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Staged Robberies

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Posted by: 94c

Here's a question.

A and B are good friends. (B works in a convenience store) Both decide that they are going to fake B's robbery and later split the proceeds. The take is less than $250 and an alleged weapon is involved but never seen.

what are the correct charges?


Posted by: Inspector

Would depend on number of factors (anyone else in the store at time of incident etc.).
In NH RSA's it could be classified as a crime of theft (mis.level) for both as the victim is the store and there is no force or threat of force actually present. A and B are both responsible for crime as they are acting in concert. If innocent party was in the store and was placed in fear then the crime could esculate to robbery (a felony) and both A & B could be charged for it (conspiracy to commit crime makes all culpable). There is actual fear in this victim. There is also a statute for false reports to law officer which would apply to employee and may be added to the case against his accomplace. Policy here would be use one charge or the other as courts do not like piggy-backing of charges in NH.


Posted by: Curious EMT

Heres where I would go
Person A:
Armed Assault w/ intent to rob or murder 265/18 Weapon need not be seen, only threatened Comm v. Howard)
Armed Robery 265/17 (Weapon need not be seen, Comm v Delgado, Comm v. Jackson)
Conspiracy 274/7

Person B:Recieving stolen property 266/60
Consipracy 274/7
False police report
Armed Robery 265/17 (Under joint venture, requires 1) Suspect be present at scene of crime, 2) Share mental state required for crime AND 3) Aid, command, counsel, or encorage the commission of the crime)
Accessory Before 274/2
Accessory After 274/4
False Report to Police 269/13a


For person 1, Im not sure if the armed assault is a lesser-included of armed robery. Also, the accessory before / after charges are stretching it a little, but he did counsil a person that commited the fellony, then hid his identity after the crime was complete.

This is just what I knowfrom the academy, I dont work patrol.... maybe will give you an idea or two... very interested to see what others aggree with



Posted by: 94c

Quote:
Originally Posted by Curious EMT
Heres where I would go
Person A:
Armed Assault w/ intent to rob or murder 265/18 Weapon need not be seen, only threatened Comm v. Howard)
Armed Robery 265/17 (Weapon need not be seen, Comm v Delgado, Comm v. Jackson)
Conspiracy 274/7

Person B:Recieving stolen property 266/60
Consipracy 274/7
False police report
Armed Robery 265/17 (Under joint venture, requires 1) Suspect be present at scene of crime, 2) Share mental state required for crime AND 3) Aid, command, counsel, or encorage the commission of the crime)
Accessory Before 274/2
Accessory After 274/4
False Report to Police 269/13a


For person 1, Im not sure if the armed assault is a lesser-included of armed robery. Also, the accessory before / after charges are stretching it a little, but he did counsil a person that commited the fellony, then hid his identity after the crime was complete.

This is just what I knowfrom the academy, I dont work patrol.... maybe will give you an idea or two... very interested to see what others aggree with
There's no force, there's no violence, and no one is put in fear.
How can you have a robbery? I'm looking for specific case law on this.

And yes the armed assault is a lesser included offense.

And Conspiracy to commit armed robbery on himself?

I'm looking for some real cops with real answers. Don't try to bullshit me.


Posted by: LA Copper

Sounds to me like both would be charged with petty theft (could even possibly stretch it to embezzlement) and filing a false police report.


Posted by: NEPS

I don't think there is a robbery charge. While the weapon need not be seen, there must be some use of the weapon or apprehension of the use of a weapon. In the hypothetical there is neither force nor fear.


For both parties: Larceny under $250 (the convenience store's money) and conspiracy to commit larceny. If A reports a robbery to the police, add false report to police on to his charges. Accessory offenses apply only to felonious crimes, not misdemeanors.


Posted by: 94c

Quote:
Originally Posted by NEPS
I don't think there is a robbery charge. While the weapon need not be seen, there must be some use of the weapon or apprehension of the use of a weapon. In the hypothetical there is neither force nor fear.


For both parties: Larceny under $250 (the convenience store's money) and conspiracy to commit larceny. If A reports a robbery to the police, add false report to police on to his charges. Accessory offenses apply only to felonious crimes, not misdemeanors.
This is the direction I am going in. I was just hoping there was some kind of quirky case law that would address the situation. Thanks.


Posted by: O-302

Quote:
Originally Posted by 94c
This is the direction I am going in. I was just hoping there was some kind of quirky case law that would address the situation. Thanks.
Larceny in a building (felony)


Posted by: LA Copper

Quote:
Originally Posted by O-302
Larceny in a building (felony)
With planned intent, that would make it a burglary.. at least it would out west.


Posted by: Curious EMT

Maybe I misunderstood. Did the kid actually "rob" the place, or did he just go in and the clerk handed him the money and then reported it as a robery? Was there anyone else in the store?
If he just handed over the cash with no "acting" going on, yea, I completely aggree with just the larceny / conspiracy. If the kid actualy went in and "robbed" it with others present whom would naturaly be put in fear, more serious charges would be induced, correct?


