Opinion
I.D. Nos. 0908028577, 0908028573, 0908028554, 0908028570.
Submitted: February 17, 2010.
Decided: March 4, 2010.
On Defendants Marvin Mencia and Jeffrey Johnson's Motion to Dismiss Counts III — XII of the Indictment.
DENIED.Shawn E. Martyniak, Esquire, Deputy Attorney General, Department of Justice, Carvel State Office Building, Wilmington, Delaware, Attorney for the State.
Patrick J. Collins, Esquire, Aaronson Collins, LLC, Wilmington, Delaware, Attorneys for Defendant Marvin Mencia.
Anthony A. Figliola, Jr., Esquire, Figliola Facciolo, Attorney for Defendant Jeffrey Johnson
By facsimile and U.S. Mail.
Dear Counsel:
INTRODUCTION
Defendants, Marvin Menica and Jeffery Johnson (along with two other co-defendants), are charged with numerous felonies stemming from a robbery that occurred at an Artisans Bank in Bear. During the robbery, six bank tellers were removed from their stations and held at gunpoint in a bathroom, but only one of the six tellers was forced to assist the defendants in opening the bank vault. After the vault was open, the defendants absconded with the money that they had taken from the vault and from the vacant teller stations.
This motion to dismiss was originally filed by Defendant, Marvin Menica. Defendant Johnson joined in the motion. The other two co-defendants have not joined in this motion or filed any similar motion.
The only issue in the defendants' motion to dismiss is whether the State can charge the defendants with separate Robbery First Degree counts for each bank teller that was confined in the bathroom when the defendants stole money from their teller stations. This Court has determined that the State may charge the defendants with separate Robbery First Degree counts and related Possession of a Deadly Weapon During the Commission of a Felony counts for each of the five bank tellers because the tellers had a "custodial" interest in the money that was taken from the bank. Accordingly, the defendants' motion to dismiss is DENIED.
FACTS and PROCEDURAL HISTORY
The four defendants are currently charged with six counts of Robbery First Degree, six counts of Possession of a Deadly Weapon During the Commission of a Felony, three counts of Aggravated Menacing, six counts of Kidnapping Second Degree, one Count of Conspiracy Second Degree, one count of Wearing a Disguise During the Commission of a Felony, and one count of Possession of a Firearm With a Removed, Altered or Obliterated Serial Number.The charges arise out a robbery that occurred at an Artisans Bank on August 31, 2009. At approximately 9:10 a.m., the defendants allegedly entered the bank and ordered the bank tellers to leave their stations and go towards the bathroom. The defendants then held the tellers at gunpoint in the bathroom, along with several bank customers, and ordered one of the tellers, Nancy Womer, to help them unlock the bank vault. After the vault was unlocked, the defendants proceeded to take money from the vault and from the teller stations. After securing the money, the defendants fled from the bank and were later apprehended by police.
Id. at ¶ 4.
Id. at ¶ 5.
Id.
Id.
Defendants Marvin Menica and Jeffrey Johnson have now filed a motion asserting that this Court should dismiss the five Robbery First Degree charges and the related weapons offenses because, they argue, the State improperly charged the defendants with Robbery First Degree of the five tellers who did not help the defendants open the vault. The defendants argue that the five tellers ordered to the bathroom were not "compelled to give up property" (a requirement of Robbery First Degree). Defendants argue that holding the tellers at gunpoint is not enough to sustain a charge of Robbery First Degree and argue that charges of Aggravated Menacing as to the five tellers would be the legally sustainable charges. Moving Defendants do not seek dismissal of the Robbery First Degree and Possession of a Deadly Weapon During the Commission of the Felony charges as to Nancy Womer.
Counts III, V, VII, IX, and XI.
Counts IV, VI, VIII, X, and XII.
Mot. to Dismiss at ¶ 8.
Id. All defendants are also charged with numerous counts of Aggravated Menacing relating to the customers threatened during the bank robbery.
In response, the State argues that "1) the employees were forced from their teller stations specifically to thwart any interference with the defendants robbing those stations and 2) bank employees have a custodial interest in their employer's money; robbery charges are completely appropriate when those employees are held at gun-point while the bank is robbed."
State's Resp. at 3.
DISCUSSION
Robbery First Degree is defined by 11 Del. C. § 832.a) A person is guilty of robbery in the first degree when the person commits the crime of robbery in the second degree and when, in the course of the commission of the crime or of immediate flight therefrom, the person or another participant in the crime:
(1) Causes physical injury to any person who is not a participant in the crime; or
(2) Displays what appears to be a deadly weapon or represents by word or conduct that the person is in possession or control of a deadly weapon; or
(3) Is armed with and uses or threatens the use of a dangerous instrument; or
(4) Commits said crime against a person who is 62 years of age or older.
