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6.4 Introduction to Robbery
Revised to December 1, 2007
Simple robbery is defined in § 53a-133 as a larceny committed with the use or threatened use of physical force. An instruction defining robbery that fails to include the definition of larceny is technically incomplete. State v. Flowers, 69 Conn. App. 57, 70, cert. denied, 260 Conn. 929 (2002). Simple robbery is robbery in the third degree pursuant to § 53a-136. First and second degree robbery are simple robbery with additional elements.
Intent to commit
larceny
The intent of robbery is the intent to
commit larceny; physical force is the means by which larceny is committed.
State v. Leggett, 94 Conn. App. 392, 402-403 n.14, cert. denied, 278 Conn.
911 (2006). The aggravating factors in robbery have no separate intent
requirement. State v. Rice, 25 Conn. App. 646, 648-49 (1991).
In the course of
"It is well established that, under
General Statutes § 53-133, if the use of force occurs during the continuous
sequence of events surrounding the taking or attempted taking, even though some
time immediately before or after, it is considered to be 'in the course of' the
robbery or the attempted robbery within the meaning of the statute." State
v. Ghere, 201 Conn. 289, 297 (1986) (assault occurred subsequent to the
demand for money); State v. Wallace, 56 Conn. App. 730, 740-42, cert.
denied, 253 Conn. 901 (2000) (discussing when subsequent use of force occurs
after the completion of the larceny); State v. Channer, 28 Conn. App.
161, 169-73, cert. denied, 223 Conn. 921 (1992) (in the course of the commission
of the crime would occur after the defendant or a coparticipant has taken some
step in fulfillment of the intent to commit the crime").
Uses or threatens
the use of physical force
The threat of physical force need not be
explicitly uttered. It may be implied. State v. Littles, 31 Conn. App.
47, 54, cert. denied, 227 Conn. 902 (1993) ("threat" has its ordinary meaning
which does not require that a threat be explicitly uttered). "An implied threat
is as effective as a stated threat, especially when the apparent ability to
carry out the threat is overwhelming." Id.
"Both subdivisions (1) and (2) of General Statutes § 53a-133 refer to the defendant's purpose in using or threatening force. . . . These two states of mind are hardly conceptually distinct from each other. . . . Both states of mind [involve] an intent to force or intimidate the victims to yield their property so as to permit its taking or retention by the defendant." (Internal quotation marks omitted.) State v. Torres, 82 Conn. App. 823, 834, cert. denied, 270 Conn. 909 (2004); State v. Brown, 60 Conn. App. 487, 493 (2000); State v. Reyes, 19 Conn. App. 695, 705, cert. denied, 213 Conn. 803 (1989).
Lesser included
offenses
Simple robbery, as defined in § 53a-133
and applied in § 53a-136 (third degree), must be proved before robbery in the
first or second degree is established. See State v. Ghere, 201 Conn.
289, 297 (1986). "[A] defendant cannot be convicted of robbery in the first
degree without first committing a robbery." State v. Latorre, 51 Conn.
App. 541, 546 (1999).
"It is clear that the essential difference between §§ 53a-134 (a) (4) [robbery in the first degree] and 53a-135 (a) (2) [robbery in the second degree] is the type of weapon used. The former is limited to firearms; the latter includes firearms but is not limited to them." State v. Gebeau, 55 Conn. App. 795, 799 (1999), cert. denied, 252 Conn. 922 (2000). Therefore, "[f]or the defendant to have been entitled to a charge on the proposed lesser included offense of robbery in the second degree, there must have been some dispute as to the essential differentiating element, use of a firearm, so that he could have been acquitted of the greater offense and convicted of the lesser." Id. See State v. Harris, 189 Conn. 268, 274-75 (1983) (proof of the operability of the gun was sufficiently in dispute); see also State v. Preston, 248 Conn. 472, 478-79 (1999) (defendant not entitled to a lesser included offense instruction of larceny in the sixth degree, because his use of force for a purpose defined in § 53a-133 was not sufficiently in dispute); State v. Tinsley, 181 Conn. 388, 399-400 (1980), cert. denied, 449 U.S. 1086, 101 S.Ct. 874, 66 L.Ed.2d 811 (1981), overruled on other grounds, State v. Pinnock, 220 Conn. 765, 788 (1992) (defendant not entitled to instruction on robbery because it was not sufficiently in dispute whether he was armed or not).
Simple robbery and larceny from the person are separate crimes. State v. Wright, 246 Conn. 132, 142 (1998). In Wright, the Court rejected the defendant's claim under substantive due process that larceny from the person (a C felony) is a less serious crime than simple robbery (a D felony), because even though both crimes are aggravated forms of larceny, "the trespass to the person of the victim . . . that inheres in larceny from the person potentially is a source of greater harm than the force or threat of force that characterizes a simple robbery." Id., 145-46.
Sentence enhancer: Carjacking
General Statutes § 53a-136a provides an
enhanced penalty for a robbery involving an occupied motor vehicle.
"Carjacking" is not a separate crime. See State v. Edwards, 100 Conn.
App. 565, 596, cert. denied, 282 Conn. 928, and cert. denied, 282 Conn. 929
(2007). The statute provides an enhanced penalty for "any person who commits
robbery by taking a motor vehicle from the person of another knowing that such
motor vehicle is occupied by such other person."
"Taking" is not defined in the Penal Code, so courts have applied its ordinary meaning. "A criminal taking is '[t]he act of seizing an article, with or without removing it, but with an implicit transfer of possession or control.' Black's Law Dictionary (7th ed. 1999). Thus, to prove that the defendant took the victim's vehicle, the state needed to establish that the defendant seized the vehicle from the victim's power and control." State v. Toro, 62 Conn. App. 635, 642, cert. denied, 256 Conn. 923 (2001).
That a motor vehicle was taken
from another person under the conditions of this statute is a factual finding
for the jury to make. This is best accomplished by way of an interrogatory.
See
Sentence Enhancers, Instruction 2.11-4.