Spencer v. State

⁴²⁵ JOHN C. ELDRIDGE (Retired, Specially Assigned), J. Petitioner Erick Leroy Spencer was charged and convicted of robbery, theft over $500, and second degree assault. Spencer was sentenced to imprisonment for robbery, and, for purposes of sentencing, the other two convictions were merged. On appeal, he has challenged the sufficiency of the evidence to sustain his robbery conviction. The State in this case presented evidence showing that Spencer entered an automobile service center and stated to the cashier: “Don’t say nothing.” We shall hold, however, that the State failed to prove an essential element of the crime of robbery.

There was no evidence that Spencer conducted himself in a manner that could cause apprehension in a reasonable person that the petitioner was about to apply force. When the State fails to produce any evidence of one of the elements of the offense charged, the conviction cannot stand. Accordingly, we shall reverse the robbery conviction. I. The facts in this case are uncontested.

On December 26, 2006, at around 3:20 in the afternoon, Spencer entered the Jiffy Lube automobile service center located on Baltimore National Pike. He walked up to the cashier, a man named Tyrone Stinnette, and stated: “Don’t say nothing.” At Spencer’s trial before the Circuit Court for Baltimore County, Mr. Stinnette testified as follows: State’s Attorney: “[D]o you recall something out of the ordinary occurring during that day? Stinnette: “Yeah. We got robbed.

State’s Attorney: “When you say ‘you got robbed,’ explain where you were and what exactly in your mind you saw happen? Stinnette: “I was ringing up customers and got robbed. State’s Attorney: “Again you said you were robbed. What was done?

When you say ‘robbed,’ explain what you mean by ‘robbed’? Stinnette: “Money was took. ⁴²⁶ State’s Attorney: “How was it taken from you? Were you working the register? Stinnette: “Yes.” State’s Attorney: “What did Mr. Spencer say or do when he walked up to you?

Stinnette: “He said, ‘Don’t say nothing.’ Once he say that, I knew what was going on. State’s Attorney: “Did he point anything at you or imply anything? Stinnette: “No. State’s Attorney: “Did you believe he had a weapon at that time? Stinnette: “I wasn’t taking no chances.

State’s Attorney: “You said you weren’t taking no chances. What did you do when he said that? Stinnette: “I handed him the cash register drawer.” Stinnette testified that after he handed the cash register drawer to Spencer, Spencer “just left.” Stinnette also testified that another man had accompanied Spencer into the shop and that the other man simply “sat in the lounge” and left after Stinnette had handed the cash register drawer to Spencer. Stinnette did not call the police and, when asked by the State’s Attorney if he attempted to “persuade the individual, chase him or anything,” Stinnette replied that he did not.

Stinnette’s testimony concluded with the following exchange: State’s Attorney: “Mr. Stinnette, after the individual left the location, can you explain to Judge Daniels how you felt when you first came in that day? How did you feel when he did that to you, when he approached the counter? Stinnette: “Like I said, I wasn’t taking no chances.” The record does not include any description of the Spencer’s clothing on the day of the incident, and the only physical description of the petitioner included in the record is Stin ⁴²⁷ nette’s recollection that the petitioner was “five nine” and “had a tear drop [tattoo] underneath his eye.” As earlier mentioned, Spencer was charged with robbery, theft over $500, and second degree assault. After the nonjury trial, he was found guilty of robbery and the theft and assault convictions were, for the purposes of sentencing, merged with the robbery conviction.

Although the robbery statute provides that the penalty shall not exceed 15 years, Spencer was sentenced to 25 years without parole as a subsequent violent offender with two previous robbery convictions. See Maryland Code (2002, 2011 Supp.), § 14-101(d) of the Criminal Law Article. Spencer appealed to the Court of Special Appeals, arguing that the evidence at trial was insufficient to support his robbery conviction. He specifically claimed that the record did not show any evidence of force or a threat of force during his exchange with the cashier, a crucial component of a robbery charge.

In an unreported opinion, the Court of Special Appeals affirmed Spencer’s robbery conviction, stating that the “fact finder had before it sufficient evidence upon which it could reasonably conclude that the constructive force element of robbery was satisfied because the governing objective standard does not require a showing of actual fear, nor is the actual display of a weapon necessary.” Spencer petitioned this Court for a writ of certiorari, which was granted. Spencer v. State, 410 Md. 559 , 979 A.2d 707 (2009). In his petition, Spencer again challenged the sufficiency of the evidence to sustain his robbery conviction. 1 ⁴²⁸ While the Court of Special Appeals correctly stated the principle that the constructive force element of robbery may be satisfied without a showing of actual fear, that court failed to acknowledge that a review of the evidence in this case makes it clear that the State failed to produce any evidence showing that the petitioner conducted himself in a way that a reasonable person would construe as creating the apprehension that force was threatened. Without evidence to this effect, the State did not prove all elements of the robbery charge.

