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100.1 Robbery

    100.1.9 Robbery: Defense Theory That The Intent To Steal Was Formed After The Taking And/Or The Application Of Force

    100.1.9.1 Robbery: Defense Theory That Intent To Steal Was Formed After Application Of Force
    100.1.9.2 Robbery: Intent Formed After Termination As Defense Theory To Accomplice Liability
    100.1.9.3 Defense Theory Based On Termination Of Felony: Both Accomplice Liability And Felony Murder Liability Issues In Same Case

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 VOLUME 7 - CHAPTER 100

    100.1.9.1    Robbery: Defense Theory That Intent To Steal Was Formed After Application Of Force                                   

RATIONALE: Robbery liability should not be imposed when the taking occurs as an afterthought subsequent to the application of force because there is no concurrence of act and intent and, as a matter of policy, such a result does not deter the use of force.

POINTS AND AUTHORITIES: Many jurisdictions permit robbery to be found even if there was no intent to steal before or during the application of force but such intent arose afterward. ((LaFave & Scott, Substantive Criminal Law (West, 1986) § 8.11 p. 453 and fn 96; see also Wharton’s Criminal Law (West, 15th ed. 1993) § 455, p. 7 ["If a defendant takes property from another after having beaten him in a fight, he is guilty of robbery without regard to whether he formed the intent to rob before or after the beating." [Footnote omitted.]].)

    However, such a rule is contrary to the general rule that mens rea must concur with actus reus. (See FORECITE National™ 43.5 [Requirement That Criminal Intent And Requisite Mental State Concur With Criminal Act]; see also People v. Bradford (CA 1997) 14 C4th 1005, 1055-57 [60 CR2d 225] [failure to instruct on theft based on after acquired intent was reversible error as to robbery conviction]; Miles v. State (GA 1991) 403 SE2d 794, 796 [no robbery where defendant strangled victim and took property but order of events was not proven]; Shepperson v. Commonwealth (VA 1995) 454 SE2d 5, 8 [intent to steal formed after the victim has been killed for a different reason supports larceny only]; LaFave & Scott, Substantive Criminal Law (West, 1986)  § 8.11(e).)

    Moreover, "[t]he principal policy served by [the imposition of] greater punishment [for robbery than larceny from the person] is deterrence of the use of force (and the accompanying risk to human life) to obtain money or other property. [Citation.] This policy is not served where the intent to steal is not formed until after the assault." (Commonwealth v. Moran (MA 1982) 442 NE2d 399, 401.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.7; 4.1].

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

    To convict the defendant of robbery you must find that [he] [she] had the specific intent to steal at the time of the application of force or violence, or the use of fear or intimidation.

    The defendant in this case has introduced evidence that the intent to steal arose after the application of force or fear upon the victim. If after consideration of all the evidence you have a reasonable doubt that defendant had the intent to steal at the time the force or fear was applied, you must find [him] [her] not guilty of robbery.

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    100.1.9.2    Robbery: Intent Formed After Termination As Defense Theory To Accomplice Liability

RATIONALE: When the defendant is charged with robbery based on an accomplice liability theory, the facilitating acts and intent must occur before the robbery has terminated. Therefore, when appropriate, the instructions should explain to the jury when a robbery terminates.

POINTS AND AUTHORITIES: The duration of a robbery has been defined by the asportation of the property taken. For example, in California it has been held that purposes of accomplice liability "the commission of a robbery continues so long as the loot is being carried away to a position of temporary safety." (People v. Cooper (CA 1991) 53 C3d 1158, 1159 [282 CR 450]; see also U.S. v. Martin (11th Cir 1985) 749 F2d 1514, 1518.)

    Hence, a defense theory to a robbery charge based on accomplice liability is that the intent to aid was formed after the loot was abandoned or taken to a position of temporary safety. (See generally FORECITE National™ 43.5 [Requirement That Criminal Intent And Requisite Mental State Concur With Criminal Act]; see also FORECITE National™ 45.3.3 [Criminal Liability: After Acquired Intent Insufficient].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.7; 4.1].

USE NOTES: For ancillary purposes, such as felony murder, commission of the robbery is defined in terms of escape, not asportation. (Cooper, 53 C3d at 1158.) When both aiding and abetting and ancillary liability are at issue the jury should be clearly instructed as to the different definitions. (See FORECITE National™ 100.1.9.3 [Defense Theory Based On Termination Of Felony: Both Accomplice Liability And Felony Murder Liability Issues In Same Case].)

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

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RATIONALE: Determining whether a felony has terminated for purposes of accomplice liability may be different than for purposes of the felony murder rule. Therefore, when appropriate the instructions should explain this difference to the jury.

POINTS AND AUTHORITIES: There are two ways of analyzing whether a felony has terminated. One is to consider the felony as continuing during the escape. This is typically applied to a determination of felony murder which normally focuses on whether the unlawful taking of a human life is reasonably expected to result from the commission of the offense. (See e.g., State v. Bongiorno (IL 1934) 192 NE 856, 858.)

    The other analysis looks to the point where all the elements of the offense have been completed. This approach is typically used to determine liability of an alleged accomplice for the substantive offense. (See e.g., People v. Dennis (IL 1998) 692 NE2d 325, 332; State v. Baker (NJ 1997) 697 A2d 145, 148; People v. Cooper (CA 1991) 53 C3d 1158, 1169 [282 CR 450].)

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

NOTE: Cooper is an example of the elements test because it construed the asportation element of robbery to include the period of escape with the loot. (See Cooper, 53 C3d at 1169 ["in delineating a crime it is logical to look to the elements that constitute that crime"]; see also People v. Dennis (IL 1998) 692 NE2d at 332.) However, "[i]f the crime itself does not include escape as an element, it follows that the escape should not be considered part of the crime for determining whether the accused committed the crime." (People v. D.C. (IL 1994) 631 NE2d 883, 887.)

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