People v. Williams

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Robert P. Young, Jr. Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
Brian K. Zahra

FILED MAY 15, 2012

STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 141161

GLENN TERRANCE WILLIAMS,

Defendant-Appellant.

BEFORE THE ENTIRE BENCH

YOUNG, C.J.

Defendant appeals here his conviction of armed robbery. In particular, defendant

argues that because he was unsuccessful in feloniously taking or removing any actual

property from the intended target of his robbery, there was not a sufficient factual basis to

support his guilty plea to the charge of armed robbery. We disagree. When the

Legislature revised the robbery statute, MCL 750.530, to encompass a “course of

conduct” theory of robbery, it specifically included “an attempt to commit the larceny” as

sufficient to sustain a conviction for robbery itself. We conclude that this amendment
effectuated a substantive change in the law governing robbery in Michigan such that a

completed larceny is no longer necessary to sustain a conviction for the crime of robbery

or armed robbery.

I. FACTS AND PROCEDURAL HISTORY

On July 13, 2006, defendant entered a gas station, declared that he had a gun, and

ordered the attendant to give him all the money in the cash register. After the attendant

complied, defendant forced the attendant into a back room and fled the scene with

approximately $160 in stolen cash. The next day, defendant entered a tobacco shop,

approached the clerk with his hand in his jacket, and stated, “You know what this is, just

give me what I want.” The clerk did not give defendant any money or property, and

defendant fled from the store without having stolen anything. Defendant was

apprehended later that day by the police.

The prosecutor charged defendant with armed robbery 1 of the gas station and, in a

separate information, charged defendant alternatively with assault with intent to rob while

armed 2 and armed robbery for the events related to the tobacco shop. Defendant elected

to plead guilty in both cases. At defendant’s plea hearing, the prosecutor advised that he

would dismiss the charge of assault with intent to rob while armed in the tobacco shop

case in return for defendant’s guilty plea to armed robbery.

1
MCL 750.529.
2
MCL 750.89.

2
After advising defendant of his options and constitutional rights, the circuit court

established a factual basis for the plea relating to the incident that occurred at the tobacco

shop. Under questioning by the prosecutor, defendant admitted that he had entered the

tobacco shop with the intent to steal money, had his hand “up under” his coat, and told

the clerk, “You know what this is, just give me what I want.” Defendant further admitted

that “it was [his] intent, at that time, for [the clerk] to give [him] the money out of the

cash register.” The court accepted defendant’s guilty plea. 3 On February 9, 2007, the

court sentenced defendant pursuant to a plea entered in accordance with People v Cobbs 4

to concurrent prison terms of 24 to 40 years for the tobacco shop and gas station

robberies.

Defendant subsequently moved to withdraw his pleas, contending that an adequate

factual basis did not exist to support either conviction. Pertinent here, defendant argued

that there was no evidence that he had taken or removed any property from the tobacco

shop and that, absent a completed larceny, he could not be found guilty of armed robbery.

The circuit court denied defendant’s motions. The court ruled that the language of the

armed robbery statute as amended in 2004 allows for a conviction based on an attempted

3
Defendant also entered a nolo contendere plea with regard to the gas station robbery.
4
People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993). Defendant and the court agreed
that defendant’s minimum sentence would not exceed 24 years.

3
larceny, a basis that the plea discussions substantiated. 5 The Court of Appeals granted

defendant’s delayed application for leave to appeal, limited to the issue whether a factual

basis existed for his conviction of the tobacco store robbery. 6

In a split decision, the Court of Appeals affirmed. 7 The majority acknowledged

that while at common law a robbery required a completed larceny, the crimes of robbery

and armed robbery now encompass attempts to commit those offenses following the 2004

statutory amendments. The dissenting judge argued that when the 2004 revisions are

viewed through the “lens of common-law definitions,” there is inadequate support for the

conclusion that the armed robbery statute would permit a conviction without an

accomplished larceny. 8

We granted defendant’s application for leave to appeal to determine “whether a

larceny needs to be completed before a defendant may be convicted of armed robbery.” 9

5
The circuit court also denied defendant’s motion to withdraw his nolo contendere plea
with regard to the gas station robbery, holding that the plea proceeding and the police
report established a sufficient factual basis for the plea.
6
People v Williams, unpublished order of the Court of Appeals, entered June 16, 2008
(Docket No. 284585).
7
People v Williams, 288 Mich App 67; 792 NW2d 384 (2010).
8
Id. at 91, 93 (GLEICHER, J., dissenting).
9
People v Williams, 489 Mich 856 (2011).

4
II. STANDARD OF REVIEW

This appeal concerns the proper interpretation of MCL 750.529 and MCL 750.530

and, in particular, whether the Legislature intended to remove the completed larceny

requirement from the crime of robbery when it amended those statutes in 2004. Matters

of statutory interpretation raise questions of law, which this Court reviews de novo. 10

III. THE CRIME OF ROBBERY IN MICHIGAN

In this appeal, we are concerned with the statutes pertaining to robbery, MCL

750.530, and armed robbery, MCL 750.529. At common law, the offense of robbery was

defined as “the felonious taking of money or goods of value from the person of another or

in his presence, against his will, by violence or putting him in fear.” 11 “To constitute

robbery, it [was] essential that there be a ‘taking from the person.’” 12 Thus, common law

robbery required a completed larceny. Armed robbery required the same showing with

the additional element that the robber was armed with a dangerous weapon. 13

The crimes of robbery and armed robbery have been codified by Michigan statute

since 1838. 14 All subsequent iterations of the robbery statutes required a completed

10
People v Morey, 461 Mich 325, 329; 603 NW2d 250 (1999).
11
People v Covelesky, 217 Mich 90, 96; 185 NW 770 (1921) (citation and quotation
marks omitted).
12
Id. at 97 (citation and quotation marks omitted).
13
People v Calvin, 60 Mich 113, 119; 26 NW 851 (1886).
14
See 1838 RS, pt 4, tit I, ch 3, §§ 10 (armed robbery) and 12 (unarmed robbery).

