In Michigan, one does not have to actually pull off a robbery and get away with the stolen property to be subject to severe punishment. “Any person, not being armed with a dangerous weapon, who shall assault another with force and violence, and with intent to rob and steal, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 15 years.” MCL 750.88.
A person is guilty of assault with intent to commit unarmed robbery if the prosecutor can prove all of the following elements beyond a reasonable doubt (Michigan Criminal Jury Instruction 18.4):
- First, that the individual assaulted the victim with force or violence. There are two ways to commit an assault. The individual must either have attempted or threatened to do immediate injury to the victim, and was able to do so, or the individual must have committed an act that would cause a reasonable person to fear or apprehend an immediate battery.
- Second, that at the time of the assault the individual intended to commit robbery. Robbery occurs when a person assaults someone else and takes money or property from him or her in his or her presence, intending to take it from the person permanently. It is not necessary that the crime be completed or that the individual has actually taken any money or property. However, there must be proof beyond a reasonable doubt that at the time of the assault the individual intended to commit robbery.
The crime of assault with intent to commit unarmed robbery is a “specific intent crime”, meaning that the prosecutor must prove as an element of the crime that the defendant intended to commit unarmed robbery at the time of the assault. People v Joeseype Johnson, 407 Mich 196, 219; 284 NW2d 718 (1979). Otherwise, the conviction cannot be sustained. Despite all of the technology available to police and prosecutors, they do not have mind-readers that can testify to a jury what the defendant was thinking. However, intent can be inferred from circumstantial evidence presented by the prosecutor. For example, statements that the defendant made that he wanted the property in possession of the victim or attempts to acquire said property from the defendant before the crime can suggest an intent to rob.
In addition, unarmed robbery itself is a specific intent crime requiring proof that the defendant intended to permanently deprive the owner of his or her property. In People v Harverson, 291 Mich App 171; 804 NW2d 757 (2010), the defendant attempted to argue that his robbery conviction should be vacated because he only walked away with the victim’s glasses and refused to steal any other items, so the prosecutor failed to show that he intended to permanently deprive the victim of his property. The Michigan Court of Appeals disagreed:
- “[T]o permanently deprive in the context of [robbery] does not require, in a literal sense, that a thief have an intent to permanently deprive the owner of the property. Rather, the intent to permanently deprive include the retention of property without the purpose to return it within a reasonable time or the retention of property with the intent to return the property on the condition that the owner pay some compensation for its return.” Id at 178.
In that case, the defendant confronted the victim for the purpose of retrieving a cell phone. When the victim denied knowledge of the cell phone, the defendant “snatched” his glasses and hold him, “you get these back when we get the phone back”. In other words, the defendant intended to retain the glasses and only return them on the condition of the cell phone being returned. The Michigan Court of Appeals found that this was sufficient evidence to show intent to rob.
The offense of assault with intent to commit armed robbery is distinct from the lesser offense of attempted unarmed robbery (which only has a maximum penalty of 5 years in prison). In People v Sanford, 402 Mich 460; 265 NW2d 1 (1978), the Michigan Supreme Court found the following:
- “The assault with intent to rob unarmed statute is conjunctive; there must be an assault with force and violence. The attempted robbery unarmed statute is disjunctive; the offense can be accomplished either by force and violence, or by assault, or putting in fear. Attempted robbery unarmed may therefore be committed simply by putting someone in fear while assault with intent to rob unarmed requires an assault with force and violence. Therefore, the offenses, assault with intent to rob unarmed and attempted robbery unarmed, are different.” Id at 473-474.
Assault with intent to rob is the more serious statute because it absolutely requires an assault. Attempted armed robbery can be an assault, but putting someone in fear is also sufficient without an assault being required. However, assault doesn’t mean that the offender has to actually make physical contact, but merely make a reasonable person to believe that he will imminently be battered (e.g. raising a hand to indicate a slap or punch will shortly follow. The Michigan Supreme Court verified that it is not necessary for assault with intent to rob that the offender has the actual ability to carry the assault out:
- “We find this approach toward apprehension-type assaults to be sound because it appropriately focuses on the imminent danger that is threatened, rather than on the “actual” ability to inflict injury. Therefore, the assault element is satisfied where the circumstances indicate that an assailant, by overt conduct, causes the victim to reasonably believe that he will do what is threatened.” People v Reeves, 458 Mich 236, 244-245; 580 NW2d 433 (1998).
The charge of assault with intent to rob is a serious felony offense that can cause you to spend many years in prison. You need the talents of a skilled criminal defense lawyer from the very beginning of the case to protect your rights. Some defenses that can be asserted against this charge include, but are not limited to:
- Mistaken Defense or Alibi: The defendant may present evidence that he or she was in another location when the assault occurred so he or she was falsely identified. Defense counsel must provide sufficient notice ahead of trial of the witnesses he or she intends to establish the alibi.
- Self-Defense: The assault with intent to rob may be justified under circumstances where you were trying to disarm another person by force to protect yourself or others. “An individual who has not or is not engaged in the commission of a crime at the time he or she uses force other than deadly force may use force other than deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if he or she honestly and reasonably believes that the use of that force is necessary to defend himself or herself or another individual from the imminent unlawful use of force by another individual.” MCL 780.972(2).
- Intoxication: Assault with intent to rob is a specific intent crime as it requires proof that the defendant intended to commit a robbery. Generally, voluntary intoxication is not a defense to a general intent crime. However, a specific intent crime “charged cannot be committed unless the actor entertained a specific intent (e.g. robbery) at the time the crime was committed, he is not guilty if he did not entertain that intent by reason of intoxication.” People v Kelley, 21 Mich App 612; 176 NW2d 435 (1970).
- Duress: Assault with intent to rob may be justified on the basis of duress if the defendant can present some evidence where the jury can conclude the following: “A) the threatening conduct was sufficient to create in the mind of a reasonable person the fear of death or serious bodily harm; B) the conduct in fact caused such fear of death or seriously bodily harm in the mind of the defendant; C) the fear or duress was operating upon the mind of the defendant at the time of the alleged act; and D) the defendant committed the act to avoid the threatened harm.” People v Lemons, 454 Mich 234, 247; 562 NW2d 447 (1997). Furthermore, the defendant must present some evidence that the threat was present and imminent, that the threat did not arise from the negligence or fault of the defendant, and that the defendant did not fail to use a reasonable opportunity to escape.
- Lack of Intent to Rob: Even when the defendant does not deny assaulting the victim, a conviction cannot occur if there was no intent to rob. The defendant can argue that the assault only occurred due to hostile feelings, provocation or an extreme emotional response but not for the purpose of taking property. Mere assault and/or battery is only a misdemeanor offense in Michigan.
Don’t wait to aggressively protect your rights in the face of the overwhelming power of the police and prosecutors. If you or a loved one are accused of any crime and need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
