Opinion
19-P-355
01-21-2020
COMMONWEALTH v. Kallahn T. WINBUSH.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction, after a District Court jury trial, of attempt to commit a crime (unarmed robbery), G. L. c. 274, § 6. See also G. L. c. 265, § 19 (b ). We agree with the defendant that the evidence of that offense was insufficient. We will therefore vacate the judgment and remand for the entry of judgment on the lesser included offense of attempted larceny from the person.
Background. We recount the facts as the jury could have found them, viewing the evidence in the light most favorable to the Commonwealth. The victim was an eighteen year old woman who worked as the manager at a thrift store. One evening as the 8 P.M. closing time approached, the defendant entered the store in a group of four to five "boys." The victim, who was in the process of rearranging the bills in the cash register, asked the defendant to leave his backpack behind the counter. The defendant asked, "Why? Because I'm black?" The victim replied in the negative, saying she was merely following store rules.
The defendant was nineteen years old at the time, although no evidence of this fact was presented to the jury.
She testified that, for loss prevention purposes, the store had a policy of asking customers to leave any backpack or bag (other than a small purse) behind the counter and that the policy applied to all customers regardless of age, race, or gender.
The defendant gave her his backpack and then stood in front of the counter, close to and looking at her, while his friends shopped. The victim then spoke in Spanish to her coworker, a sixteen year old girl, and explained that the defendant was mad because she had asked for his backpack. The defendant asked the victim whether she was talking about him; she replied that she was and told him what she had said to her coworker.
At this point, as the victim continued to rearrange the money from the cash register, the defendant said, "If I wanted to rob you I could take all the money that you have in your hands right now." The victim became scared and felt threatened, thinking the defendant "was actually going to harm me in some way," because at this point his friends were standing next to him and she was standing only with her female coworker. She described his attitude as "aggressive" and "angry."
She therefore put the money back into the register. She saw that there was a bill on top of the counter, although she did not see its denomination at that time. The defendant asked for his backpack; she gave it to him and asked him to leave; he then took the bill off the counter and started to walk out of the store. The victim told him that she was going to call the police, and she picked up a telephone and began to report what had happened. When the defendant saw and heard this, he walked back into the store and threw the money on the counter. The victim then noticed that it was a one dollar bill, although earlier she "thought it had been more money." She later identified the defendant from a photographic array shown to her by police.
Sufficiency. We review to determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979). "When evaluating sufficiency, the evidence must be reviewed with specific reference to the substantive elements of the offense." Commonwealth v. Arias, 78 Mass. App. Ct. 429, 434 (2010).
Robbery is "the unlawful taking and carrying away of the personal property of another with the specific intent to deprive the person of the property permanently," with the additional requirement "that force and violence be used against the victim or that the victim be put in fear." Commonwealth v. Johnson, 379 Mass. 177, 181 (1979). Moreover, "in every case there must be a causal connection between the defendant's use of violence or intimidation and his acquisition of the victim's property." Commonwealth v. Jones, 362 Mass. 83, 87 (1972).
The defendant's focus is on the issue of causation. On the existence of the causal link itself, the evidence is far from overwhelming. Nevertheless, the jury might possibly have inferred that the defendant's putting the victim in fear caused her, as she put the money in the cash register, to become rattled or distracted; this, in turn, led her to leave one bill on the counter in front of her, creating the opportunity for him to take it. Were this an unarmed robbery case, that might suffice.
But this is an attempt case, and so proof of the causal link itself is not what is required. "The elements of attempt ... are (1) the specific intent to commit the substantive crime at issue, and (2) an overt act toward completion of the substantive crime." Commonwealth v. LaBrie, 473 Mass. 754, 764 (2016). "[A]ttempt crimes have as an element a specific intent to commit all of the elements of the offense." Commonwealth v. Aldrich (No. 1), 88 Mass. App. Ct. 113, 118 (2015). See Commonwealth v. Foley, 24 Mass. App. Ct. 114, 117 n.5 (1987). Thus, attempted unarmed robbery requires proof, among other things, that the defendant specifically intended that his use of violence or intimidation against the victim have a causal link to acquisition of the property. As the Commonwealth acknowledged at oral argument, this case required proof that the defendant specifically intended to put the victim in fear for the purpose of taking the money. The judge so instructed the jury.
The judge instructed that attempt required "a specific intent to commit a crime," which in this case required proof "[f]irst, that the defendant intended to take and carry away money or other property from the person of the alleged victim; second, that he intended to do this against the alleged victim's will ... by assaulting and putting the alleged victim in fear[;] and, third, that he intended to steal the money or property, that is, to deprive the alleg[ed] victim of it permanently." The judge thus instructed that specific intent to commit each of the elements of unarmed robbery must be proven. Although the causation requirement could have been stated more clearly, it was conveyed through the phrase, "he intended to do this against the alleged victim's will ... by assaulting or putting the alleged victim in fear" (emphasis added), and by repetition of similar phrases elsewhere in the instructions. Because we rule in the defendant's favor on sufficiency grounds, we need not resolve his claim that the instruction was defective in describing the causation requirement.
On that issue, the evidence was insufficient. Although the jury could certainly find that the defendant -- angry because he felt he had been singled out based on his race -- made a remark intended to put the victim in fear, there was simply no evidence that he did so in order to facilitate his taking money from her presence. That she inadvertently left a bill on the counter after he made his remark cannot support an inference or finding beyond a reasonable doubt that he specifically intended his remark to have that, or any similar, effect. Cf. Commonwealth v. Silva, 482 Mass. 275, 289 (2019) (approving jury instruction stating that "any inference constituting an element of an offense must be established beyond a reasonable doubt"); Commonwealth v. Rodriguez, 456 Mass. 578, 583 (2010) (reversing conviction where inference required to prove element of offense "may be plausible, but cannot bear the weight of proof beyond reasonable doubt").
The Commonwealth acknowledged at oral argument that there was no evidence that the defendant and his friends went into the store with any plan to rob it.
The evidence was, however, sufficient to convict the defendant of attempted larceny from the person. Accordingly, the judgment of conviction on the charge of attempted unarmed robbery is vacated, and the case is remanded to the District Court for entry of a judgment of conviction on the offense of attempted larceny from the person.
Larceny from the person, G. L. c. 266, § 25 (b ), is a lesser included offense of robbery. Commonwealth v. Ahart, 37 Mass. App. Ct. 565, 570 (1994), citing Jones, 362 Mass. at 85-87. At oral argument the defendant correctly agreed that if the evidence here were insufficient only on the element related to fear (i.e., to placing the victim in fear for the purpose of obtaining property from her), the appropriate disposition would be a remand for the entry of judgment on attempted larceny from the person.
"Where, as here, a jury convicted a defendant of the greater crime but there was insufficient evidence of a required element, and where the remaining untainted elements include all the elements of a lesser included offense, we generally correct the error by vacating conviction of the greater crime, and remanding for entry of conviction of the lesser included offense and for resentencing on that lesser offense." Commonwealth v. Labadie, 467 Mass. 81, 88, cert. denied, 574 U.S. 902 (2014). Here, we are informed that the defendant has already fully served his sentence, and thus no resentencing is appropriate. See Commonwealth v. Padua, 479 Mass. 1004, 1005-1006 (2018).
So ordered.
Vacated and Remanded.