People v. Randolph

Michigan Supreme Court
Lansing, Michigan 48909
_____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh

O pinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

____________________________________________________________________________________________________________________________

FILED JULY 11, 2002

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff,

v Nos. 117750, 118078

KALVIN RANDOLPH,

Defendant.

___________________________________

BEFORE THE ENTIRE BENCH

KELLY, J.

On appeal from defendant's conviction for unarmed

robbery, the Court of Appeals reversed the judgment for

insufficient evidence and remanded for entry of a conviction

of larceny in a building. 242 Mich App 417; 619 NW2d 168

(2000). It provided that the prosecutor could retry defendant

on the original unarmed robbery charge if it had additional

evidence. Both the prosecution and defendant appeal from that

decision.

 We conclude that defendant could not be convicted of

unarmed robbery under the facts of this case. We also

reassert that a defendant cannot be retried on a charge not

previously supported by sufficient evidence where additional

evidence is discovered to support it. Therefore, we affirm

the Court of Appeals decision in part, reverse it in part, and

remand for entry of a judgment of conviction of larceny in a

building and for resentencing.

I. Factual and Procedural History

Defendant took merchandise valued at approximately $120

from a Meijer store. After purchasing other items, he left

the store with a rotary tool, a battery, a battery charger,

and a thermostat without paying for them. The store's loss­

prevention staff observed the theft and acted to apprehend

defendant when he emerged from the store.

There are several versions of what happened next. Taking

the evidence in the light most favorable to the prosecution,

when the plain-clothed security guards identified themselves,

defendant lunged forward to run. At least one guard seized

him, putting him in an "escort hold." Defendant broke free

and swung his arm at the guards, physically assaulting at

least one of them.1 In his efforts to escape, defendant lost

1
Defendant claimed he used no force at all.

2

possession of the merchandise. The prosecutor charged him

with unarmed robbery, and a jury convicted him as charged.

MCL 750.530.

When it reviewed defendant's unarmed robbery conviction,

the Court of Appeals applied the "transactional approach,"

which it adopted explicitly in People v LeFlore, 96 Mich App

557, 561-562; 293 NW2d 628 (1980).2 Under this approach, a

defendant has not completed a robbery until he has escaped

with stolen merchandise. Thus, a completed larceny may be

elevated to a robbery if the defendant uses force after the

taking and before reaching temporary safety. See People v

Newcomb, 190 Mich App 424, 430-431; 476 NW2d 749 (1991);

People v Turner, 120 Mich App 23, 28; 328 NW2d 5 (1982);

People v Tinsley, 176 Mich App 119, 120; 439 NW2d 313 (1989).

Applying that test, the Court of Appeals reasoned "there

was insufficient evidence to support defendant's conviction of

unarmed robbery because defendant was unsuccessful in escaping

and thus he never completed the larcenous transaction." 242

Mich App 421. Therefore, it reversed the unarmed robbery

conviction and remanded for entry of a conviction of larceny

in a building, "unless the prosecutor opts to retry defendant

2
Although the Court of Appeals did not identify its

holding in People v Sanders, 28 Mich App 274; 184 NW2d 269

(1970), as employing the "transactional approach," the concept

originated there.

3

on the original charge based on additional evidence." Id. at

423. We granted both parties' applications for leave to

appeal. 465 Mich 885 (2001).

II. Unarmed Robbery

Michigan's unarmed robbery statute, MCL 750.530,

provides:

Any person who shall, by force or violence, or

by assault or putting in fear, feloniously rob,

steal and take from the person of another, or in

his presence, any money or other property which may

be the subject of larceny, such robber not being

armed with a dangerous weapon, shall be guilty of a

felony, punishable by imprisonment in the state

prison not more than 15 years. [Emphasis added.]

Robbery is a crime against a person. People v Hendricks,

446 Mich 435, 451; 521 NW2d 546 (1994). As the Court of

Appeals acknowledged in LeFlore,3 "Both the armed and unarmed

robbery statutes are clear that the forceful act must be used

to accomplish the taking."

We base our holding on the language of the unarmed

robbery statute and the common-law history of unarmed robbery.

From that we conclude that the force used to accomplish the

taking underlying a charge of unarmed robbery must be

contemporaneous with the taking. The force used later to

retain stolen property is not included. Those Court of

Appeals cases that have held otherwise, applying a

3
Supra at 562.

4

"transactional approach" to unarmed robbery, are herein

overruled.

A. Robbery at Common Law

Michigan's unarmed robbery statute is derived from the

common law. The first robbery statutes, enacted in 1838,

adopted the common-law definition of robbery, but divided the

offense by levels of severity, depending on whether a

perpetrator was armed. People v Calvin, 60 Mich 113, 120; 26

NW 851 (1886).4 The 1838 codification of unarmed robbery is

nearly identical to our current statute.5

4
If there were any doubt that the unarmed robbery statute

codified the common law, this Court dispelled it in Stout v

Keyes, 2 Doug 184, 188 (Mich, 1845). In Stout, this Court

rejected a claim that the common law had been supplanted by

our constitution and the revised statutes. It explained that

our constitution did not abrogate, but rather retained, the

common law. Our revised statutes repealed only earlier laws

that were repugnant to the provisions of the revised statutes.

The Stout Court concluded: "In almost every part of the

Revised Statutes of 1838 relating to rights and remedies, the

common law is incidentally or otherwise recognized." Id.

5
1838 RS, tit 1, ch 3, § 12 provided, with regard to

unarmed robbery:

If any person shall, by force and violence, or

by assault or putting in fear, feloniously rob,

steal and take from the person of another any money

or property, which may be the subject of larceny,

(such robber not being armed with a dangerous

weapon,) he shall be punished by imprisonment in

the state prison not more than life, or for any

term of years. [Emphasis added.]

Other than stylistic changes, the only substantive

(continued...)

5

 At common law the elements of the offense of robbery were

"the felonious and forcible taking, from the person of

another, of goods or money to any value by violence or putting

him in fear." 4 Blackstone, Commentaries, p 241; see also,

People v Covelesky, 217 Mich 90, 96; 185 NW 770 (1921). The

force or violence had to be applied before or during the

taking. See id. at 242. ("[T]he taking must be by force, or

a previous putting in fear. . . .")6 (Emphasis added.)

5
(...continued)

modification since the first statute is the addition of the

phrase "or in his presence." This modification is itself

consistent with the common-law definition of robbery. See 4

Blackstone, Commentaries, p 242 ("But if the taking be not

either directly from his person, or in his presence, it is no

robbery").

6
See, also, the encyclopedic work by Joel Prentiss

Bishop, a leading nineteenth century legal commentator, who

stated the common law as follows: "The violence must precede

or be contemporaneous with the taking. When no force is used

to obtain the property[,] force used to retain it will not

make the crime robbery." 2 Zane & Zollman, Bishop, Criminal

Law (9th ed), § 1168.2, p 865.

Other commentators concur with Blackstone’s view of the

common law. See, e.g., 2 LaFave & Scott, Substantive Criminal

Law, § 8.11, p 452 ("Thus, under the traditional view it is

not robbery to steal property without violence or intimidation

(e.g., to obtain it by stealth or fraud or sudden snatching),

although the thief later, in order to retain the stolen

property or make good his escape, uses violence or

intimidation upon the property owner. The defendant's acts of

violence or intimidation must occur either before the taking

(though continuing to have an operative effect until the time

of the taking) or at the time of the taking."); 4 Torcia,

Wharton, Criminal Law (15th ed), § 463, pp 33-36 ("At common

law, and in some states, force or threatened force (putting a

(continued...)

6

 6
(...continued)

victim in fear of injury) amounts to robbery only if it is

used to 'take' property from the possession of another. Force

or threatened force used thereafter, in order to retain

possession of the property taken or to facilitate escape, does

not qualify. At best, in such cases, the separate offenses of

larceny and assault or larceny and battery are committed.").

The dissent offers the views of several other common-law

commentators. However, read carefully, these commentators

support the definition of robbery under the common law that we

have related above. For example, Odgers states that common­
law robbery consisted of "the unlawful taking possession of

the goods of another by means of violence or threats of

violence" and that the violence must occur "at the time of or

immediately before or immediately after such robbery . . . ."

1 Odgers, The Common Law of England (2d ed), ch 8, p 331.

This definition acknowledges that the taking must be by

violence or the threat of violence. In this case, the taking

occurred without violence.

Contrary to the dissent's assertion, the use of the

phrase "immediately before or immediately after" is consistent

with our view that the use of force must be contemporaneous

with the taking. Possibly, the dissent missapprehends the

immediacy of the term "immediately." Odgers illustrated the

point with the following: "[W]here the prisoner seized the

prosecutor's watch and, on finding that it was secured by a

chain around his neck, violently pulled and jerked until it

broke, and then ran away with the watch, this was held to

amount to robbery." Id. at 332, quoting Rex v Harman

(Harman's Case), 1 Hale, PC 534. Thus, force applied

immediately after the taking is sufficiently contemporaneous.

In this case, defendant did not use force until after he had

completed the taking and left the store. Therefore, the use

of force did not occur immediately after the taking.

Similarly, the dissent's reliance on Rapalje's

explanation of the common law of robbery is unavailing. The

dissent fails to quote Rapalje's statement of the common-law

definition of robbery:

Feloniously taking the property of another in

his presence and against his will, by putting him

(continued...)

7

Accordingly, the common law concerning robbery that was

received by the drafters and ratifiers of our constitution

required (1) a taking from the person, (2) accomplished by an

earlier or contemporaneous application of force or violence,

or the threat of it. If force was used later to retain the

property, the crime committed did not constitute robbery.

Thus, consistently with the rule under common law, MCL

750.530 must be read to require a taking accomplished by

"force or violence, or by assault or putting in fear." The

statute excludes a nonforceful taking, even if force were

later used to retain the stolen property. By the same

reasoning, force used to escape with stolen property is

insufficient to sustain a robbery charge under our statute.

Nonetheless, over the past thirty years, the Court of Appeals

6
(...continued)

in fear of immediate personal injury, is robbery at

common law. The taking must be either directly

from the person or in the presence of the party

robbed, and must be by force, or a previous putting

in fear. It is the previous violence or

intimidation that distinguishes robbery from

larceny. [Rapalje, Larceny & Kindred Offenses

(1892), § 445, p 633.]

The remainder of Rapalje's statement on robbery is no more

availing to the dissent's position. Carefully read, the

entire passage supports the majority's view rather than the

dissent's view of the common law. See id. at § 446, pp 633­
637. The dissent is simply incorrect in asserting that the

common-law understanding of robbery supports the

"transactional approach" to unarmed robbery.

8

has created a doctrine that strayed from the language of MCL

750.530 and its historical common-law context.

B. The Court of Appeals and the "Transactional Approach"

This Court has never recognized the "transactional

approach." In 1971, the Court of Appeals began to expand the

codified common-law requirements of robbery. In People v

Sanders,7 it concluded that the defendant, having completed

his theft "by stealth," was guilty of armed robbery because he

fired a gunshot into the air to frighten off pursuers.