II

Robbery in Maryland is governed by a common law standard. Maryland Code (2002, 2011 Supp.), § 3-401 (e) of the Criminal Law Article, provides that “ ‘[rjobbery’ retains its judicially determined meaning.” From its earliest days in Maryland law, fear has been a central component in distinguishing the crime of larceny or theft from robbery. A 1724 English treatise, quoted by Chief Judge Murphy in West v. State, 312 Md. 197, 203 , 539 A.2d 231, 233 (1988), stated: “Larceny from the Person of a Man either puts him in Fear, and then it is called Robbery; or does not put him in Fear, and then it is called barely, Larceny from the Person.” William Hawkins, Treatise of the Pleas of the Crown. The treatise continued to explain that “[rjobbery is a felonious and violent Taking away from the Person of another, Goods or Money to any Value, putting him in Fear.” Ibid.

An early Maryland treatise, John Latrobe, Justice’s Practice under the Laws of Maryland (1826) likewise noted: “Open and violent larceny from the person, or robbery, is the felonious and forcible taking from the person of another, of goods or money to any value, by violence, or putting him in fear. The putting in fear distinguishes it from other larcenies. 4 Blac. Comm. 242.”(Quoted in West v. State, supra, 312 Md. at 203 , 539 A.2d at 233-234 .) More recently, this Court commented that: “The hallmark of robbery, which distinguishes it from theft, is the presence of force or threat of force, the latter of which also is referred to ⁴²⁹ as intimidation.” Coles v. State, 374 Md. 114, 123 , 821 A.2d 389, 395 (2003). In West v. State, supra, 312 Md. at 203 , 539 A.2d at 234 , the Court encountered the “question of the degree of violence or putting in fear that is requisite” to distinguish a theft, or larceny, from a robbery.

In West , the defendant snatched a woman’s purse. The woman later testified at the defendant’s trial that “just [as he] snatched my purse from my hand and he ran, that’s when I noticed my pocketbook was gone----” 312 Md. at 199 , 539 A.2d at 232 . West was convicted of robbery, and, in this Court, he challenged the conviction, arguing that the evidence was insufficient to support the robbery conviction because the purse snatching “was not accompanied by sufficient force to constitute robbery.” 312 Md. at 201 , 539 A.2d at 233 . The West Court overturned the robbery conviction for insufficient evidence, highlighting the fact that the record demonstrated that the victim in West was “never placed in fear; she did not resist; she was not injured.” 312 Md. at 206 , 539 A.2d at 235 .

In so holding, the Court in West, 312 Md. at 203 , 539 A.2d at 233 , traced the “ancient origins” of common law robbery, closely examining the “requirement that the larceny be accompanied by violence or putting in fear” to constitute robbery. We discussed several English cases where courts had refused to uphold robbery convictions when the incidents involved only snatching items from victims without force or threat of force. See The King v. Macauley, 168 Eng. Rep. 246 (1783); The King v. Baker, 168 Eng.

Rep. 247 (1783); see also Steward’s Case, 168 Eng. Rep. 247-248, discussed in n. 3 (1690). The West Court also examined cases in the Court of Special Appeals with facts that mirrored the situation in West. See Raiford v. State, 52 Md.App. 163 , 447 A.2d 496 (1982); Cooper v. State, 9 Md.App. 478 , 265 A.2d 569 (1970); Williams v. State, 7 Md.App. 683 , 256 A.2d 776 (1969).

The Court in West relied particularly on Cooper v. State, supra, 9 Md.App. 478 , 265 A.2d 569 , a case in which a conviction of robbery was overturned when the defendant reached into another man’s ⁴³⁰ pocket, “startled” him, and took his wallet. The Cooper opinion set forth the applicable law: “Where, as here, it is clear that the victim was neither intimidated [n]or put in fear, there must be evidence of actual violence preceding or accompanying the taking. * * *[T]he mere force that is required to take possession, when there is no resistance, is not enough, i.e., the force must be more than is needed simply to move the property from its original to another position; there must be more force than is required simply to effect the taking and asportation of the property. Thus, it is not robbery to obtain property from the person of another by a mere trick, and without force ... nor is it robbery to suddenly snatch property from another when there is no resistance and no more force, therefore, than is necessary to the mere act of snatching.” ( 9 Md.App. at 480 , 265 A.2d at 571 , citations omitted). The Court in West declined to accept the State’s position that the common law distinction between robbery and larceny should be more flexible, stating ( 312 Md. at 207 , 539 A.2d at 235 ): “The State contends that recent cases ... manifest an evolutionary trend away from common law distinctions between robbery and larceny, toward a more flexible inquiry into the magnitude of the risk posed by the defendant’s conduct.

