The Volokh Conspiracy
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I find the dissent's general position—and that in the cases that the dissent cites—generally more persuasive: When someone walks into a bank and asks the bank to give him money to which he obviously has no claim of right, it seems to me clear that he is trying to threaten people with physical force, and not just panhandling or threatening something non-physical. But here are excerpts from the opinions (in State v. Coleman (Mo. Ct. App. Sept. 30, 2014) (some paragraph breaks added)); review them for yourself:
At 9:18 a.m. on October 6, 2012, Appellant walked into a branch office of Bank Star One in New Bloomfield, Missouri wearing sunglasses. He walked straight up to teller Marla Rothove, rested his forearm on the counter, leaned slightly forward, handed Rothove a plastic grocery sack, and said, "I need you to do me a favor. Put the money in this bag." He spoke in a low, serious tone. Rothove took the bag, opened her drawer, and put $1,472.00 in the bag.
While this was going on, the assistant branch manager, Sharon Holland, approached. When she was a few feet from Rothove, Appellant told her, "Ma'am, stop where you are and don't move any farther." Holland complied with those instructions. Rothove handed Appellant the bag of money, and he ran out of the bank. The entire encounter lasted approximately forty-five seconds….
"A person commits the crime of stealing if he or she appropriates property or services of another with the purpose to deprive him or her thereof, either without his or her consent or by means of deceit or coercion." § 570.030.1. "Under Missouri law, the offense of stealing is transformed into the greater offense of second degree robbery when the stealing is accomplished 'forcibly.'" "A person 'forcibly steals,' thereby committing second degree robbery, if, 'in the course of stealing [as defined in section 570.030]' the person 'uses or threatens the immediate use of physical force upon another person for the purpose of … [p]reventing or overcoming resistance to the taking of the property or … compelling the owner of such property or another person to deliver up the property." …
The State concedes that Appellant did not actually use any physical force during the incident but maintains that the evidence supports a finding that Appellant threatened Rothove and/or Holland with the immediate use of physical force…. To support a conviction for second-degree robbery based upon the threatened use of physical force, there must be evidence of some affirmative conduct on the part of the defendant, beyond the mere act of stealing, which communicates that he will "immediately" employ "physical force" if the victim fails to deliver up the property or otherwise resists his taking of the property. "[T]he threat of physical harm need not be explicit; it can be implied by words, physical behavior or both." …
The State argues in [conclusory] fashion, without further explanation, that the statements made by Appellant are indistinguishable from handing a teller a note saying, "This is a holdup." See Patterson, 110 S.W.3d at 904 (noting that a threat of physical force may be implied from the use of phrases like, "This is a holdup," or "This is a stickup."). Contrary to the State's contention, however, these comments are readily distinguishable. "The expression 'holdup,' in its ordinary significance, means a forcible detention of the person held with the intent to commit robbery and implies the necessary force to carry out that purpose." Thus, the use of the term itself implies possession of a weapon and the willingness to use force. The ordinary meaning of the terms and phrases used by Appellant do not convey a similar message.
The State also attempts to argue that the statements made by Appellant, when viewed in the context of the situation and considering his demeanor, are sufficient to support a finding that Appellant intended for Rothove and Holland to feel threatened and to believe that he would use physical force against them if they failed to comply with his demands. In support of that assertion, the State cites United States v. Gilmore, 282 F.3d 398, 402 (6th Cir. 2002) …[:] "[d]emands for money [from a bank employee] amount to intimidation because they carry with them an implicit threat: if the money is not produced, harm to the teller or other bank employee may result." Gilmore, however, involved the application of a federal bank robbery statute, which criminalizes the taking of money or property from a federally insured financial institution "by force and violence, or by intimidation." "Whether intimidation under 18 U.S.C. § 2113(a) exists in a particular case is determined by an objective test: whether an ordinary person in the teller's position could reasonably infer a threat of bodily harm from the defendant's acts."
