Reference no: EM131686654

Problem: Did He Take Her Purse by Force?

HISTORY: Erwin Curley, the defendant, was convicted of robbery in the District Court, McKinley County. The defendant appealed. The Court of Appeals, Pickard, J., held that the defendant was entitled to requested instruction on the lesser included offense of larceny. The Court reversed and remanded for a new trial. PICKARD, J. This case requires us to determine:

(1) what force suffices to turn a larceny into a robbery and

(2) whether there is any view of the evidence pursuant to which that force was not shown.

FACTS: The prosecution arose out of a purse snatching. The evidence was that the victim was walking out of a mall with her daughter when Erwin Curley (the defendant) grabbed her purse and ran away. The victim described the incident as follows: "I had my purse on my left side and I felt kind of a shove of my left shoulder where I had my purse strap with my thumb through it and I kind of leaned-was pushed-toward my daughter, and this person came and just grabbed the strap of my purse and continued to run." The victim used the words "grab" or "pull" to describe the actual taking of the purse and "shove" or "push" to describe what the defendant did as he grabbed or "pulled [the purse] from her arm and hand." However, there was also evidence that the victim's thumb was not through the strap of the purse, but was rather on the bottom of the purse. The purse strap was not broken, and the victim did not testify that she struggled with the defendant for the purse in any way or that any part of her body offered any resistance or even moved when the purse was pulled from her arm and hand. The defendant presented evidence that he was drunk and did not remember the incident at all.

OPINION Robbery is theft by the use or threatened use of force or violence. NMSA 1978, § 30-16-2 (Repl.Pamp.1994). Because the words "or violence" refer to the unwarranted exercise of force and do not substantively state an alternative means of committing the offense, we refer simply to "force" in this opinion. The force must be the lever by which the property is taken. Although we have cases saying that even a slight amount of force, such as jostling the victim or snatching away the property, is sufficient, we also have cases in which a taking of property from the person of a victim has been held not to be robbery (wallet taken from victim's pocket while victim was aware that the defendant was taking the wallet). A defendant is entitled to a lesser-included-offense instruction when there is some evidence to support it. There must be some view of the evidence pursuant to which the lesser offense is the highest degree of crime committed, and that view must be reasonable.

Thus, in this case, to justify giving Defendant's larceny instruction, there must be some view of the evidence pursuant to which force sufficient to constitute a robbery was not the lever by which Defendant removed the victim's purse. Defendant contends that such evidence exists in that the jury could have found that Defendant's shoving of the victim was part of his drunkenness, and then the purse was taken without force sufficient to constitute robbery. We agree. The applicable rule in this case is as follows: when property is attached to the person or clothing of a victim so as to cause resistance, any taking is a robbery, and not larceny, because the lever that causes the victim to part with the property is the force that is applied to break that resistance; however, when no more force is used than would be necessary to remove property from a person who does not resist, then the offense is larceny, and not robbery. According to the minority rule adopted by Massachusetts, any purse snatching not accomplished by stealth would be robbery. We are not inclined to overrule cases such as Sanchez, in which we held that the taking of a wallet accompanied by just so much force as is necessary to accomplish the taking from a person who was not resisting was not robbery.

Rather, we adhere to what we perceive to be the majority rule. According to the majority rule, robbery is committed when attached property is snatched or grabbed by sufficient force so as to overcome the resistance of attachment. In cases such as this one, where one view of the facts appears to put the case on the border between robbery and larceny, it is necessary to further explore what is meant by the concept of "the resistance of attachment." Our exploration is informed by the interests protected by the two crimes. Robbery may be classified not only as an offense against property but also as an offense against the person. It is the aspect of the offense that is directed against the person which distinguishes the crime of robbery from larceny and also justifies an increased punishment. Thus, the resistance of attachment should be construed in light of the idea that robbery is an offense against the person, and something about that offense should reflect the increased danger to the person that robbery involves over the offense of larceny. The great weight of authority supports the view that there is not sufficient force to constitute robbery when the thief snatches property from the owner's grasp so suddenly that the owner cannot offer any resistance to the taking. On the other hand, when the owner, aware of an impending snatching, resists it, or when the thief 's first attempt being ineffective to separate the owner from his property, a struggle for the property is necessary before the thief can get possession thereof, there is enough force to make the taking robbery.

