his two previous federal bank robbery convictions." (32)

   Brooks appealed this decision to the Missouri Court of Appeals for the Eastern District, which, in a 2-1 decision, vacated Brooks's conviction for robbery in the second degree. (33) In making its decision, the appellate court relied on Patterson v. State, which states that the use of force "may be implied from the fact that the defendant displayed a weapon, engaged in behavior that gave the appearance that he was armed, or used [a] phrase[] like, 'This is a holdup."' (34) The appellate court reasoned that because Brooks had not threatened physical force, had no weapon, and did nothing to indicate that he had a weapon, there was no affirmative act, beyond stealing, that justified his conviction for second-degree robbery. (35) The dissenting opinion found the majority's articulation of what constituted an affirmative act too narrow and reasoned that Brooks's knowledge of bank procedure, disguise, note, and slamming of his hand on the counter was sufficient evidence that Brooks's actions constituted a threat of physical force. (36)

   On transfer, the Supreme Court of Missouri affirmed the trial court's ruling that Brooks's actions constituted a threat of immediate physical force and that he was correctly convicted of second-degree robbery. (37) The court relied on United States v. Gilmore, which held that a demand for money in a bank was an "implicit threat of the use of force in and of itself." (38) The court held that Brooks's disguise, the note, slamming his fist on the counter and telling Ebaugh to "get back here," along with his apparent knowledge of bank procedure, was sufficient to cause a reasonable person to infer that Brooks would use immediate physical force if his demands were not met. (39)

3. LEGAL BACKGROUND

   Over the past three decades, Missouri courts have struggled to distinguish what constitutes an immediate threat of physical force in second-degree robbery cases where the defendant does not make physical contact with the victim or use verbal threats. Some courts have held that simply stealing from a bank or a store is sufficient to find a threat of force, (40) while other courts have required that the defendant engage in an affirmative threatening act to satisfy this element. (41) This Part will first cover the different definitions of threat of force, then how Missouri courts have interpreted threat of force in the past, and finally, how other states have interpreted threat of force in robbery cases.

   1. Defining "Threat of Force"

      Second-degree robbery is defined as the "forcible stealing of property." (42) Forcible stealing occurs when a person '"in the course of stealing ... uses or threatens the immediate use of physical force upon another person for the purpose of either defeating resistance to the theft or compelling the surrender of the property." (43) The crimes of second-degree robbery and stealing are distinguished by whether the defendant uses or threatens the immediate use of physical force in the commission of the offense. (44) Unfortunately, the statute does not go on to define what a threat of force is, and there is not any legislative commentary to offer guidance. (45)

      As a result of this lack of guidance, there was considerable disagreement regarding how the threat of force is determined when the defendant does not verbally threaten or make physical contact with the victim. Some courts have used an objective standard as, "whether a reasonable person would believe [the defendant's] conduct was a threat of the immediate use of physical force." (46) Under this standard, the trier of fact uses the victim's and witness's testimony, along with other circumstantial evidence, to determine whether a reasonable person would believe the defendant's conduct constituted an immediate threat of physical force. (47)

      A second approach looks at whether the defendant engaged in any affirmative conduct that exhibits a threat of immediate physical force. (48) A recent Missouri decision, State v. Coleman, reasoned that a victim's objectively reasonable fear is not enough, as there "must be some affirmative conduct on the part of the defendant, beyond the mere act of stealing, which communicates that he will immediately employ 'physical...