Missouri does not have a specialized bank robbery statute, and under § 569.010 and Missouri case law, whether a defendant has impliedly threatened the immediate use of physical force for the purpose of overcoming resistance to the taking of property is determined by the defendant's actions rather than the reactions and perceptions of the putative victim. See State v. Carter, 967 S.W.2d 308, 308-09 (Mo. App. E.D. 1998) (reversing a second degree robbery conviction based upon insufficiency of the evidence to support a finding that the defendant used or threatened the use of force where the defendant approached a woman and her grandson in a parking lot at night, said "Give me your purse," and, after being told the purse was in her pocket, reached into the pocket and removed it before running away; noting that "[t]he evidence presented at trial showed that Defendant never threatened or hit Victim and Defendant did not display a weapon")…. [A] conviction for second degree robbery under § 569.030.1 requires evidence beyond a reasonable doubt that the defendant communicated, through affirmative conduct and/or words, an intent to immediately use physical force if the victim fails to deliver up the property or otherwise resists his taking of the property. Accordingly, Gilmore is inapposite.
As his verbal statements are insufficient to support a finding of a threat of physical force, we are left to consider whether Appellant's actions and nonverbal communication add enough to the situation for a trier of fact to infer beyond a reasonable doubt that he threatened Rothove and/or Holland with the use of immediate physical force. Multiple security cameras recorded Appellant's actions inside and outside the bank. That footage was submitted into evidence at trial.
None of it reflects Appellant ever placed a hand in a pocket or otherwise made any type of physical gesture that could be interpreted as intending to indicate that he had a weapon or was poised to attack. He walked into the bank with his arms swaying freely at his side, walked up to the counter, placed one arm on the counter, leaned slightly on it, handed Rothove a plastic bag, and then spoke with her. After receiving the money, Appellant turned and walked quickly out of the bank and then ran away. In short, Appellant's body language does not support a finding beyond a reasonable doubt that Appellant threatened anyone with the immediate use of physical force.
[Footnote: While the State attempts to make something of Rothove's testimony that she was scared because she could not see one of his hands at times during the encounter because of the counter between them, Rothove's sightline is not an affirmative action on the part of the defendant that could be viewed as a threat. The simple fact that the chest-high counter obscured the teller's view of one of Appellant's hands is simply not the functional equivalent of Appellant making a physical gesture suggestive of the possession of a weapon.]
The evidence in this case is insufficient to support a finding beyond a reasonable doubt that Appellant communicated to Rothove and/or Holland his intent to immediately employ physical force if they failed to deliver up the money or otherwise resisted his taking of it.
There must be some affirmative conduct on the part of the defendant, beyond the mere act of stealing, which communicates that he will immediately employ "physical force" if the victim "resist[s] … the taking of the property." In Patterson v. State, 110 S.W.3d 896 (Mo. App. W.D. 2003), this Court listed multiple actions on the part of the defendant from which an implicit threat of force could be inferred. While not an exhaustive list, Patterson explained that a threat of force "may be implied from the fact that the defendant displayed a weapon, engaged in behavior that gave the appearance that he was armed, or used [a] phrase like, 'This is a holdup.'"
The case at bar evidences no words or actions on the part of Appellant similar to those noted in Patterson as supportive of an inference that the defendant threatened someone with the immediate use of physical force. Clearly, a substantial aspect of why Missouri courts have required some affirmative conduct on the part of the defendant communicating to the victim that defendant will immediately employ physical force is because we have two statutes and two offenses, stealing in violation of § 570.030.1, and robbery in the second degree in violation of § 569.030.1.
If, as the State argues, no affirmative conduct is required, then virtually all stealing other than by means of deceit will be the same as robbery in the second degree. In other words, appropriating the property of another with the purpose to deprive the other thereof by means of coercion, which is criminalized in § 570.030.1, becomes essentially meaningless if virtually all verbally coercive conduct is treated as robbery in the second degree in violation of § 569.030.1. "When interpreting statutes, courts do not presume that the legislature has enacted a meaningless provision."
For these reasons, we hold that the evidence was insufficient to support a finding beyond a reasonable doubt that Appellant, either explicitly or implicitly, threatened Rothove or Holland with the immediate use of physical force. As his conviction for second degree robbery is, therefore, not supported by sufficient evidence, it must be vacated…. [But b]ecause the evidence was clearly sufficient for the trial court to have found all of the elements of the lesser offense of stealing under § 570.030 and the trial court was required to have found all of those elements to have entered its conviction for robbery, we enter a conviction for that offense….
