The Massachusetts Appeals Court has concluded that an indictment for unarmed robbery need not charge what type of force the defendant used. See Commonwealth v. Jones (Jones II ), 12 Mass.App.Ct. 489, 426 N.E.2d 726, 727 (1981) ("The particular type of force, actual or constructive, by which the robbery is committed is not an essential element of the crime, and it need not be pleaded in the indictment."). This holding is consistent with the language Massachusetts statutory law has long deemed "sufficient" for a robbery indictment.

In any event, under the approach to divisibility employed by the First Circuit in Tavares, 843 F.3d at 14–18, the offense is indivisible because the Supreme Judicial Court has held that a specific unanimity instruction need not be given regarding whether robbery was committed by "force or violence" or "assault and putting in fear." See Santos, 440 Mass. at 284–90, 797 N.E.2d 1191 ; see also Commonwealth v. Jones, 12 Mass.App.Ct. 489, 491, 426 N.E.2d 726 (1981) ("The particular type of force, actual or constructive, by which the robbery is committed is not an essential element of the crime, and it need not be pleaded in the indictment."). Therefore, Massachusetts unarmed robbery is never a violent felony within the meaning of the ACCA.

The essence of robbery is the exertion of force, actual or constructive, against another in order to take personal property of any value whatsoever, with the intention of stealing it from the protection which the person of that other affords. Commonwealth of Massachusetts v. Jones, 426 N.E.2d 726, 727 (Mass. App. 1981) (quotation marks and citations omitted). ¶ 9 While the use of force could be a robbery under the Pennsylvania statute, if the force caused or threatened serious bodily injury, it could be just as easily a robbery under subsection (iv) and perhaps even under (v).

Id. at 930. See Commonwealth v. Jones, 12 Mass. App. Ct. 489, 490-491 (1981); G.L.c. 277, § 21. See also Commonwealth v. Jordan, 207 Mass. 259, 266-267 (1911), aff'd, 225 U.S. 167 (1912). 2.

Commonwealth v. Jones, 362 Mass. 83, 87 (1972). Commonwealth v. Jones, 12 Mass. App. Ct. 489, 491 (1981). The defendant who "threatens the imminent use of force," G.L.c. 265, § 18C, has committed criminal assault regardless of whether the dwelling's occupant was in fear or apprehension of harm, Commonwealth v. Dixon, 34 Mass. App. Ct. 653, 657 (1993), or whether the defendant actually intended to harm the occupant.

Any vaguely burden-shifting tendency in one or two sentences of the charge viewed in isolation was more than adequately compensated for by clear, repeated, and emphatic instructions listing the elements of the offense and stating that the Commonwealth had the burden to prove each element beyond a reasonable doubt. 3. If there was error in instructing the jury that assault and battery was a lesser offense included within robbery (as to which see Commonwealth v. Jones, 362 Mass. 83, 86-87 [1972]; Commonwealth v. Jones, 12 Mass. App. Ct. 489, 491 [1981]), the error was rendered immaterial by the jury's finding the defendant guilty of the greater rather than the lesser charge. Judgment affirmed.

The amendment before us effected no material change in substance or in the essential elements of the crime as originally stated by the grand jury. See Commonwealth v. Parrotta, 316 Mass. 307, 308-312 (1944); Commonwealth v. Jones, 12 Mass. App. Ct. 489, 490-491 (1981). Compare Commonwealth v. Balliro, 385 Mass. 618, 619 (1982); Commonwealth v. Morse, 12 Mass. App. Ct. 426, 427-428 (1981).

It appears, then, that the defendant was not prejudiced by any ambiguity as to the precise location at which the offense was alleged to have occurred. See Commonwealth v. Jones, 12 Mass. App. Ct. 489, 491-492 (1981). Nor does it appear that the defendant sought clarification by way of a motion for a bill of particulars (Mass.R.Crim.P. 13(b), 378 Mass. 872 [1979]; see G.L.c. 277, § 34), or by means of the pretrial conference agreement in this case, Mass.R.Crim.P. 11(a), 378 Mass. 862 (1979).

There was no prejudice to LaFrennie. See Mass.R.Crim.P. 4(d), 378 Mass. 849 (1979); Commonwealth v. Jones, 12 Mass. App. Ct. 489, 491-492 (1981), and cases cited. See also Commonwealth v. Liebman, 379 Mass. 671, 676 (1980).

As the Supreme Judicial Court described in affirming an unarmed robbery conviction involving a purse snatching in Commonwealth v. Jones, 362 Mass. 83, 87-89, 283 N.E.2d 840 (1972), " the degree of force" required for unarmed robbery " is immaterial as long as it is sufficient to obtain the victim's property 'against his will.'" See also Commonwealth v. Zangari, 42 Mass.App.Ct. 931, 932, 677 N.E.2d 702 (1997) (although defendant argued the force applied to the victim " was no more or little more than that used by a pickpocket" and that " some substantial force should be required to convict of unarmed robbery, " conviction affirmed because " 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" (emphasis added; quotations omitted)); Commonwealth v. Jones, 12 Mass.App.Ct. 489, 491, 426 N.E.2d 726 (1981) (" The particular type of force, actual or constructive, by which the robbery is committed is not an essential element of the crime"); Commonwealth v. Brown, 2 Mass.App.Ct. 883, 884, 318 N.E.2d 486 (1974) (pulling purse from victim's hand constitutes sufficient " force and violence"). Force that is " sufficient to produce awareness" in the victim, and that will support a conviction for unarmed robbery, Zangari, 42 Mass.App.Ct. at 932, quoting Commonwealth v. Davis, 7 Mass.App.Ct. 9, 11, 385 N.E.2d 278 (1979), may be considerably less than the " violent or substantial force capable of causing pain or injury" that is required for a " violent crime" under the ACCA.