State v. Brennan

Morse, J.,

dissenting. Although I concur that larceny from the person does not require that the property stolen be physically touching the victim, I would affirm. Defendant entered a conditional plea of guilty following the trial court’s ruling that larceny from the person did not require that the subject property be touching the victim when taken. We are affirming that view of the law. Defendant has pled guilty to it.

Even if defendant had not pled guilty and there had been a motion to dismiss for lack of a prima facie case under V.R.Cr.P. 12(d) (requiring State to establish by admissible evidence that it has substantial evidence as to the charged offense sufficient to withstand a motion for judgment of acquittal at trial), it would have been properly denied. See State v. Dixon, 169 Vt. 15, 17, 725 A.2d 920, 922 (1999) (when reviewing a motion to dismiss, evidence must be viewed in the light most favorable to the State, and modifying evidence is excluded from consideration). Whether the defendant in this case committed larceny from the person should be left to a jury to decide.

The determination whether the victim’s zone of protection extended to the back seat of her car is a mixed question of fact and law. As the majority notes, it is the heightened risk to the victim created when the property at issue is taken from the victim’s presence and control — within a few feet behind her on the back seat in this case — that merits the enhanced penalty associated with larceny from the person. 172 Vt. at 283, 775 A.2d at 924. That risk most certainly existed in this case, especially where the defendant and the victim were together in a car — a small, confined space, moving down the highway. There was a significant potential that the victim might discover defendant taking her money from her purse, resulting in a confrontation, fright and panic.

*287Because it is this very type of risk that has precipitated the heightened penalty associated with larceny from the person, see State v. Washington, 308 N.W.2d 422, 423 (Iowa 1981) (“theft from the victim’s area, of control, because of its potential for physical confrontation with the thief, could logically be seen as justifying an enhanced penalty”) (emphasis added); Garland v. Commonwealth, 446 S.E.2d 628, 630 (Va. Ct. App. 1994) (“larceny from the person recognizes an enhanced societal concern for conduct that implicates at least a potential for personal assault”) (emphasis added), I do not agree that, as a matter of law, the facts of this case could never be considered by a jury to constitute such a crime. If a violent confrontation or assault had actually occurred, then an even more serious crime would have been committed, meriting an even greater penalty. 13 V.S.A § 608 (assault and robbery); see also State v. Buckom, 401 S.E.2d 362, 365 (N.C. 1991) (noting that larceny from the person differs from robbery because it ‘lacks the requirement that the victim be put in fear” and occupies a “middle ground” between robbery and traditional or petty larceny).

Furthermore, I agree with the concurrence to' the extent that whether the victim knew of the theft and whether the nature of the thief s conduct was assaultive should not be legally controlling. Nevertheless, I do not think that we can assume that, because the victim’s wallet was in the back seat of her car, it was out of her reach, i.e., out of her physical control. See Washington, 308 N.W.2d at 423 (in casé where victim’s billfold was taken from her purse which was located in a shopping cart, court held that “theft from the victim’s area of control” was sufficient for conviction of larceny from the person); Garland, 466 S.E.2d at 630 (holding “larceny from the person embraces not only theft of property from physical contact with the victim, but also theft of property that is in the victim’s possession and within his immediate custody and control”) (emphasis added); see also New York v. Belton, 453 U.S. 454, 460 (1981) (holding that police may search the passenger compartment of a car incident to a lawful arrest under principle that a search of the area within the “immediate control of the arrestee” may occur and noting “articles inside the relatively narrow compass of the passenger compartment . . . are in fact generally, even if not inevitably, within ‘the area into which an arrestee might reach in order to grab a weapon or evidentiary ite[m]’ ”) (quoting Chimel v. California, 395 U.S. 752, 763 (1969)) (alteration in original). These are facts that ought to be developed at trial and decided by a jury.

I respectfully dissent.