[Footnote: Our decision is consistent with the Eastern District's recent decision in State v. Brooks, No. ED99427, 2014 Mo. App. LEXIS 156 (Mo. App. E.D. Feb. 18, 2014), which has been accepted on transfer by the Missouri Supreme Court. In Brooks, the defendant entered a bank wearing bulky clothing, a long-haired wig, a baseball cap, and sunglasses. He approached a teller and handed her a note stating: "Fifties, hundreds, no bait money, and bottom drawer."
When the teller began to walk away to retrieve the money, the defendant slammed his hand on the counter and told her to "get back here." After the teller explained that the money the defendant wanted was elsewhere, she retrieved the money and placed it on the counter in front of the defendant. The defendant then placed the money in a bag and left….
In reversing [defendant's second-degree robbery] conviction, Brooks held that "there must be some affirmative conduct on the part of the [defendant], beyond the mere act of stealing, which communicates that he will 'immediately' employ 'physical force' if the victim 'resist[s] … the taking of the property.'" … Brooks held that, based upon the evidence presented, "a trier of fact could not reasonably have found that Brooks 'used or threaten[ed] the immediate use of physical force upon another person,' as required by the statute for robbery in the second degree."]
[Judge Mitchell, dissenting.]
… I do not believe the State is required to prove that Coleman purposely conveyed a threat to the teller or branch manager…. Rather, I would hold that the evidence must be sufficient to allow a rational fact finder, applying an objective standard, to conclude that Coleman [knowingly] engaged in conduct that threatened the immediate use of physical force….
[A] rational fact finder could find that Coleman was aware that the nature of his conduct was such that it could be perceived as threatening, even if he did not purposely convey a threat. Coleman, while wearing sunglasses, approached a teller in a bank, demanded money that he had no lawful right to, kept one hand concealed, and directed the branch manager not to move any farther when she approached to investigate the situation. It is not a novel idea to suggest that the teller and branch manager in that situation would perceive Coleman's actions as threatening.
Even assuming that Coleman did not purposely convey a threat, clearly it was his purpose to capitalize on the results of a perceived threat…. While it is unclear from the record what the actual consequences would have been (if any) had the teller not turned over the money, there is at least a reasonable inference that Coleman's conscious object was for her to feel compelled to deliver up the property. I think it unreasonable—and thus contrary to our standard of review—to infer that Coleman walked into the bank solely motivated by the hope that the bank would willingly give him money in response to his request….
[Footnote: Numerous federal cases interpreting the federal bank robbery statute, 18 U.S.C. § 2113, have concluded that the mere demand for money from a teller in a bank meets a higher burden of establishing "conduct reasonably calculated to produce fear."
Several other states also deem such circumstances to constitute an implicit threat. See, e.g., State v. Collinsworth, 966 P.2d 905, 908 (Wash. App. 1997) ("No matter how calmly expressed, an unequivocal demand for the immediate surrender of the bank's money, unsupported by even the pretext of any lawful entitlement to the funds, is fraught with the implicit threat to use force."); State v. Losey, 2006 WL 3802925, *3 (Iowa App. 2006) ("[Defendant's] demeanor, proximity to the bank teller, his note demanding money, as well as the teller's resulting fear, when considered in total, support an inference of the requisite statutory intent."); State v. Hernandez, 134 N.M. 510, 512-13 (N.M. App. 2003) ("Where a defendant points a note at the teller's cash drawer, keeps his other hand hidden from view, states that the teller should give him everything, and directs the teller not to use the alarm, a reasonable fact finder could conclude that this combination of actions threatened force and caused the teller to hand over the contents of the cash drawer.").
The majority casts off the federal bank robbery cases for the sole reason that Missouri does not have a bank robbery statute. I fail to see the distinction, as the only real difference between the bank robbery statute and our second-degree robbery statute is the additional element the federal government has to prove: namely, the location of the robbery (a bank). The courts' analyses in the above-cited cases, however, is not focused on the location element; rather the analysis in each of the cases is focused on the conduct element and what surrounding circumstances can be considered in evaluating whether the conduct establishes an implicit threat.]
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