We are urged to adopt this approach but are not persuaded to do so. If flexibility is a virtue, so too is certainty, and, in light of the pertinent cases reaching back at least to 1690, we think certainty is promoted by drawing the line between robbery and larceny where we have drawn it.” This Court earlier addressed the distinction between larceny and robbery in Dixon v. State, 302 Md. 447 , 488 A.2d 962 (1985). In Dixon , the Court summarized the facts as such: “[T]he defendant with a ‘cold, hard look’ in his eyes approached the cashier with a previously written demand for all her money, in the night, at a time when she was alone in ⁴³¹ the filling station and carrying a newspaper tightly under his arm, folded in such a way that the cashier ‘thought it was a weapon inside the newspaper, that he kept still, pointed right towards [her].’ [When given a note stating, T want all your money and hurry,’ s]he dropped to the floor of her booth and pressed the alarm button and the defendant fled.” 302 Md. at 464 , 488 A.2d at 970 . Dixon was charged and convicted of assault with intent to rob, but he challenged the conviction, claiming that “the evidence did not establish all elements of the offense charged.” 302 Md. at 450 , 488 A.2d at 963 .

The majority opinion of the Court of Appeals held that the State had met its evidentiary burden to prove an intent to rob. In particular, the Court noted that “ftjhe testimony of the cashier, the attitude of the accused, the demanding note, and the reasonable inferences deducible therefrom were found by the trial court to show an intent to rob. We cannot say that its conclusion was clearly erroneous.” 302 Md. at 455 , 488 A.2d at 966 . With regard to the assault element of the crime, the Court in Dixon commented that Judge Orth in Lyles v. State, 10 Md.App. 265, 267 , 269 A.2d 178, 179 (1970), had earlier articulated the test to be applied when intimidation, or putting in fear, is the gravamen of the action: “[A]ny attempt to apply the least force to the person of another constitutes an assault.

The attempt is made whenever there is any action or conduct reasonably tending to create the apprehension in another that the person engaged therein is about to apply such force to him. It is sufficient that there is an apparent intention to inflict a battery and an apparent ability to carry out such intention.” The Court adopted the Lyles test, and also cited with approval several federal cases involving the distinction between theft and robbery. One case in particular, United States v. Alsop, 479 F.2d 65 , 67 n. 4 (9th Cir.1973), was quoted extensively by the Dixon Court as follows: ⁴³² “The determination of whether there has been an intimidation should be guided by an objective test focusing on the accused’s actions. That test requires the application of the standard of the ordinary man.

Therefore, to obviate any future alleged difficulty, we suggest the definition of intimidation should be modified. It could read, for example: To take, or attempt to take, ‘by intimidation’ means wilfully to take, or attempt to take, in such a way that would put an ordinary, reasonable person in fear of bodily harm. See United States v. Roustio, 455 F.2d 366, 371-372 (7th Cir. 1972); United States v. Thomas, 455 F.2d 320, 322 (6th Cir.1972); United States v. DePalma, 414 F.2d 394, 396 (9th Cir.1969), cert. denied, 396 U.S. 1046 , 90 S.Ct. 697 , 24 L.Ed.2d 690 (1970).” All of the other federal cases cited involved bank robberies and all, with the exception of one, included specific demands for money. The Court next had the opportunity to address the requirement of intimidation or threat of force in Coles v. State, supra, 374 Md. 114 , 821 A.2d 389 .

In Coles , the defendant, on three separate occasions, entered a bank and handed the teller a note demanding money. During the first robbery, Coles handed the bank teller a note directing her to “ ‘[p]ut some money in the bag.’ ” The note also ordered her “ ‘not to hit an alarm, not to let anybody know,’ and to return the note.” When the teller told Coles she had dropped the note, Coles warned her that she had “ ‘better find it.’ ” The note given to the teller in the second robbery likewise commanded that the teller “ ‘[p]ut the money in the bag, no bait money, and no one will get hurt.’ ” In the final robbery, the note ordered the teller to “ ‘[p]ut all the money in the bag no alarms thank you.’ ” For each incident, he was charged with and convicted of robbery. Coles challenged the robbery convictions, claiming that there was insufficient evidence to sustain them because the evidence against him showed only that he presented a note demanding money; no other threatening conduct had been proven. A majority of this Court upheld the convictions, ⁴³³ citing the “test” announced in Dixon that allowed an assault conviction to be upheld when there is evidence demonstrating that the perpetrator engaged in “conduct reasonably tending to create the apprehension in another that the person engaged therein is about to apply ... force to him.” Coles, 374 Md. at 126 , 821 A.2d at 396 .

The Coles Court, like Dixon before it, cautioned that this test was controlled by an objective standard that should take into account “ ‘if the means employed are calculated to instill fear in the heart or mind of a reasonable man.’ ” Coles, 374 Md. at 127 n. 10, 821 A.2d at 397 n. 10, quoting Dixon, 302 Md. at 461 n. 8, 488 A.2d at 969 n. 8. The petitioner in