5
larceny, consistent with the common law. Before the 2004 amendments, MCL 750.529,

defining armed robbery, provided:

Any person who shall assault another, and shall feloniously rob,
steal and take from his person, or in his presence, any money or other
property, which may be the subject of larceny, such robber being armed
with a dangerous weapon, or any article used or fashioned in a manner to
lead the person so assaulted to reasonably believe it to be a dangerous
weapon, shall be guilty of a felony . . . .[15]

In People v Randolph, this Court considered the scope of this previous version of

the robbery statute and, in particular, whether the Legislature had adopted a

“transactional approach” to robbery. Under a transactional theory of robbery, “a

defendant has not completed a robbery until he has escaped with stolen [property]. Thus,

a completed larceny may be elevated to a robbery if the defendant uses force after the

taking and before reaching temporary safety.” 16 In Randolph, this Court rejected the

transactional approach as inconsistent with the plain language of the robbery statutes and

common law history of robbery. Instead, we concluded 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.” 17

Therefore, because “a larceny is complete when the taking occurs,” 18 any “force, violence

15
As amended by 1959 PA 71.
16
People v Randolph, 466 Mich 532, 535; 648 NW2d 164 (2002).
17
Id. at 536.
18
Id. at 543.

6
or putting in fear must be used before or contemporaneous with the taking” in order to

elevate a larceny to a robbery. 19

Following this Court’s decision in Randolph, the Legislature amended the robbery

statutes. MCL 750.529, as amended by 2004 PA 128, now provides:

A person who engages in conduct proscribed under [MCL 750.530,
the robbery statute] and who in the course of engaging in that conduct,
possesses a dangerous weapon or an article used or fashioned in a manner
to lead any person present to reasonably believe the article is a dangerous
weapon, or who represents orally or otherwise that he or she is in
possession of a dangerous weapon, is guilty of a felony punishable by
imprisonment for life or for any term of years. If an aggravated assault or
serious injury is inflicted by any person while violating this section, the
person shall be sentenced to a minimum term of imprisonment of not less
than 2 years.

Robbery is defined within MCL 750.530; as amended by 2004 PA 128, it states, in

relevant part:

(1) A person who, in the course of committing a larceny of any
money or other property that may be the subject of larceny, uses force or
violence against any person who is present, or who assaults or puts the
person in fear, is guilty of a felony punishable by imprisonment for not
more than 15 years.

(2) As used in this section, “in the course of committing a larceny”
includes acts that occur in an attempt to commit the larceny, or during
commission of the larceny, or in flight or attempted flight after the
commission of the larceny, or in an attempt to retain possession of the
property.[ 20]

19
Id. at 550.
20
Emphasis added.

7
IV. ANALYSIS

The question before this Court is whether the Legislature intended to remove the

element of a completed larceny from the crime of robbery when it amended the statutes in

2004. We hold that the Legislature demonstrated a clear intent to remove the element of

a completed larceny, signaling a departure from Michigan’s historical requirement and its

common law underpinnings. Accordingly, an attempted robbery or attempted armed

robbery with an incomplete larceny is now sufficient to sustain a conviction under the

robbery or armed robbery statutes, respectively.

Our analysis begins, as it must, with the language of the robbery statutes

themselves. “The cardinal rule of statutory construction is to discern and give effect to

the intent of the Legislature.” 21 This Court may best discern that intent by reviewing the

words of a statute as they have been used by the Legislature. When a statute’s language

is clear and unambiguous, this Court will enforce that statute as written. 22

The Legislature revised the robbery statute at issue here by removing the prior

requirement that a robber feloniously “rob, steal or take” property from another, and it

replaced this language with a new statutory phrase: “in the course of committing a

larceny.” Key to solving the interpretative puzzle presented in this case, the Legislature

specifically defined that phrase to include acts that “occur in an attempt to commit the

21
People v Dowdy, 489 Mich 373, 379; 802 NW2d 239 (2011), quoting Drouillard v
Stroh Brewery Co, 449 Mich 293, 302; 536 NW2d 530 (1995).
22
People v Kowalski, 489 Mich 488, 498; 803 NW2d 200 (2011).

8
larceny, or during commission of the larceny, or in flight or attempted flight after the

commission of the larceny, or in an attempt to retain possession of the property.” 23

The Court of Appeals adopted the prosecution’s argument that the statutory

language now “specifically considers and incorporates acts taken in an attempt to commit

a larceny, regardless of whether the act is completed.” 24 In contrast, defendant and the

Court of Appeals dissent argue that the statutory revisions were merely

intended to expand the temporal scope of the crime [of robbery],
transforming it into a transactional offense. Reading [MCL 750.]530(1)
and (2) as a contextual whole, it appears that the Legislature sought to make
clear that robbery encompasses acts that occur before, during, and after the
larceny, not that the Legislature intended to eliminate larceny as an element
of the crime.[ 25]

In other words, construing “the statutory crime through the lens of common-law

definitions,” 26 the Court of Appeals dissent would have held that the Legislature intended

to do no more than abrogate this Court’s decision in Randolph. For the reasons stated

below, we agree with the prosecution and the Court of Appeals majority.

In revising the robbery statutes, the Legislature replaced the “familiar words” 27 of

the common law crime of robbery—“rob, steal and take”—with the phrase “in the course

of committing a larceny,” which the Legislature specifically defined to include “acts that

23
MCL 750.530(2).
24
Williams, 288 Mich App at 75.
25
Id. at 97 (GLEICHER, J., dissenting).
26
Id. at 91.
27
Covelesky, 217 Mich at 100.

9
occur in an attempt to commit the larceny.” The word “attempt” has a well-known

common and legal meaning:

1. The act or an instance of making an effort to accomplish
something, [especially] without success. 2. Criminal law. An overt act that
is done with the intent to commit a crime but that falls short of completing
the crime.[28]

Particularly in the realm of the criminal law, the word “attempt” is widely used with

regard to any type of crime in which a person intends to commit a crime and acts toward

its commission but is unsuccessful in its completion.

Indeed, it is inherent in the word “attempt” that the illegal act intended is not

accomplished. Accordingly, the plainest understanding of the phrase “in an attempt to

commit the larceny” applies to situations in which a criminal defendant makes “an effort”

or undertakes an “overt act” with an intent to deprive another person of his property, but

does not achieve the deprivation of property. The language of this phrase is clear on its

face and not ambiguous in the least, and therefore it must be enforced as written, free of

any “contrary judicial gloss.” 29

Defendant’s alternative interpretation fails to accord this language its plain and

ordinary meaning. Again, defendant argues that the 2004 amendments were merely a

legislative response to this Court’s decision in Randolph and, as such, must be artificially

limited to a legislative adoption of the transactional approach to robbery, which Randolph

28
Black’s Law Dictionary (8th ed).
29
Wayne Co v Hathcock, 471 Mich 445, 456; 684 NW2d 765 (2004) (citation and
quotation marks omitted).

10
had rejected. Defendant contends that the phrase “attempt to commit the larceny” was

intended to mean acts done “before” the larceny, and thus, consonant with the

transactional approach, the entire time continuum in which force must be used during a

robbery now includes acts done before, during, and after the commission of the larceny.

This argument fails as a matter of statutory interpretation for two reasons.

