A robbery doesn’t require a dangerous weapon like a knife or a gun to be successful. As long as the robber uses the threat of force or violence to achieve the theft directly from a person, he or she has committed unarmed robbery according to Michigan law and can be subject to a lengthy incarceration.
A person is guilty of unarmed robbery, contrary to MCL 750.530, if the prosecutor can prove all of the following elements beyond a reasonable doubt (Michigan Criminal Jury Instruction 18.2):
- First, the individual used force or violence against, assaulted, or put in fear a victim.
- Second, the individual did so while he or she was in the course of committing a larceny. A “larceny” is the taking and movement of someone else’s property or money with the intent to take it away from that person permanently. “In the course of a larceny” includes acts that occur in an attempt to commit the larceny, or during commission of the larceny, or in flight after the commission of the larceny, or in an attempt to retain possession of the property or money. The individual does not actually have to be successful in taking or stealing the property to sustain this element as long as he or she used force, violence, assault or fear in an attempt to accomplish the felonious taking. People v Williams, 491 Mich 164, 184, 814 NW2d 270 (2012).
- Third, the victim was present while the individual was in the course of committing the larceny.
The penalty for unarmed robbery is a felony conviction punishable by up to 15 years in state prison.
Unarmed robbery often gets charged in the context of a shoplifting case where the offender makes physical contact with a store employee on the way out of the building, no matter how slight the touching was. It is almost as if a retail fraud-third degree (maximum of 93 days in jail) and an assault and battery (maximum of 93 days in jail) add up to a severe felony that can result in up to 15 years behind bars. Can such a charge be sustained?
In People v Randolph, 466 Mich 532, 648 NW2d 164 (2002), the defendant took about $120.00 of merchandise from a Meijer store and tried to escape with them. When a loss prevention officer in plain clothes identified himself and put him in hold, defendant broke free and swung his arms at the guards. However, in his effort to escape, he lost possession of the merchandise. A jury convicted him of unarmed robbery. On appeal, both the Michigan Court of Appeals and the Michigan Supreme Court found his conviction to be inappropriate. For a robbery to occur, force or violence must be used at the time that the property was taken, not later on when the offender is trying to retain the property:
- “[C]onsistently with the rule under common law, MCL 750.530 must be read to require a taking accomplished by “force or violence, or by assault or putting in fear.” The statute excludes a nonforceful taking, even if force were later used to retain the stolen property. By the same reasoning, force used to escape with stolen property is insufficient to sustain a robbery charge under our statute.” Id at 539.
- “[A]t common law, a robbery required that the force, violence, or putting in fear occur before or contemporaneous with the larcenous taking. If the violence, force, or putting in fear occurred after the taking, the crime was not robbery, but rather larceny and perhaps assault.” Id at 546.
In this case, the force, violence or assaultive behavior took place after the defendant took the merchandise. Unarmed robbery requires that the force or violence take place either before or contemporaneously with the felonious taking. Since this did not happen, defendant’s conviction is reversed and the prosecutor is left to pursue a lesser charge such as assault and battery or larceny in a building.
However, in People v Passage, 277 Mich App 175, 743 NW2d 746 (2007), the defendant was convicted of unarmed robbery in a case arising “out of a theft of a car stereo from a Meijer’s store and defendant’s physical altercation and struggle with the store’s loss-prevention officer and other employees outside the store after defendant was confronted about the unpaid merchandise.” The defendant argued on appeal that he should not have been convicted because the evidence showed he was only trying to evade capture and was not directing any force or violence to any person to take merchandise. The Michigan Court of Appeals disagreed:
- “The statute’s clear and unambiguous language punishes a defendant for using force or violence, committing an assault, or placing a person in fear during flight or attempted flight after the larceny was committed. The statute makes no distinction between using force to evade capture as part of a physical struggle against pursuers in an effort to break free from their grasp or attempts at restraint and force used affirmatively and not within that context. Rather, the use of any force against a person during the course of committing a larceny, which includes the period of flight, is sufficient under the statute. “Force” is nothing more than the exertion of strength and physical power. Exerting strength and physical power to free oneself from another’s grasp constitutes “force” under MCL 750.530. There was evidence that defendant engaged in the use of force during flight, or attempted flight, by physically struggling with Meijer’s personnel and attempting to kick them. Therefore, there was sufficient evidence to support the robbery conviction, given that there is no dispute that defendant committed a larceny.” Id at 178-179.
What was the difference between these cases that lead to different results? In the Rudolph case, the defendant left the merchandise and abandoned his efforts to escape with it. Therefore, he was not using force or violence “in the course of a larceny” when he assaulted the loss prevention officer to leave the store. However, in the Passage case, the defendant already had possession of the merchandise but used force and violence to leave the store with the stolen car stereo. Since he was still “in the course of a larceny”, he could properly be convicted of armed robbery.
Unarmed robbery is a serious felony offense and requires the best legal representation in your corner. The stakes are too high to settle for anything less. A skilled criminal lawyer can assert all of the defenses available to you at law and hold the prosecutor to the high burden of proving guilt beyond all reasonable doubt. If the facts and circumstances do not conform with the law, then the charge should be reduced or dismissed. You get once chance to properly defend against a criminal offense before you risk serious prison time.
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.