Opinion
I.D. 951008270, IN 95-10-0647
Date Submitted: December 17, 2001
Date Decided: February 14, 2002
Paul R. Wallace, Esq., Deputy Attorney General, Department of Justice, 820 N. French Street, Wilmington, DE 19801. Attorney for the State of Delaware.
James A. Bayard, Jr., Esq., Assistant Public Defender, 820 N. French Street, 3rd Floor, Wilmington, DE 19801. Attorney for Defendant.
ORDER
On this 14th day of February 2002, upon consideration of evidence submitted at the bench trial, and legal memorandum filed by both sides, it appears to the Court that:
(1) A bench trial was held on December 11, 2001. Judgment was deferred so that both sides could submit legal memoranda on the key issue of whether the taking of the property from the victim was robbery first degree or theft of a senior.
(2) The victim, a seventy-nine year old woman at the time of the taking, testified that on October 13, 1995 she was shopping at Shoprite in the Chestnut Shopping Center. As the victim exited the store and approached her car, Barry Male ("Defendant") approached her and informed her she had a flat tire. After apparently helping her, the victim went to pay Defendant. She held a twenty dollar bill in one hand and her wallet in the other hand. Defendant grabbed both the twenty dollar bill and the wallet. The victim testified that she held on for dear life to her wallet. On cross-examination, she further testified that she was not forced to take a step forward by Defendant's taking of her wallet.
(3) The State and the Defense both agree that this case hinges on whether Defendant "use[d] the immediate use of force" in taking the victim's wallet. IF force was used, then the Defendant should be convicted of Robbery in the First Degree pursuant to 11 Del. C. § 832. If force was not used, then the Defendant should be convicted of Theft-Felony pursuant to 11 Del. C. § 841(c)(1).
(4) The word "force" should be given its ordinary meaning, as it has no technical meaning peculiar to law. In Harrigan, the Delaware Supreme Court interpreted the term "force in accord with its commonly accepted meaning. The Delaware Supreme Court, in essence, agreed with the Superior Court's interpretation of the word "force."
State v. Harrigan, 447 A.2d 1194 (Del.Super. 1982, aff'd, 447 A.2d 1191 (Del. 1982).
Harrigan, 447 A.2d at 1193.
"Force is strength directed to an end", . . . "power, violence, compulsion or constraint exerted upon or against a person or thing" or "strength or power of any degree that is exercised without justification or contrary to law upon a person or thing" . . . Thus, "force" generally means the capacity or power to persuade, convince, compel, restrain or coerce and does not necessarily imply physical violence. The phrase "threatens the immediate use of force upon another person", as found in 11 Del. C. § 831, would mean a show of power or strength sufficient to compel the giving up of property. This requires, at least, the giving up of property through intimidation.
Harrigan, 447 A.2d at 1196.
(5) The defense argues that since there was no physical contact with the victim, no force was exerted on her. Further, they argue that since the victim was not pulled forward by her resisting the taking, no element of force was proven. The Court disagrees.
(6) Other jurisdictions have held that the snatching of one's property with victim resistance is robbery. Based on the Harrigan definition of force and the holdings of our sister courts, the Court finds beyond a reasonable doubt that Defendant used the immediate use of force upon the victim in taking her wallet. The victim only intended to give Defendant the cash she held in her hand. She testified at trial that she held on for dear life to her wallet. It does not matter that no physical contact was made between Defendant and the victim. It is sufficient that when he attempted to take her wallet and she resisted that he exerted force upon her by taking the wallet from her hand.
Commonwealth v. Zangari, 677 N.E.2d 702, 703 (Mass.App.Ct. 1997) (stating that "where the snatching or sudden taking of property from a victim is sufficient to produce awareness, there is sufficient evidence of force to permit a finding of robbery."); Johnson v. State of Florida, 612 So.2d 689, 690 (Fl.App. 1993) (stating that "[a]ll the force that is required to make the offense a robbery is such force as is actually sufficient to overcome the victims resistance."); Raymond v. State, 467 A.2d 161, 163-4 (Me. 1983) (holding that the mere act of snatching a purse from the victim's hand is a sufficient act of physical force required for robbery.); State v. Williams, 648 P.2d 1354 (Or. 1982).
Based on the foregoing, Defendant is found guilty of Robbery in the First Degree. A pre-sentence investigation is ordered and sentencing will be on April 26, 2002 at 9:30 a.m.
IT IS SO ORDERED.