Posted by: O-302

Quote:
Originally Posted by LA Copper
With planned intent, that would make it a burglary.. at least it would out west.

Burglary is not the same here...applies to dwelling houses with someone lawfully there placed in fear...


B&E or entering wthout breaking would apply to a business...but I'm assuming the business was open...


Posted by: 94c

Quote:
Originally Posted by O-302
Larceny in a building (felony)
You can't have Larceny in a Building that is open for business.
Larceny in a Building only applies when the building itself is the sole protector of the property.

Quote:
Originally Posted by Curious EMT
Maybe I misunderstood. Did the kid actually "rob" the place, or did he just go in and the clerk handed him the money and then reported it as a robery? Was there anyone else in the store?
If he just handed over the cash with no "acting" going on, yea, I completely aggree with just the larceny / conspiracy. If the kid actualy went in and "robbed" it with others present whom would naturaly be put in fear, more serious charges would be induced, correct?
He only robbed the place while acting out the scenario. The clerk was in on the whole thing. Even if others were present who were put in fear, they themselves weren't robbed. Only the clerk was but he was in on it from the get go. This was a staged robbery where the perpetrator and the "victim" planned it that way.


Posted by: Clouseau

Larceny
Conspiracy to commit larceny
False report
Breach of peace {customers, witnesses involved,in act and police response}
I Don't have case law.

I've charged robbery and conspiracy to rob with a similar case, but involved other employees who were not in on it. {Only robber and manager were in on it}


Posted by: alphadog1

Larceny by false pretenses/ conspriracy/ filing false police report


Posted by: Inspector

Well laws in NH are different as one can be charged with accessory to ANY crime and the person who commits theft by means of threat, force or fear becomes a robber. The victim of the theft here is actually the business. It would appear that if fear is instilled on anyone present, during commission of this crime then robbery would be a good charge as the theft is misdemeanor (less than $500) and all robbery is felony. Burglary would not apply in the case described.


Posted by: O-302

[quote=94c]You can't have Larceny in a Building that is open for business.
Larceny in a Building only applies when the building itself is the sole protector of the property.


I would argue:

Comm v. Barklow: building does not have to be vacant to obtain a conviction for larceny in a building. Evidence that the building is vacant may be a factor in determining that the property is safeguarded by the building, "but is not a required element".

The property referred to in a store open for business is the businesses merchandise. (McDermott v. W.T. Grant) McDermott is a shoplifting case. Cash is not the subject of a shoplifting.

I'm not sure where you got the word "sole" from, but Barklow refers to property under the protection of the building, placed there for safe keeping, to which I would submit that cash being placed in a closed register or a safe has been placed under the protection of the building. Barklow also discusses property that at times may be in the control or supervision of one or more individuals, but at other times will be placed within a secured structure with the expectation on the part on the part of the owner that the structure itself will provide the desired protection against theft. (the closed register and safe).


Posted by: 94c

[quote=O-302]
Quote:
Originally Posted by 94c
You can't have Larceny in a Building that is open for business.
Larceny in a Building only applies when the building itself is the sole protector of the property.


I would argue:

Comm v. Barklow: building does not have to be vacant to obtain a conviction for larceny in a building. Evidence that the building is vacant may be a factor in determining that the property is safeguarded by the building, "but is not a required element".

The property referred to in a store open for business is the businesses merchandise. (McDermott v. W.T. Grant) McDermott is a shoplifting case. Cash is not the subject of a shoplifting.

I'm not sure where you got the word "sole" from, but Barklow refers to property under the protection of the building, placed there for safe keeping, to which I would submit that cash being placed in a closed register or a safe has been placed under the protection of the building. Barklow also discusses property that at times may be in the control or supervision of one or more individuals, but at other times will be placed within a secured structure with the expectation on the part on the part of the owner that the structure itself will provide the desired protection against theft. (the closed register and safe).
a register or safe is not a structure. a building or secure room is.

If the register or safe was in a back part of the building where only the manager had access and he was not around then it would be larceny in a building. Also if the persons in a house happened to be asleep at the time, then the building would be the protector of the property and not the sleeping person. thus larceny in a building.

What I'm saying is that if their is a person present, with control over the property, in this case the clerk, you can not have larceny in a building.


Posted by: O-302

[quote=94c]
Quote:
Originally Posted by O-302

a register or safe is not a structure. a building or secure room is.

If the register or safe was in a back part of the building where only the manager had access and he was not around then it would be larceny in a building. Also if the persons in a house happened to be asleep at the time, then the building would be the protector of the property and not the sleeping person. thus larceny in a building.

What I'm saying is that if their is a person present, with control over the property, in this case the clerk, you can not have larceny in a building.


Again, the case you are referring to is McDermott, and the subject of the larceny is merchandise which is covered by the shoplifting statute.

And I disagree...the store is probably structured in such a way as to limit access to the register or safe..


Posted by: 94c

[quote=O-302]
Quote:
Originally Posted by 94c



Again, the case you are referring to is McDermott, and the subject of the larceny is merchandise which is covered by the shoplifting statute.

And I disagree...the store is probably structured in such a way as to limit access to the register or safe..
At least we agree to disagree.

