Scuffling Over Merchandise

Here’s a fact pattern that comes up from time to time: Dan walks into a store, takes some merchandise, and leaves without paying for it. Eric, a store employee, sees Dan stealing the merchandise. He follows Dan into the parking lot and confronts him. A scuffle ensues. What’s the proper charge?

Most of the time, it’s common law robbery, though the answer may depend on how the scuffle goes.

If Dan uses enough force on Eric to overcome Eric’s resistance and make Eric give up on the confrontation, Dan should be charged with common law robbery. See, e.g., State v. Porter, 198 N.C. App. 183 (2009) (defendant was properly convicted of common law robbery where he stole merchandise from a store, was confronted by the store manager in the parking lot, and punched the manager, knocking him unconscious, before leaving with some of the merchandise).

If Dan uses enough force on Eric to get away from Eric and make off with the merchandise, even though Eric doesn’t give up on the confrontation, Dan should probably still be charged with common law robbery, although the issue is a bit more complicated.

In this scenario, Dan may argue that the force he used did not “induce the victim to part with [the] property,” Jessica Smith, North Carolina Crimes 380 (7th ed. 2012) (discussing the elements of robbery), in that Eric continued to fight for the merchandise. There’s language in many cases that could be read to support his argument, like the following from State v. Elkins, 210 N.C. App. 110 (2011) (internal quotation marks and citations omitted): “The force element required for common law robbery requires violence or fear sufficient to compel the victim to part with his property or to prevent resistance to the taking.” Because Eric continued to resist, Dan might argue, the force used was not sufficient to satisfy the elements of robbery. Cf. State v. Carter, 186 N.C. App. 259 (2007) (the defendant sprayed the back of the victim’s head with pepper spray, then, while the victim was distracted, grabbed a bag sitting next to the victim; the court of appeals found insufficient evidence of robbery; “while there clearly was a battery, it did not induce [the victim] to part with the money,” as it “did not instill the fear necessary such that defendant’s obtaining the money could be considered common law robbery”).

However, the greater weight of authority supports the idea that using force on a victim sufficient to facilitate an escape is enough to support a robbery charge. Parsing the phrasing of Elkins, even if there is not “fear sufficient to . . . prevent resistance,” there is “violence . . . sufficient to compel the victim to part with his property.” See State v. Foster, 189 N.C. App. 788 (2008) (unpublished) (affirming a robbery conviction where the defendant effectively threw a loss prevention officer to the ground, then entered a vehicle and sped away, and collecting cases); State v. Smith, __ N.C. App. __, 716 S.E.2d 875 (2011) (unpublished) (“Here, the defendant’s use of force against Mr. Albright was concomitant with the taking of the money because both actions were part of one continuous transaction. Defendant took the cash and as he attempted to leave the office, he was confronted by Mr. Albright. A struggle ensued during which defendant threw Mr. Albright across the room and into furniture. The taking was not completed until defendant fought with Mr. Albright and made his escape from the office.”); State v. Trexler, 4 N.C. 188 (1815) (“The snatching any thing unawares, is not considered a taking by force; but if there be a struggle to keep it, or any violence done the person . . . the taking is a robbery.”).

If Dan uses no force directly on Eric, but wrests the merchandise away from Eric and makes off with the goods without ever causing Eric to submit to the taking, I still tend to think that common law robbery is the correct charge, because there is force or violence inherent in a struggle over an object. Trexler, cited above, provides some support for that, as does State v. Edwards, 184 N.C. App. 378 (2007) (unpublished) (finding sufficient evidence of attempted common law robbery where the defendant approached a woman in parking lot, grabbed her purse, said “you got to give me this,” and struggled over the purse with enough force to break its straps, leaving the victim upset and crying; although simple purse snatchings are not robberies, the evidence here went beyond that and established violence or fear). See also 3 Wayne R. LaFave, Substantive Criminal Law § 20.3 (2d ed.) (“The great weight of authority . . . supports the view that there is not sufficient force to constitute robbery when the thief snatches property from the owner’s grasp so suddenly that the owner cannot offer any resistance to the taking. On the other hand, when the owner, aware of an impending snatching, resists it, or when, the thief’s first attempt being ineffective to separate the owner from his property, a struggle for the property is necessary before the thief can get possession thereof, there is enough force to make the taking robbery.”). But cf. State v. Brooks, 72 N.C. App. 254 (1985) (insufficient evidence to support robbery conviction where the defendant’s accomplice grabbed the victim’s overalls, containing the victim’s wallet, from a chair; the victim wrestled with the accomplice for the overalls and lost, though the wallet fell out of them; and the defendant then pulled a gun on the victim; the court states that the level of force required for robbery is that sufficient to “prevent resistance to the taking,” and concludes that such force was applied only when the gun was displayed, which was after the taking was complete; this may imply that the wrestling was insufficient force or violence, though the court never explicitly says so).

If Eric wins the scuffle and retains the property, attempted robbery is probably the right charge. Dan did not complete the taking, or at least did not complete the aspect of the taking that involved force, violence, or fear.

As a final note, in all the above scenarios, Dan didn’t use a weapon. When a weapon is involved, armed robbery obviously becomes an option, subject to the same general considerations noted above.