State v. Shepard

• Decision Date: 12 March 1999
• Docket Number: No. 98-133-C.A.,98-133-C.A.
• Citation: 726 A.2d 1138
• Parties: STATE v. Daniel S. SHEPARD.
• Court: Rhode Island Supreme Court

726 A.2d 1138

STATE v. Daniel S. SHEPARD.

No. 98-133-C.A.

Supreme Court of Rhode Island.

March 12, 1999.

Aaron L. Weisman, Providence, for plaintiff.

Paula Rosin, Providence, James M. Weisfield, for defendant.

Before WEISBERGER, C.J., and LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.

OPIINON

PER CURIAM.

Does the crime of attempted larceny from the person require an attempted taking of an object that actually was on or attached to the victims physical person? Or is it enough that, when the perpetrator attempted to take the object in question, it was within the victims immediate presence and control, even though it was not touching or attached physically to the victim's person? A Superior Court trial justice opted for the latter interpretation, and, for the reasons explained below, we concur that this was the proper construction.

Facts and Travel

The defendant, Daniel S. Shepard, appeals from a Superior Court judgment of conviction for attempted larceny from the person. The Superior Court sentenced defendant to ten years imprisonment, three years to serve, with seven years probation to commence upon his release from prison. The court also adjudged defendant to be a violator of a previously suspended sentence and ordered him to serve three years of that sentence, consecutive to the sentence for the attempted-larceny conviction. The present appeal concerns only this conviction. We ordered the parties to show cause why we should not decide summarily the issues raised in this appeal. After reviewing the parties memoranda and listening to their oral arguments, we conclude that neither the state nor defendant has shown cause why we should not proceed to decide this appeal without further briefing and argument.

The victim in this case was driving a mini-van owned by her employer on February 7, 1995. After making a delivery in Providence, she began driving back to her place of employment. As she approached a stop sign, she looked both ways and noticed a car approaching from the left. She determined that she had sufficient time to proceed through the intersection and began to do so. The mini-van was approximately three-quarters of the way through the intersection, however, when another vehicle struck it on the rear drivers quarter. The impact pushed the mini-van into a building, pinning the drivers side of the vehicle against the building and rendering it impossible for the victim to open her door. In addition, the mini-vans gas pedal became stuck on the floor mat, causing the engine to begin revving while the mini-van remained wedged against the building.

Meanwhile, the driver of the other vehicle, whom the victim later identified as defendant, got out of his car. As he approached her vehicle, the victim initially asked him for assistance. After defendant entered the mini-van through the passenger door, however, he demanded that the victim pay him for the damage that his vehicle sustained in the accident. He then grabbed her wallet, which the victim had placed on the passenger seat, and began to rifle through it. When he found it was empty, he put it back down on the seat. By this time, the victim had become so agitated that she shifted her vehicle into reverse. As she did so, the mini-van spun around and defendant nearly fell out. Even though this turnabout convinced him to egress from the mini-van, defendant still continued to insist that the victim had to compensate him for his damages. Suddenly, while exiting, he grabbed her plug-in car phone from the front portion of the vehicle, but the victim managed to get hold of the cord. A brief struggle ensued, which ended when defendant dropped the phone, returned to his vehicle, and left the scene.

The state originally charged defendant with assault with intent to commit robbery. Following the presentation of the state's case, defendant moved for a judgment of acquittal on this charge. The trial justice determined that there was no evidence of an assault with intent to rob and granted the motion. He then reduced the charge against defendant to the lesser included offense of attempted larceny from the person in violation of G.L.1956 § 11-41-7.¹ The defendant moved for dismissal of the larceny charge, arguing that the evidence failed to show that defendant attempted to take anything from the person of the victim. He further claimed that, in the absence of proof that he had attempted to remove something that the victim held or that was on or attached physically to her person, the charge of larceny from the person could not stand. The defendant also requested that the trial justice instruct the jury on the lesser included offense of attempted larceny in violation of § 11-41-6.²

The trial justice denied defendants motion. He concluded that the evidence showed that the property was in the victim's immediate presence when defendant attempted to take it, and that this close proximity of the object to the victim was sufficient to support a conviction for attempted larceny from the person. He further determined that the evidence pertaining to the struggle over the car phone would itself be sufficient to support this crime. The trial justice instructed the jury that it was not a defense to the crime to assert that the property in question was not literally in the hands of the victim or directly on her person when the attempt to take it from her occurred. Instead, he charged the jury: "If the item was within her immediate grasp or reach such that she could otherwise retain immediate control over it, its theft would constitute larceny from the person [of the victim]." The trial justice did not instruct the jury on the charge of attempted larceny under § 11-41-6.

