State v. Allen

¶19 In my view, the elements of robbery are not established simply by showing the use of force preceded a theft. The State must demonstrate more. It must show that the use of force has a causal relationship with the theft, i.e., the force was used for the purpose of the theft. This is what constitutes robbery. Because in this case the State failed to show anything more than that Donovan Allen used force before committing theft, I dissent.

¶20 As the majority notes, a person commits robbery when he "unlawfully takes personal property from the person of another or in his presence against his will by the use or threatened use of immediate force, violence, or fear of *Page 12 injury to that person." RCW 9A.56.190. "Such force orfear must be used to obtain or retain possession of theproperty, or to prevent or overcome resistance to thetaking. . . ." Id. (emphasis added). Thus, for the State to establish the aggravating factor of robbery here, it had to prove beyond a reasonable doubt that Allen: (1) took the cashbox from his mother's person or in her presence, (2) did so against her will, and (3) used force or fear to take the cashbox or to prevent his mother from resisting the taking.⁷ Therefore, the crucial question is whether Allen "used force or fear to obtain" the cashbox or "to prevent or overcome resistance" to his taking it.

¶21 To meet this standard, the State must show that the purpose behind Allen's use of force was to obtain the cashbox. Merely demonstrating that the use of force preceded the theft⁸ does not amount to robbery. This is evident from a survey of this state's and other jurisdictions' treatment of the question.

¶22 This court has not construed the robbery statute so broadly as to encompass any theft associated with violence, no matter how unrelated. We have long since departed from the view that the use of force prior to the theft demonstrates robbery.See, e.g., State v. Handburgh, 119 Wn.2d 284, 293,830 P.2d 641 (1992) (affirming use of force must be "either to obtain or retain possession" rather than merely preceding theft). In Handburgh, we confirmed the transactional *Page 13 view of robbery, which ended the emphasis uponwhen force was used to define robbery.

¶23 In our recent decision in State v. Johnson,155 Wn.2d 609, 611, 121 P.3d 91 (2005), we also addressed "the transactional view of robbery." In Johnson, a man took a "television-video cassette recorder combo" from a store but then abandoned the stolen property in the parking lot as he tried to flee from two guards. We reversed his robbery conviction after concluding that he "was not attempting to retain the property when he punched the guard but was attempting to escape after abandoning it." Id. We said, "[T]he force must relate to the taking or retentionof the property, either as force used directly in the taking orretention or as force used to prevent or overcome resistance`to the taking.'" Id. (emphasis added). Just as the theft in that case was not the reason for punching the guard, Allen described his taking of the cashbox in this case as an afterthought, unrelated to the strangling and beating of his mother. There was no evidence refuting this assertion. Because the theft was an afterthought, he committed theft — not robbery.

¶24 Another decision of this court, State v.Larson, 60 Wn.2d 833, 376 P.2d 537 (1962), is consistent with a narrow definition of robbery. There, we affirmed the robbery conviction of a man who stole a wallet from a drinking companion after knocking him out. In upholding his conviction, we said, "`[T]he mere taking goods from an unconscious person, without force, or the intent to use force, is not robbery, unless such unconsciousness was produced expressly for thepurpose of taking the property in [the] charge of such person.'" Id. at 835 (emphasis added) (quoting 2 FRANCIS WHARTON, WHARTON'S CRIMINAL LAW § 1092, at 1390 (J.C. Ruppenthal ed., 12th ed. 1932)). Here, the State has not shown that Allen, unlike the robber in Larson, used force "expressly for the purpose" of stealing from her. If the State has not shown this, then it has not shown that Allen committed robbery. *Page 14

¶25 Other jurisdictions have taken the same approach when confronted with a situation like that presented here. Many state codes have moved away from the early majority view⁹ that any theft facilitated by violence is robbery. 3 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 20.3(e), at 191-92 (2d ed. 2003). For example, the Supreme Judicial Court of Massachusetts confirmed this trend when it stated:

Robbery may be punished more severely than larceny from the person. The principal policy served by this greater punishment is deterrence of the use of force (and the accompanying risk to human life) to obtain money or other property. This policy is not served where the intent to steal is not formed until after the assault. We conclude, therefore, that where the intent to steal is no more than an afterthought to a previous assault, there is no robbery.

Commonwealth v. Moran, 387 Mass. 644, 442 N.E.2d 399,401 (1982) (citations omitted). The Washington statute, by limiting robbery to the use of force for the purpose of theft, is in accord.

¶26 The majority, in contrast, finds sufficient evidence to support that Allen "used force or fear to take the cashbox or to prevent his mother from resisting the taking." Majority at 9. Its analysis of whether a robbery took place at all, however, is limited. It relies on several pieces of "considerable circumstantial evidence that Allen used force, at least *Page 15 in part, to obtain the cashbox." Id. The majority lists evidence that Allen had described financial difficulties to his friends, that Allen was short of money, and that he knew his mother had a cashbox. Id. But the majority reads too much into what this list shows. What it clearly demonstrates is that Allen had a reason to steal. But the leap that the majority makes is between the reason and the result. That is, the majority assumes that force was used to serve that reason. Circumstantial evidence of a reason to steal (in conjunction with undisputed use of force) is not evidence that the force was used to realize the reason. This is the critical gap in both the State's and the majority's reasoning.

