REPORT TITLE:
Robbery


DESCRIPTION:
Clarifies legislative intent with respect to robbery that:  focus
is on defendant's intent and not victim's awareness of theft; and
the defendant's assertion or conduct indicating to victim that
the defendant is armed with a dangerous weapon is sufficient to
establish robbery in the 1st degree.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        
HOUSE OF REPRESENTATIVES                H.B. NO.1483       
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            
                                                             
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                   A  BILL  FOR  AN  ACT

RELATING TO ROBBERY.
 


BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  The legislature finds that it necessary to
 
 2 clarify the legislature's intent regarding the offense of
 
 3 robbery.  This clarification is necessitated by two Hawaii
 
 4 appellate decisions in State v. Mitsuda, 86 Haw. 37 (1997) and
 
 5 State v. Ugalde, No. 21002 (Haw. App. Nov. 9, 1998).  In Mitsuda,
 
 6 the state supreme court held that where the defendant threatens
 
 7 the imminent use of force against any person present with intent
 
 8 to compel acquiescence to the taking of or escaping with
 
 9 property, the victim must be aware of the theft of the property
 
10 for the offense of robbery in the first degree to have occurred.
 
11      The facts, as presented in Mitsuda, were that the victims
 
12 were awakened in their home during the early morning hours by
 
13 their dog barking.  When the victims went to investigate, they
 
14 found the defendant hiding in their home.  When they tried to
 
15 detain the defendant until the police arrived, the defendant
 
16 pulled out a screw driver and pointed it at one of the victims.
 
17 A struggle ensued between the defendant and two of the victims
 
18 over the screw driver.  At some point, the struggle ended and the
 
19 defendant escaped.  Only after the defendant escaped, did the
 

 
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 1 victims discover that a manicure case was missing.
 
 2      Based upon these facts, the state supreme court found that
 
 3 the requirement that the victim of the robbery be present during
 
 4 the taking of the property was derived from a requirement under
 
 5 prior law.  In fact, the court observed that the "presence" of
 
 6 the victim is a distinguishing characteristic of robbery, and
 
 7 there is no indication within either the robbery first statute or
 
 8 its legislative history that the legislature intended to delete
 
 9 the requirement.  The court further explained that a person is
 
10 "present" within the meaning of the robbery first statute, if the
 
11 person might interfere with the theft.  Thus, where a victim is
 
12 unaware of the theft, the court believed it is the unawareness,
 
13 rather than the violence or intimidation, that renders the person
 
14 unable to retain possession of the property.  Therefore, the
 
15 prosecution must prove an "intent to compel acquiescence to the
 
16 taking of or escaping with the property", and not the intent to
 
17 escape with the property, or to facilitate or enable escape with
 
18 the property.  Where the victim of the threatened use of force
 
19 has no knowledge of the theft, the victim's assent, implied
 
20 consent, compliance, or submission to the "taking of or escaping
 
21 with" the stolen property is, according to the court,
 
22 conceptually impossible and need not be compelled by the
 
23 defendant.
 

 
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 1      However, although the defendant's intent to use force or
 
 2 threat of force to effectuate the theft is relevant to the
 
 3 offense of robbery, it was never intended by the legislature that
 
 4 the victim must be aware of the theft or attempted theft of the
 
 5 property.  Thus, the purpose of this Act is to make clear that
 
 6 the defendant's intent to compel the acquiescence to the taking
 
 7 of or escaping with the property is the controlling factor and
 
 8 not the victim's awareness of the theft or the victim's
 
 9 acquiescence to the taking of or escaping with the property.
 
10      This Act also makes amendments to section 708-840, Hawaii
 
11 Revised Statutes, regarding robbery in the first degree, as a
 
12 response to the intermediate court of appeals' decision in State
 
13 v. Ugalde, No. 21002 (Haw. App. Nov. 9, 1998).  In Ugalde, the
 
14 defendant told his victim that he had a gun as he motioned for
 
15 her to look at the object he was holding in his hand.  Because
 
16 the object was concealed in a sock-like covering, the victim
 
17 could not see the gun.  A video surveillance tape of the
 
18 establishment in which the robbery occurred showed the defendant
 
19 holding an object.  At the conclusion of the trial, the jury
 
20 found the defendant guilty of robbery in the first degree.
 
21      On appeal, the intermediate court of appeals vacated the
 
22 defendant's conviction and remanded the matter for resentencing
 
23 as robbery in the second degree.  The court declared that,
 

 
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 1 without more, the victim's subjective belief that the defendant
 
 2 possessed a gun was insufficient to prove that he possessed a
 
 3 weapon.  The court did not address the defendant's statement that
 
 4 he had a gun as being sufficient evidence that the defendant was
 
 5 armed with a dangerous instrument while committing the theft.
 
 6      However, the Hawaii supreme court, by memorandum opinion,
 
 7 State v. Ugalde, No. 21002 (Sup. Ct. January 14, 1999), reversed
 
 8 the intermediate court of appeals decision vacating the
 
 9 defendant's conviction for robbery in the first degree.  The
 
10 Hawaii supreme court found that there was sufficient evidence
 
11 presented at trial to support defendant's conviction for robbery
 
12 in the first degree.
 