First and foremost, the meaning of the word “attempt” is not synonymous with

“before” or “as a preface,” as defendant’s argument requires. While “attempt” refers to

an unsuccessful effort to complete an act, “before” is defined as “in front of; ahead of”

and “[p]rior to.” 30 These concepts are not equivalent, and the best way to determine the

Legislature’s intent is by giving plain meaning to the words actually used, rather than

presuming that the Legislature meant to say something entirely different. This Court will

not assume that the Legislature inadvertently made use of one word or phrase instead of

another. 31

Second, the Legislature used the phrase “in an attempt” twice in the statute, but

defendant would have this Court impute the “before” meaning of “attempt” only to the

30
The American Heritage Dictionary (1976).
31
Detroit v Redford Twp, 253 Mich 453, 456; 235 NW 217 (1931). If the Legislature had
intended defendant’s interpretation of “before,” it very easily could have done so by
providing, for example:

As used in this section, “in the course of committing a larceny”
includes acts that occur in an attempt to commit before the commission of
the larceny, or during commission of the larceny, or in flight or attempted
flight after the commission of the larceny, or in an attempt to retain
possession of the property.

11
first use of that phrase, thereby rendering the statutory provision internally inconsistent.

In addition to the use of “attempt” in the phrase “in an attempt to commit the larceny,”

MCL 750.530 also provides that “in the course of committing a larceny” includes “in an

attempt to retain possession of the property.” 32 Defendant does not argue that his

“before” construction of “attempt” should apply to anything other than the phrase “in an

attempt to commit the larceny.” 33 Therefore, in order to adopt defendant’s position, this

Court would have to hold that the Legislature intended the same phrase to have two

different meanings within the same sentence of the same statutory provision.

Defendant’s interpretation would require this Court not only to redefine an unambiguous

statutory phrase in a contradictory manner, but to do so selectively.

Defendant’s interpretation that the Legislature’s use of “attempt to commit the

larceny” merely serves as a placeholder for actions occurring before the larceny

significantly ignores the fact that pre-larceny force was already contemplated under the

prior version of the statute. Randolph itself recognized that when force is used before the

32
In full, again, MCL 750.530(2) provides:

As used in this section, “in the course of committing a larceny”
includes acts that occur in an attempt to commit the larceny, or during
commission of the larceny, or in flight or attempted flight after the
commission of the larceny, or in an attempt to retain possession of the
property. [Emphasis added.]
33
Consistently applying defendant’s “before” meaning for “attempt” in construing the
phrase “attempt to retain possession” would make the statute utterly senseless: “As used
in this section, ‘in the course of committing a larceny’ includes acts that occur . . . in an
attempt to before retaining possession of the property.”

12
larceny, that force is sufficient to sustain a conviction for robbery. 34 Indeed, this Court

was in unanimous agreement in Randolph on this point. 35 Thus, given that the law

already provided that force used before the larceny was within the purview of the robbery

statute, it would be passing strange for the Legislature to have amended this statutory

language if it had merely intended to accomplish what already was. This conclusion is

particularly compelling because the 2004 amendments were, in part, a legislative

response to Randolph.

Instead, we believe that the clear language of the amended statutes reflects a

legislative intent to effect a broader change in the robbery statutes. The 2004 revisions

deleted the words denoting actual deprivation of property—“rob, steal and take”—and

replaced them with a broader phrase: “in the course of committing a larceny.” 36 The

34
See Randolph, 466 Mich at 550 (“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. . . . The force, violence or putting in fear must be used before or contemporaneous
with the taking.”) (emphasis added).
35
See id. (majority position, opinion by MARILYN KELLY, J.); id. at 555-556 (MARKMAN,
J., dissenting) (arguing in favor of adopting the transactional approach to robbery, stating
that when a larceny accompanied by “an assault 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”) (emphasis added).
36
Contrary to defendant’s argument, we note that the fact that the Legislature used the
definite article “the” in the phrase “attempt to commit the larceny” is immaterial to the
decision of this case. Defendant argues that the use of a definite article supports his
contention that an actual larceny must be committed. While we have recognized in
appropriate cases that the use of a definite or indefinite article may alter the meaning of a
statutory phrase, see, e.g., Robinson v City of Lansing, 486 Mich 1, 14; 782 NW2d 171
(2010); Robinson v Detroit, 462 Mich 439, 458-463; 613 NW2d 307 (2000), defendant
misapprehends the meaning of the definite article in the statute. In context, MCL

13
deletion and replacement of what this Court long ago called the “familiar words” of

robbery is perhaps the best and most compelling indication that the Legislature intended

an extensive deviation from the common law rule. Such a revision would have been

completely unnecessary if the Legislature had merely sought to adopt a transactional

theory of robbery.

Ultimately, defendant and the dissent would have this Court interpret the robbery

statutes in accordance with an unstated legislative intent rather than the plain meaning of

the words chosen. 37 This approach to statutory interpretation has been consistently

criticized and rejected. 38 So too has this Court rejected the dissent’s resort to

unauthoritative legislative analyses in order to displace statutory language. 39 Because the

750.530(2) provides in relevant part: “As used in this section, ‘in the course of
committing a larceny’ includes acts that occur in an attempt to commit the larceny . . . .”
(Emphasis added). This statutory provision is definitional; that is, its purpose is to define
the phrase “in the course of committing a larceny” as used in the statute. The use of the
definite article “the” in the phrase “in an attempt to commit the larceny” merely refers to
the larceny identified in the term being defined: “in the course of committing a larceny.”
Thus, the “the larceny” referred to in this definitional phrase is not a new, completed
larceny, but instead provides meaning and explanation for the referent phrase being
defined, which itself uses an indefinite article.
37
Indeed, the dissent undertakes no effort whatsoever to interpret the actual words of the
statutes or address any of the text-based arguments that this opinion raises in support of
our conclusion.
38
See, e.g., Lansing Mayor v Pub Serv Comm, 470 Mich 154, 164-165; 680 NW2d 840
(2004).
39
See, e.g., Frank W Lynch & Co v Flex Technologies, Inc, 463 Mich 578, 587; 624
NW2d 180 (2001) (stating that “in Michigan, a legislative analysis is a feeble indicator of
legislative intent and is therefore a generally unpersuasive tool of statutory
construction”); In re Certified Question from the United States Court of Appeals for the
Sixth Circuit (Kenneth Henes v Continental Biomass), 468 Mich 109, 115 n 5; 659 NW2d

14
Legislature specifically defined “in the course of committing a larceny,” it would be

inappropriate for this Court to provide meaning to that phrase in a contrary or alternative

way. 40 But by arguing that the 2004 amendments of MCL 750.530 should be limited to

