E. Robbery

• Library: The Criminal Law of South Carolina (SCBar) (2014 Ed.)

E. Robbery

1. Unarmed Robbery

a. Basic Issues

Robbery is a common law felony defined as "larceny from the person or immediate presence of another by violence or intimidation." Dukes v. State, 248 S.C. 227, 231, 149 S.E.2d 598, 599 (1966). Robbery is sometimes referred to as "highway robbery," State v. Williams, 266 S.C. 325, 330, 223 S.E.2d 38, 41 (1976), or "strong armed robbery." State v. Rosemond, 356 S.C. 426, 589 S.E.2d 757 (2003) (felonious taking of goods of any value from the person of another or in his presence by violence or by putting such person in fear). Common law robbery is a class D felony, with a maximum penalty of imprisonment for 15 years. S.C. Code Ann. § 16-11-325 (2003). The statute does not define the offense. Prior to the effective date of this statute, January 1, 1994, its punishment was limited to imprisonment for ten years as per S.C. Code Ann. § 17-552 (1962) punishment for felony when not specially provided for) (now codified as S.C. Code Ann. § 17-25-20 (2003)).

"The common-law offense of robbery is essentially the commission of larceny with force. Larceny involves the felonious taking and carrying away of the goods of another, which must be accomplished against the will or without the consent of the [owners]." State v. Brown, 274 S.C. 48, 49, 260 S.E.2d 719, 720 (1979) (citations omitted). The actual use of force is not necessary; intimidation by the threat of the use of force will suffice. Dukes. A significant show of force accompanied by a glare is sufficient even if the defendant makes no demand for the money. In State v. Rosemond, 356 S.C. 426, 589 S.E.2d 757 (2003), the defendant, without comment, attempted to open a stores cash register, and when it wouldn't open, he lifted it into the air and slammed it to the ground. The Court made much of the fact that Rosemond's demeanor (glaring at the clerk) and his act of destroying the register scared the victim. The Court was reviewing the Court of Appeals' affirmance of Rosemond's conviction. In so doing, it corrected the lower court's reliance upon Rosemond's resistance to arrest as a basis for the clerk's fears. "It is improper to consider petitioner's subsequent actions because they are irrelevant to a determination whether the petitioner had acted with force or intimidation at the time of the crime." Id. at 430-31, 589 S.E.2d at 759.

The property must be taken from the person or the presence of the victim. The slightest movement of the property will suffice. It need not be taken to some other place. Locke v. State, 341 S.C. 54, 533 S.E.2d 324 (2000). The failure to allege asportation, or movement of the property, in the indictment is necessary. State v. Bullard, 348 S.C. 611, 560 S.E.2d 436 (Ct. App. 2002), reversed in part by State v. Gentry, 363 S.C. 93, 610 S.E.2d 494 (2005)). If a robbery and a murder occur in the same transaction, then the robbery may still be prosecuted even though the taking may have been from a dead person as there is a generally accepted rule of law that if the two offenses are "a part of a continuous chain of events so interconnected as to be inseparable" then both offenses are committed. State v. Frazier, 386 S.C. 526, 532, 689 S.E.2d 610, 614 (2010) (citing 77 C.J.S. Robbery § 9 (1994)).

The taking of the goods must be with the intent to steal. State v. Brown, 274 S.C. 48, 50, 260 S.E.2d 719, 720 (1979). The intent may be implied from the acts, conduct, declarations and admissions of the defendant. Id. In State v. Patrick, 255 S.C. 130, 177 S.E.2d 545 (1970), an unused "hold-up" note found on the person of the defendant after an unsuccessful attempted robbery was indicative of the intent to steal. Even if the defendant intended to use the robbery in an attempt to mislead the authorities about the motive for an accompanying homicide (which was motivated by desire for the victim's wife), the offense is still committed. State v. Frazier, at 533, 689 S.E.2d at 614. ("We sustain the armed robbery conviction well aware that the taking and carrying away of Brent's wallet was intended to mislead police as to real the motive for the murder.").

One of the elements of larceny is that the property which was stolen must belong to another. One cannot steal one's own property. See Chapter III.B.5., Of Another, infra. Similarly, one could not be convicted of robbery of his own property. See State v. Jackson, 315 S.C. 219, 433 S.E.2d 19 (Ct. App. 1993), cert. denied (1994). There is a split ofauthority as to whether a bona fide intent to collect or secure a claim or debt will defeat a charge of robbery. Ann., 88 A.L.R.3d 1309 (1978); Perkins and Boyce 344; LaFave, 1039-42 (5th ed. 2010). Cases finding no robbery in this situation conclude that there is no intent to steal. E.g., Bauer v. State, 43 P.2d 203 (Ariz. 1935) (holding called into question by subsequent statutory amendment). State v. Schaefer, 790 P.2d 281 (Ariz. Ct. App. 1990). Courts taking the opposite view typically stress a policy position against violent self-help. E.g., State v. Mejia, 662 A.2d 308 (N.J. 1995) (holding of case on a capital punishment issue superseded by constitutional amendment). State v. Cooper, 700 A.2d 307 (N.J. 1997).

