Defines the elements that constitute robbery offenses.

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THE SENATE                              S.B. NO.           1384
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 1      SECTION 1.  The purpose of this Act is to clarify the
 2 legislature's intent that the offense of robbery does not require
 3 the victim or any other person present be aware of the theft or
 4 the attempted theft of the property.  This clarification is
 5 necessitated by a recent Hawaii Supreme Court decision in State
 6 v. Mitsuda, 86 Haw. 37 (1997), recon. denied October 13, 1997.
 7 In Mitsuda, the state supreme court held that where the defendant
 8 threatens the imminent use of force against any person present
 9 with intent to compel acquiescence to the taking of or escaping
10 with property, the victim must be aware of the theft of the
11 property for the offense of robbery in the first degree to have
12 occurred.
13      The facts, as presented in Mitsuda, were that the victims
14 were awakened in their home during the early morning hours by
15 their dog barking.  When the victims went to investigate, they
16 found the defendant hiding in their home.  When they tried to
17 detain the defendant until the police arrived, the defendant
18 pulled out a screw driver and pointed it at one of the victims.
19 A struggle ensued between the defendant and two of the victims

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 1 over the screw driver.  At some point, the struggle ended and the
 2 defendant escaped.  Only after the defendant escaped, did the
 3 victims discover that a manicure case was missing.
 4      Based upon these facts, the state supreme court found that
 5 the requirement that the victim of the robbery be present during
 6 the taking of the property was derived from a requirement under
 7 prior law.  In fact, the court observed that the "presence" of
 8 the victim is a distinguishing characteristic of robbery, and
 9 there is no indication within either the robbery first statute or
10 its legislative history that the legislature intended to delete
11 the requirement.  The court further explained that a person is
12 "present" within the meaning of the robbery first statute, if the
13 person might interfere with the theft.  Thus, where a victim is
14 unaware of the theft, the court believed it is the unawareness,
15 rather than the violence or intimidation, that renders the person
16 unable to retain possession of the property.  Therefore, the
17 prosecution must prove an "intent to compel acquiescence to the
18 taking of or escaping with the property," and not the intent to
19 escape with the property, or to facilitate or enable escape with
20 the property.  Where the victim of the threatened use of force
21 has no knowledge of the theft, the victim's assent, implied
22 consent, compliance or submission to the "taking of or escaping
23 with" the stolen property is, according to the court,

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 1 conceptually impossible and need not be compelled by the
 2 defendant.
 3      However, while the defendant's intent to use force or threat
 4 of force to effectuate the theft is relevant to the offense of
 5 robbery it was never intended by the legislature that the victim
 6 must be aware of the theft or attempted theft of the property.
 7 Thus in Mitsuda, the defendant's intent to compel the
 8 acquiescence to the taking of or escaping with the property
 9 should be the controlling factor and not the victim's awareness
10 of the theft or the victim's acquiescence to the taking of or
11 escaping with the property.
12      SECTION 2.  Section 708-842, Hawaii Revised Statutes, is
13 amended to read as follows:
14      "708-842  Robbery; ["in the course of committing a theft."]
15 definitions.  In sections 708-840 and 708-841:
16      (1)  An act shall be deemed "in the course of committing a
17           theft" if it occurs in an attempt to commit theft, in
18           the commission of theft, or in the flight after the
19           attempt or commission.
20      (2)  It is irrelevant whether any person other than the
21           defendant is aware of the theft or the attempted theft
22           of the victim's property for the purposes of
23           determining whether an act is "in the course of

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 1           committing a theft."
 2      (3)  "With intent to overcome that person's physical
 3           resistance or physical power of resistance" means the
 4           defendant's intent to overcome a person's physical
 5           resistance or physical power or resistance whether or
 6           not the person is aware of the theft or attempted theft
 7           of the property.
 8      (4)  "With intent to compel acquiescence to the taking of or
 9           escaping with the property" means the defendant's
10           intent to compel the acquiescence of a person present
11           to the taking or escaping with property whether or not
12           the person is aware of or acquiesces to the defendant's
13           theft or attempted theft of the property."
14      SECTION 3.  This Act does not affect rights and duties that
15 matured, penalties that were incurred, and proceedings that were
16 begun, before its effective date.
17      SECTION 4.  Statutory material to be repealed is bracketed.
18 New statutory material is underscored.
19      SECTION 5.  This Act shall take effect upon its approval.
21                           INTRODUCED BY:  _______________________

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