597 (2003) (discussing why a legislative analysis, as opposed to other forms of legislative
history, is a poor aid in statutory interpretation and thus “should be accorded very little
significance by courts when construing a statute”).
40
For similar reasons, we reject the “common law lens” approach employed by the Court
of Appeals dissent in this case, the result of which effectively writes the word “attempt”
out of the statute. The dissent concluded that “the Legislature did not intend that the
armed robbery statute would permit a conviction absent an accomplished larceny”
because “[u]nder the common law, the crime of robbery indisputably included as an
essential element the commission of a larceny.” Williams, 288 Mich App at 92-93
(GLEICHER, J., dissenting). The Court of Appeals dissent purported to rely on the well-
established principle that because the basis for the criminal law of this state is the
common law, see People v McDonald, 409 Mich 110, 117; 293 NW2d 588 (1980), the
Legislature must make clear when it intends to modify the common law. However, the
dissent below failed to acknowledge the full significance of its own express statements
that, as each of the authorities it cited explicitly noted, the common law understandings
remain in effect only until the Legislature acts in a different or contrary manner. See
Williams, 288 Mich App at 90 (GLEICHER, J., dissenting) (“The common-law definition
of a crime binds Michigan courts until the Legislature modifies the elements of the
crime.”), citing People v Perkins, 468 Mich 448, 455; 662 NW2d 727 (2003) (emphasis
added); Williams, 288 Mich App at 91 (GLEICHER, J., dissenting) ( “‘[W]hen words are
adopted having a settled, definite and well known meaning at common law it is to be
assumed they are used with the sense and meaning which they had at common law unless
a contrary intent is plainly shown.’”), quoting Covelesky, 217 Mich at 100 (emphasis
added); Williams, 288 Mich App at 91 (GLEICHER, J., dissenting) (stating that when the
Legislature borrows a term of art, “‘absence of contrary direction may be taken as
satisfaction with widely accepted definitions, not as a departure from them’”), quoting
People v Riddle, 467 Mich 116, 125; 649 NW2d 30 (2002), and Morissette v United
States, 342 US 246, 263; 72 S Ct 240; 96 L Ed 288 (1952) (emphasis added). While a
statute “will not be extended by implication to abrogate established rules of common
law,” the statute “must be construed sensibly and in harmony with the legislative
purpose.” Rusinek v Schultz, Snyder & Steele Lumber Co, 411 Mich 502, 508; 309
NW2d 163 (1981).

15
the adoption of a transactional approach to robbery, that is precisely what defendant and

the dissent would have this Court do. Even recognizing that the Legislature’s 2004

revisions were spurred by a response to Randolph, it is clear that the Legislature has

plainly and objectively done more than adopt a transactional approach to robbery. The

Legislature’s decision to include attempted robbery within the understanding of robbery

itself represents a legislative choice—an exercise of its prerogative to define the elements

of a crime—that this Court will not upset.

We further note that the Legislature’s particular policy decision in amending the

robbery and armed robbery statutes is consistent with the Model Penal Code (MPC),

which provides:

(1) Robbery Defined. A person is guilty of robbery if, in the course
of committing a theft, he:

(a) Inflicts serious bodily injury upon another; or

(b) Threatens another with or purposely puts him in fear of
immediate serious bodily injury; or

Thus, if the Legislature modifies a criminal statute, courts must look for “a
contrary intent” from the common law understanding to determine whether the
Legislature has effected a substantive change in the way the crime is understood. When,
as here, such a change is plainly shown, it is insufficient to continue to view the statute
through a “common law lens.” Such an approach would be inconsistent with appropriate
principles of judicial construction. “In the course of committing a larceny” is a statutory,
not common law, phrase, and it is explicitly defined in an unambiguous manner by MCL
750.530. Accordingly, that definition must control, and the “lens of the common-law
definitions” may not be used to provide a gloss on the statutorily provided meaning.

16
An act shall be deemed “in the course of committing a theft” if it
occurs in an attempt to commit theft or in flight after the attempt or
commission.[41]

It is noteworthy that the MPC’s definition of robbery is its strikingly similar to that of

Michigan’s amended robbery statute. 42 The almost identical usage of “in the course of

committing a larceny/theft” in the MPC and MCL 750.530 indicates a more expansive

conception of robbery than previously existed in Michigan law. In particular, like that of

MCL 750.530, the MPC’s definition for “in the course of committing a theft” explicitly

includes the attempt form of robbery in an almost identical fashion. With regard to this

change to subsume attempted robbery under the robbery provision itself, the official

comment to MPC § 222.1 provides a useful and telling discussion:

Since common-law larceny and robbery required asportation, the
severe penalties for robbery were avoided if the victim had no property to
hand over or if the theft were interrupted before the accused laid hold of the
goods. Moreover, the penalties for attempted robbery were considerably
milder than those authorized for the completed crime. The perception that
one who attempts a robbery poses essentially the same dangers as the
successful robber led legislatures to develop more serious sanctions for
various forms of attempt. The offense of assault with intent to rob was one

41
2 American Law Institute (ALI), Model Penal Code and Commentaries (1980),
§ 222.1, p 96 (italics added).
42
Our task when interpreting a statute is to give effect to the intent of the Legislature.
Thus, we do not refer to the MPC as a means of interpreting the Michigan statutes at
issue, but instead to provide a context for those changes. Given the almost identical
language used in the MPC and revised statutes, it is reasonable to believe that the statutes
were amended not to reinforce but to supplant the traditional understanding of robbery, as
the MPC also accomplishes. Thus, the Michigan Legislature’s use of the MPC language
complements our conclusion that the Legislature was not undertaking an effort to
(re)codify the common law understanding with the 2004 revisions.

17
response and redefining robbery to include an assault with intent to rob was
another. Often some distinctions in penalty were preserved.

There is, however, no penological justification for distinctions on
this basis. The same dangers are posed by the actor who is interrupted or
who is foiled by an empty pocket as by the actor who succeeds in effecting
the theft. The same correctional dispositions are justified as well. The
primary concern is with the physical danger or threat of danger to the
citizen rather than with the property aspects of the crime. By including
attempted thefts within the time span during which robbery can occur,
Section 222.1 therefore makes it immaterial whether property is
obtained.[43]

At least 23 states in addition to Michigan have instituted changes including attempts to

rob as sufficient to prove robbery itself, often adopting a “course of conduct” theory of

when robbery occurs. 44

The desire to punish attempted robberies the same as a robbery itself corresponds

with the understanding, long recognized in Michigan, that the greater social harm

perpetrated in a robbery is the use of force rather than the actual taking of another’s

property. As this Court has explained:

