Opinion
DEF. I.D.: 0309012621.
Submitted: March 30, 2004.
Decided: April 12, 2004.
Paul R. Wallace, Deputy Attorney General, Attorney for State of Delaware.
Michael W. Modica, Esquire, Attorney for the Defendant.
OPINION AFTER TRIAL
I.
Defendant, Raymond Dawson, was indicted by the grand jury on a single count of Robbery First Degree. The matter was tried to the Court on March 11, 2004, after defendant waived his right to trial by jury. At the conclusion of the trial, the Court deferred judgment and ordered further briefing on the question of whether the "purse snatching" giving rise to the alleged offense could, as a matter of law, satisfy the element of force or threatened force necessary for a conviction on the charge of Robber First Degree. Defendant argued that because the alleged victim offered no resistance, and was not even fully aware that her purse had been taken until after the encounter with the defendant was over, the State could not establish that the defendant acted with the requisite force or threatened force contemplated by 11 Del. C. § 832. In response, the State argued that the effort exerted by the defendant to remove the purse from the victim's possession was sufficient to constitute "force" under the statute.
The disposition of this issue will determine whether the taking of property from the victim was Robbery First Degree or the lesser included offense of Theft of a Senior.
The statute defines the offense of Robbery First Degree, in pertinent part, as follows:
"(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 the immediate flight therefrom, the person . . . (4) commits said crime against a person who is 62 years of age or older." DEL. CODE ANN. tit. 11 Del. C. § 832 (2003).
The Robbery First Degree statute incorporates the elements of the Robbery Second Degree statute which, in pertinent part, provides:
"(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 . . . prevent or overcome resistance to the taking of the property or to the retention thereof immediately after the taking." Id. at § 831 (emphasis supplied).
The matter has been briefed and the Court is now prepared to supply its written findings of fact and conclusions of law in support of its verdict. For the reasons that follow, the Court finds the defendant GUILTY of Robbery First Degree.
II.
On August 23, 2003, at approximately 9:30 a.m., the seventy-seven year old alleged victim, Martha Bellos, was approached by a man she did not know in the parking lot of the Superfresh grocery store in New Castle, Delaware. The man asked her for the time. As Ms. Bellos looked at the watch on her left hand, the man grabbed a small clutch purse she was holding in the same hand and fled on foot out of the parking lot.
The defendant elicited some evidence at trial that Ms. Bellos at one point told the police that her purse was stolen from the back seat of her car. Upon careful review of the testimony, the Court is satisfied that the statement was reported in error and that the purse was taken from Ms. Bellos' left hand as she was looking at her watch.
According to Ms. Bellos, she was holding the purse tightly at the time it was taken such that the man had to use both hands to snatch the purse from her. She initially described the encounter by stating that the man "overpowered" her. On cross examination, however, Ms. Bellos acknowledged that she had suffered a stroke two years prior to the incident and that, as the man pulled on the purse, she "just let him have it."
After the incident, a store clerk, Anthony Bogush, came to Ms. Bellos' aid. Mr. Bogush saw the man who had taken the purse run out of the parking lot. He recognized the man as someone he had seen in the Superfresh store earlier that morning. When the police arrived, they requested the store surveillance video. They were able to match a man they saw on the video with the description given by Ms. Bellos and Mr. Bogush. Detective Christopher Ennis of the Delaware State Police made still photos from the images on the video and showed the photos to Ms. Bellos and Mr. Bogush. They both identified the man in the photos as the man who had taken Ms. Bellos' purse. The police, in turn, published the photos in various bulletins and publications. This yielded anonymous tips that led to the arrest of the defendant.
Mr. Dawson argued that the identification was not reliable because the police used overly suggestive techniques to secure the positive identification. The Court rejects this contention. The identifications were consistent with the general descriptions of the offender given by both witnesses immediately after the offense (after they had more than adequate time to observe the defendant), and were not the product of coercion or improper suggestion. Under the totality of the circumstances, the identification of the defendant was reliable. See Walls v. State, 560 A.2d 1038, 1042 (Del. 1989) (citation omitted) (reliability of identification involves such factors as the opportunity of the witness to view the defendant at the time of the crime, the degree of the witness' attention and the accuracy of the witness' prior description of the defendant).
In his statement to the police, Mr. Dawson denied his involvement in the incident. While he acknowledged that he was the man identified by the witnesses on the video, he denied that he was at the store at the time of the offense. Instead, he advised the police that he was taking a class at a local trade school when Ms. Bellos' purse was taken. Testimony from Carolyn Lindgren, an administrator at the school, effectively countered Mr. Dawson's alibi. She testified that school records (introduced as evidence at trial) confirmed that the school was closed on the day of the offense.