Although it recognized the general rule that "an assault must

be concomitant with the taking in order to support a charge of

armed robbery," the panel relied on the law of other

jurisdictions. Id. at 276. It held that there was "no valid

basis for isolating the incidents of the entire event when the

taking is not effectively completed until after the assault.

. . . [A]nd the incident of the taking must be viewed in its

totality in order to ascertain the intent of the defendant

when the assault occurs." Id. at 277. Thus, with the

decision in Sanders, the Court of Appeals began its shift

toward the "transactional approach."

In LeFlore, the concept was identified by name and

applied in the context of unarmed robbery. Supra at 561-563.

7
28 Mich App 274; 184 NW2d 269 (1970).

9

In that case, the defendant took money from the victim after

physically assaulting her. On appeal, he claimed that there

was insufficient evidence to support the unarmed robbery

conviction because the taking had been a mere afterthought.

He claimed to have had no larcenous intent at the time of the

assault. The LeFlore panel held that the "larceny transaction

should be viewed as a whole to determine the defendant's

intent." LeFlore, supra at 562.

In Turner, the "transactional approach" was extended

further to express that a robbery is incomplete until the

defendant escapes with the stolen property:

We agree that a completed escape is

unnecessary to constitute asportation. "Any

movement of goods, even if by the victim under the

direction of defendant . . . constitutes

asportation . . . ." However, robbery is also a

continuous offense: it is not complete until the

perpetrators reach temporary safety. As such, while

the essential elements were completed, the offense

continued during the escape. [120 Mich App 28

(citations omitted; emphasis added).]

The Turner holding was repeated in Tinsley. The fiction found

there, that a robbery is not complete until a defendant

reaches temporary safety, gave rise to the Court of Appeals

holding in the instant case: that the defendant must complete

his escape with the stolen merchandise or he cannot be

convicted of unarmed robbery.

This "transactional approach" can not be harmonized

10

either with the language of MCL 750.530 or with the common-law

history of our unarmed robbery statute.8 As Judge William

Blackstone stated:

This previous violence or putting in fear is

the criterion that distinguishes robberies from

other larcinies. For, if one privately steals

sixpence from the person of another, and afterwards

keeps it by putting in fear, this is no robbery,

for the fear is subsequent . . . . [Blackstone,

supra at 242.][9]

8
The dissent appears to agree that our unarmed robbery

statute directly adopts and implements the common-law

definition of robbery. Slip op at 11, n 6. However, it

diverges from us when claiming that robbery is a continuing

offense that is not complete until the thief reaches a place

of temporary safety. This definition finds no support in the

common law. None of the commentators cited by either the

majority or the dissent identifies the "place of temporary

safety" as an aspect of robbery. It finds no support, either,

in the plain language of the statute which fails to mention,

or even allude to, a "place of temporary safety." In light of

the history and text of the statute, the dissent is inaccurate

in attempting to justify its preferential interpretation as

true to the common law.

9
The dissent contends that we make "much of [this]

quotation." Slip op at 28. It asserts that Perkins states

that "this quotation has been misapplied." Id. However, the

dissent misunderstands the point that Perkins was making.

Perkins indicated that certain courts, in certain factual

situations, had occasionally misapplied Blackstone’s view of

the common law. In one case, a thief obtained a gun on the

pretext of wishing to inspect it, turned it on the owner and

threatened to use it before fleeing with it. Perkins

criticized the court that reversed the thief's conviction for

robbery. He noted that the thief initially had mere custody

of the weapon, but his possession of it was secured by the

threat of force. Perkins, supra at 348-349.

The dissent claims that, in the case on appeal, defendant

had only custody of the items when the security guard

(continued...)

11

Thus did Blackstone identify the real difficulty with the

"transactional approach": it inappropriately characterizes

a completed larceny as a robbery.

It is useful to recall that at common law simple larceny

was defined as "the felonious taking, and carrying away, of

the personal goods of another." Blackstone, supra, p 229; see

also, People v Johnson, 81 Mich 573, 576; 45 NW 1119 (1890).

Larceny was contrasted with robbery in that common-law larceny

was a robbery minus the use of force to accomplish the taking

9
(...continued)

attempted to stop him. This view is unsupportable. In

Perkin's example, the owner willingly parted with physical

control of the gun in response to the robber's nonthreatening

request. It was only after the robber obtained temporary

consensual custody of the weapon that he threatened the owner

and exercised possession that was inconsistent with the

owner's rights. In this case, defendant took the items and

concealed them under his coat. Thus, wrongful possession and

custody that were inconsistent with the owner's rights were

asserted at the time of the taking. Defendant never had

rightful possession and custody of these items with the

owner's consent.

Furthermore, the quotation relied on by the dissent again

supports, rather than contradicts, the interpretation of

Blackstone that we have related above: "[I]f subsequent to

the larceny the owner should come upon the thief and be

prevented from retaking his property by force or violence, the

thief would be guilty of larceny and assault, but not

robbery." Id. at 349. The use of "res gestae" in the Perkins

quotation, considered in context and in light of the comments

of commentators (Blackstone, Bishop, LaFave and Scott,

Wharton, Odgers, and Rapalje), does not suggest an expansive

"transactional" view of robbery. Rather it narrowly refers to

the events occurring contemporaneously with the taking,

precisely the time frame in which the application of force

must occur.

12

and absent the requirement that the taking be "from the

person." Blackstone stated this cogently when he summarized:

"This previous violence or putting in fear, is the criterion

that distinguishes robberies from other larcinies." Id. at

242.10

We emphasize that a larceny is complete when the taking

occurs. The offense does not continue. This fact is

10
Other distinguished commentators have opined similarly.

Professor Charles Torcia, current author of Wharton, Criminal

Law, the well-known and often cited contemporary exposition on

the criminal law, explains that at common law the use of force

"amounts to robbery only if it is used to 'take' the property

from the possession of another." Wharton, § 463, p 33. He

then continues:

Force or threatened force used thereafter, in

order to retain possession of the property taken or

to facilitate escape, does not qualify. At best,

in such a case, the separate offenses of larceny

and assault or larceny and battery are committed.

[Id. at 33-36.]

Similarly, Bishop in his previously cited work on

criminal law states: "The fear of physical ill must come

before the relinquishment of the thing to the thief, not

after; else the taking is not robbery." Bishop, § 1175, p

869.

Even the Court of Appeals recognized this rule while

declining to follow it in favor of its "transactional

approach": "Both the armed and unarmed robbery statutes are

clear that the forceful act must be used to accomplish the

taking. . . . Unless there is a purposeful relationship

between these two elements, the criminal episode is merely two

isolated crimes of larceny and perhaps assault and battery."

LeFlore, supra at 562, quoting LaFave, supra.

13

illustrated in People v Bradovich,11 in which two defendants

in a store concealed two suits under their own clothing and

attempted to leave. Realizing that store personnel were

following them and that they would be apprehended, they

abandoned the stolen clothing and departed. When later

charged with larceny, they claimed to have abandoned the

property before leaving the store, and therefore, not to have

completed the offense. This Court disagreed, holding that the

larceny was complete when the thieves concealed the store’s

clothing under their own. Id. at 332.

The dissent acknowledges that larceny and robbery are

distinct crimes. That the two crimes are distinct offenses

indicates nothing more than that they have different elements:

robbery is a larceny aggravated by the fact that the taking is

from the person, or in his presence, accomplished with force

or the threat of force. People v Wakeford, 418 Mich 95, 127­

128; 341 NW2d 68 (1983) (opinion of Levin, J.).

However, the dissent asserts without supporting authority

that "for the purpose of the crime of robbery, the relevant

act encompasses a broader spectrum of time, and includes not

simply an initial larcenous taking, 'by force and violence' or

'by assault,' but a robbing of the victim 'by assault' when

11
305 Mich 329; 9 NW2d 560 (1943).

14

the property remains in the victim's presence." Slip op at

13. Neither the common law nor contemporary authority

supports the view that the taking that establishes the larceny

element of robbery continues until the robber reaches a place

of temporary safety.

We reject the dissent's reliance on cases from other

jurisdictions because they are either distinguishable on their

facts or inconsistent with the common-law view of robbery

adopted by Michigan. We also find particularly instructive

State v Manchester, 57 Wash App 765; 790 P2d 217 (1990).

There, the Washington Court of Appeals, noting the split in

jurisdictions on the question of the timing of the use of

force, cited Sanders, supra, and People v Beebe, 70 Mich App

154; 245 NW2d 547 (1976). Manchester placed Michigan with the

majority of jurisdictions that do not consider a robbery

complete until the robber has reached a place of temporary

safety. The Court observed: "Because this approach does not

follow the common law, courts focus on the language of the

robbery statute to reach this result." Id. at 770.

We agree that the "transactional approach" used by our

Court of Appeals is contrary to the common law. As we have

explained above, the language of our statute does not permit

us to adopt the view espoused by the Court of Appeals and the

dissent.

15

 We are also persuaded by Tennessee v Owens,12 where the

Tennessee Supreme Court was faced with the question, "[H]ow

closely connected in time must the taking and the violence

be?" By way of response, the court compared the language of

Tennessee’s robbery statute with the language of other states'

robbery statutes. The court noted that many jurisdictions

have rejected the common-law rule in favor of the “continuous

offense theory.” Id. at 638-639, 639, n 7.

However, most of those states have statutes that

specifically define robbery to include the use of force to

retain property or to escape. Id. at 639. Many of the

statutes provide that a person commits robbery if he uses

force "in the course of committing" a theft or larceny. See

Ala Code 1975, § 13A-8-43; Ariz Rev Stat, §§ 13-1901-1904;

Conn Gen Stat, § 53a-133; Del Code Ann, tit 11, § 831; Fla

Stat, § 812.13; Haw Rev Stat, § 708-841; Minn Stat, § 609.24;

Mont Code Ann, § 45-5-401; NJ Stat Ann, § 2C:15-1; NY Penal

Laws, § 160.00; ND Cent Code, § 12.1-22-01; Or Rev Stat,

§ 164.395; Tex Penal Code Ann, § 29.02; Utah Code Ann, § 76-6­

301.

All the statutes define "in the course of" to include

either "escape," "flight," "retention," or "subsequent to the

12
20 SW3d 634 (Tenn, 2000).

16

taking." In other jurisdictions that follow this approach,

the statutes specifically include the expressions "resisting

apprehension,"13 "facilitate escape,"14 "fleeing immediately

after,"15 or used to "retain possession."16

By contrast, other jurisdictions have statutes that

follow the common-law rule requiring that the force, violence,

or putting in fear occur before or contemporaneous with the

larcenous taking. These states have statutes substantially

similar to Michigan's. See Ga Code Ann, § 16-8-40; Ind Code,

§ 35-42-5-1; Kan Stat Ann, § 21-3426; Miss Code Ann, § 97-3­

73; NM Stat Ann, § 30-16-2; Tenn Code Ann, § 39-13-401; see

also 93 ALR3d 647-649.

In summary, at common law, a robbery required that the

force, violence, or putting in fear occur before or

contemporaneous with the larcenous taking. If the violence,

force, or putting in fear occurred after the taking, the crime

was not robbery, but rather larceny and perhaps assault.