43
2 ALI, Model Penal Code, comment 2(a) to § 222.1, pp 99-100.
44
See Alabama—Ala Code 13A-8-40; Alaska—Alas Stat 11.41.510; Arkansas—Ark
Code Ann 5-12-102; Delaware—Del Code tit 11, § 831; Florida—Fla Stat 812.13;
Hawaii—Hawaii Rev Stat 708-842; Iowa—Iowa Code 711.1; Kentucky—Ky Rev Stat
Ann 515.030; Maine—Me Rev Stat tit 17-A, § 651; Maryland—Md Code Ann, Crim
Law 3-402; Montana—Mont Code Ann 45-5-401; New Hampshire—NH Rev Stat Ann
636:1; New Jersey—NJ Stat Ann 2C:15-1; North Carolina—NC Gen Stat 14-87; North
Dakota—ND Cent Code 12.1-22-01; Ohio—Ohio Rev Code Ann 2911.02; Oregon—Or
Rev Stat 164.395; Pennsylvania—18 Pa Cons Stat 3701; Texas—Tex Penal Code Ann
29.01; Utah—Utah Code Ann 76-6-301; Vermont—Vt Stat Ann tit 13, § 608; West
Virginia—W Va Code 61-2-12; Wyoming—Wyo Stat Ann 6-2-401.

18
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 . . . .” Classification as
an offense against a person is particularly appropriate where the robbery is
committed with the aggravating element of the perpetrator being armed. In
this situation, the safety and security of the person is most severely
threatened, and the larcenous taking is of secondary importance.[45]

In accord, the plain language of the 2004 statutory revisions of MCL 750.529 and MCL

750.530 establishes the Legislature’s clear intent to include attempts to rob within the

scope of the robbery statutes. Accordingly, when an intended robber is in possession of,

appears to be in possession of, or represents that he is in possession of a dangerous

weapon as stated in MCL 750.529, that person may be guilty of armed robbery even if

the larcenous taking is not completed.

V. APPLICATION

Aside from the question whether a completed larceny is necessary to support a

conviction for robbery, the parties in this case do not dispute that defendant’s plea was

sufficient to sustain a conviction for armed robbery of the tobacco shop. Having held that

45
People v Hendricks, 446 Mich 435, 449-450; 521 NW2d 546 (1994), citing People v
Wakeford, 418 Mich 95; 341 NW2d 68 (1983), and People v Allen, 429 Mich 558; 420
NW2d 499 (1988), and quoting Perkins & Boyce, Criminal Law (3d ed), p 350; see also
Wakeford, 418 Mich at 111 (stating that with regard to armed robbery, “the gravamen of
the offense is the armed assault on a person when combined with the taking of money or
property” and that “[t]he primary purpose of the statute is the protection of persons; the
protection of property afforded by the statute is not significantly greater than that
afforded by the statute prohibiting larceny from the person of another”).

19
an attempted larceny may satisfy the requirements of MCL 750.529 and MCL 750.530,

as amended, we affirm defendant’s conviction.

At his plea allocution, defendant admitted that he assaulted, or otherwise used the

threat of force or violence against, the clerk in “the course of committing a larceny” of

the tobacco shop. Defendant admitted that it was his intent to rob the clerk of the tobacco

shop’s money. It also was established at defendant’s plea hearing that at the time of the

robbery defendant intimated that he had a dangerous weapon, both by verbally alluding to

this fact and by placing his hand under his clothing so as to represent that he was armed

with a weapon. Even though defendant was unsuccessful in obtaining money, his attempt

to complete a larceny while representing that he was armed with a dangerous weapon

satisfied MCL 750.529. Accordingly, the facts elicited at the plea allocution were

sufficient to sustain defendant’s conviction for armed robbery, and the circuit court did

not err by denying defendant’s motion to withdraw that plea.

VI. CONCLUSION

In 2004, the Legislature considerably broadened the scope of the robbery statute,

MCL 750.530, to encompass a “course of conduct” theory of robbery, which specifically

includes “an attempt to commit the larceny.” We conclude that this amendment

effectuated a substantive change in the law governing robbery in Michigan such that a

20
completed larceny is no longer necessary to sustain a conviction for the crime of robbery

or armed robbery. The judgment of the Court of Appeals is affirmed.

Robert P. Young, Jr.
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra

21
3/Nov 2011—MK

STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 141161

GLENN TERRANCE WILLIAMS,

Defendant-Appellant.

MARILYN KELLY, J. (dissenting).
At issue in this case is whether a larceny must be completed before a criminal

defendant may be convicted of armed robbery. The majority concludes that a completed

larceny is not necessary to sustain a conviction for that crime. Because I disagree with its

conclusion, I respectfully dissent.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

In 2006, a man matching defendant’s description entered a gas station in Norton

Shores and announced to the station attendant that he had a gun. He demanded all the

money in the register. After the attendant complied, the man fled.

The next day, defendant entered a Muskegon County tobacco store. The store

clerk was standing behind the cash register. With his hand inside his jacket, defendant

announced to the clerk, “[Y]ou know what this is, just give me what I want.” However,

the clerk did not give defendant money, and defendant fled without stealing anything.

Defendant allegedly broke his leg while in flight, and the police apprehended him later
that day. The arresting officers noted that defendant was dressed in the same clothing

worn by the man who had robbed the gas station the previous day.

In the information, defendant was charged with armed robbery of the gas station.

He was also charged with assault with intent to rob while armed and armed robbery of the

tobacco store. In exchange for a guilty plea to the tobacco store robbery and a nolo

contendere plea to the gas station robbery, the prosecutor dismissed the charge of assault

with intent to rob while armed.

At his hearing, defendant stated that he was pleading of his own volition. He said

that no promises had been made to induce his pleas, other than a Cobbs 1 agreement for a

cap on his minimum sentence. While entering defendant’s pleas on the record, the

prosecutor suggested that the court review the tobacco store incident to establish the

necessary facts. Defendant admitted that he had entered the store with the intent to steal

money and that he held his hand “up under” his coat. He further admitted that he had

told the clerk, “[Y]ou know what this is, just give me what I want.” The following

exchange ensued:

The Prosecutor: Okay. And it was your intent, at that time, for her
to give you the money out of the cash register, is that right?
The Defendant: Yeah.

The Prosecutor: All right.

The Court: Great—

The Prosecutor: And I think that satisfies.

1
People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993).

2
The Court: Great. I think we’re all set on [the tobacco store].

After agreeing that the police report established a sufficient factual basis for the

gas station robbery, defendant entered a nolo contendere plea to that charge. The trial

court sentenced defendant pursuant to his Cobbs agreement to concurrent terms of

imprisonment for 24 to 40 years.