On appeal, defendant argues that the trial justice erred in denying the motion for judgment of acquittal and in refusing to instruct the jury on attempted larceny. The defendant contends that we should' strictly construe the phrase "from the person," as it is used in § 11-41-7, to require an actual trespass upon the physical person of the victim in order for a jury to find defendant guilty. In response, the state asserts that the taking of property "from the person" includes a taking from the immediate presence of the person. Other jurisdictions are split as to their interpretation of similar phrasing, and we have not yet had an occasion to construe this statutory language. Before reviewing the authorities addressing this issue, we must note that the trial justice determined that even if the statute required an actual trespass upon the person of another, that factor was satisfied in this case because the victim testified that she attempted to take the car phone out of defendants hands by grabbing hold of the phone cord and that thereafter, a brief struggle took place before defendant finally ceased his efforts to pry the car phone from the victims grasp. The defendant argues that since his hands were on the car phone first, the evidence that the victim attempted to wrest it away from him does not convert the attempted theft into one that is "from the person." However, had defendant been successful in this struggle and pried the car phone out of the victims grasp, such circumstances would have satisfied the elements of the crime of larceny from the person. The mere fact that defendant seized the car phone before the victim placed her hands on it is immaterial: defendant still had no right to take the car phone out of the victims hands, and the victim had every right to put her hands there and to hang onto it despite defendant having grabbed it first. Accordingly, this evidence alone would be sufficient for us to affirm the denial of the motion for judgment of acquittal. But even if there had been no evidence of any struggle involving the car phone, we still are of the opinion that we should interpret the phrase "from the person" to include takings of objects from or within the victim's immediate presence if those objects are in the victims' constructive possession or control at the time of the attempted taking.

The defendant contends that his argument finds support in the common law. Some courts have recognized that the crime of larceny from the person arose as a crime distinct from simple larceny via the Statute of 8 Elizabeth in the 16th century. These courts note that the framers of the statute intended this discrete crime to cover the act of pickpocketing and "required `an actual taking from the person.'" Terral v. State, 84 Nev. 412, 442 P.2d 465, 465-66 (1968) (quoting State v. Chambers, 22 W.Va. 779 (1883)). A taking of property from the immediate presence or constructive possession of the person was insufficient to commit larceny. See Terral, 442 P.2d at 466

; see also People v. McElroy, 116 Cal. 583, 48 P. 718, 719 (1897); Wilder v. State, 30 Ala.App. 107, 1 So.2d 317, 318 (1941); People v. DeVaughn, 63 Cal.App. 513, 218 P. 1020, 1021 (1923).

Other courts, however, have given the phrase "from the person" the broader interpretation advocated by the state and also have found support for their position in the common law. In State v. Buckom, 328 N.C. 313, 401 S.E.2d 362 (1991), the court relied upon the common-law definitions of larceny and robbery to hold that "[p]roperty is stolen `from the person,' if it was under the protection of the person at the time." Id. at 365 (quoting R. Perkins & R. Boyce, Criminal Law 342 (3d ed.1982)). Under this view, it is unnecessary for the property to be attached physically to the person at the time of the theft. The court further reasoned that the difference between larceny from the person and robbery, at common law, is that robbery "is `an open and violent [larceny]," while stealing from the person is typically "a concealed, clandestine activity." Id. (quoting H. Broom, Commentaries on the Common Law 976 (1856)). Applying common-law principles, the court concluded that "[p]roperty is stolen `from the person,' if it was under the protection...