¶27 I cannot agree that Allen murdered his mother "in the course of" or "in furtherance of" a robbery unless a robbery actually took place. The Court of Appeals concluded that Allen committed robbery because "he used deadly force against Cox in her bedroom, disabled her, and immediately thereafter unlawfully took a cashbox from her nightstand." Allen, noted at 126 Wn. App. 1017, 2005 Wash. App. LEXIS 404, at *16. But as pointed out by the dissenting judge at the Court of Appeals, to disable someone and then take property as an afterthought is to commit theft, not robbery.¹⁰

¶28 Here, there is no doubt that Allen's violent conduct prevented Cox from resisting a theft. But there was no evidence that his purpose in attacking her was to facilitate theft, much less that it was "expressly for the purpose of taking the property." Larson, 60 Wn.2d at 835. Rather, the State proved that the purpose of Allen's violence was *Page 16 premeditated murder. By holding that Allen committed robbery simply because he beat his mother for another purpose (murder) before taking the cashbox, the majority essentially rewrites the statute to say, "Such force or fear must be used beforeobtaining possession of the property," not "toobtain" possession. But the legislature did not define robbery so broadly. And as early as Handburgh, we have recognized that robbery is not defined simply as the use of force prior to theft.

¶29 In sum, there is a lack of evidence that Allen intended to steal the cashbox before he killed his mother or that his purpose in mortally wounding her was to facilitate theft. I conclude that no rational trier of fact could find proof beyond a reasonable doubt of robbery as an aggravating factor in the murder of Cox. Therefore, I would reverse the Court of Appeals.

C. JOHNSON, SANDERS, and OWENS, JJ., concur with ALEXANDER, C.J.

⁷ "`[I]ntent to steal'" is also an essential element of robbery, in addition to the statutory elements above. Statev. Kjorsvik, 117 Wn.2d 93, 98, 812 P.2d 86 (1991) (citingState v. Hicks, 102 Wn.2d 182, 184, 683 P.2d 186 (1984)). Allen argued that "he did not even realize what he was doing with the cashbox, evidencing a lack of intent to steal." Opening Br. of Appellant at 13. He cites no case law or statutes supporting his argument that, because he took property impulsively, he lacked intent to steal. The intent to steal exists when there is intent to permanently deprive the owner of property, including when "the defendant acted with an intention to create an unreasonable risk of permanent loss to the owner."State v. Burnham, 19 Wn. App. 442, 445, 576 P.2d 917 (1978). By throwing the cashbox in the slough, Allen intentionally risked its permanent loss. Therefore, lack of intent to steal is not a reason to reverse the finding of robbery here.

⁸ "Theft" is denned as: "[t]o wrongfully obtain or exert unauthorized control over the property or services of another or the value thereof, with intent to deprive him or her of such property or services. . . ." RCW 9A.56.020(1)(a).

⁹ Other jurisdictions have been divided as to whether theft following unrelated violence is robbery. Carey v. UnitedStates, 111 U.S. App. D.C. 300, 296 F.2d 422 (1961), is a leading case holding that theft as an afterthought to killing does constitute robbery. In that case, the defendant admitted stabbing his landlady after she insisted that his "lazy" wife move out. Id. at 423. He claimed, however, that he removed money from the victim's pocket after she was dead only to keep it from becoming bloodstained. The court affirmed the robbery conviction because robbery in that jurisdiction included taking from a person by sudden stealthy seizure or without her knowledge, and because a dead woman is still a "`person.'" Id. at 426; accord Metheny v.State, 359 Md. 576, 755 A.2d 1088, 1105 (2000) ("`If the force precedes the taking, the intent to steal need not coincide with the force.'" (quoting Stebbing v.State, 299 Md. 331, 473 A.2d 903, 915 (1984))); Peoplev. Jordan, 303 111. 316, 135 N.E. 729, 730 (1922) ("If, as the result of a quarrel, a fight occurs in which one of the parties is overcome, and the other then, without having formed the intention before the fight began, takes the money of the vanquished one, the offense committed is robbery.").

¹⁰ In dissent, Judge David H. Armstrong wrote: "The question is whether the theft was really a robbery because Allen took the cashbox by overcoming Cox's will through force or threatened force. Merely connecting the theft to the killing through time and place does not elevate the theft to robbery. Neither does the majority's reasoning that Allen was relieved of having to take the box by force or threatened force because he had already disabled Cox. In essence, this argument is simply that if Allen had not already killed his mother, he would have had to rob her (use force) to get the box. Perhaps, but this theory assumes that Cox attacked his mother to get the cashbox. The State produced no evidence that he did. In fact, the State's theory was that Allen's final assault was the culmination of a long-developing feud. . . ." Allen, 2005 Wash. App. LEXIS 404, at *53 (Armstrong, J., dissenting).