Hence, the "transactional approach" espoused by the Court of

Appeals is without pedigree in our law and must be abandoned.

Sanders, LeFlore, Turner, and Tinsley are overruled.

13
Ark Code Ann, § 5-12-102.

14
Nev Rev Stat, § 200.380.

15
Ohio Rev Code Ann, § 2911.01.

16
Wash Rev Code, § 9A.56.190.

17

 III. Analysis of the Case on Appeal

Turning to the facts of this case, the prosecution seeks

to extend the transaction that began with the in-store taking

to include the struggle in the parking lot. We point out that

defendant not only failed to escape, but, more importantly,

did not accomplish his taking by the use of force, violence,

assault, or putting in fear.17

While store security personnel observed him, defendant

removed several items from the display shelves of the Meijer

store and concealed them beneath his coat. He continued to

retain possession of this property as he picked up two quarts

of oil, went to a checkout lane, paid for the oil and walked

from the store. The first use of force or violence was in the

parking lot when a security guard attempted to restrain him.

Hence, his use of force or violence was not to take the

property, but to retain it and escape apprehension. It

follows that defendant did not commit the offense of unarmed

robbery.

The dissent makes much of the fact that the unarmed

robbery statute applies to a taking from "the person of

17
We agree with the dissent that escape is not an element

of robbery, and this statement should not be construed to

imply otherwise. We merely point out that the circumstances

of this case go beyond what the Court of Appeals deemed

significant, the irrelevant fact that defendant did not

escape.

18

another, or in his presence," but overlooks the context of

that language. The dissent relies heavily on the notion of

constructive possession and the intent to permanently deprive.

However, we are left without a satisfactory explanation of why

the use of force that does not accomplish a taking would

escalate the offense of larceny to unarmed robbery.

The dissent asserts that force used after a taking, while

the victim has constructive possession of stolen property or

while it is in the victim's presence, supports a charge of

robbery. Notably, however, in each of the dissent's examples,

the force used was to accomplish the ultimate taking. That

did not occur in this case. The dissent attempts to merge a

subsequent force not used to accomplish a taking with the

completed taking that preceded the force.18

We think it significant that the statute identifies

unarmed robbery as the taking of another's property in the

other's presence "by force and violence, or by assault or

putting in fear." MCL 750.530 (emphasis added). If the

physical taking were accomplished without force, assault, or

fear, the statute does not permit treating the larcenous crime

18
Certainly, as the dissent asserts, it may be wise to

wait to apprehend a thief who has not used force or violence

until after he has left a populated store. In so doing,

however, one would be apprehending a thief who committed

larceny, not a robber.

19

as a robbery because of a subsequent forceful act. Such force

used to retain stolen property is simply outside the scope of

MCL 750.530.19 That defendant cannot be convicted of unarmed

robbery is particularly clear here, because his force by no

means accomplished a severing of the store's constructive

possession of the merchandise.

We note that defendant's taking of the merchandise in

this case is indistinguishable from the taking in Bradovich.

Therefore, when defendant placed the merchandise under his

clothing, he committed a taking without force, and his conduct

constituted a completed larceny. The concealment evidences

that, at the time he took the merchandise, defendant intended

to permanently deprive the owner, Meijer, of it. Defendant’s

later acts, whether viewed as an unsuccessful attempt to

retain the property or as an attempt to escape, are too

removed from the completed taking to be considered

19
The dissent's reliance on Sir Edward Coke's definition

of common-law robbery is no more illuminating. It quotes Coke

for the proposition that one who begins to steal by stealth

but, then, "uses force in order to complete the taking" has

committed robbery. Slip op at 36. Again, we agree that one

who uses force to take the property of another has committed

unarmed robbery. We simply will not extend that proposition

to force used after the taking, when the force does not serve

to accomplish the taking. The dissent is incorrect in

extending Coke's definition to force used in an attempt to

retain property where the taking has already been completed.

Nowhere in the dissent is this significant leap supported with

any legal or analytical foundation.

20

contemporaneous.20

The dissent's reliance on People v Podolski21 is

misplaced. In Podolski, this Court held the defendant

responsible for felony murder when, after a robbery, one

police officer shot and killed another while the robbers

exchanged fire with the police. This Court did not base the

felony murder on a "transactional" notion of robbery.

Rather, the unanimous Court asserted that "'when a

felon's attempt to commit robbery or burglary sets in motion

a chain of events which were or should have been within his

contemplation when the motion was initiated, he should be held

responsible for any death which by direct and almost

20
The decisions of this Court and the Court of Appeals

provide no support for the dissent's view, slip op at 24, that

store security's continued observation of defendant extends

the larcenous transaction. Nor do they support the view that

the cessation of such observation can sever the owner's

constructive possession of the stolen property. These views,

asserted without authority, directly contradict the common-law

assessment of larceny illustrated by Bradovich that a larceny

is complete upon the taking and concealment of the property.

As we have endeavored to show, they are also inconsistent with

the common-law view of robbery because the taking is

accomplished without force. Certainly, the owner's legal

right to such property will always be superior to the thief's.

However, the fact remains that physical custody and control of

the property, actual possession, has been acquired by the

thief when he conceals the property. The property has been

"robbed, stolen and taken" from the owner and that felonious

taking has been accomplished without force or the threat of

force.

21
332 Mich 508; 52 NW2d 201 (1952).

21

inevitable sequence results from the initial criminal act.'"

Id. at 515-516, quoting Commonwealth v Moyer, 357 Pa 181, 190­

191; 53 A2d 736 (1947). Where the issue is whether the force

exerted during a robbery was used in taking the property of

another, not whether it was a foreseeable consequence,

Podolski is not on point. Therefore Podolski and its progeny

are not persuasive by analogy as the dissent contends.

Finally, we disagree with the dissent's claim that we

have created an impractical framework for unarmed robbery.

The dissent greatly exaggerates the confusion generated by

overruling the transactional approach. The rule is simple:

a defendant commits an unarmed robbery when he takes the

property of another by the use of force, violence, or putting

in fear. After the initial larcenous act has been completed,

the use of force against the victim to retain the property

taken does not transform it into armed robbery.22 The force,

22
The dissent claims that the Legislature could not have

intended that the theft of under $200 of property, followed by

the thief's violent assault on the victim, be "merely [a]

third-degree retail fraud and assault, rather than the greater

crime of robbery." Slip op at 40-41. The dissent further

expresses surprise that a potential fifteen-year sentence

could be reduced to "punishment of no more than 93 days in

jail." Id. at 41.

As we have indicated, and as the commentators uniformly

agree, at common law, a theft accomplished without force was

a larceny; where the larceny was followed by the application

of force, it was a larceny and an assault. It should be

(continued...)

22

violence or putting in fear must be used before or

contemporaneous with the taking.

We overrule the "transactional approach" to unarmed

robbery and reassert that the force, violence, assault or

putting in fear underlying the robbery must occur before or

contemporaneously with the felonious taking. Because this

defendant did not use force, violence, assault, or putting in

fear to accomplish his taking of property, he did not commit

unarmed robbery.23 Accordingly, we agree with the Court of

22
(...continued)

concluded that our Legislature was well aware of the common­
law view and intended to incorporate it into the statute when

it codified the common law.

Finally, the sentencing prospect contemplated by the

dissent, that the potential sentence would drop from fifteen

years to one year, is incorrect. We are remanding this case

for entry of a conviction of larceny in a building. The

maximum sentence for that offense is four years, not one year.

MCL 750.360 and MCL 750.503. Depending on the facts of the

crime, a defendant who commits an assault following a larceny

could be charged with a ninety-day misdemeanor, MCL 750.81, a

one-year misdemeanor, MCL 750.81a, a four-year felony, MCL

750.82, a ten-year felony, MCL 750.84, MCL 750.86, or MCL

750.87, or life or, if the defendant intended to murder his

victim, a term up to life in prison, MCL 750.83.

23
As the dissent agrees, defendant accomplished a

chargeable crime of larceny when he concealed the merchandise

with the intent to steal it. When the security guards

initiated contact with him and a physical struggle ensued,

defendant lost possession of the merchandise. It defies logic

to say that, when a defendant commits larceny, but loses

possession of the property during a struggle, defendant's

crime can be elevated to unarmed robbery.

(continued...)

23

Appeals panel, albeit using a different analysis, that the

charge of unarmed robbery was not supported by the evidence.

Therefore, we affirm its decision insofar as it reverses

defendant's conviction.

IV. The Remedy

We find that the Court of Appeals erred when it provided

that, with new evidence, the prosecution could retry defendant

on the originally charged offense. See Burks v United States,

437 US 1, 18; 98 S Ct 2141; 57 L Ed 2d 1 (1978); People v

Bullock, 440 Mich 15, 26, n 7; 485 NW2d 866 (1992); People v

Murphy, 416 Mich 453, 467; 331 NW2d 152 (1982). The

prosecution concedes that this was error.24 Defendant agrees

23
(...continued)

We recognize that one who commits retail fraud,

essentially a larceny of merchandise for sale in a store open

to the public, cannot be charged with larceny in a building.

See MCL 750.356c(3). However, People v Ramsey, 218 Mich App

191, 194-195; 553 NW2d 360 (1996), holds that one charged with

unarmed robbery can be convicted of larceny in a building,

even where the underlying facts would support a finding of

retail fraud. In this case defendant was charged with unarmed

robbery. The jury was instructed on that and on larceny in a

building, not retail fraud. Defendant concedes that he is

guilty of larceny in a building. For those reasons, we remand

for entry of a judgment of conviction of larceny in a

building, rather than for a conviction of retail fraud. See

part IV.

24
Another panel of the Court of Appeals has already

disavowed this portion of the Court of Appeals opinion, citing

the United States Supreme Court in Burks v United States, 437

US 1, 11; 98 S Ct 2141; 57 L Ed 2d 1 (1978):

(continued...)

24

that, if defendant's unarmed robbery conviction is overturned,

the proper remedy is a remand for entry of a conviction for

larceny in a building. MCL 750.360.25

The prosecution proposes, as an alternate position, that

this case be remanded to the trial court for retrial on the

lesser offense of assault with intent to commit unarmed

robbery. On the basis of our construction of the unarmed

robbery statute, we reject that approach. To support a charge

of assault with intent to commit unarmed robbery, the

prosecutor would again merge the initial taking with the force

used to retain possession of the merchandise. The taking and

the force are too attenuated to support those charges. The

24
(...continued)

Indeed, "affording the prosecution another

opportunity to supply evidence which it failed to

muster in the first proceeding" is the chief evil

against which the Double Jeopardy Clause protects.

[People v Watson, 245 Mich App 572, 597; 629 NW2d

411 (2001).]