To establish the offense of larceny in a building "it is not enough
[for the Commonwealth] to prove that the property stolen was in a building at
the time of the theft, and that the defendant was the thief. It is necessary to
show also that the property was under the protection of the building, placed
there for safe keeping, and not under the eye or personal care of some one in
the building." Commonwealth v. Sollivan, 40 Mass. App. Ct. 284, 286


Posted by: Inspector

Except lawyers make $200/hr to do the same!


Posted by: 94c

There is a reason why larceny in a building is always a felony even if all you take is a single nickel. It's because the building is there to protect the property and not a person present.


Posted by: Curious EMT

There was a case in which a automatic soda vending machine was broken into, it was declared a structure. When I get to school Wed. I'll search Lexis for it. I remember that one pretty clearly...


Posted by: Deuce

Embezzlement?


Posted by: 94c

[quote=O-302]
Quote:
Originally Posted by 94c
You can't have Larceny in a Building that is open for business.
Larceny in a Building only applies when the building itself is the sole protector of the property.


I would argue:

Comm v. Barklow: building does not have to be vacant to obtain a conviction for larceny in a building. Evidence that the building is vacant may be a factor in determining that the property is safeguarded by the building, "but is not a required element".

The property referred to in a store open for business is the businesses merchandise. (McDermott v. W.T. Grant) McDermott is a shoplifting case. Cash is not the subject of a shoplifting.

I'm not sure where you got the word "sole" from, but Barklow refers to property under the protection of the building, placed there for safe keeping, to which I would submit that cash being placed in a closed register or a safe has been placed under the protection of the building. Barklow also discusses property that at times may be in the control or supervision of one or more individuals, but at other times will be placed within a secured structure with the expectation on the part on the part of the owner that the structure itself will provide the desired protection against theft. (the closed register and safe).
Commonwealth v. Barklow, 52 Mass. App. Ct. 765, 767 (2001). Moreover, the
structure need not be vacant for property to be "under the protection of
the building." Ibid. All that is required is that the property be under
the protection of the building "rather than under the protection of the
person or persons who are present." Ibid.(6

Therefore no larceny in a building that is open for business and the property is under the protection of a person.

Quote:
Originally Posted by Deuce
Embezzlement?
that's an option.


Posted by: O-302

Commonwealth v. Barklow, 52 Mass. App. Ct. 765, 767 (2001). Moreover, the
structure need not be vacant for property to be "under the protection of
the building." Ibid. All that is required is that the property be under
the protection of the building "rather than under the protection of the
person or persons who are present." Ibid.(6

Therefore no larceny in a building that is open for business and the property is under the protection of a person.



I think you answered your own question. The cash is under the protection of the building as it is placed in a depository (cash register or safe) behind a counter or in a back room.

Again, the property being open for business has only to do with the store's merchandise. Example: A woman's purse with cash less than $250 is stolen from her shopping cart while she is inside an open grocery store. We have charged larceny in a building with successful results.


Posted by: 94c

Quote:
Originally Posted by O-302
Again, the property being open for business has only to do with the store's merchandise. Example: A woman's purse with cash less than $250 is stolen from her shopping cart while she is inside an open grocery store. We have charged larceny in a building with successful results.
Sounds more like larceny from a person to me.


Posted by: NEPS

I agree with 94c. Larceny from the person would apply to the theft from the shopping cart.

Speaking of larceny from the person, how about this for your staged robbery:

To constitute the offense of larceny, "by stealing from the person," within R.S.1836, c. 126, § 16 it was not necessary that the taking should be either openly and violently, or privily and fraudulently; but if it be with the knowledge, though without the dissent or resistance, of the owner, the offense was equally committed, provided that taking be with an intention on the part of the offender to deprive the owner of his property.
Comm. v. Dimond, 57 Mass. 235, 1849.

Though the clerk and the "robber" are cooperating, the owner of the property-- the store-- is not. The "robber" takes the property from the presence of a person with intent to deprive the owner of his property. The fact the person-- the clerk-- does not dissent, according to Dimond, should not matter. The theft has occurred and it was in the presence of a person. He of course could not consent to the property being taken anyway.

That would give you your felony and the clerk as a joint venturer in the felony even though he was the person from whom the property was taken.

Bizarre chain of logic, but I thought I'd throw it out there.


Posted by: Curious EMT

Well? Have you actualy confronted the DA's office about it?

They are the ones to ultimately decide what charges they will pursue...


Posted by: 94c

Quote:
Originally Posted by Curious EMT
Well? Have you actualy confronted the DA's office about it?

They are the ones to ultimately decide what charges they will pursue...
They didn't tell me anything I already didn't know. (Simple larceny, conspiracy, false report).

I was just hoping to turn it into a felony.


Posted by: Curious EMT

Quote:
Originally Posted by 94c
They didn't tell me anything I already didn't know. (Simple larceny, conspiracy, false report).

I was just hoping to turn it into a felony.
STUPID ME! For a second, I thought ADA's in Mass were top-notch pro-active lawyers....




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