Based on the foregoing, the Court is satisfied beyond a reasonable doubt that Mr. Dawson is the man who "snatched" Ms. Bellos' purse. The Court also is satisfied that Ms. Bellos offered little resistance to the taking of her purse; it happened too quickly for her to react fully. On the other hand, the evidence supports Ms. Bellos' contention that she was holding the purse tightly when it was taken. Under these circumstances, the only question remaining for decision is whether Mr. Dawson exerted sufficient force to justify a conviction for Robbery First Degree.
III.
"Force" is not a defined term in the Delaware Code. "Physical force," however, is defined at 11 Del. C. § 222(22): "`physical force' means any application of force upon or toward the body of another person." Mr. Dawson argues that the Court should apply the Code's definition of "physical force" to determine if he committed robbery, even though the statutory elements of the offense refer only to the undefined term "force." The State contends that if the General Assembly intended to incorporate the concept of "physical force" into the offense, it would have done so. And since "force" is undefined, the Court is obliged to construe the term in accordance with its "commonly accepted meaning. . . ." In this regard, the State urges the Court to apply the definition of "force" adopted by the court in State v. Harrigan. There the court relied upon the definitions of "force" set forth in Black's Law Dictionary (Rev. 4th Ed. 1968): "strength directed to an end," and Webster's (Third) New International Dictionary: "power, violence, compulsion or constraint exercised upon or against a person or thing." Combining the two definitions, the court concluded: "[t]hus, `force' generally means the capacity or power to persuade, convince, compel, restrain or coerce and does not necessarily imply physical violence."
DEL. CODE ANN. tit. 11 Del. C. § 222(22) (2003).
Id. at § 221(c). See also DEL. CODE ANN. tit. 1 Del. C. § 303 (2003) ("Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the English language.").
447 A.2d 1194 (Del.Super.), aff'd, 447 A.2d 1191 (Del. 1982).
Id.
Id.
Both parties have argued as though their respective positions will rise or fall depending upon vel non the Court interprets the robbery statute in a manner consistent with their proffered definitions of the term "force." The Court, however, does not view the controversy in that light. Although it is clear to the Court that the General Assembly did not intend to incorporate the term "physical force" into the robbery statute, it is less clear how the outcome of this case would be affected had it done so. Robbery is defined, in part, as theft coupled with the "use or threaten[ed] use of force upon another person . . ." "Physical force," as defined in the Code, also encompasses the notion of force "upon [the] person": "`physical force' means any application of force upon or toward the body of another person." Thus, it appears to the Court that the term "force," as used in the robbery statute, is virtually synonomous with "physical force," as defined in the Code. The question, then, is not which term the Court should insert in the definition of robbery, but rather whether the facts adduced at trial justify a finding that Mr. Dawson used force "upon" or "toward" the person of Ms. Bellos "to overcome resistance to the taking of [her] property." Regardless of which term — "force" or "physical force" — applies, the outcome of the analysis is the same.
Harrigan v. State, 447 A.2d 1191, 1193 (Del. 1982) ("force" [as used in the robbery statute] is not specifically defined in the Code. . . .").
DEL. CODE ANN. tit. 11 Del. C. § 831(a) (emphasis supplied).
Id. at § 222(22) (emphasis supplied).
Id. at § 831(a)(1).
The path leading to the Court's verdict in this case is well-charted in Delaware. Indeed, this court confronted a nearly identical fact pattern in State v. Male. In Male, Judge Alford presided over a bench trial during which the State offered proof that the defendant had "snatched" the elderly victim's purse in a grocery store parking lot. The State argued that the defendant was guilty of Robbery First Degree (as opposed to the lesser included offense of Theft of a Senior) because the energy exerted by the defendant towards the victim to remove the purse from her possession was "force" as contemplated by the robbery statute. The defendant argued, inter alia, that the State had failed to prove that he used "force" to "overcome [the victim's] resistance to the taking of [her purse]." Like Mr. Dawson, the defendant in Male took the victim's purse while she was distracted. Nevertheless, unlike Ms. Bellos, it appears that the victim in Male was able to offer some degree of sustained resistance, albeit minimal, before the defendant was able to complete the taking. On these facts, the court found Mr. Male guilty of Robbery First Degree.
2002 Del. Super. LEXIS 23, aff'd, 2002 Del. LEXIS 590.
Id. at *2.
Id. ("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.").
