State v. Kelly
43 S.W.3d 343, 2001 Mo. App. LEXIS 155, 2001 WL 68304 (2001)
Rule of Law:
To constitute first-degree robbery, the force or threat of force must occur either before, contemporaneously with, or immediately after the taking of property, specifically for the purpose of preventing or overcoming resistance to the taking or retention of the property. If force is used only after the property has been abandoned and the attempt to retain it ceased, it does not satisfy the 'forcibly steals' element of robbery.
Facts:
- On July 31, 1995, two men, one identified as Ray Kelly, entered a 7-11 convenience store, carried guns, ordered three employees to the floor, took money and Newport cigarettes from the cash register, and fled in a small red compact car.
- The next day, August 1, 1995, two men, including Ray Kelly, entered The Half Price Store, quickly took clothes off racks, and Ray Kelly drove their red Honda Civic to the front of the store.
- Ray Kelly and the other man then walked towards the front door with their piles of clothes.
- As they were leaving, loss prevention agent Amy Fischer Smith and another employee tried to stop the men from leaving the store with the merchandise.
- Ray Kelly dropped his pile of clothes and started running.
- Ms. Smith ran outside to the red Honda Civic to try and lock the men out of their car, attempting to open the door.
- Ray Kelly came up behind Ms. Smith and pointed a .9 millimeter handgun in her face.
- Ms. Smith backed away when she saw the gun, and Ray Kelly, joined by the other man, ran away from where Ms. Smith was standing.
Procedural Posture:
- Ray Kelly was initially charged with four counts of first-degree robbery and four counts of armed criminal action based on offenses committed on July 21, July 31, and August 1, 1995.
- Prior to his first trial, Mr. Kelly filed a motion in the trial court to sever the charges arising from each offense, which the trial court denied.
- Mr. Kelly was convicted on all eight counts in his first trial.
- Mr. Kelly appealed his convictions to the Missouri Court of Appeals, Western District, arguing that the trial court abused its discretion in refusing to sever Counts I and II (July 21 offense) from the other six counts.
- The Missouri Court of Appeals, Western District, found improper joinder, reversed Mr. Kelly's convictions, and remanded the case for a new trial on Counts I and II separate from Counts III through VIII.
- Prior to the new trial (in April 1999), Mr. Kelly again filed a motion to sever in the trial court, seeking a separate trial for each remaining robbery and armed criminal action charge.
- The trial court granted Mr. Kelly’s motion as to Counts III and IV (from the previous numbering) but denied the motion as to the remaining offenses (now renumbered Counts I through IV, pertaining to the July 31 and August 1 incidents).
- The case proceeded to trial on two counts of first-degree robbery and two counts of armed criminal action arising from the July 31 and August 1, 1995 offenses.
- Mr. Kelly moved for a judgment of acquittal at the close of the State's case and again at the close of all the evidence, both of which the trial court overruled.
- A jury found Mr. Kelly guilty of all four charges (Counts I-IV).
- The trial court sentenced Mr. Kelly to consecutive prison terms: 15 years for Count I (7-11 robbery) and 6 years for Count II (7-11 armed criminal action), to run concurrently; and 10 years for Count III (Half Price Store robbery) and 3 years for Count IV (Half Price Store armed criminal action), to run concurrently.
- Mr. Kelly appealed his convictions to the Missouri Court of Appeals, Western District, asserting errors related to joinder and sufficiency of evidence for the Half Price Store incident.
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Issue:
Does evidence that a defendant used force or a deadly weapon after abandoning stolen property and ceasing attempts to retain it, satisfy the 'forcibly steals' element required for a conviction of first-degree robbery and armed criminal action?
Opinions:
Majority - Ellis, Judge
No, the evidence that Ray Kelly used force or a deadly weapon after abandoning the stolen property and ceasing attempts to retain it does not satisfy the 'forcibly steals' element required for a conviction of first-degree robbery and armed criminal action concerning the Half Price Store incident. The court found that the evidence was insufficient to establish the 'forcibly steals' element for the Half Price Store incident (Counts III and IV). Robbery in the first degree (§ 569.020.1) requires 'forcible stealing,' which means using or threatening immediate physical force 'in the course of stealing' for the purpose of 'preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking' (§ 569.010(1)(a)). The court noted that the distinguishing characteristic between robbery and stealing is the use of force or threat of force to accomplish the stealing. In this case, the record shows that Mr. Kelly and his partner dropped the clothes and ran when confronted by Ms. Smith, thereby abandoning the property and ceasing any attempt to retain it. The use of the gun occurred only after these events, when Ms. Smith was attempting to prevent his escape in the car, and not for the purpose of retaining the property. The court reiterated that force must precede or be contemporaneous with the taking, or occur 'immediately after the taking' to overcome resistance to retention, viewing this as a single, continuous transaction. Since the force was used only after the taking was over and the property abandoned, it did not fall within the statutory definition of 'forcibly steals.' Therefore, Mr. Kelly’s convictions and sentences on Count III (first degree robbery of The Half Price Store) and Count IV (armed criminal action related to that incident) are reversed, and Count III is remanded for potential retrial on a lesser included offense. The court affirmed the convictions for the 7-11 robbery (Counts I and II) because Mr. Kelly's argument regarding severance for those counts was precluded by the 'law of the case' doctrine, as he failed to raise that specific severance issue in his prior appeal and had already received the relief he requested regarding severance of other charges.
Analysis:
This case provides an important clarification regarding the timing of force in Missouri's robbery statute, particularly the phrase 'immediately after the taking' and 'retention thereof.' It emphasizes that even with the expanded definition from the prior common law, the force must still be directly connected to the act of taking or retaining the property, rather than merely an act to facilitate escape after the property has been abandoned. This ruling sets a clear boundary, ensuring that an act of violence during an escape, after the theft is complete and the property is no longer being contested, does not elevate a stealing charge to robbery. It prevents the conflation of theft and subsequent flight violence if the property is no longer the object of the force, maintaining a crucial distinction in criminal culpability.