25
The elements of larceny in a building are: (1) the

actual or constructive taking of goods or property of another,

(2) without the consent and against the will of the owner, and

(3) a carrying away or asportation of the goods, (4) with a

felonious intent, (5) the taking having occurred within the

confines of the building. MCL 750.360; People v Sykes, 229

Mich App 254, 278; 582 NW2d 197 (1998). Defendant admits that

he committed larceny in a building. Also, the jury's decision

necessarily included a finding that defendant committed every

element of the crime of larceny in a building. Therefore, a

remand for entry of a conviction of that offense is

appropriate. See People v Bearss, 463 Mich 623, 632-633; 625

NW2d 10 (2001).

25

larceny in a building conviction better fits the facts of this

case.

Because the Court of Appeals decision to allow retrial is

in error, we reverse that portion of the opinion, but remand

the case to the trial court. That court is to enter a

conviction on the lesser offense of larceny in a building, on

which the jury was charged and that was necessarily subsumed

in its verdict.

V. Conclusion

In conclusion, the Court of Appeals correctly determined

that there was insufficient evidence to support defendant's

conviction for unarmed robbery. Because the defendant

completed a taking without using force, violence, assault or

putting in fear, he could not be convicted of unarmed robbery.

We remand to the trial court for entry of a conviction

for larceny in a building and for resentencing. Defendant

cannot be retried for unarmed robbery. The opinion of the

Court of Appeals is affirmed in part and reversed in part.

CAVANAGH , TAYLOR , and YOUNG , JJ., concurred with KELLY , J.

26

 S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff,

v Nos. 117750, 188078

KALVIN RANDOLPH,

Defendant.

______________________________

MARKMAN, J. (dissenting).

I respectfully dissent. In affirming the Court of

Appeals, the majority concludes that this Court has never

adopted the “transactional approach” to robbery. Slip op at

9. The majority then proceeds to overrule more than thirty

years of precedent in the Court of Appeals applying this view.

In doing so, the majority states that “the force used to

accomplish the taking underlying a charge of unarmed robbery

must be contemporaneous with the taking.” Slip op at 4. The

majority concludes that defendant in this case “did not

accomplish his taking by use of force, violence, assault, or

putting in fear.” Slip op at 18. Therefore, the majority

concludes that defendant cannot be convicted of unarmed

robbery. I strongly disagree with this analysis.

 In my judgment, a person is guilty of the crime of

robbery if, before reaching a place of temporary safety, the

person uses force either to effect his initial taking of the

property, or to retain possession of the property or to escape

with the property, as long as the property remains “in [the]

presence” of the victim. MCL 750.530. The language of the

robbery statute, Michigan case law, and the common-law

understanding of robbery each support the view that a person

can be convicted of robbery even if the required element of

force occurs after the perpetrator’s initial seizure of the

property, but before he has reached a place of temporary

safety. Therefore, I would reverse the judgment of the Court

of Appeals.

I. SUMMARY OF THE ARGUMENT

In the criminal law, a crime is not complete until the

act element and the mental element of the particular crime

have concurred. People v Patskan, 387 Mich 701, 714; 199 NW2d

458 (1972).1 In the case of unarmed robbery, the act element

is the “felonious[] rob[bing], steal[ing] and tak[ing]” of

1
See also Parker, The economics of mens rea, 79 Va L R

741, 741 (1993), citing Hall, General Principles of Criminal

Law (2d ed), pp 133-141. See also Blakey, The RICO civil

fraud action in context: Reflections on Bennett v Berg, 58

Notre Dame L Rev (1982), 237, 290, n 151, stating that

“generally, there must be a concurrence between a specified

state of mind and prohibited conduct, the mens rea and the

actus reus.”

2

property from the person of another or of property that is “in

his presence.” MCL 750.530. Further, the act element must be

accomplished “by force and violence, or by assault or putting

in fear.” Id., see also People v Johnson, 206 Mich App 122,

125-126; 520 NW2d 672 (1994). I will refer to this in the

shorthand as the force element. The mental element or intent

element of unarmed robbery is the intent to permanently

deprive the owner of his property. People v King, 210 Mich

App 425, 428; 534 NW2d 534 (1995). Thus, the act element and

the force element must concur with the perpetrator’s intent to

permanently deprive the owner of his property.

Because the statute, and the case law interpreting the

statute, provide that the property may be “in the presence” of

the victim, “actual possession” of the property by the victim

at the time that the force is used is not required. MCL

750.530, see also People v Newcomb, 190 Mich App 424, 430-431;

476 NW2d 749 (1991). The property continues to be “in [the]

presence” of the victim where the property remains under his

personal protection and control. Id., see also People v

Covelesky, 217 Mich 90, 97; 185 NW 770 (1921). It follows

that, as long as the victim exercises this protection and

control over the property, the requisite force element of

robbery may still be used against him, because the property is

still “in his presence”. MCL 750.530. Thus, where an assault

3

occurs at any time during which the property can be said to be

in the victim’s presence, a robbery within the meaning of the

statute occurs. In this case, although defendant had

initially seized items from the shelf of the Meijer’s store,

the security guards continued to exercise protective custody

and control over that property, because they continued to

monitor defendant and they still had the right to take the

property back. Therefore, the property was “in [their]

presence within the meaning of MCL 750.530 when defendant, by

assault, attempted to unlawfully deprive the security guards

of the property. This “transactional view” of robbery,2 as it

has been applied in Michigan, is consistent with both the

common-law definition and the statute defining robbery, and

supports defendant’s conviction.

II. STATUTE

The majority, in my judgment, errs in its analysis of the

crime of robbery by interpreting too narrowly the statute’s

requirements of the force element, the act element, and the

concept of possession. As a consequence, the majority’s

conclusion that defendant “did not use force, violence,

assault or putting in fear to accomplish his taking of

2

The “transaction” designates the events occurring

between the time of the initial seizure of the property and

the eventual removal of such property from the victim’s

presence.

4

property” is also in error. Slip op at 23.

The statute requires only that the force and violence or

the assault occur at some point during which the property is

“in the presence” of the victim.3 The statute does not limit

the force element to the initial seizure of the property. A

robbery may occur “by force and violence” or “by assault” as

long as the property remains “in [the] presence” of the

victim. The property is in the presence of the victim,

3
Michigan case law has long held that it is unnecessary

that the victim be the actual owner of the property that is

the subject of the larceny. An employee or security guard of

the owner of property who is assaulted during the course of a

larceny is as susceptible to the crime of robbery as the

owner. Durand v People, 47 Mich 332, 334; 11 NW 184 (1882).

See also People v Cabassa, 249 Mich 543, 546-547; 229 NW2d

442 (1930), sustaining a conviction of robbery where a

gasoline station attendant, “[al]though not the actual owner

of the property stolen, was in custody and control of it,” and

stating the rule to be that “[a]s against a wrong-doer an

actual possession or custody of the goods [is] sufficient,”

and People v Gould, 384 Mich 71, 79-80; 179 NW2d 617 (1970).

Other jurisdictions have come to a similar conclusion. To

suggest that anyone other than the lawful owner of property

cannot be the victim of a robbery, of course, would render

even force used contemporaneous with a taking something other

than robbery unless the force was used directly against the

owner. No force used against a security guard or other

employee could ever amount to a robbery.

Indeed, consistent with this long-held view, the

complaint, warrant, and information in this case showed the

complainants or victims as Aaron Wilmoth (one of the two

security guards) and Meijer’s. The charge of unarmed robbery

against defendant charged that he: “[D]id feloniously rob,

steal and take from the person of another, to-wit: Aaron

Wilmoth and Nicole Lewis [the second security guard and the

one who was injured by defendant] or in his/her presence,

certain property . . . by force and violence or by assault or

putting in fear . . . contrary to MCL 750.530.”

5

although it is in the actual physical possession of the

perpetrator, where the victim exercises protective custody and

control over the property.4 This is in accord with the

statute.

MCL 750.530 provides:

Any person who shall, by force and violence,

or by assault or putting in fear, feloniously rob,

steal and take from the person of another, or in

his presence, any money or other property which may

be the subject of larceny, such robber not being

armed with a dangerous weapon, shall be guilty of a

felony . . . .

It is a settled rule of statutory construction that,

unless otherwise defined in a statute, this Court will ascribe

every statutory word or phrase its plain and ordinary meaning.

See MCL 8.3a. Further, this Court shall ensure that words in

a statute are not ignored, treated as surplusage, or rendered

nugatory. Hoste v Shanty Creek Mngt, Inc, 459 Mich 561, 574;

592 NW2d 360 (1999).

Here, to describe the element of force, the Legislature

used the words “by force and violence, or by assault or

4

The judge instructed the jury, without defense

objection, that to prove the charge the prosecutor had to

prove, in addition to the other articulated elements, “that

this property was taken from the person of Aaron Wilmoth and

Nicole Lewis or in their presence. This can occur even if the

property was not in the same immediate area as Aaron Wilmoth

and Nicole Lewis.” The charge and the instructions

demonstrate that the jury was informed of the elements in a

manner consistently, not only with MCL 750.530, but also with

the dissent’s analysis of the crime of unarmed robbery.

6

putting in fear”. MCL 750.530. To describe the act that must

be accomplished, the Legislature used the words “rob,”

“steal,” and “take,” and to describe the allowable possession

of the property that is subject to the robbery, the

Legislature used the words “in his presence.”

The majority argues that a robbery occurs only when a

person, by force and violence, or by assault or putting in

fear, uses that force initially to seize the property from the

person of another, or in his presence. But, the statute

plainly allows for more. A robbery occurs under the statute

where, by force and violence or by assault, the perpetrator

takes property from the person or in his presence. That is,

where the robber initially seizes the property by force and

violence or by assault. However, the statute also allows for

a conviction of robbery where, “by assault” the perpetrator

“robs” property that is “in [the] presence” of the victim.

The phrase “by assault” cannot mean the same thing as “by

force and violence.” Rather, “assault” is defined simply as

“a sudden violent attack.” Random House Webster’s College

Dictionary (1991). The term is also defined more broadly as

“illegal force.” Black’s Law Dictionary (6th ed).

Further, the word “rob” cannot encompass merely the

taking of the property, because the term “take” is already

used in the statute. The Legislature is not presumed to have

7

used different terms to mean the same thing. Here, the

Legislature used the words “rob,” “steal,” and “take.” “Rob”

means to “[u]nlawfully deprive (a person) of or of something,

esp. by force or the threat of force.” The New Shorter Oxford

English Dictionary (1993).

Thus, the statute, summarized, provides: “Any person who

shall . . . by assault . . . rob . . . [property] from the

person of another or in his presence . . . shall be guilty

. . .” That is, a person may be guilty of robbery if “by

assault” he “robs” property that is “in [the] presence” of the

victim. As the majority recognizes, the defendant in this

case committed an assault upon the security guards. Because

the security guards exercised protective custody and control

over that property, it remained in their “presence”. Viewing

the evidence in a light most favorable to the prosecutor, the

assault was committed so that the defendant could remove the

property “from [the] presence” of the security guards.

Defendant’s violent act of assault evidenced his intent to

unlawfully and permanently deprive the guards of the property.

