§708-841 Robbery in the second degree. (1) A person commits the offense of robbery in the second degree if, in the course of committing theft or non‑consensual taking of a motor vehicle:
(a) 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;
(b) The person threatens the imminent use of force against the person of anyone who is present with intent to compel acquiescence to the taking of or escaping with the property; or
(c) The person recklessly inflicts serious bodily injury upon another.
(2) Robbery in the second degree is a class B felony. [L 1972, c 9, pt of §1; am L 1983, c 68, §2; am L 1986, c 314, §69; gen ch 1993; am L 2006, c 230, §42]
Circuit court's failure to give a specific unanimity instruction that the jury was required to agree unanimously as to the person against whom defendant used force constituted plain error and there was at least a reasonable possibility that the circuit court's error contributed to defendant's conviction; thus, the error was not harmless beyond a reasonable doubt. 131 H. 19, 313 P.2d 708 (2013).
Under §701-109(1)(c), petitioner could not be convicted of both robbery in the second degree and assault in the first degree; the jury inconsistently found that petitioner intentionally or knowingly and recklessly inflicted serious bodily injury on complainant. 131 H. 353, 319 P.3d 272 (2013).
Where petitioner, convicted of robbery in the second degree and assault in the first degree (§707-710), could not be convicted of both offenses, the assault conviction was reversed; among other things, there was sufficient evidence to convict petitioner as to robbery in the second degree and because the penalties for the robbery and assault convictions are the same, it could not be said that petitioner would be prejudiced by dismissal of the assault charge. 131 H. 353, 319 P.3d 272 (2013).
Evidence of threat of force held sufficient. 2 H. App. 259, 630 P.2d 126 (1981).
Where jury convicted defendant of robbery in the first degree under §708-840, error by circuit court when it failed to instruct jury on robbery in the second degree under this section 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).
COMMENTARY ON §§708-840 AND 708-841
Basically, robbery appears to consist of both theft and threatened or actual assault. It is significant to note, however, that the theft acts as an incentive to the threatened use of force. Thus the combination of these two criminal activities has a multiplicative, rather than a simple additive effect. This increased risk of harm is one reason why robbery is treated as a separate offense and more severely penalized than the sum of its simple components would seem to indicate. Another reason which has been advanced for the separate treatment of robbery is that the average citizen feels a special degree of affront at the prospect of having his possessions taken through the threat or use of force. In a slightly different vein, it has also been suggested that such an offender "exhibits himself as seriously deviated from community norms, requiring more extensive incapacitation and retraining."
When the legislature adopted the Code in 1972, it consolidated the Proposed Draft's three degrees of robbery into two degrees. The simple threat or use of force or the reckless infliction of serious bodily injury in the commission of a theft constitutes robbery in the second degree and carries a class B felony sanction. Where the person committing the above acts is armed with a dangerous instrument, or intentionally inflicts serious bodily harm, or attempts to kill, the offense is increased to the first degree and its sanction to a class A felony.
Previous Hawaii law also recognized two degrees of robbery. Robbery was defined as the "stealing of a thing from the person of another or from his custody or presence, by force or putting him in fear." Robbery in the first degree was robbery by one armed with a dangerous weapon who injured another in committing the robbery or who, if resisted, intended to kill or injure another. All other robbery was second degree robbery. Thus, the Code's definitions of the offenses are substantively similar to those of prior Hawaii law; however, the Code's definitions are more inclusive than prior law and are linguistically correlated with the theft offenses.
SUPPLEMENTAL COMMENTARY ON §§708-840 AND 708-841
Act 68, Session Laws 1983, amended §§708-840 and 708-841 so that a person could be charged with robbery if that person, in committing theft, used force intended to overcome any person's resistance. This amendment was believed necessary because often a property owner is not present when force is used to take that owner's property. In that case, under prior law the person forcibly taking the property could not have been charged with robbery. Senate Standing Committee Report No. 788.
Act 68, Session Laws 1998, amended §708-840 by including in the offense of robbery in the first degree, situations where a person knowingly inflicts or attempts to inflict serious bodily injury on another in the course of committing a theft. The legislature believed that since robbery was essentially an assault committed during the course of a theft, the statutory scheme involving the highest degree of robbery, robbery in the first degree, should be consistent with that of the assault statutes, and thus, robbery in the first degree should include both the intentional and knowing states of mind. Act 68 made the offense of robbery in the first degree consistent with the offense of assault in the first degree. House Standing Committee Report No. 1231-98.
Act 116, Session Laws 2006, amended §708-840, expanding the offense of robbery in the first degree to include using force to commit a theft or threatening imminent use of force against a person during a time of civil defense emergency or during a period of disaster relief. Act 116 penalized the commission of certain crimes during a time of a civil defense emergency proclaimed by the governor or during a period of disaster relief. The legislature found that Hurricanes Katrina and Rita created situations that highlighted the prevalence of opportunistic crimes that can occur during these times. When resources are needed to restore law and order, emergency response aid to victims may be hampered or delayed, leaving victims at an increased risk of bodily injury or death. Stronger measures to control law and order may deter looting and other crimes. Senate Standing Committee Report Nos. 2938 and 3302, Conference Committee Report No. 64-06.
Act 230, Session Laws 2006, amended §§708-840(1) and 708-841(1) by establishing motor vehicle theft as part of the offenses of robbery in the first and second degrees, respectively. House Standing Committee Report No. 665-06.
Act 255, Session Laws 2013, amended §708-840(1) and (2) to include the use of a simulated firearm in the offense of robbery in the first degree. The legislature found that simulated firearms are becoming increasingly difficult to discern from real firearms and as a result, simulated firearms are being used to commit serious criminal offenses. The victims in these crimes believe that the weapons are real and are terrorized when threatened with one. Under existing law, if the weapon is not a real firearm, the suspect cannot be charged with the higher offense of robbery in the first degree and the charge is reduced to a misdemeanor. Senate Standing Committee Report No. 488, House Standing Committee Report No. 1231.
Act 111, Session Laws 2014, which amended §708-840(1), updated and recodified Hawaii's emergency management laws to conform with nationwide emergency management practices by, among other things, establishing a Hawaii emergency management agency in the state department of defense with the functions and authority currently held by the state civil defense agency; establishing the power and authority of the director of Hawaii emergency management, who will be the adjutant general, and providing the director with the functions and authority currently held by the director of civil defense; establishing county emergency management agencies, each to be under the respective county mayor's direction, with the functions and authority currently held by the local organizations for civil defense; and repealing the chapters on disaster relief [chapter 127] and the civil defense [and] emergency act [chapter 128], which were determined to be obsolete with the creation of the Hawaii emergency management agency. Conference Committee Report No. 129-14.
§§708-840 And 708-841 Commentary:
1. See Prop. Mich. Rev. Cr. Code, comments at 256.
2. M.P.C., Tentative Draft No. 11, comments at 69 (1960).
4. H.R.S. §765-1.
5. Id. §765-8.