Opinion
13-P-1638
12-08-2014
COMMONWEALTH v. CESAR A. VILLANUEVA.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Cesar Villanueva, appeals from his conviction of unarmed robbery. He argues on appeal that the trial judge erroneously denied his motions for a required finding of not guilty. We affirm.
Background. On January 26, 2012, the defendant was in a Radio Shack store in Greenfield. A store clerk watching a back room security monitor saw the defendant place a wireless router under his jacket. When the clerk approached the defendant and asked him to return the item, the defendant repeated, three times, "I have a gun." The clerk followed the defendant out the door and into the parking lot. However, because he believed that the defendant was armed, the clerk made no further efforts to apprehend him. The clerk returned to the store and called the police, while the defendant drove away with the router.
The defendant stipulated at his jury-waived trial that he had shoplifted the router. He twice moved for a required finding of not guilty, on the basis that the evidence was insufficient to support a conviction for unarmed robbery. Both motions were denied, and the defendant was convicted.
Discussion. The defendant's primary claims on appeal are that (1) the Supreme Judicial Court impermissibly expanded the scope of unarmed robbery beyond the meaning of the statute as written and intended, and (2) the motions for a required finding of not guilty should have been granted because there was insufficient evidence to support a conviction under the statute when properly interpreted. Because the defendant challenges the legal standard applied by the trial judge, we review without deference to the trial court. Kendall v. Selvaggio, 413 Mass. 619, 621 (1992).
General Laws c. 265, § 19(b), as appearing in St. 1981, c. 678, § 4, provides that
"[w]hoever, not being armed with a dangerous weapon, by force and violence, or by assault and putting in fear, robs, steals or takes from the person of another, or from his immediate control, money or other property which may be the subject of larceny, shall be punished . . . .""The essence of robbery is the exertion of force, actual or constructive, against another in order to take personal property of any value whatsoever," Commonwealth v. Weiner, 255 Mass. 506, 509 (1926), and "[a]n essential element of the crime . . . is that force and violence must be exerted on the person from whom the property is stolen or that such property be taken by means of putting such person in fear." Commonwealth v. Novicki, 324 Mass. 461, 465 (1949). "[C]onstructive force and violence is that which puts the victim in fear as a result of which the actual unlawful taking of property is effected." Id. at 466-467. "Actual force is applied to the body, constructive is by threatening words or gestures, and operates on the mind." Id. at 467, quoting from Commonwealth v. Snelling, 4 Binn. 379, 383 (1812).
The defendant contends that the Supreme Judicial Court has improperly construed the element of unarmed robbery requiring that "property be taken by means of putting such person in fear" (emphasis added), Novicki, supra at 465, because the Legislature intended that there be a direct temporal relationship between the "taking" and the "assault and putting in fear." The defendant cites to English common law to support his position that "the taking must not precede the violence or putting in fear," and criticizes later cases that find the "putting in fear" element satisfied where the "putting in fear" facilitates retention of the item or escape, rather than the actual taking. See Commonwealth v. Assad, 19 Mass. App. Ct. 1007, 1008-1009 (1985); Commonwealth v. Smith, 21 Mass. App. Ct. 619, 623-624 (1986), S.C., 400 Mass. 1002 (1987); Commonwealth v. Rajotte, 23 Mass. App. Ct. 93, 94-96 (1986); Commonwealth v. Lashway, 36 Mass. App. Ct. 677, 680-681 (1994); Commonwealth v. Goldstein, 54 Mass. App. Ct. 863, 867-869 (2002); Commonwealth v. Cruzado, 73 Mass. App. Ct. 803, 805-806 (2009).
While the Supreme Judicial Court has clarified the statute's meaning over time by elaborating on what it means to take something "by assault and putting in fear," G. L. c. 265, § 19(b), it has not exceeded its judicial authority in so doing. "Well established is the principle that '[t]he duty of statutory interpretation is for the courts.'" Casey v. Massachusetts Elec. Co., 392 Mass. 876, 879 (1984), quoting from Cleary v. Cardullo's Inc., 347 Mass. 337, 344 (1964). See Commonwealth v. Williams, 395 Mass. 302, 306 (1985) (courts may reasonably interpret statutes). Courts are not precluded from further developing the common law rule upon which a statute is expressly based. See Passatempo v. McMenimen, 461 Mass. 279, 290 (2012). The trial court did not err in applying the evolved legal standard.
We decline the defendant's invitation to overturn the Supreme Judicial Court's holding in Commonwealth v. Rogers, 459 Mass. 249, 253 (2011), that "the force necessary for robbery may be used either to accomplish the taking of the property or to effect the escape."
The evidence at trial was that the defendant took the router, placed it under his jacket, attempted to leave, and three times told the clerk that he had a gun when the clerk sought to prevent him from leaving. The clerk testified that "out of fear, I stepped back and let [the defendant] continue out the door and watched him walk away from the plaza." Such evidence demonstrates that the router was in the store under the clerk's control; the defendant took the router; and that the clerk, "if not overcome by violence or prevented by fear, [could have] retain[ed] his possession of it." Novicki, 324 Mass. at 464, quoting from Commonwealth v. Homer, 235 Mass. 526, 533 (1920). The evidence was sufficient, and there was no error in the judge's denial of the defendant's motions for a required finding of not guilty.
Judgment affirmed.
By the Court (Kafker, Brown & Carhart, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: December 8, 2014.