1997 -NMCA- 38, State v. Curley

• Decision Date: 10 April 1997
• Docket Number: No. 16788,16788
• Citation: 123 N.M. 295,1997 NMCA 38,939 P.2d 1103
• Court: Court of Appeals of New Mexico
• Parties: , 1997 -NMCA- 38 STATE of New Mexico, Plaintiff-Appellee, v. Erwin CURLEY, Defendant-Appellant.

Page 1103

939 P.2d 1103

123 N.M. 295, 1997 -NMCA- 38

STATE of New Mexico, Plaintiff-Appellee, v. Erwin CURLEY, Defendant-Appellant.

No. 16788.

Court of Appeals of New Mexico.

April 10, 1997.

Tom Udall, Attorney General, Steven S. Suttle, Asst. Attorney General, Santa Fe, for Plaintiff-Appellee.

T. Glenn Ellington, Chief Public Defender, Bruce Rogoff, Appellate Defender, Santa Fe, for Defendant-Appellant.

OPINION

PICKARD, Judge.

¶1 This case requires us to determine: (1) what force suffices to turn a larceny into a robbery and (2) whether there is any view of the evidence pursuant to which that force was not shown. We removed the case from our expedited-bench-decision program because of the importance of the issues involved. See Gracia v. Bittner, 120 N.M. 191, 192, 900 P.2d 351, 352 (Ct.App.1995); In the Matter of the Court of Appeals Caseload, No. 1-21, pp 4(c) & 6 (Filed Oct. 17, 1995) [attached hereto as an appendix].

¶2 Defendant appeals his conviction for robbery, contending that the trial court erred in refusing to give his requested lesser-included-offense instructions for larceny. We hold that the amount of force required for robbery when property is attached to the person is that force, regardless of the amount, that is necessary to remove the attached property when either the person or the strength of attachment does not cause resistance. Because there is a legitimate view of the evidence in this case pursuant to which a jury could have found that the only force present was no more force than was necessary to remove property from a person who does not resist, we reverse and remand for a new trial.

¶3 The prosecution arose out of a purse snatching. The evidence was that the victim was walking out of a mall with her daughter when Defendant grabbed her purse and ran away. The victim described the incident as follow: "I had my purse on my left side ... and I felt kind of a shove of my left shoulder where I had my purse strap with my thumb through it and I kind of leaned--was pushed--toward my daughter, and this person came and just grabbed the strap of my purse and continued to run." The victim used the words "grab" or "pull" to describe the actual taking of the purse and "shove" or "push" to describe what Defendant did as he grabbed or "pulled [the purse] from her arm and hand." However, there was also evidence that the victim's thumb was not through the strap of the purse, but was rather on the bottom of the purse. The purse strap was not broken, and the victim did not testify that she struggled with Defendant for the purse in any way or that any part of her body offered any resistance or even moved when the purse was pulled from her arm and hand. Defendant presented evidence that he was drunk and did not remember the incident at all.

¶4 Robbery is theft by the use or threatened use of force or violence. NMSA 1978, § 30-16-2 (Repl.Pamp.1994). Because the words "or violence" refer to the unwarranted exercise of force and do not substantively state an alternative means of committing the offense, see State v. Fuentes, 119 N.M. 104, 107-08, 888 P.2d 986, 989-90 (Ct.App.1994), cert. denied, 119 N.M. 168, 889 P.2d 203 (1995), we refer simply to "force" in this opinion. The force must be the lever by which the property is taken. State v. Lewis, 116 N.M. 849, 851, 867 P.2d 1231, 1233 (Ct.App.1993); State v. Baca, 83 N.M. 184, 489 P.2d 1182 (Ct.App.1971). Although we have cases saying in dictum that even a slight amount of force, such as jostling the victim or snatching away the property, is sufficient, see State v. Martinez, 85 N.M. 468, 469, 513 P.2d 402, 403 (Ct.App.1973), we also have cases in which a taking of property from the person of a victim has been held not to be robbery, see State v. Sanchez, 78 N.M. 284, 285, 430 P.2d 781, 782 (Ct.App.1967) (wallet taken from victim's pocket while victim was aware that the defendant was taking the wallet).

¶5 A defendant is entitled to a lesser-included-offense instruction when there is some evidence to support it. See State v. Duran, 80 N.M. 406, 407, 456 P.2d 880, 881 (Ct.App.1969); see also State v. Vallejos, 122 N.M. 318, 324-25, 924 P.2d 727, 733-34 (Ct.App.1996) (collecting cases and stating standard of review for giving defense-requested instructions), cert. granted, 122 N.M. 112, 921 P.2d 308 (1996). There must be some view of the evidence pursuant to which the lesser offense is the highest degree of crime committed, and that view must be reasonable. See State v. Pisio, 119 N.M. 252, 259, 889 P.2d 860, 867 (Ct.App.1994), certs. denied, 119 N.M. 20, 888 P.2d 466 (1995). Thus, in this case, to justify giving Defendant's larceny instruction, there must be some view of the evidence pursuant to which force sufficient to constitute a robbery was not the lever by which Defendant removed the victim's purse.