The majority asserts that the dissent misapprehends the

context of the statutory phrase “in his presence”. The

majority emphasizes the words “by force and violence, or by

assault or putting in fear,” slip op at 19, and assumes that

these words apply only to the initial taking itself, and

8

therefore, concludes: “the statute identifies unarmed robbery

as taking another’s property in the other’s presence ‘by force

and violence, or by assault or putting in fear,’” and “[i]f

the physical taking was accomplished without force, assault,

or fear, the statute does not permit treating the larcenous

crime as a robbery because of a subsequent forceful act.” Id.

However, as I have indicated, I believe that, although

property may be in the actual and wrongful possession of the

perpetrator, it may still be “in [the] presence” of the victim

such that the perpetrator may still, “by assault,” “rob” the

victim. MCL 750.530. While the statute provides that the act

must be accomplished “by force and violence, or by assault,”

the requisite act is more than a mere taking or initial

larceny of the property as evidenced by the statute’s

employment of the word “rob.” As we have already indicated,

“rob” means more broadly an unlawful deprivation of property

by force.5

5
The majority approaches the statute in a piecemeal

fashion, restricting its application to the initial act of

defendant’s seizure of the property, and ignoring the

significance of the terms “by assault”, “rob” and “in his

presence.” Indeed, in People v Calvin, 60 Mich 113, 119; 26

NW 851 (1886), the offense of robbery was described by this

Court as separating these two phrases. Describing the robbery

statute, the Court stated, of unarmed robbery, that “the

offense is perpetrated by force and violence . . . and

robbing, stealing, and taking from the person of another, the

robber not being armed with a dangerous weapon.” Id., citing

How Stat § 9091.

(continued...)

9

 Therefore, although a larceny may be complete when the

perpetrator initially wrongfully takes and conceals the

property, the statute encompasses not merely a larceny, but a

“rob[bing], steal[ing], and tak[ing]” by force and violence,

or by assault or putting in fear, of property, that is “in

[the] presence” of the victim. MCL 750.530. Thus, while

through an initial larceny the perpetrator may steal property,

he may not yet have “rob[bed]” that same property. Thus, an

assault to “rob” may occur after the initial seizure of the

property.

Further, the phrase “from the person of another, or in

his presence” has been defined by this Court, in a manner

consistent with this interpretation, to mean that the victim

must merely maintain personal protection over the property for

it to be considered “in his presence.” In Covelesky, supra at

97, this Court stated:

“[T]he words ‘taking from the person of

another,’ as used in connection with the common-law

definition of robbery, are not restricted in

application to those cases in which the property

taken is in actual contact with the person of the

one from whom it is taken, but include within their

meaning the taking by violence or intimidation from

the person wronged, in his presence, of property

which either belongs to him or which is under his

5
(...continued)

10

 personal protection and control. And where such

words have been incorporated into statutes defining

robbery, they have received the same

construction.”[6]

In Covelesky, this Court further adopted the interpretation by

the Iowa Supreme Court of the prepositional phrase “from the

person of another” in the Iowa robbery statute, which “closely

resembles” that of Michigan:

“The preposition ‘from’ does not convey the

idea of contact or propinquity of the person and

property. It does not imply that the property is

in the presence of the person. The thought of the

statute, as expressed in the language, is that the

property must be so in the possession or under the

control of the individual robbed that violence or

putting in fear was the means used by the robber to

take it.” [Id. at 99, quoting State v Calhoun, 72

Iowa 432; 34 NW 194, 196 (1887).]

As evidenced by this analysis, the majority takes too

narrow a view of the concept of “possession” when it states

that “this defendant did not did not use force, violence,

assault or putting in fear to accomplish his taking of

property.” Slip op at 23. Neither the statute nor the common

6
As noted by the Court in Covelesky, the phrase “in his

presence” was part of the definition of robbery at common law.

Id. at 97, quoting 34 Cyc 1796. The actual words “or in his

presence” were not added to the statute until 1931 with the

adoption of the Michigan Penal Code, 1931 PA 328, § 529.

People v Moore, 13 Mich App 320, 323, n 6; 164 NW2d 423

(1968). As the majority acknowledges, Michigan incorporated

the common-law crime of robbery into the statute. Slip op at

5, n 4.

11

law requires that the victim be in actual possession of the

property when the force is exercised. Although in the actual

possession of the thief, the property may still be in the

“presence” of the victim, because it is “under his personal

protection and control,” Covelesky, supra at 97-99, and the

use of force at the time the perpetrator attempts to

ultimately remove the property from the presence of the

victim, sufficiently establishes the force necessary to commit

robbery.7 For a “thief does not obtain the complete,

independent and absolute possession and control of money or

property adverse to the rights of the owner where the taking

is immediately resisted by the owner before the thief can

remove it from the premises or from the owner’s presence.”

State v Long, 234 Kan 580, 586; 675 P2d 832 (1984), see also

People v Clark, 113 Mich App 477, 480; 317 NW2d 664 (1982);

Newcomb, supra at 430-431.

The dissent does not disagree that the crimes of larceny

7
“A thief who finds it necessary to use force or

threatened force after a taking of property in order to retain

possession may in legal contemplation be viewed as one who

never had the requisite dominion and control of the property

to qualify as a ‘possessor.’” 4 Wharton, Criminal Law (14th

ed), § 463, at 39-40.

12

and robbery are distinct.8 However, for the purpose of the

crime of robbery, the relevant act encompasses a broader

spectrum of time, and includes not simply an initial larcenous

taking, “by force and violence” or “by assault,” but a robbing

of the victim “by assault” when the property remains in the

victim’s presence.

Thus, as long as the property is in the presence of the

victim, that is, before the perpetrator reaches a place of

“temporary safety,” a robbery can occur when the perpetrator

with actual possession attempts to sever the property from the

victim’s presence “by force and violence, or by assault or

putting in fear.” MCL 750.530.9

8
The universal view at common law was that robbery was

an aggravated form of larceny. 1 Odgers, The Common Law of

England (2d ed), p 331. See also Rapalje, Larceny & Kindred

Offenses (1892), § 58, p 64, noting that the “distinction

[between larceny and robbery] lies in the presence in one of

them and the absence in the other of the elements of force and

putting in fear.” That common-law robbery is a larceny

aggravated by the use of force has continued to be the view in

more modern times. See LaFave & Scott, Criminal Law (1972),

§94, p 692; Perkins, Criminal Law (2d ed), § 2, at 280.

9
The concept of “temporary safety” describes the point

beyond which the property is no longer in the presence of the

victim. Practically, the perpetrator has escaped. At this

point, the perpetrator has consummated his wrongful possession

by fully converting the property to his own use and may,

unless apprehended, do with the property as he sees fit. Upon

reaching a place of temporary safety, the perpetrator finally

exercises full “dominion and control” over the property.

(continued...)

13

 III. INTENT TO “PERMANENTLY DEPRIVE ”

That the “transactional view” constitutes the proper view

of robbery under the statute is reinforced, in my judgment, by

the fact that the “intent to permanently deprive” element may

occur after the initial taking. Unarmed robbery is a specific

intent crime. People v Dupie, 395 Mich 483, 487; 236 NW2d 494

(1975), citing People v McKeighan, 205 Mich 367; 171 NW 500

(1919). The focus of the intent element of robbery is on the

perpetrator’s intent to permanently deprive the owner of his

property. King, supra at 428.

While, ordinarily, the taking and the use of force in a

robbery are relatively contemporaneous so that the requisite

intent may be readily inferred from these events, the act of

force nonetheless may precede or follow the taking. People v

LeFlore, 96 Mich App 557, 561-562; 293 NW2d 628 (1980). For

example, a typical robbery occurs when, by the threat or use

of force, the robber forces the victim to turn over property

directly to him. However, that the force occurs after the

initial taking does nothing to negate the “intent to

permanently deprive” element. In other words, when the

9
(...continued)

Wharton, note 7, supra. However, until that point, the victim

is viewed as continuing to exercise protective custody and

control over his property. Covelesky, supra at 97-98.

14

perpetrator, by assault, intends still to permanently deprive

the victim of property that remains in the victim’s presence,

a robbery can be said to have occurred. It is the

perpetrator’s intent at the time of the use of force–either to

preserve his unlawful possession of the goods or to effect his

escape (at least where these occur while the property remains

“in the presence” of the victim)–that completes the crime of

robbery.10

As long as there is a “purposeful relationship” between

the elements of the crime of robbery: the act, whether that be

robbing, stealing or taking, which establishes the intent to

permanently deprive the victim of his property, and the force,

which aggravates that crime into robbery, the robbery is

complete. LeFlore, supra at 562, citing LaFave & Scott,

Criminal Law, § 94, p 701-702. “The entire larcenous

10
Further, the perpetrator’s “willingness to use force

against those who would restrain him in flight suggests that

he would have employed force to effect the theft had the need

arisen,” in other words, that he has the specific intent to

permanently deprive the owner of his property. 2 LaFave &

Scott, Substantive Criminal Law, § 8.11, p 453. This view of

robbery recognizes that robbery is a crime against the person,

and its prosecution is intended to protect the person robbed.

People v Hendricks, 446 Mich 435, 449-450; 521 NW2d 546

(1994). Where a perpetrator uses force against a person with

the intent to permanently deprive that person of property over

which he has protective custody and control, the perpetrator

evidences the conduct that the statute seeks to punish.

15

transaction should be reviewed to determine if there is a

continuity of intent between the forceful act and the taking

(or vice versa).” Id.11

To clarify, consider the perpetrator who is observed

shoplifting and manages to escape from the store before being

apprehended. In such a case, the only crime that occurs is a

larceny. The larceny is complete upon the perpetrator’s

concealment of the item, for it is at that time that the

intent to deprive the owner of the property merged with the

actual taking.

Next consider the perpetrator who is observed shoplifting

and who is followed out into the parking lot. Before being

confronted by the security guards, he drops the property onto

the ground or he is apprehended. Again, the crime is larceny,

for no further criminal intent may be inferred from his acts.

Finally, consider the perpetrator who uses force in the

parking lot, as in this case, while he is still in actual

possession of the property. The perpetrator is still viewed

under the robbery statute as having robbed the victim because

11
See Briley v Commonwealth, 221 Va 532, 543; 273 SE2d

48 (1980), stating that “[i]n a robbery prosecution, where the

violence against the victim and the trespass to his property

combine in a continuing, unbroken sequence of events, the

robbery itself continues as well for the same period of time.”

16

the property was still in the victim’s presence when the

assault occurred. The property was at the time of the thief’s

initial taking of it, and is still at the time of the assault,

“in [the] presence” of the victim. MCL 750.530. The security

guards continued to exercise “protective custody and control”

over the property. Covelesky, supra at 97-98.

IV. TRANSACTIONAL VIEW

Having established that the statute encompasses not

merely an initial taking of property “by force and violence”

or “by assault”, but rather, a robbing of the victim by

assault, where property continues to be in the presence of the

victim, the question next to be addressed is whether this

Court should recognize the transactional view of robbery as it

has hitherto been applied in Michigan.