The property taken need not be owned by the one from whom it is taken; his possession of it is sufficient. People v. Braverman, 173 N.E. 55 (Ill. 1930). In Braverman, the money taken was owned by the corporation for which the victims worked, but was in the victim's possession.

One notable difference between robbery and larceny is the latter's concern with the value of the property taken, which now distinguishes three classifications of larceny. S.C. Code Ann. § 16-13-30 (Supp. 2012). Yet, "[t]he amount and value of property taken is of no consequence in an armed robbery case. One may be guilty of armed robbery which involves grand larceny or petty [sic] larceny." State v. Ziegler, 274 S.C. 6, 11, 260 S.E.2d 182, 185 (1979). This lack of concern with the value of the property stolen applies to plain robbery as well as to armed robbery.

An indictment for robbery must sufficiently describe the property taken; yet no better description is required than that which the circumstances permit. State v. Hiott, 276 S.C. 72, 276 S.E.2d 163 (1981). The defendants in Hiott were indicted for, among other things, armed robbery in the felonious taking of "goods and monies" from a drug store. Actually the scheme had been interrupted by the killing of a druggist who was attempting to flee, and the felons fled empty-handed. They were properly convicted of attempted armed robbery, which is, of course, a lesser included offense of armed robbery. Id. Hiott relied on State v. Haney, 257 S.C. 89, 184 S.E.2d 344 (1971), in which the Court concluded that in a housebreaking indictment it is not necessary to specify the particular goods that the defendant intended to steal. Accord State v. Langford, 55 S.C. 322, 33 S.E. 370 (1899) (burglary). It must be born in mind that Hiott was a case of attempted robbery in which nothing was actually taken. If property is actually taken, it must be adequately described. An indictment for robbery of a specific item would not support a conviction for larceny of a different item. State v. Bell, 305 S.C. 11, 17-18, 406 S.E.2d 165, 169 (1991), cert. denied, 502 U.S. 1038 (1992).

Another important distinction between larceny and robbery is that the latter requires that the property be taken from the person or the immediate presence of another, Dukes, while the former has no such requirement. There is no South Carolina case law defining the phrase "from the person or the immediate presence of another." In Georgia, a robbery conviction was sustained in which the property had been taken from a closet in a room in which the victim was being beaten. Osborne v. State, 38 S.E.2d 558 (Ga. 1946). "A thing is in the presence of a person, in respect to robbery, which is so within his reach, inspection, observation or control, that he could, if not overcome with violence or prevented by fear, retain his possession of it." Commonwealth v. Homer, 127 N.E. 517, 520 (Mass. 1920). In Homer, the defendant, with a pistol, forced the victim to have jewelry brought from one hotel to her room in another where it was handed over to the defendant while she was in the bathroom.

As noted above, robbery is larceny accomplished by violence or intimidation. Dukes v. State, 248 S.C. 227, 231, 149 S.E.2d 598, 599 (1966). The North Carolina Supreme Court once defined this element as follows:

the element of force in the offense of robbery may be actual or constructive. Actual force implies physical violence. Under constructive force are included 'all demonstrations of force, menaces, and other means by which the person robbed is put in fear sufficient to suspend the free exercise of his will or prevent resistance to the taking . . . No matter how slight the cause creating the fear may be or by what other circumstances the taking may be accomplished, if the transaction is attended with such circumstances of terror, such threatening by word or gesture, as in common experience are likely to create an apprehension of danger and to induce a man to part with his property for the sake of his person, the victim is put in fear.'

State v. Norris, 141 S.E.2d 869, 872 (N.C. 1965) (citations omitted). Our Court in State v. Rosemond, 356 S.C. 426, 589 S.E.2d 757 (2003), defined this phrase as "whether an ordinary, reasonable person in the victim's position would feel a threat of bodily harm from the perpetrator's acts." Id. at 430, 589 S.E.2d at 759 (citing United States v. Wagstaff, 865 F.2d 626 (4th Cir. 1989)). This language should be included in the jury charge when there is any issue about whether intimidation was used.

Robbery of more than one victim at the same time will support indictment on a separate count for the robbery of each victim. State v. Jones, 344 S.C. 48, 543 S.E.2d 541 (2001). The Court distinguished State v. Waller, 280 S.C. 300, 312...