¶6 Defendant contends that such evidence exists in that the jury could have found that Defendant's shoving of the victim was part of his drunkenness, and then the purse was taken without force sufficient to constitute robbery. We agree. We are persuaded by an analysis of our own cases, as well as cases from other jurisdictions, that the applicable rule in this case is as follows: when property is attached to the person or clothing of a victim so as to cause resistance, any taking is a robbery, and not larceny, because the lever that causes the victim to part with the property is the force that is applied to break that resistance; however, when no more force is used than would be necessary to remove property from a person who does not resist, then the offense is larceny, and not robbery.

¶7 In our cases where we have not found sufficient force to be involved, the victim did not resist the property being taken from his person. See, e.g., Sanchez, 78 N.M. at 285, 430 P.2d at 782 (defendant took wallet from victim's pants, but force was not lever by which wallet was taken); see also State v. Aldershof, 220 Kan. 798, 556 P.2d 371, 372, 376 (1976) (purse lifted from victim's lap while she sat at a table). On the other hand, the evidence of a snatching of a purse was sufficient to establish robbery in State v. Clokey, 89 N.M. 453, 553 P.2d 1260 (1976), but the issue in that case was not whether there was evidence justifying a lesser-included-offense instruction.

¶8 The general rule from other jurisdictions is stated in 4 Charles E. Torcia, Wharton's Criminal Law Section 465, at 47-49 (15th ed. 1996)--that a mere snatching of property from a victim is not robbery unless the property is attached to the person or clothes of the owner so as to afford resistance. See McClendon v. State, 319 P.2d 333, 335 (Okla.Crim.App.1957). A minority position is represented by the analysis in Commonwealth v. Jones, 362 Mass. 83, 283 N.E.2d 840, 844 (1972). There, the court held that the values sought to be protected by the crime of robbery, as opposed to larceny, are equally present when any property is taken from a person as long as that person is aware of the application of force which relieves the person of property and the taking is therefore, at least to some degree, against the victim's will. See also Commonwealth v. Ahart, 37 Mass.App.Ct. 565, 641 N.E.2d 127, 131 (the snatching of a purse necessarily involves the use of force), certs. denied, 419 Mass. 1101, 644 N.E.2d 225 (1994).

¶9 The minority rule adopted by Massachusetts, however, appears inconsistent with our earlier cases. Pursuant to the Massachusetts rule, any purse snatching not accomplished by stealth would be robbery. We are not inclined to overrule cases such as Sanchez, in which we held that the taking of a wallet accompanied by just so much force as is necessary to accomplish the taking from a person who was not resisting was not robbery. Rather, we adhere to what we perceive to be the majority rule.

¶10 According to the majority rule, robbery is committed when attached property is snatched or grabbed by sufficient force so as to overcome the resistance of attachment. In cases such as this one, where one view of the facts appears to put the case on the border between robbery and larceny, it is necessary to further explore what is meant by the concept of "the resistance of attachment." Our exploration is informed by the interests protected by the two crimes.

¶11 In Fuentes, 119 N.M. at 106, 108, 888 P.2d at 988, 990, we said that robbery is a crime "primarily" directed at protecting property interests. That statement, however, was made in the context of contrasting the crime of robbery with the crime of assault, which is directed exclusively toward protecting persons. In this case, contrasting the crime of robbery with the crime of larceny, we could similarly say that robbery is directed "primarily" at protecting persons inasmuch as larceny is directed exclusively at protecting property interests. In truth, it is probably inaccurate to say that the crime of robbery is directed "primarily" at either personal or property interests. That is because it is directed at both interests. See Torcia, supra, § 454 at 5 ("By definition, then, robbery may be classified not only as an offense against property but also as an offense against the person."). It is the aspect of the offense that is directed against the person which distinguishes the crime of robbery from larceny and also justifies an increased punishment. See W. LaFave & A. Scott, Jr., Substantive Criminal Law § 8.11 at 437 (2d ed. 1986). Thus, "the resistance of attachment" should be construed in light of the idea that robbery is an offense against the person, and something about that offense should reflect the increased danger to the person that robbery involves over the offense of larceny.

¶12 LaFave and Scott state:

The great weight of authority, however, 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...