PART V. ROBBERY

 

708-840 Robbery in the first degree. (1) A person commits the offense of robbery in the first degree if, in the course of committing theft or non-consensual taking of a motor vehicle:

(a) The person attempts to kill another or intentionally or knowingly inflicts or attempts to inflict serious bodily injury upon another;

(b) The person is armed with a dangerous instrument or a simulated firearm and:

(i) The person uses force against the person of anyone present with intent to overcome that person's physical resistance or physical power of resistance; or

(ii) The person threatens the imminent use of force against the person of anyone present with intent to compel acquiescence to the taking of or escaping with the property;

(c) The person uses force against the person of anyone present with the intent to overcome that person's physical resistance or physical power of resistance during an emergency period proclaimed by the governor or mayor pursuant to chapter 127A, within the area covered by the emergency or disaster; or

(d) The person threatens the imminent use of force against the person of anyone present with intent to compel acquiescence to the taking of or escaping with the property during an emergency period proclaimed by the governor or mayor pursuant to chapter 127A, within the area covered by the emergency or disaster.

(2) As used in this section:

"Dangerous instrument" means any firearm, whether loaded or not, and whether operable or not, or other weapon, device, instrument, material, or substance, whether animate or inanimate, which in the manner it is used or threatened to be used is capable of producing death or serious bodily injury.

"Simulated firearm" means any object that:

(a) Substantially resembles a firearm;

(b) Can reasonably be perceived to be a firearm; or

(c) Is used or brandished as a firearm.

(3) Robbery in the first degree is a class A felony. [L 1972, c 9, pt of 1; am L 1983, c 68, 1; am L 1986, c 314, 68; gen ch 1993; am L 1998, c 68, 1; am L 2006, c 116, 7 and c 230, 41; am L 2013, c 255, 2; am L 2014, c 111, 21]

 

Case Notes

 

Act of violence or intimidation need not be done for very purpose of taking the property to constitute robbery. 56 H. 343, 537 P.2d 724 (1975).

In absence of evidence that gun was not loaded or capable of being fired, an inference exists that it was capable of inflicting the harm which the robber threatened and was a dangerous instrument within this section. 57 H. 150, 552 P.2d 357 (1976).

Whether instrument used in robbery is a dangerous instrument is a question of fact for jury to resolve. 57 H. 365, 556 P.2d 569 (1976).

Assault by person armed with dangerous instrument with intent to rob is within subsection (1)(b)(i). 59 H. 148, 577 P.2d 793 (1978).

Accomplice. 62 H. 25, 608 P.2d 855 (1980).

Applicability of claim of right defense. 62 H. 25, 608 P.2d 855 (1980).

An unloaded gun as a dangerous instrument. 63 H. 405, 629 P.2d 626 (1981).

Threatened use of force against several persons did not constitute more than one count of robbery. 65 H. 156, 648 P.2d 197 (1982); 4 H. App. 573, 670 P.2d 1290 (1983).

Firearms are per se dangerous weapons. 69 H. 44, 731 P.2d 1261 (1987).

Jury instruction should have stated that if jury found defendant committed attempted murder and robbery concurrently, it need not render two verdicts. 70 H. 618, 780 P.2d 1097 (1989).

Defendant convicted of both kidnapping and robbery because crimes did not occur concurrently. 71 H. 46, 781 P.2d 662 (1989).

Trial judge erred in refusing to instruct jury regarding the possible merger of the robbery and kidnapping counts against defendant. 77 H. 17, 881 P.2d 504 (1994).

First degree burglary not an included offense of first degree robbery. 81 H. 309, 916 P.2d 1210 (1996).

Theft and attempted theft, regardless of degree, are included offenses of first degree robbery. 81 H. 309, 916 P.2d 1210 (1996).

A victim's awareness of the theft is a necessary element of robbery pursuant to subsection (1)(b)(ii). 86 H. 37, 947 P.2d 349 (1997).

Where defendant's conviction and sentence under this section was an included offense under 134-6(a) and defendant's convictions under both 134-4(a) and this section violated 701-109(1)(a), defendant's conviction and sentence under this section reversed. 91 H. 33, 979 P.2d 1059 (1999).

Where defendant's convictions were premised upon the use of "any firearm" and language of indictments and trial court's instructions "to wit, a semiautomatic pistol" did not alter the statutory elements of 134-6, 134-7, or this section, trial court's error of not providing definition of "semiautomatic firearm" did not warrant reversal of convictions of first degree robbery, carrying or use of firearm in commission of separate felony, or felon in possession of firearm. 91 H. 33, 979 P.2d 1059 (1999).

As subsection (1)(b)(i) does not require that a defendant use force in order to compel another person to acquiesce in his or her taking of property, it is not an element of the offense that the person against whom the defendant is alleged to have used force, or the owner of the property, be aware of the theft; thus, trial court did not err in failing to instruct the jury that the "victim" of the theft--whether the person against whom force was used or the owner of the property taken--must be aware of the theft. 99 H. 390, 56 P.3d 692 (2002).

Whether a loaded pellet pistol is a dangerous instrument is a question of fact. 1 H. App. 481, 620 P.2d 1087 (1980).

Where defendant did not use force in the course of committing theft, no first degree robbery committed within meaning of paragraph (1)(b)(i). 9 H. App. 263, 833 P.2d 902 (1992).

Instructions constituted plain error, where (1) court instructed jury that a knife is a dangerous instrument; and (2) instruction defined the imminent use of force. 9 H. App. 628, 859 P.2d 925 (1993).

Where there was substantial evidence that the manner in which the "little black stick" was used was capable of producing serious bodily injury as defined under 707-700, minor was properly convicted as an accomplice to robbery in the first degree under this section. 107 H. 439 (App.), 114 P.3d 945 (2005).

As robbery in the first degree under subsection (1)(b)(ii) does not include the element required under 708-810(1)(c) for burglary in the first degree of intentionally entering or remaining unlawfully in a building, it was possible for defendant to commit robbery in the first degree without committing burglary in the first degree; thus the crimes are not included in each other and do not merge. 109 H. 327 (App.), 126 P.3d 370 (2005).

There was sufficient evidence to convict defendant of robbery in the first degree under this section where, inter alia, victim testified at trial that when defendant's brother put a knife to victim's neck and asked for victim's money, defendant held down victim's hands, and that both asked the victim where the victim's money was. 123 H. 456 (App.), 235 P.3d 1168 (2010).

Where jury convicted defendant of robbery in the first degree under this section, error by circuit court when it failed to instruct jury on robbery in the second degree under 708-841 and theft in the fourth degree under 708-833, which were included offenses of robbery in the first degree, was harmless. 123 H. 456 (App.), 235 P.3d 1168 (2010).

 

 

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