Robbery in the Second Degree (a prerequisite to a charge of Robbery in the First Degree) is defined as:
a) A person is guilty of robbery in the second degree when, in the course of committing theft, the person uses or threatens the immediate use of force upon another person with intent to:
(1) Prevent or overcome resistance to the taking of the property or to the retention thereof immediately after the taking; or
(2) Compel the owner of the property or another person to deliver up the property or to engage in other conduct which aids in the commission of the theft.
Delaware Courts have previously held that "a single bank robbery may spawn many robbery victims, typically the bank's tellers whose cash drawers are "cleaned-out." Thus, in State v. Bridgers, this Court allowed separate robbery charges for a bank employee who did not "actively participate" in the robbery.
State v. Bridgers, 2007 WL 7042545, at * 1 (Del. Super. 2007), aff'd, 2009 WL 824536 (Del. Supr.); see also Ross v. State, 1989 WL 27744 at *1 (Del. Supr.) ("It is clear that the Delaware General Assembly intended that when one robs several persons, albeit in a single episode, such an offender may be separately punished for each robbery.").
Id. at * 4-5.
In Bridgers, the robbers robbed a bank and threatened the bank employees and customers with firearms. During the course of the robbery, the robbers commanded one employee ("Gleason") "to order her tellers to step back and away from their stations to facilitate the robbery." The robbers also "frog-marched" another employee ("Kirk") from his office and ordered him to move across the bank to where other customers were being held.
Id. at * 1.
Id.
Id.
This Court in Bridgers held that the State was permitted to charge the robbers with Robbery First Degree for both Gleason and Kirk. This Court held that "[a]lthough neither employee gave anything to Defendants, Gleason actively participated in the theft, and they both had a custodial interest in the bank's money . . . In theory, a jury could find that neutralizing employees during a bank robbery by threatening them is casually related to the theft." Bridgers concluded by noting that:
Id. at * 4-5.
Id. at * 5.
The jury should be told that to be a robbery victim, a person must have property taken from him or her, including property the person controls. Otherwise, the victim must become involved or Defendant must force the victim to become involved in the theft, and be threatened by Defendant in the process. A person who only is forced to watch a theft or a robbery from another person and who is not otherwise involved is not a robbery victim.
Id.
The present case is quite similar to the facts in Bridgers. Here, the defendants ordered the bank tellers from their stations using threats of violence and brandishing handguns. The tellers were then ordered into a bathroom and one teller assisted the defendants by opening the vault. Thus, much like Bridgers where Robbery First Degree charges were permitted as to Kirk even though he physically gave the robbers nothing, this Court will not dismiss the Robbery First Degree charges and related weapon charges even though five of the six tellers did not actively give the defendants money or otherwise assist the defendants.
Additionally, charges of Robbery First Degree are appropriate in the present case because employees of a bank are considered to be in "constructive possession" of the bank's money. LaFave states that: "[j]ust as with larceny the thief need not steal from the owner, so too, for robbery, the robber may rob one who has possession or custody of property. . . ." A recent California case is on point: "[t]wo or more persons may be in joint constructive possession of a single item of personal property, and multiple convictions of robbery are proper if force or fear is applied to multiple victims in joint possession of the property taken."
Wayne R. LaFave, Substantial Criminal Law § 20.3(a)(2) (2nd ed. 2003).
People v. Scott, 200 P.3d 837, 841 (Cal. 2009); see also State v. Rupe, 683 P.2d 571, 589 (Wash. 1984) (stating that for the crime of robbery "[p]ossession or custody [of property] will suffice. Here, each teller was individually responsible for money in her till. Each had control and possession of that money and each had the money taken by the use of force.").
Here, although the bank was the "owner" of the money that was stolen, the five tellers exercised control over that money while on duty. Thus, those tellers had "constructive possession" of the bank's money; Robbery First Degree charges and related weapons charges are legally sustainable for the offenses against the five non-assisting tellers because a person does not need to own property to be a victim of a robbery.
For all the above reasons, this Court holds that charges of Robbery First Degree and related weapons offenses are legally sustainable subject, of course, to appropriate proof at trial. Defendants' motion to dismiss those five Robbery First Degree charges and the related weapons offenses is DENIED.