Taking the owner's property by stealthily picking his pocket is not taking by force and so is not robbery; but if the pickpocket or his confederate jostles the owner, or if the owner, catching the pickpocket in the act, struggles unsuccessfully to keep possession, the pickpocket's crime becomes robbery. To remove an article of value, attached to the owner's person or clothing, by a sudden snatching or by stealth is not robbery unless the article in question (e.g., an earring, pin or watch) is so attached to the person or his clothes as to require some force to effect its removal. Thus, it would be robbery, not larceny, if the resistance afforded is the wearing of a necklace around one's neck that is broken by the force used to remove it and the person to whom the necklace is attached is aware that it is being ripped from her neck. On the other hand, it would be larceny, not robbery, if the resistance afforded is the wearing of a bracelet, attached by a thread, and the person to whom the bracelet is attached is not aware that it is being taken until she realizes that it is gone. Subtle differences in the amount of force used, alone, is neither a clear nor reasonable basis to distinguish the crime of robbery from that of larceny. However, if we remember that the reason for the distinction in crimes is the increased danger to the person, then an increase in force that makes the victim aware that her body is resisting could lead to the dangers that the crime of robbery was designed to alleviate. A person who did not know that a bracelet was being taken from her wrist by the breaking of a string would have no occasion to confront the thief, thereby possibly leading to an altercation.

A person who knows that a necklace is being ripped from her neck might well confront the thief. We now apply these rules to the facts of this case. Although the facts in this case are simply stated, they are rich with conflicting inferences. Either robbery or larceny may be shown, depending on the jury's view of the facts and which inferences it chooses to draw. In the light most favorable to the State, Defendant shoved the victim to help himself relieve her of the purse, and the shove and Defendant's other force in grabbing the purse had that effect. This view of the facts establishes robbery, and if the jury believed it, the jury would be bound to find Defendant guilty of robbery. However, there is another view of the facts. Defendant contends that the evidence that he was drunk allows the jury to infer that the shove was unintentional and that the remaining facts show the mere snatching of the purse, thereby establishing larceny. Two issues are raised by this contention that we must address:

(1) Is there a reasonable view of the evidence pursuant to which the shove was not part of the robbery? and

(2) even disregarding the shove, does the remaining evidence show only robbery?

We agree with Defendant that the jury could have inferred that the shove was an incidental touching due to Defendant's drunkenness. Defendant's testimony of his drunkenness and the lack of any testimony by the victim or any witness that the shove was necessarily a part of the robbery permitted the jury to draw this inference. Once the jury drew the inference that the shove was independent of the robbery, the jury could have found that Defendant formed the intent to take the victim's purse after incidentally colliding with her. Alternatively, the jury could have found that Defendant intended to snatch the purse without contacting the victim and that the contact (the shove) was not necessary to, or even a part of, the force that separated the victim from her purse. The victim's testimony (that she felt "kind of a shove" and then Defendant grabbed her purse) would allow this inference. Thus, the jury could have found that the shove did not necessarily create a robbery. The question would then remain, however, whether the grabbing of the purse was still robbery because more force was used than would have been necessary to remove the purse if the victim had not resisted. Under the facts of this case, in which the victim did not testify that she held the strap tightly enough to resist and in which there was some evidence that she was not even holding the strap, we think that there was a legitimate, reasonable view of the evidence that, once the shove is eliminated from consideration, Defendant used only such force as was necessary to remove the purse from a person who was not resisting. Under this view of the facts, Defendant took the purse by surprise from a person who was not resisting, and not by force necessary to overcome any resistance. Therefore, the trial court should have given Defendant's tendered larceny instructions. Defendant's conviction is reversed and remanded for a new trial.

Questions: 1. List all of the evidence relevant to determining whether the purse snatching was a robbery.

2. State both the majority and the minority rule regarding the element of force in purse snatching.

3. Summarize the evidence in favor of and against each rule.

4. In your opinion, which is the better rule? Defend your answer.