August 9, 2006
An attorney I know has a robbery case, one of those shoplifting cases gone bad, where the defendant has a tussle with security officer at Home Depot over a pair of wirecutters and winds up with a first degree felony charge instead of a petty theft. That's based on him supposedly swatting the guard with a 14-inch pipe wrench, a sequence of events which, at least according to the videos, happened in a dimension of time and space other than the one we're currently occupying. That still leaves the defense with a problem: does the tussle with the security guard establish the element of force, which is sufficient for a robbery, albeit one that's a third degree felony?
There's a great case out of our district on this, State v. Eskridge, which holds that it might not be. The defendant had gone to Angela's Family Restaurant and ordered a cup of coffee. Apparently dissatisfied with the quality of the brew, when the cashier opened the register, he reached over the counter, grabbed a fistful of dollars, and dashed out the door. The cashier claimed that he pushed her when he grabbed the money, and although the defendant denied it and the video evidence was inconclusive, that was sufficient for the jury to convict him of robbery.
The court of appeals, though, reversed the conviction, finding that even if there was a slight push, that wasn't sufficient to elevate the crime from a simple theft to a robbery. The court looked at prior case law, and the committee comments to the robbery section, and concluded that the force element wasn't satisfied if the force used wasn't enough to pose a danger of physical harming the victim, or causing the victim fear.
It's not quite time to put on the party hats, though; there are plenty of cases out there which hold that the defendant scuffling to get away, even if he isn't intending to cause harm and does nothing more than swing his arms around, is enough to get him convicted of the lesser offense of robbery. That's what happened in State v. Sumlin, where the defendant grabbed a steak, stuffed it in his pants [your joke here], and tried to run out of the store, only to be tackled by the security guard. The court held that the defendant's attempt to break away from the guard was sufficient force to constitute a 3rd degree felony robbery, and cited a bunch of cases holding the same way.
If you look at the robbery section closely, though, you find an interesting anomaly. Under 2911.02(A)(2), the prosecution has to prove that the defendant "inflicted, attempted to inflict, or threatened to inflict physical harm on another." Under 2911.02(A)(3), the state has to prove the defendant "used or threatened the immediate use of force against another." if, as Eckridge holds, the force element requires sufficient force to pose a danger of physical harm, what's the difference between (A)(2) and (A)(3)?
What happened here is the changes made to the criminal code in 1996. Up to that point, aggravated robbery was robbery with a gun or where serious physical harm occurred, and simple robbery was where force was involved. In that context, it was perfectly understandable to define force in terms of the potential for physical harm. In light of the change in the statute, that's not so clear-cut: if the force required is sufficient to pose the risk of harm, the state can make the argument that you've now got a felony under (A)(2) instead of (A)(3).
Yeah, bet you'll be spending the rest of the week pondering that one, huh? See you tomorrow.