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100.1 Robbery

    100.1.13 Robbery: Miscellaneous Defense Theories

    100.1.13.1 Robbery: Lack Of Asportation As Defense Theory
    100.1.13.2 Victim's Fear Must Be Known To The Defendant
    100.1.13.3 Robbery: Defense Theory That Force Was Used After The Taking Was Complete
    100.1.13.4 Attempted Robbery: Reconnoitering Is Insufficient
    100.1.13.5 Attempted Robbery: Possession Of "Tools" Is Not Sufficient
    100.1.13.6 Attempted Robbery: Assembling Disguises, Obtaining Weapons And "Casing" A Bank Not Sufficient For Attempt
    100.1.13.7 Voluntary Intoxication Not A Defense Theory To Federal Bank Robbery (18 USC 2113(a))

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    100.1.13.1    Robbery: Lack Of Asportation As Defense Theory

PRACTICE NOTE: In some jurisdictions, an essential element of robbery is the "asporting or carrying away [of] the loot." (See e.g., People v. Cooper (CA 1991) 53 C3d 1158, 1165 [282 CR 450]; see also People v. Shannon (CA 1998) 66 CA4th 649, 654 [78 CR2d 177] [element of asportation requires that the goods be severed from the possession or custody of the owner and moved slightly with the intent to permanently deprive the owner of it]; Nelson v. State (IN 1988) 528 NE2d 453, 455; Turner v. State (OK 1974) 515 P2d 1167, 1168.)    

See FORECITE National™ 100.1.1.2 [Robbery: Federal Circuit Model Instructions And Notes].

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    100.1.13.2    Victim's Fear Must Be Known To The Defendant

RATIONALE: A defense theory to robbery may be based on the defendant's unawareness of the victim's fear.

POINTS AND AUTHORITIES: See LaFave & Scott, Substantive Criminal Law (West, 1986) § 8.11 (2d ed. 1986); see also State v. Belue (ID 1990) 902 P2d 489, 491-92.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See FORECITE National™ 100.1.1.2 [Robbery: Federal Circuit Model Instructions And Notes].

    The prosecution must prove beyond a reasonable doubt that the defendant knew the taking was being accomplished as a result of his use of violence or intimidation.

[See generally LaFave & Scott, Substantive Criminal Law (West, 1986) § 8.11 (2d ed. 1986); cf. Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS II(D) Inst. 1 [Definition Of Robbery] p. 154, (South Carolina CLE, 1994).]

SAMPLE INSTRUCTION # 2:

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PRACTICE NOTE: In some jurisdictions it may be argued that if the larceny elements are completed without the assaultive elements, and subsequently the thief uses force to prevent the victim from recovering the property, there is a larceny and an assault and/or battery, but there is no robbery. (See People v. Randolph (MI 2002) 648 NW2d 164 [crime of larceny is not transformed to robbery by the perpetrator’s use of force after the taking and before he reaches temporary safety]; but see People v. Webster (CA 1991) 54 C3d 411, 441-42 [285 CR 31] [even if the original taking is peaceful, a robbery occurs if force or fear is subsequently employed "in order to make good the theft or escape"].)  This becomes a factual question as to whether the assaultive elements are part of the res gestae of the larceny. (See Perkins & Boyce, Criminal Law (Foundation Press, 1982) at 349; see also FORECITE National™ 45.3.3 [Criminal Liability: After Acquired Intent Insufficient]; see also FORECITE National™ 100.1.2.3 [Robbery: Using Force To Retain Property As Robbery]; FORECITE National™ 100.1.9 [Robbery: Defense Theory That The Intent To Steal Was Formed After The Taking And/Or The Application Of Force]; FORECITE National™ 100.1.13.3 [Robbery: Defense Theory That Force Was Used After The Taking Was Complete].)   

See FORECITE National™ 100.1.1.2 [Robbery: Federal Circuit Model Instructions And Notes].

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    See FORECITE National™ 66.2.3 [Attempt: Reconnoitering Is Insufficient].

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    See FORECITE National™ 66.2.5 [Attempted Robbery: Possession Of "Tools" Is Not Sufficient].

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    See FORECITE National™  66.2.4 [Assembling Disguises, Obtaining Weapons And "Casing" A Bank Not Sufficient For Attempt].

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PRACTICE NOTE:  Bank robbery as proscribed in 18 USC 2113(a) is a general intent offense (Carter v. U.S. (2000) 530 US 255, 268 [120 SCt 2159; 147 LEd2d 203]) and, therefore, voluntary intoxication does not negate the intent element of bank robbery. (U.S. v. Sewell (2nd Cir. 2001) 252 F3d 647, 651[bank robbery defendant claiming he was high on crack cocaine at the time of robbery not entitled to introduce evidence to that effect or have jury instructed on it].)