Later, defendant moved to withdraw his pleas, claiming that the factual bases for

the charges were insufficient. Specifically, defendant argued that there was no evidence

that he had committed a larceny of the tobacco store. He asserted that the police report

did not sufficiently identify him as the gas station robber. The trial court denied

defendant’s motions. With respect to the tobacco store incident, it ruled that the language

of the armed robbery statute 2 allows for a conviction predicated on attempted larceny,

which the plea discussions substantiated. With respect to the gas station incident, the

court ruled that the entirety of the police report and the statements made at the plea

hearing established defendant’s participation in the robbery.

The Court of Appeals granted defendant’s delayed application for leave to appeal,

limited to the issue whether a completed larceny was necessary to sustain defendant’s

conviction of armed robbery of the tobacco store. 3 The Court of Appeals majority

concluded that the statutory language defining robbery and armed robbery encompasses

attempted larcenies and that, as a result, a completed larceny is not required to obtain a

2
MCL 750.529.
3
People v Williams, unpublished order of the Court of Appeals, entered June 16, 2008
(Docket No. 284585).

3
conviction. 4 Judge GLEICHER dissented and would have reached the opposite

conclusion. 5

We granted defendant’s application for leave to appeal. 6

STANDARD OF REVIEW AND LEGAL BACKGROUND

Matters of statutory interpretation present questions of law, which we review de

novo. 7

The common law underlies Michigan’s criminal statutes. 8 Indeed, this Court has

long held that the common law definition of a crime binds Michigan courts unless and

until the Legislature modifies the elements of a crime. 9 Likewise, we recognized in

People v Covelesky that “when words are adopted having a settled, definite and well

known meaning at common law it is to be assumed they are used with the sense and

meaning which they had at common law unless a contrary intent is plainly shown.” 10

4
People v Williams, 288 Mich App 67; 792 NW2d 384 (2010).
5
Id. at 91 (GLEICHER, J., dissenting).
6
People v Williams, 489 Mich 856 (2011).
7
People v Thompson, 477 Mich 146, 151; 730 NW2d 708 (2007).
8
Const 1963, art 3, § 7; see also People v McDonald, 409 Mich 110, 117; 293 NW2d 588
(1980).
9
See, e.g., People v Perkins, 468 Mich 448, 455; 662 NW2d 727 (2003); People v
Riddle, 467 Mich 116, 126; 649 NW2d 30 (2002); People v Schmitt, 275 Mich 575, 577;
267 NW 741 (1936); People v Utter, 217 Mich 74, 86; 185 NW 830 (1921).
10
People v Covelesky, 217 Mich 90, 100; 185 NW 770 (1921).

4
Historically, Michigan’s robbery statutes are derived from the common law crime

of robbery. An essential element of the crime included the commission of a larceny. 11

We observed as much in Covelesky, noting that

[r]obbery at common law is defined as the felonious taking of money or
goods of value from the person of another or in his presence, against his
will, by violence or putting him in fear. This definition has been followed
by most of the statutes, and even where the language has been varied
sufficiently to sustain, by a literal interpretation, a narrower definition of
the offense, it has usually been held that it could not be presumed that the
legislature intended to change the nature of the crime as understood at
common law.[ 12]

Thus, at common law, robbery included three elements: (1) a larceny of money or goods

of value from a person, (2) against the person’s will, (3) by violence or putting the person

in fear. Our Court of Appeals has also long observed that a completed larceny is an

essential element of armed robbery. 13

In People v Randolph, 14 we examined the original version of MCL 750.530 in the

Michigan Penal Code, which provided, in relevant part:

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,

11
A “larceny” is an “unlawful taking and carrying away of someone else’s personal
property with the intent to deprive the possessor of it permanently.” Black’s Law
Dictionary (9th ed).
12
Covelesky, 217 Mich at 96-97 (emphasis added; citation and quotation marks omitted).
13
See, e.g., People v Needham, 8 Mich App 679, 683; 155 NW2d 267 (1967), citing 4
Gillespie, Michigan Criminal Law & Procedure (2d ed), § 2218, pp 2241-2242.
14
People v Randolph, 466 Mich 532; 648 NW2d 164 (2002).

5
such robber not being armed with a dangerous weapon, shall be guilty of a
felony . . . .[15]

The issue in Randolph was whether the crime of robbery set forth in MCL 750.530

was properly viewed by means of a “transactional approach.” Under this approach, an

offender is not viewed as having completed a robbery until he or she has escaped with

stolen merchandise. Randolph rejected the transactional approach, holding that if force is

used to retain, rather than obtain, property, the crime is outside the scope of MCL

750.530. 16 We further held that, under the common law, the force or violence element of

robbery “had to be applied before or during the taking.” 17 We explicitly noted that, after

the initial larcenous act has been completed, the use of force against a victim to retain

stolen property does not transform the offense into armed robbery. 18 Rather, the force or

violence must be used before or contemporaneously with the larceny to elevate the

offense to robbery.

In response to our decision in Randolph, the Legislature amended our robbery

statutes in 2004. 19 MCL 750.529, the armed robbery provision, now reads in relevant

part as follows:

A person who engages in conduct proscribed under [MCL 750.530]
and who in the course of engaging in that conduct, possesses a dangerous
weapon or an article used or fashioned in a manner to lead any person

15
As enacted by 1931 PA 328.
16
Randolph, 466 Mich at 541-543.
17
Id. at 538.
18
Id. at 543.
19
2004 PA 128.

6
present to reasonably believe the article is a dangerous weapon, or who
represents orally or otherwise that he or she is in possession of a dangerous
weapon, is guilty of a felony punishable by imprisonment for life or for any
term of years.

At the same time, the Legislature also revised the statutory definition of unarmed

robbery in MCL 750.530. It did so to clarify the scope of the unlawful conduct

proscribed by MCL 750.529, which refers to MCL 750.530. MCL 750.530 now

provides:

Central to the resolution of this case is the definition of “in the course of

committing a larceny” in MCL 750.529(2). Specifically, we must consider whether the

addition of the phrase “acts that occur in an attempt to commit the larceny” in that

definition eliminated the common law requirement of a completed larceny as a

prerequisite for an armed robbery conviction.

ANALYSIS

Against this backdrop, the starting point in any statutory interpretation dispute is

the language of the relevant statutes. 20 When considering the correct statutory

20
Briggs Tax Serv, LLC v Detroit Pub Schs, 485 Mich 69, 76; 780 NW2d 753 (2010).

7
interpretation, statutory language must be read as a whole. 21 “Individual words and

phrases, while important, should be read in the context of the entire legislative scheme.” 22

Furthermore, “‘the Legislature is presumed to be aware of, and thus to have considered

the effect on, all existing statutes when enacting new laws.’” 23

As Judge GLEICHER noted in her Court of Appeals dissent, the language of MCL

750.530 refutes the proposition that our robbery statutes allow for conviction without

proof of a completed larceny. 24 Under MCL 750.530, a person who “in the course of

committing a larceny” uses force or violence, puts in fear, or assaults another is guilty of

a felony. The statutory phrase “in the course of committing a larceny” includes “acts that

occur in an attempt to commit the larceny, or during the commission of the larceny, or in

flight or attempted flight after the commission or the larceny, or in an attempt to retain

possession of the property.”