A. COURT OF APPEALS DECISIONS

While this Court has never expressly adopted the

“transactional view” of robbery, Michigan jurisprudence on

this issue is no tabula rasa. The Court of Appeals, including

the panel in this case, has expressly applied this view to

robbery for at least thirty years.12 See, e.g., People v

12
The deep rootedness of the “transaction approach” is

further reflected by its regular articulation in recent

opinions of the Court of Appeals which were not even viewed as

(continued...)

17

Sanders, 28 Mich App 274, 277; 184 NW2d 269 (1970) (stating

that, in the context of armed robbery, “the incident of the

taking must be viewed in its totality in order to ascertain

the intent of the defendant when the assault occurs”); People

v Beebe, 70 Mich App 154, 158; 245 NW2d 547 (1976) (stating

that the view of the majority of other jurisdictions considers

robbery as an “ongoing transaction” rather than one “broken up

into its component acts”); LeFlore, supra at 562, stating that

the “assault may follow the taking if that force is used to

completely sever the victim’s possession”); Clark, supra at

12
(...continued)

warranting publication. People v Garrett, unpublished opinion

per curiam, issued March 26, 2002 (Docket No.

227944)(affirming the following instruction: “The use of force

in retaining property taken or in attempting to escape rather

than in the taking of property itself is sufficient to supply

the element of force essential to the offense of robbery”);

People v Scruggs, unpublished opinion per curiam, issued March

19, 2002 (Docket No. 225337)(affirming an armed robbery

conviction where defendant brandished a knife during his

escape from the scene of a larceny); People v Cherry,

unpublished opinion per curiam, issued March 8, 2002 (Docket

No. 224544) (affirming a conviction in an almost-identical

case involving a parking lot fight with security guards);

People v Garza, unpublished memorandum opinion, issued July

27, 2001 (Docket No. 223543)(observing that the “use of force

in retaining the property taken or in attempting to escape is

sufficient to supply the element of force or coercion

essential to the offense of robbery”); People v Wimbush,

unpublished opinion per curiam, issued April 28, 2000 (Docket

No. 210709) (asserting that “Michigan has adopted a

transactional approach for analyzing robbery”).

18

480 (stating that Michigan employs the “‘transaction’ test for

armed robbery, which provides that a taking is not considered

complete until the assailant has effected his escape because

the victim is still considered in possession of his

property”); People v Denny, 114 Mich App 320, 324; 319 NW2d

574 (1982); People v Turner, 120 Mich App 23, 28; 328 NW2d 5

(1982); People v Tinsley, 176 Mich App 119, 121; 439 NW2d 313

(1989); Newcomb, supra at 430-431; People v Velasquez, 189

Mich App 14, 17; 472 NW2d 289 (1991).

Thus, the Court of Appeals has consistently interpreted

the statutes defining robbery and armed robbery as “continuous

offense[s], which [are] not complete until the perpetrator

reaches a place of temporary safety.” Tinsley, supra at 121.

This line of precedent, with its attendant reasoning, provides

considerable support for the proposition that the

“transactional view” of robbery is consistent with Michigan

jurisprudence.13

B. ANALOGOUS PRINCIPLES IN SUPREME COURT

In addition to being consistent with the robbery statute,

13
Cases in other jurisdictions with similar statutory

language have also found sufficient evidence of robbery in

strikingly similar factual circumstances to the instant case.

See, e.g., People v Estes, 147 Cal App3d 23, 26; 194 Cal Rptr

909 (1983)[Cal Penal Code § 211]; State v Long, supra at 2

[Kan Stat Ann § 21-3426].

19

Michigan case law, and the common law, the “transactional

view” of robbery has been implicitly accepted by this Court in

other contexts. While the majority asserts, correctly, that

this Court has never recognized the “transactional approach”

in the specific context of robbery, slip op at 9, this Court

has adopted a “transactional view” of robbery in the context

of felony murder, where the murder occurs after commission of

the robbery. People v Podolski, 332 Mich 508, 515-518; 52

NW2d 201 (1952). There, the Court stated that “the robber may

be said to be engaged in the commission of the crime while he

is endeavoring to escape and make away with the goods taken.”

Id. at 518. In Podolski at 515-518, this Court expressly

adopted the reasoning of the Pennsylvania Supreme Court in

Commonwealth v Moyer, 357 Pa 181, 190-191; 53 A2d 736 (1947),

which stated:

“It is equally consistent with reason and

sound public policy to hold that when a felon’s

attempt to commit robbery or burglary sets in

motion a chain of events which were or should have

been within his contemplation when the motion was

initiated, he should be held responsible for any

death which by direct and almost inevitable

sequence results from the initial criminal act . .

. . Every robber or burglar knows that a likely

later act in the chain of events he inaugurates

will be the use of deadly force against him on the

part of the selected victim. For whatever results

follow from that natural and legal use of

retaliating force, the felon must be held

responsible.”

20

Further, the Podolski Court at 517-518 agreed with the

reasoning asserted by the prosecutor, quoting from Wharton,

Homicide (3d ed), p 186:

“Where a homicide is committed within the res

gestae of a felony, however, it is committed in the

perpetration of, or attempt to perpetrate, a felony

within the meaning of such statutes. That the

attempt to commit the felony was not far advanced

does not lessen the offense. And a burglar who

breaks into a building, or who shoots a person who

discovers him in an effort to escape, cannot avoid

punishment for murder in the first degree, upon the

theory that the burglary consisted in breaking in,

and was consummated before the killing. A burglar

may be said to be engaged in the commission of the

crime of burglary while making away with the

plunder, and while engaged in securing it. So, a

robbery within the meaning of a rule that a

homicide committed in the perpetration of a robbery

is murder in the first degree is not necessarily

concluded by the removal of the goods from the

presence of the owner; and it is not necessary that

the homicide should be committed at the precise

time and place of the robbery.”[14]

14
The majority criticizes the dissent’s use of Podolski.

The majority states that in that case “[t]his Court did not

base the felony murder on a ‘transactional’ notion of

robbery.” Slip op at 21. The dissent does not assert that

Podolski adopted a transactional approach to robbery. The

case is cited only to illustrate that a felony murder

conviction can be based on a killing that occurs after the

predicate crime of robbery. Further, this case is cited to

illustrate that the concept of an ongoing criminal

transaction, in which the elements of the crime may be viewed

as part of an unbroken chain of events, is an appropriate

method for analyzing the conduct of individuals under the

criminal law. The transactional approach to robbery merely

recognizes the premise of Podolski that the use of force after

a taking of property is sufficient to consummate the crime of

(continued...)

21

In my judgment, it is altogether reasonable to extend, by

analogy, this reasoning with respect to felony murder for a

killing committed after a burglary or after a robbery, to the

case of an assault committed after an initial taking, but

before the perpetrator’s escape.

In People v Gimotty, 216 Mich App 254, 257-259; 549 NW2d

39 (1996), the Court of Appeals held that the defendant had

not reached a place of temporary safety in his escape from the

scene of retail fraud, defined in the chapter on larceny, MCL

750.356, and, thus, that the death of a child in a vehicle

struck by the defendant’s vehicle during a high-speed police

chase from the store was sufficiently connected to the

underlying offense to support felony murder. See also People

v Oliver, 63 Mich App 509, 523; 234 NW2d 679 (1975); People v

Smith, 55 Mich App 184, 189; 222 NW2d 172 (1974). Again, by

analogy, these cases support the view that an assault

following an ordinary larceny elevates the crime to robbery

and that a perpetrator who uses that force at any time before

reaching a place of temporary safety in an effort to retain

the property or escape with the property can be charged with

14
(...continued)

robbery.

22

robbery.15

Finally, we would observe that the “transactional view”

of robbery is also consistent with the premises that underlie

the greater culpability of the perpetrator who resorts to

violence in an attempt to steal property.16 It is not the

victim, but the perpetrator who should bear the full

responsibility for his actions. “‘Every robber or burglar

knows that a likely later act in the chain of events he

inaugurates will be the [attempted] use of deadly force

against him on the part of the selected victim. For whatever

results follow from that natural and legal use of retaliating

force, the felon must be held responsible.’” Podolski, supra

15
Surely, it is not because a larceny occurred that the

property in this case can said to be out of the victim’s

presence. Indeed, because the security guards maintained

uninterrupted surveillance over defendant and because they

converged on him in a place where they were authorized to

confront him and recover the property, the property was very

much within their “protective custody and control.”

Covelesky, supra at 97-98. For the purposes of some

larcenies, the property may be removed from the victim’s

presence, but the bare fact that a larceny occurs cannot, in

every case, be deemed such removal.

16
Blackstone observed that the “force . . . makes the

violation of the person more atrocious than privately

stealing.” 4 Blackstone, Commentaries, Public Wrongs, ch 17,

p 242. Blackstone refers also to the parallel view of robbery

in the civil law: “qui vi rapuit, fur improbior esse

videtur,” he who steals by violence must be judged with

greater culpability as a robber. Id. See also Rapalje,

supra, § 444, pp 632-633.

23

at 516 (citations omitted). The use of force by the

perpetrator against the owner of property who discovers his

deed is an act, the need for which should not take the

perpetrator by surprise. The use of force in such a

circumstance should not be viewed as unusual or uncommon, but

rather as a typical incident of the crime of larceny.17

V. APPLICATION OF PRINCIPLE

When analyzing whether sufficient evidence has been

presented to sustain a criminal conviction, this Court reviews

the evidence in a light most favorable to the prosecutor and

determines whether any rational trier of fact could have found

that the essential elements of the crime were proven beyond a

reasonable doubt. People v Nowak, 462 Mich 392, 399-400; 614

NW2d 78 (2000). In that case, the Court articulated that this

“standard of review is deferential: a reviewing court is

required to draw all reasonable inferences and make

credibility choices in support of the jury verdict.” Id. at

17
“Robbery, while containing elements of theft of

property, is primarily an assaultive crime . . . “Robbery

violates the social interest in the safety and security of the

person as well as the social interest in the protection of

property rights. In fact, as a matter of abstract

classification, it probably should be grouped with offenses

against the person . . . .’” [Hendricks, supra at 449.]

24

400.

The “transactional view” of robbery, as explained in this

opinion, and in light of the facts and charges presented to

the jury, supports defendant’s conviction in the instant case.

The record establishes that the Meijer security guards

observed defendant commit a larceny when he concealed items

that he had taken from a Meijer’s department store and

proceeded to leave the store without paying for them. The

security guards continued to surveil defendant during this

entire transaction, from the moment he took the property and

concealed it until the altercation in the parking lot. During

their observation of defendant, the security guards continued

to exercise protective custody and control over the property.

That is, the security guards had the authority and the right

to take it back. Thus, the property was for all purposes “in

[the] presence” of the guards. MCL 750.530. As security

guards for the property’s owner, Meijer’s, these guards had a

right and the authority to regain possession of the property.

In the moments prior to the confrontation, defendant had a

choice either to surrender peacefully or to attempt to remove

the property from their presence by force, in this particular

case, by assault. He chose the latter, and his conduct

thereby evidenced an intent to forcefully and permanently

25

deprive Meijer’s of its property. By assault, defendant

robbed the security guards of property that was in their

presence. It is at the moment when the defendant turned to

force (which caused one of the guards to suffer a fractured

bone in her face and two broken teeth) that his intent to

deprive the owner of its property and the use of force merged

to satisfy the elements of the crime of robbery.