13      But pursuant to Rule 35(c) of the Hawaii rules of appellate
 
14 procedure, a memorandum opinion cannot be cited to as authority
 
15 in other actions or proceedings, "except when the opinion
 
16 establishes the law of the pending case, res judicata or
 
17 collateral estoppel, or in a criminal action or proceeding
 
18 involving the same respondent".  Because the supreme court
 
19 decision in Ugalde has no precedential value as to other robbery
 
20 cases, the legislature concludes that clarification of its intent
 
21 as to what constitutes robbery in the first degree is necessary.
 
22      As a matter of policy, the legislature believes there should
 
23 be no distinction between robberies in which the defendant
 

 
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 1 asserts that the defendant is armed with a weapon, simulates a
 
 2 weapon, conceals the weapon from the view of persons present, or
 
 3 displays the weapon to the persons present.  In all these
 
 4 situations, the defendant has put the victims in fear for their
 
 5 lives and safety and thus increased the likelihood that the
 
 6 victims or bystanders may act with deadly force.  Clearly, the
 
 7 belief that the defendant is armed increases the possibility of a
 
 8 violent response on the part of victims or any bystanders and
 
 9 thereby escalates the possibility of injury to or death of anyone
 
10 present during the robbery.  The legislature finds that the
 
11 policy behind the offense of robbery in the first degree is to
 
12 deter individuals who are committing thefts from creating a risk
 
13 of injury to or death of anyone present.  Accordingly, the
 
14 purpose of this Act also is to amend the offense of robbery in
 
15 the first degree to ensure that where a person, by the person's
 
16 own assertions or conduct, creates a belief by the victim or
 
17 anyone present at a robbery that the person is armed with a
 
18 dangerous instrument, then that conduct constitutes robbery in
 
19 the first degree.
 
20      SECTION 2.  Section 708-840, Hawaii Revised Statutes, is
 
21 amended by amending subsections (1) and (2) to read as follows:
 
22      "(1)  A person commits the offense of robbery in the first
 
23 degree if, in the course of committing theft:
 

 
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 1      (a)  The person attempts to kill another[,] or intentionally
 
 2           or knowingly inflicts or attempts to inflict serious
 
 3           bodily injury upon another; [or]
 
 4      (b)  The person is armed with a dangerous instrument and:
 
 5           (i)  The person uses force against the person of anyone
 
 6                present with intent to overcome that person's
 
 7                physical resistance or physical power of
 
 8                resistance; or
 
 9          (ii)  The person threatens the imminent use of force
 
10                against the person of anyone who is present with
 
11                intent to compel acquiescence to the taking of or
 
12                escaping with the property[.]; or
 
13      (c)  The person indicates either by assertion or by conduct
 
14           to anyone present that the person is armed with a
 
15           dangerous instrument and:
 
16           (i)  The person uses force against anyone present with
 
17                intent to overcome that person's resistance; or
 
18          (ii)  The person threatens the imminent use of force
 
19                against the person of anyone present with intent
 
20                to compel acquiescence to the taking of or
 
21                escaping with the property.
 
22      (2)  As used in this section, "dangerous instrument" means
 
23 [any]:
 

 
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 1      (a)  Any firearm, whether loaded or not, and whether
 
 2           operable or not, or other weapon, device, instrument,
 
 3           material, or substance, whether animate or inanimate,
 
 4           [which] that in the manner in which it is used or
 
 5           threatened to be used [is] appears to be capable of
 
 6           producing death or serious bodily injury[.]; or
 
 7      (b)  Any article, device, instrument, material, or
 
 8           substance, whether animate or inanimate, that is used
 
 9           or fashioned in a manner that simulates any firearm,
 
10           weapon, device, instrument, materials, or substance,
 
11           whether animate or inanimate, that appears to be
 
12           capable of producing death or serious bodily injury."
 
13      SECTION 3.  Section 708-842, Hawaii Revised Statutes, is
 
14 amended to read as follows:
 
15      "§708-842  Robbery; ["in the course of committing a theft."]
 
16 definitions.  In sections 708-480 and 708-841:
 
17      (1)  An act shall be deemed "in the course of committing a
 
18 theft" if it occurs in an attempt to commit theft, in the
 
19 commission of theft, or in the flight after the attempt or
 
20 commission.
 
21      (2)  For the purposes of determining whether an act is "in
 
22 the course of committing a theft", it shall not be a defense that
 
23 any person other than the defendant is unaware of the theft or
 

 
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 1 the attempted theft of the victim's property.
 
 2      (3)  "With intent to overcome that person's physical
 
 3 resistance or physical power of resistance" means the defendant's
 
 4 intent to overcome a person's physical resistance or physical
 
 5 power of resistance regardless of whether the person is aware of
 
 6 the theft or attempted theft of the property.
 
 7      (4)  "With intent to compel acquiescence to the taking of or
 
 8 escaping with the property" means the defendant's intent to
 
 9 compel the acquiescence of a person present to the taking or
 
10 escaping with property regardless of whether the person is aware
 
11 of the defendant's theft or attempted theft of the property."
 
12      SECTION 4.  This Act shall apply to any proceeding begun
 
13 after its effective date.
 
14      SECTION 5.  Statutory material to be repealed is bracketed.
 
15 New statutory material is underscored.
 
16      SECTION 6.  This Act shall take effect upon its approval.
 
17 
 
18                           INTRODUCED BY:_________________________