Through this language, the Legislature explicitly indicated that the use of force or

violence at any time during the commission of a larceny subjects offenders to prosecution

for armed robbery. Hence, “the Legislature intended to expand the temporal scope of the

crime . . . .” 25 The language it chose merely reflects its rejection of Randolph. It does

not eliminate the requirement of an actual larceny.

21
Bush v Shabahang, 484 Mich 156, 167; 772 NW2d 272 (2009).
22
Id.
23
People v Feezel, 486 Mich 184, 211; 783 NW2d 67 (2010), quoting Walen v Dep’t of
Corrections, 443 Mich 240, 248; 505 NW2d 519 (2003).
24
Williams, 288 Mich App at 96-97 (GLEICHER, J., dissenting).
25
Id. at 97.

8
The House legislative analysis of HB 5015, which became 2004 PA 128, also

supports my conclusion that the Legislature did not intend to abrogate the common law

requirement of a completed larceny to sustain a robbery conviction. That analysis

described our decision in Randolph as the problem that HB 5105 would rectify. It

indicated that the bill would eliminate Randolph’s holding that applied only to those acts

in which force was used to accomplish a larceny. 26 The section describing the contents

of the bill indicated that it would expand the crime of armed robbery. The crime would

include a person who, in the course of engaging in the proscribed conduct, “represented

orally or otherwise that he or she was in possession of a dangerous weapon.” 27

The arguments for HB 5015 summarized in the House legislative analysis further

illustrate the bill’s purpose. For example, one such argument for the bill stated:

Currently, a charge of robbery can only be made if force or violence
were used to commit the larceny. Revising the statutes will allow
prosecutors more latitude to prosecute similar crimes in similar ways. For
example, under the recent court interpretation of the robbery laws, it would
be a crime of armed robbery if a gun were brandished immediately before
or while property was being taken. However, it would not be a crime of
armed robbery if the gun was not brandished until the suspect was trying to
evade capture by a security guard or passerby. The bill would revise the
state’s robbery statutes to include any crime of larceny that involved the use
of force or violence, or fear, at any time during the commission of the
crime. Therefore, if force or violence were used to take property, to retain
property, or to evade apprehension after taking property, the act could
constitute robbery.[ 28]

26
House Legislative Analysis, HB 5015, February 12, 2004, p 1.
27
Id.
28
Id. at 2 (emphasis added).

9
A second argument in support of the bill stated:

Before the 2002 state supreme court decision interpreted the robbery
statutes as applying only in those cases in which force or violence were
used in the taking of property, the state’s appellate courts were moving
towards what is known as the “transactional approach” . . . . Even though
this approach included as robbery some acts that would not be considered
robbery under the Randolph decision, it still is problematic. For example,
say property is taken from a convenience store without force, but force is
used to keep possession of the stolen property or in an attempt to flee from
a security guard or police officer. Under the transactional approach, the
crime would be elevated to robbery if the suspect escaped apprehension and
attained temporary safety but would not be robbery if the suspect were
apprehended by the security guard or police officer because that means he
or she had never attained temporary safety. Moreover, the current law
reflects the mindset of the early 1830s, whereas the bill is similar to
revisions other states have made that include not only the actual taking or
larceny as the crime of robbery, but also those acts committed in trying to
keep possession of the property and acts committed in trying to escape
apprehension.[29]

These arguments make clear that the revisions of the robbery statutes were

intended to elevate to robbery any completed larceny that included force before, during,

or after the taking. They explicitly indicate that a completed larceny remains part of a

robbery. The Legislature was merely displeased with Randolph and enacted legislation

to allow for an enhanced charge of robbery when a larcenist employs force.

While the language of the House legislative analysis provides an understanding of

the Legislature’s intentions, equally telling is what is lacking from that analysis.

Nowhere in the public act or the House legislative analysis is there any indication that the

Legislature intended to abrogate the common law requirement that a robbery include a

completed larceny. Although the Legislature has the authority to set aside the common

29
Id. at 2-3 (emphasis added).

10
law, it has long been recognized that “[w]hen it does so, it should speak in no uncertain

terms.” 30 In 2004 PA 128, there are no “terms,” let alone “uncertain” ones, that support

the conclusion that a completed larceny is no longer an element of robbery. 31

30
Hoerstman Gen Contracting v Hahn, 474 Mich 66, 74; 711 NW2d 340 (2006); see also
Bandfield v Bandfield, 117 Mich 80, 82; 75 NW 287 (1898).
31
By fiat, the majority announces that the Court has rejected my “resort to
unauthoritative legislative analyses in order to displace statutory language.” Ante at 14.
Indeed, both cases the majority cites for this proposition are merely the personal
preferences of then Justice YOUNG and the justices subscribing to his interpretive
methods. But those methods are not binding on other justices of the Court. To be clear, I
reject the notion that my brethren may hamstring the manner in which I engage in
statutory interpretation. While the majority may prefer to ignore these interpretive aids, I
do not. Nor am I alone. As Justice Stevens of the United States Supreme Court stated:

In refusing to examine the legislative history that provides a clear
answer to the question whether Congress intended the scope of the mineral
reservations in these two statutes to be identical, the plurality abandons one
of the most valuable tools of judicial decisionmaking. As Justice Aharon
Barak of the Israel Supreme Court perceptively has explained, the
“minimalist” judge “who holds that the purpose of the statute may be
learned only from its language” retains greater discretion than the judge
who “will seek guidance from every reliable source.” Judicial Discretion
62 (Y. Kaufmann transl.1989). A method of statutory interpretation that is
deliberately uninformed, and hence unconstrained, increases the risk that
the judge’s own policy preferences will affect the decisional process.

BedRoc Ltd, LLC v United States, 541 US 176, 192; 124 S Ct 1587; 158 L Ed 2d 338
(2004) (Stevens, J., dissenting); see also In re Certified Question from the United States
Court of Appeals for the Sixth Circuit (Kenneth Henes v Continental Biomass), 468 Mich
109, 119; 659 NW2d 597 (2003) (CAVANAGH, J., concurring), and Frank W Lynch & Co
v Flex Technologies, Inc, 463 Mich 578, 588; 624 NW2d 180 (2001) (KELLY, J.,
concurring).