VI. COMMON LAW

A. FORCE AFTER INITIAL TAKING

Finally, an analysis of the common law supports the view

that force used after an initial wrongful seizure of property,

to prevent the victim’s resistance or to escape with the

property, is sufficient to satisfy the elements of the crime

of robbery. The common-law crime of robbery was defined as

“the unlawful taking possession of the goods of another by

means of violence or threats of violence, used with the object

of obtaining those goods from the owner, without his consent

and with the intention of depriving him permanently of all the

benefits of his ownership.” 1 Odgers, The Common Law of

England (2d ed), ch VIII, p 331. In this work, which is a

compilation of “all important statutes and decisions,” the

authors declare that where a person “used any personal

violence at the time of or immediately before or immediately

26

after such robbery, he may be sentenced” as a robber was at

that time, “to penal servitude for life.” Id. The difference

between larceny and robbery is further explained: “If the only

violence used occurs accidentally and unintentionally in the

prisoner’s efforts to obtain possession of the property, the

offence is larceny from the person and not robbery. But if

violence is necessary to enable the prisoner to obtain

possession of the property, and the prisoner on discovering

this intentionally resorts to violence with that object, this

is robbery.” Id. at 332. In an example that follows, the

author sets out the distinction between the successful escape

and the violent altercation before the robber completes the

escape:

Thus, the snatching of a purse from a

prosecutor, who is unaware of what is happening

until after the purse is gone from his possession,

cannot amount to robbery; but it will be otherwise

if the prisoner does something to put the

prosecutor in bodily fear before snatching the

purse, for here the fear precedes the taking.

So, if the prisoner obtains possession of the

property without actual violence or threats of

violence, the crime is only larceny from the

person, unless the prisoner immediately after

taking possession of the property uses personal

violence.” [Id.]

Finally, the common-law indictment for robbery was pled

as follows:

27

 A.B., on the ___day of __, in the county of ,

robbed C.D. of a watch, and at the time of or

immediately before or immediately after such

robbery did use personal violence to the said C.D.

[2 Odgers, at 1478.]

Compare the view expressed by Rapalje in 1892, which also

supports the view that the force element of robbery can occur

after the initial seizure of the property: “To constitute

robbery, the force used must be either before or at the time

of the taking and of such a nature as to show that it was

intended to overpower the party robbed, or to prevent

resistance on his part, and not merely to get possession of

the property.” Rapalje, Larceny & Kindred Offenses (1892), §

446, p 637 (emphasis added). These views are more precise

with regard to the actual nature of the crime of robbery as

one of force against the victim to remove property from his

presence. It is the use of force “not merely to get

possession,” but also, “to prevent resistance” that satisfies

the elements of the crime. Id.18 In my judgment, the majority

18
The majority is incorrect in suggesting that this

quotation does not reflect Rapalje’s view of the common law.

Slip op at 8, n 6. While Rapalje uses this quotation in

discussing a North Carolina state court decision, he is merely

repeating language from his own earlier statement cited by the

majority, id., and then describing what he believes to be the

consistent North Carolina view. Rapalje does not suggest in

any way that the North Carolina view is inconsistent with his

earlier statement. The phrase “not merely to get possession

(continued...)

28

errs in concluding that the common law of robbery would not

support defendant’s conviction in the instant case. The

common law, which, as the majority acknowledges, has been

incorporated into MCL 750.530, supported a conviction for

robbery when a perpetrator used force against the victim even

after the property had already been taken by the perpetrator,

if the perpetrator used that force to prevent the victim’s

resistance or to escape with the property. This is what

occurred in this case.19

B. BLACKSTONE

In contending that the common law supports its view, the

18
(...continued)

. . . [but also] to prevent resistance” fully supports his

view that, even where a robber first possesses “the goods, up

to the time of the felonious violence,” the property is still

in “the possession of the owner; and the taking, being in [the

owner’s] presence, is . . . from [the owner’s] person.”

Rapalje, supra, § 445, at 633. When read in its entirety,

Rapalje’s quote is entirely consistent with the dissent’s view

that the property may already be in the possession of the

perpetrator, that is, it may already have been initially

“taken” when the forceful act necessary to complete the

robbery occurs.

19
By its approval of Odgers, slip op at 7, n 6, the

majority appears to concede that the force used in a robbery

may occur after the taking. Somehow, however, in the very

same breath, the majority asserts that Odgers offers support

for its view that the force and the taking must be

contemporaneous. If the force may occur immediately after the

initial taking, it is hard to understand the basis for the

majority’s proposition that there must be absolute

contemporaneousness.

29

majority makes much of the quotation from Blackstone that “if

one privately steals sixpence from the person of another, and

afterwards keeps it by putting him in fear, this is no

robbery, for the fear is subsequent . . . .” 4 Blackstone,

Commentaries, Wrongs, ch 17, p 242. However, as pointed out

by Perkins, Criminal Law (2d ed), p 348, this quotation has

been misapplied:

If the two transactions are essentially

distinct–if subsequent to the larceny the owner

should come upon the thief and be prevented from

retaking his property by force or violence-- the

thief would be guilty of larceny and assault, but

not robbery. But if the violence or intimidation

is part of the res gestae of the larceny the

offense is generally held to be elevated to the

category of robbery . . . . [Id. at 349.]

The majority attempts to distinguish this quotation from

Perkins in three ways, all of which are unavailing. First,

the majority states that the dissent “fails to set forth the

full quotation from Perkins and therefore misunderstands the

point that Perkins was making.” Slip op at 11, n 9. To

demonstrate that the “transactional view” is not only

consistent with the statute and Michigan case-law, but also

consistent with the common law as reflected by Blackstone, we

set forth the language from Perkins in full. Following the

disputed quotation from Blackstone, Perkins writes:

Occasionally this has been misapplied. For

30

 example, during a chance meeting D suggested he

might be interested in buying the gun X was

carrying and asked permission to examine it, which

was granted. Finding the gun loaded D then pointed

it at X and told him to run for his life. As X

backed away, D ran off with the weapon. A

conviction of robbery was reversed on the theory

that the resort to intimidation was after the

acquisition of the gun.[20] This completely

overlooks the distinction between possession and

custody. When D received the gun to examine

momentarily in the presence of X, D had custody

only. Had he run off with the gun without violence

or intimidation he would have been guilty of

larceny because this would have been a trespassory

taking and carrying away with all the elements of

that offense. And since he actually did this under

a threat to kill he clearly committed robbery, as

the same court had held earlier under an equivalent

set of facts. And a motorist whose tank had been

filled with gas at his request, after which he held

off the attendant at gunpoint, under threat to

shoot while he drove away without making payment,

was properly convicted of robbery. Furthermore, if

one snatches property from the hand of another and

uses force or intimidation to prevent an immediate

retaking by the other, this is all one transaction

and constitutes robbery. If the two transactions

are essentially distinct,–if subsequent to the

larceny the owner should come upon the thief and be

prevented from retaking his property by force or

violence, the thief would be guilty of larceny and

assault, but not robbery. But if the violence or

intimidation is part of the res gestae of the

larceny the offense is generally held to be

elevated to the category of robbery, although there

is still some authority for the earlier view that

20
As the majority points out, Perkins disagrees with the

reversal of this conviction, and the basis of his disagreement

lies in the rationale supporting the reversal that “resort to

intimidation was after the acquisition of the gun.” This

supports the view that the force required to convict one of

robbery may occur subsequent to the initial wrongful taking.

31

 force or intimidation used to retain possession of

property taken without it, is not sufficient.

[Perkins, supra at 348-349.]

The majority concedes that, in the first example given by

Perkins, “the thief initially had mere custody of the weapon,

but his possession of the weapon was secured by threat of

force.” Slip op at 11, n 9. In this case, defendant,

likewise, had mere custody of the items, and the attempt to

gain complete possession of the items, that is, to remove the

items from the presence of the security guards, was secured by

the use of force. As explained elsewhere, the successful

escape with the property, or the complete removal of the

property from the presence of the victim, is not a necessary

element of robbery. Rather, escape and such removal merely

indicate the end point of the “transaction.”21

Second, the majority states that Perkins’ use of the

21
The majority asserts that defendant’s “use of force

or violence was not to take the property, but to retain it and

escape apprehension. It follows that defendant did not commit

the offense of unarmed robbery.” Slip op at 18. However,

defendant attempted to escape apprehension with the property.

Thus, defendant did use force in an attempt to complete his

wrongful possession of the property. Further, we do not, as

the majority suggests, support “the fiction . . . that a

robbery is not complete until a defendant reaches temporary

safety.” Slip op at 10. Rather, we believe that a robbery

may be completed whenever a perpetrator uses force to resist

or to escape before the time that he reaches a place of

temporary safety.

32

words “‘res gestae’ . . . does not suggest an expansive

‘transactional’ view of robbery, rather it narrowly refers to

the events occurring contemporaneously with the

taking–precisely the time frame in which the application of

force must occur.” Slip op at 12, n 9. However, “res gestae”

in terms of the law, and in the context in which Perkins used

it, simply means “[t]he whole of the transaction under

investigation and every part of it.” It means “things or

things happened.” Indeed, a res gestae witness is defined as

“[a]n eyewitness to some event in the continuum of the

criminal transaction and one whose testimony will aid in

developing a full disclosure of the facts surrounding the

alleged commission of the charged offense.” Black’s Law

Dictionary (6th ed). Thus, that the use of force against the

owner of property occurs after the latter observes the

wrongful acts of the perpetrator would seem not to be

particularly relevant to analyzing whether a robbery occurs

because the conduct of the perpetrator occurs as part of an

unbroken sequence of events. The concept of res gestae, in

the context in which it is used by Perkins, is wholly

consistent with the view that the perpetrator’s use of force

before, contemporaneously with, or immediately after he is

observed taking property in the presence of the victim

33

provides the requisite force required to convict the

perpetrator of robbery.

Third, the majority states that the quotation from

Perkins supports, rather than contradicts, the interpretation

of Blackstone’s quotation. Slip op at 12, n 9. We do not

disagree that Perkins’ quotation supports Blackstone’s concept

of robbery. As Perkins notes, the quotation has been

misapplied. And as explained in this dissent, it has been

misapplied in the same manner that the majority seeks to apply

it in their opinion. The quotation has been misapplied to

mean that force used at any time after an initial seizure of

property from the person or from his presence by the

perpetrator cannot constitute the crime of robbery.

However, a closer analysis of the common-law crime of

robbery explains the misunderstanding. Blackstone’s quotation

contemplates a “private stealing”, one which is not discovered

until the perpetrator and the property have left the presence

of the victim. Use of the words “private stealing” is

significant, because it specifies what, at common law, was a

theft by stealth, or a theft completed without the victim’s

knowledge. Blackstone explicitly contemplates that force used

by one after he “privately steals” is not considered a

robbery. The quotation from Perkins likewise contemplates the

34

distinction between a private stealing, and the use of force

during the time that the property is being taken. Perkins

states: “If the two transactions are essentially distinct,—if

subsequent to the larceny the owner should come upon the thief

and be prevented from retaking his property by force or

violence, the thief would be guilty of larceny and assault,

but not robbery.” Id. at 349.