The court began its analysis by noting that the State need not prove that a defendant had "physical contact with the victim" to satisfy the "use of force" element of Robbery First Degree. Implicit in that conclusion is the notion that the robbery statute's reference to the use of force "upon another person" can be satisfied if the defendant exerts force upon an item in the possession of the person. In such instances, the item becomes an extension of the "person" of the victim such that force "upon" the item is force "upon" the victim. With respect to the degree of force necessary to justify a conviction for robbery, Judge Alford concluded: "[i]t 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"
Id. at *3-4.
See e.g., id.
Id. at *4.
Mr. Dawson argues that Male is distinguishable because the victim in that case was able to offer more resistance to the taking of her wallet than Ms. Bellos was able to muster when Mr. Dawson took her purse. The Court disagrees. While it may be true that the victim in Male was able to hold on to her wallet for a second or two longer than Ms. Bellos was able to manage here, the degree of resistance to the taking is immaterial to the defendant's guilt or innocence of the crime of robbery. Most certainly in appreciation of the potential for encouraging bad outcomes, the General Assembly wisely chose not to quantify the degree of resistance a victim must offer before the defendant can be eligible for conviction of robbery. Indeed, as noted in the commentary to 11 Del. C. § 831:
Robbery is . . . forcible theft, and is committed whenever physical force is used, or its use immediately threatened, to overcome resistance to theft or compel another person to deliver up property or otherwise facilitate theft. Note that the old requirement that the victim be put in fear is abandoned. This is reported to have raised difficulties in prosecuting some cases. Indeed, it is hard to see why a robbery's guilt [sic] should depend on the personal bravery of his victim.
DELAWARE CRIMINAL CODE WITH COMMENTARY, § 831 (1973).
The Court will not countenance a result that would allow Mr. Dawson to escape a conviction for robbery simply because his victim chose not to wrestle with him before letting go of her purse. It is enough, in this case, that Ms. Bellos was holding on to her purse with sufficient strength to have conscious possession of it at the time Mr. Dawson took it from her. The force that Mr. Dawson exerted to remove the purse from Ms. Bellos' possession under these circumstances was sufficient to justify his conviction for Robbery First Degree. This verdict is in accord with results reached in similar cases in other jurisdictions.
See e.g., Commonwealth v. Jones, 283 N.E.2d 840, 843 (Mass. 1972) ("the degree of force is immaterial so long as it is sufficient to obtain the victim's property `against his will.'") (citation omitted); Commonwealth v. Zangari, 677 N.E.2d 702, 703 (Mass.App. 1997) (same); Raymond v. State, 467 A.2d 161, 163-4 (Me. 1983) (the mere act of snatching a purse from the victim's hand is a sufficient act of force to justify conviction for robbery); Commonwealth v. Brown, 484 A.2d 738, 741 (Pa. 1984) ("It is clear to us that any amount of force applied to a person while committing a theft brings that act within the scope of robbery. . . ."). But see Peter G. Guthrie, Purse Snatching as Robbery or Theft, 42 A.L.R.3d 1381 (1972) (citing cases supporting a "majority rule" to the contrary).
Furthermore, the fact that Ms. Bellos may not have developed a full appreciation of what was happening until after Mr. Dawson had taken the purse from her does not change the outcome. She was aware of Mr. Dawson's presence, having engaged him briefly in conversation, and, at least for a split second, was holding her purse tightly in her hand before surrendering it to him. This was not a case of theft by stealth, e.g., a pickpocket; Ms. Bellos was confronted by her assailant head on. She relinquished possession of her purse because it was forcibly taken from her; she did not give it to Mr. Dawson or drop it on the ground so that he could take it.
See Jones, 283 N.E.2d at 845 ("[i]n the circumstances of a purse snatching, we believe the force applied is sufficient to make the crime a robbery, even though the application of force may, in practice, be so quick as to deny the victim any opportunity to resist.").
See Zangari, 677 N.E.2d at 703 ("where 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.").
See Commonwealth v. Jones, 771 A.2d 796 (Pa.Super. 2001) ("A pickpocket does not commit robbery, as the victim is unaware of the contact; the taking is thus not accomplished by force . . . A purse-snatcher, however, is guilty of robbery, as the victim is aware of the force.") (citations omitted). See also DELAWARE CRIMINAL CODE WITH COMMENTARY, § 831 (1973) ("It seems desirable to treat the robber more seriously than the stealthy thief because the former is not deterred by the presence of his victim . . . He is thus more dangerous and more upsetting than the sneak thief . . .").
IV.
Based on the foregoing, the Court finds the defendant GUILTY of Robbery in the First Degree. A pre-sentence investigation shall be performed in advance of sentencing which will occur on June 18, 2004 at 1:30 p.m.