11
Therefore, robbery still requires a completed larceny as a predicate to conviction.

The majority’s conclusion to the contrary defies the statutory language as well as the

Legislature’s intent.

THE MAJORITY OBLITERATES THE DISTINCTION BETWEEN ARMED
ROBBERY AND ASSAULT WITH INTENT TO ROB AND STEAL WHILE ARMED

A further indication that the majority’s statutory interpretation is incorrect is that it

effectively writes out of existence the crime of assault with intent to rob and steal while

armed. In this regard, MCL 750.89 provides:

Assault with intent to rob and steal being armed—Any person, being
armed with a dangerous weapon, or any article used or fashioned in a
manner to lead a person so assaulted reasonably to believe it to be a
dangerous weapon, who shall assault another with intent to rob and steal
shall be guilty of a felony, punishable by imprisonment in the state prison
for life, or for any term of years.

Thus, a person violates MCL 750.89 if he or she intends to rob another while in

possession of a weapon but fails and a completed larceny does not occur.

Under the majority’s flawed analysis, the armed robbery statute, MCL 750.529, is

now nearly identical to assault with intent to rob and steal while armed, MCL 750.89.

Indeed, a defendant may now be convicted of armed robbery if (1) while armed with a

dangerous weapon or any article used or fashioned in a manner to lead a person to believe

it to be a dangerous weapon, (2) he or she assaults another with intent to rob and steal.

There is no longer a distinction between armed robbery and assault with intent to rob and

steal while armed. Yet the Legislature saw fit to draw a distinction between the two

crimes by requiring a completed larceny for armed robbery, not merely an intended one.

Otherwise, there would be no purpose to having two discrete statutes on the books.

12
The majority’s analytical mistake is made clear when reference is made to our

criminal jury instructions. When a defendant is charged with armed robbery, trial courts

instruct the jury as follows:

(1) The defendant is charged with the crime of armed robbery. To
prove this charge, the prosecutor must prove each of the following elements
beyond a reasonable doubt:

(2) First, the defendant [used force or violence against / assaulted /
put in fear] [state complainant’s name].

(3) Second, the defendant did so while [he / she] was in the course of
committing a larceny. A “larceny” is the taking and movement of someone
else’s property or money with the intent to take it away from that person
permanently.

“In the course of committing a larceny” includes acts that occur in
an attempt to commit the larceny, or during the commission of the larceny,
or in flight or attempted flight after the commission of the larceny, or in an
attempt to retain possession of the property or money.

(4) Third, [state complainant’s name] was present while defendant
was in the course of committing the larceny.

(5) Fourth, that while in the course of committing the larceny, the
defendant:

[Choose one or more of the following as warranted by the charge and
proofs:]

(a) possessed a weapon designed to be dangerous and capable of
causing death or serious injury; [or]

(b) possessed any other object capable of causing death or serious
injury that the defendant used as a weapon; [or]

(c) possessed any [other] object used or fashioned in a manner to
lead the person who was present to reasonably believe that it was a
dangerous weapon; [or]

13
(d) represented orally or otherwise that [he / she] was in possession
of a weapon.[32]

When a defendant is charged with assault with intent to rob and steal while armed,

trial courts instruct the jury as follows:

(1) The defendant is charged with the crime of assault with intent to
commit armed robbery. To prove this charge, the prosecutor must prove
each of the following elements beyond a reasonable doubt:

(2) First, that the defendant assaulted [name complainant]. There
are two ways to commit an assault. Either the defendant must have
attempted or threatened to do immediate injury to [name complainant], and
was able to do so, or the defendant must have committed an act that would
cause a reasonable person to fear or apprehend an immediate injury.

(3) Second, that at the time of the assault, the defendant was armed
with:

[Choose one or more of the following:]

(a) A weapon designed to be dangerous and capable of causing death
or serious injury; [or with]

(b) Any [other] object capable of causing death or serious injury that
the defendant used as a weapon; [or with]

(c) Any [other] object used or fashioned in a manner to lead the
person who was assaulted to reasonably believe that it was a dangerous
weapon.

(4) Third, that at the time of the assault the defendant intended to
commit robbery. Robbery occurs when a person assaults someone else and
takes money or property from [him / her] or in [his / her] presence,
intending to take it from the person permanently. It is not necessary that
the crime be completed or that the defendant have actually taken any
money or property. However, there must be proof beyond a reasonable
doubt that at the time of the assault the defendant intended to commit
robbery.[ 33]

32
CJI2d 18.1.
33
CJI2d 18.3 (emphasis added).

14
The key distinction between armed robbery and assault with intent to rob and steal

while armed, as highlighted by the model jury instructions, is whether a larceny is

completed. To obtain a conviction, the prosecution must prove in both instances that an

offender committed an assault. Likewise, both crimes require proof of the use of a

weapon or an object fashioned as a weapon. But assault with intent to rob and steal while

armed requires only the intent to commit a robbery; no completed larceny is required

under CJI2d 18.3(4). By contrast, armed robbery requires a completed larceny. In fact,

CJI2d 18.1(3) explicitly indicates that the prosecution must prove that a defendant “was

in the course of committing a larceny” and defines “larceny” as “the taking and

movement of someone else’s property . . . .”

As discussed earlier, the Legislature is “‘presumed to be aware of, and thus to

have considered the effect on, all existing statutes when enacting new laws.’” 34 Yet

under today’s decision, the majority has usurped the Legislature’s statutory distinction

between armed robbery and assault with intent to rob while armed. In essence, it has

merged the two offenses into one. Had the Legislature intended to eliminate the crime of

assault with intent to rob while armed when it enacted 2004 PA 128, it could have

explicitly done so. It did not. The majority offers no response when confronted with this

significant analytical flaw.

34
Feezel, 486 Mich at 211, quoting Walen, 443 Mich at 248.

15
Applying my analysis to this case, I believe that the trial court abused its

discretion by denying defendant’s motion to withdraw his plea. 35 There is no evidence

that defendant committed a larceny at the tobacco store, and therefore there is an

inadequate factual basis to support a finding that defendant is guilty of armed robbery.

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

CONCLUSION

I dissent from the majority’s holding that a completed larceny is no longer

necessary to sustain a conviction for armed robbery. The Legislature did not provide a

clear indication that it wished to depart from the common law. Accordingly, I would

reverse the judgment of the Court of Appeals and remand this case to the trial court for

further proceedings.

Marilyn Kelly
Michael F. Cavanagh
Diane M. Hathaway

35
See People v Watkins, 468 Mich 233, 238; 661 NW2d 553 (2003) (“Before accepting a
guilty plea, a trial court must question the defendant to ascertain whether there is support
for a finding that the defendant is guilty of the offense to which he is pleading guilty.”).