Blackstone’s use of the phrase “private stealing” is

perhaps better understood by the definition of the common-law

crime of robbery given by Sir Edward Coke, the preeminent

chief justice of England, and author of the comprehensive

Institutes of the Laws of England. In defining the crime of

robbery, Coke stated:

Robbery is a felony by the common law,

committed by a violent assault, upon the person of

another, by putting him in fear, and taking from

his person his money or other goods of any value

whatsoever. [Coke (1797), pt 3, p 68.]

Coke explains the difference between the private stealing

and the use of force by the robber by distinguishing between

the “cutpurse”22 and the “robber.” In this regard, he states

that:

22
A “cutpurse” is defined by the Oxford English

Dictionary as “[a] person who stole by cutting purses from the

girdles from which they were suspended; a pickpocket, a

thief.” The New Shorter Oxford English Dictionary (1993).

35

 both take [property] from the person,[23] but [the

cutpurse] takes it clam et secrete,[24] without

assault or putting in fear, and the robber by

violent assault, and putting in fear. [Id. at 68.]

Next, in defining the term “taking,” Coke describes the

situation in which the cutpurse cuts the strings of the

victim’s purse and the purse then falls to the ground. In

this situation, there is no robbery because the perpetrator

never has possession. Id. However, if the perpetrator picks

up the purse, and then, “in striving . . . let[s] it fall and

never [takes] it again,”[25] this, according to Coke, is a

“taking” within the meaning of common-law robbery, “because he

had it in his possession; the continuance of his possession is

not required by the law” and after it was secretly in his

possession, the use of force occurred. Id.

It is evident from this explanation by Coke, that the

distinction between one who successfully “privately steals,”

as referenced by Blackstone, and the one who, attempting to

23
As explained, both at common law, and under Michigan’s

statutes, this includes property “in the presence” of the

victim.

24
“To keep secret, to conceal or hide.” The New Shorter

Oxford English Dictionary (1993).

25

The word “striving” is defined as to “[e]ngage in

violent conflict, struggle (with or against an opponent, for

a thing). The New Shorter Oxford English Dictionary (1993).

36

privately steal, is discovered in the process, and uses force

in order to complete the taking, is the distinction between

the cutpurse and the robber. It is also evident, from Coke’s

description, that force used after the initial taking of the

property may still give rise to the crime of robbery. The

common-law description of the crime of robbery is, as the

dissent demonstrates, consistent with the above quotation from

Perkins, and consistent with MCL 750.530.

Clearly, the common-law description of robbery also

supports a conviction in the present case. The defendant,

like the cutpurse, first took the property in an attempt to

secretly steal it. However, here there was no “private

stealing”. After being observed taking the property and upon

being confronted by the security guards, defendant assaulted

them in an effort to remove the property from their presence.

In striving with the guards, the property fell to the ground.26

26
The majority wishes to assert that there were two

separate incidents here, a larceny and an assault. While

legally, there was an initial larceny, that crime was elevated

to a robbery when the perpetrator used force in order to

finally exercise possession of the property. That defendant

was observed taking the property in the store, and chose to

use force only after being confronted by the security guards,

does not in any way transform the defendant’s use of force to

permanently deprive the owner of his property. Furthermore,

the completed larceny in this case in no way removed the

property from the presence of the security guards, as they

(continued...)

37

The perpetrator took possession of the property while it

remained in the presence of the security guards, and there is

no necessity that he used force to initially take the

property, but only that he strove to keep it, however

unsuccessfully.27 Thus, both at common law, and consistent

26
(...continued)

continued to exercise protective custody and control over the

property.

27
The majority states that the dissent leaves the

majority “without a satisfactory explanation” why it would

permit a use of force that does not accomplish a taking to

increase an offense of larceny to unarmed robbery. Slip op at

19. However, we reiterate that robbery is a crime against the

person and not against property. Hendricks, supra at n 10.

That the security guards waited to confront defendant in the

parking lot does nothing to negate the fact that, in

furthering his criminal purpose, defendant assaulted them

while the property was still in their presence. This incident

satisfied the criminal conduct that the statute seeks to

punish. Thus, it is entirely reasonable to conclude that,

under the statute, the crime of robbery is complete when the

perpetrator uses force at any time during the transaction

before his reaching a place of temporary safety, i.e., before

escape. There is no necessity of escape, nor is there a

necessity that the perpetrator successfully sever the victim’s

possession, which, as we explain is the same as a successful

escape. A person may not be convicted of robbery if he

successfully escapes, thereby, in fact removing the property

from the presence of the victim, and afterwards uses force

against those who attempt to apprehend him. A successful

escape simply designates the end point of the transaction, and

it is that point in time after which the property is no longer

in the victim’s presence and after which the use of force

against those seeking to apprehend the perpetrator for the

earlier larceny would be merely an assault. Therefore, it

does not, as the majority asserts, “def[y] logic to say that,

when a defendant commits larceny but loses possession of the

(continued...)

38

with the statute, there is no necessity that the force element

of robbery occur before or contemporaneously with the initial

taking. Force used after the initial taking, where the latter

occurs under the observation of the victim, and while the

property can be said to remain in the victim’s presence, is

sufficient to constitute the crime of robbery.

Finally, I would point out that the transactional

approach to robbery has the added practical advantage of being

defined by a fixed beginning and end. Where does the majority

draw this line? Can one never be convicted of robbery if he

uses force to retain property or to escape simply because such

force occurs after he has initially taken the property? When

does the majority believe that a taking is completed? If a

27
(...continued)

property during a struggle, defendant’s crime can be elevated

to unarmed robbery.” Slip op at 23, n 23.

Further, the decision by the victim of a robbery to wait

to confront one who has unlawfully taken property may be, in

the case of a business, at least in part a matter of practical

business judgment. It does not seem unreasonable for such a

business to wait until the perpetrator is outside its store in

order to avoid a violent confrontation within the store and to

protect its property and customers. Because robbery is a

crime against the person, it is the conduct of the perpetrator

who resorts to violence to further his criminal design, and

not the judgment of the business when to confront the

perpetrator, that should be analyzed in considering whether a

robbery has occurred.

39

perpetrator does not use force at the moment he physically

removes property from the shelf of a market and conceals it,

would it be sufficient if he uses force when he is prevented

from leaving the proximity of that shelf; when attempting to

leave the particular aisle or department; when passing through

the checkout area; or when attempting to leave the store

itself? Is the fact that one purports to conceal the property

beneath his clothes sufficient to find that he could not

thereafter commit a robbery? In contrast to the lack of the

majority’s definition of “contemporaneous”, the transactional

approach to robbery recognizes that the use of force that

occurs at any time before the perpetrator of a larceny has

reached a place of temporary safety transforms such larceny

into a robbery.28

Quite in addition to the fact that it is wrong in its

understanding of the law of robbery in Michigan, the practical

consequence of the majority’s opinion is as follows: in every

instance in which a person who has stolen property from a

28

The majority states that this dissent “asserts,

without supporting authority, that ‘for the purpose of the

crime of robbery, the relevant act encompasses a broader

spectrum of time . . . .” Slip op at 14. (emphasis added).

Although perhaps this dissent has not persuaded the majority

of the merits of its position, see, nonetheless, pp 1-38,

supra.

40

store in an amount less than $200,29 as in this case, and who,

before escaping with such property is confronted by and

engages in violence against the victim, such person will be

guilty merely of third-degree retail fraud and assault, rather

than the greater crime of robbery. Instead of being subject

to a potential 15-year sentence for robbery, MCL 750.530, the

perpetrator will be subject to punishment of no more than 93

days in jail for the third degree retail fraud, MCL 750.356(5)

and MCL 750.356d(4)(b), and no more than one year in jail if

the subsequent assault is a serious assault under MCL 750.81

and MCL 750.81a. Further, the majority fails to take into

account MCL 750.356d(5), which expressly prohibits prosecution

under MCL 750.360, larceny from a building, where a person

commits third-degree retail fraud.30 See also People v Ramsey,

218 Mich App 191, 195; 553 NW2d 360 (1996). If, as the

majority holds, there can be no robbery under these

circumstances, and there can be no independent prosecution of

29
See MCL 750.356d(4)(b).

30
Defendant in the instant case took property from the

store offered for sale for approximately $120. MCL

750.356d(3) also prohibits prosecution for larceny from a

building under MCL 750.360, of one who is guilty of second

degree retail fraud, defined in MCL 750.356d(a) as occurring

where a person steals items from a store that have a value of

greater than $200 but less than $1000.

41

defendant for larceny from a building where the perpetrator

commits second or third degree retail fraud as in the instant

case, then the disparity in penalties between robbery and what

the defendant here can be charged with is quite substantial.31

We do not criticize the majority on account of this

disparity, because it is their obligation to faithfully

interpret the law as they see it, and they have done that

here. It is not their obligation to correct what they might

(or might not) view as inexplicable disparities in criminal

punishments. We do suggest, however, that such a substantial

disparity in punishments, based upon whether the violence

occurred contemporaneously with the taking, or immediately

31
While the majority is correct in citing Ramsey for the

proposition that “one charged with unarmed robbery can be

convicted of larceny in a building even where the underlying

facts would support a finding of retail fraud,” slip op at 24,

n 23, that was a case that applied the transactional view of

robbery to facts nearly identical to those in the instant

case. There, the court correctly held that larceny in a

building is a cognate lesser included offense of unarmed

robbery and that one charged with unarmed robbery can be

convicted of larceny in a building, even where the underlying

facts support a finding of retail fraud. However, the court

also clearly stated that this scenario is true, only “where

the facts support ... a charge [of unarmed robbery].” Id. at

194. Because the majority is holding that there can be no

unarmed robbery in cases such as Ramsey and this case, and

because, where a person commits retail fraud in the second or

third degree, he cannot be charged with larceny from a

building under MCL 750.356d, our analysis of the disparity in

penalties remains correct.

42

thereafter as part of the same transaction, could never

reasonably have been contemplated by the Legislature.

CONCLUSION

In my judgment, the “transactional view” of robbery as it

has been described in this opinion, is deeply rooted both in

the common law, and in the Michigan statute and case law.

Under the “transactional view”, a person can be convicted of

robbery if, before reaching a place of temporary safety, such

person uses force to permanently deprive an owner of the

actual or constructive possession of his property. Such force

may either be employed in initially taking the property, in

attempting to retain the property, or in attempting to escape

with the property. Defendant here used force in an attempt

either to retain the property or to escape with the property.

Therefore, I would reverse the judgment of the Court of

Appeals and reinstate defendant’s unarmed robbery conviction.32

CORRIGAN , C.J., and WEAVER , J., concurred with MARKMAN , J.

32
Because sufficient evidence existed to sustain

defendant’s conviction, there is no need here to address the

majority’s conclusion that the Court of Appeals erred in

affording the prosecutor the opportunity to retry defendant.

43