Armed Robbery and Representations about Weapons

Twice each year, the School of Government welcomes newly-appointed magistrates for two weeks of training. Part of the curriculum involves learning the elements of common crimes. When I teach the elements of armed robbery, an exchange like this always ensues:

Me: Imagine that a bad guy comes into a convenience store and tells the clerk “I have a gun, give me all the money in the register or I’ll use it.” The bad guy gets the money, but is apprehended as he leaves the store and doesn’t actually have a gun. Should he be charged with armed robbery?

Magistrate: Of course. The bad guy said he had a gun and the clerk had no reason to doubt that. He was probably scared to death!

Me: Good try. But the bad guy wasn’t actually armed, so he didn’t actually endanger the clerk’s life and so didn’t actually commit armed robbery.

Magistrate: What are you talking about? G.S. 14-87 includes the “threatened use of any firearm.” The bad guy threatened to use a gun, and that’s good enough.

I have always taken the position that armed robbery can’t be charged on the posited facts, but every year, I struggle to convince the group of that. Sometimes I get the same question, or a variant thereof, from a prosecutor. So I thought I’d look into the issue more closely and write a post about it, in the hopes of putting it to bed. Here’s the statute:

Any person or persons who, having in possession or with the use or threatened use of any firearms or other dangerous weapon, implement or means, whereby the life of a person is endangered or threatened, unlawfully takes or attempts to take personal property from another or from any place of business, residence or banking institution or any other place where there is a person or persons in attendance, at any time, either day or night, or who aids or abets any such person or persons in the commission of such crime, shall be guilty of a Class D felony.

The two elements relevant to this issue are:

• “[H]aving in possession or with the use or threatened use” of a dangerous weapon
• “[W]hereby the life of a person is endangered or threatened”

Looking at the text of the statute and at the elements, the magistrate’s argument is plausible: the bad guy arguably threatened to use a dangerous weapon, and in so doing, threatened the life of the clerk. There’s also some support in the case law for that argument. The best case for the magistrate is State v. Jarrett, 167 N.C. App. 336 (2004). There, the court of appeals affirmed two armed robbery convictions where the defendant told each victim that he had a gun, but did not display a gun and was eventually arrested without a gun. The court emphasized the “threatened use” language in the statute and held that the evidence was sufficient because “the defendant represented he had a firearm and . . . circumstances led the victim reasonably to believe the defendant had a firearm and might use it.” Id. (internal quotation marks and citations omitted). But consider State v. Allen, 317 N.C. 119 (1986), where the state’s evidence suggested that the defendant used a .22 caliber pistol during a robbery while the defendant’s evidence suggested that it was a cap pistol. Because the trial judge instructed the jury that items that “look like firearms” count as dangerous weapons, the state supreme court reversed the defendant’s armed robbery conviction. It stated that “the law does not transform [a cap pistol] into a dangerous weapon merely because it appears to be one.” In essence, the court held that the endangerment element is not satisfied when a defendant falsely represents that he has a weapon. And that rationale applies equally to the scenario I discuss with the magistrates. In other words, if a defendant cannot be convicted of armed robbery based on the representation that he has a gun when in fact he has a toy pistol, surely it follows that a defendant cannot be convicted of armed robbery based on the representation that he has a gun when in fact he has no weapon at all. Indeed, the court stated, “[i]f all the evidence shows the instrument could not have been a firearm or other dangerous weapon capable of threatening or endangering the life of the victim, the armed robbery charge should not be submitted to the jury.” Id. Based on Allen – a supreme court decision, unlike Jarrett – I believe that my answer to the magistrate in the dialogue above is correct. See also State v. Williams, 127 N.C. App. 464 (1997) (“It is reversible error for a trial court to submit an armed robbery charge to the jury where conclusive evidence at trial establishes that no actual gun was used.”) I’m inclined to view the quoted language in Jarrett as dicta. The court was surely correct to affirm the defendant’s convictions, under the rule that “[w]hen a robbery is committed with what appeared to the victim to be a firearm or other dangerous weapon capable of endangering or threatening the life of the victim and there is no evidence to the contrary, there is a mandatory presumption that the weapon was as it appeared to the victim to be.” Allen, supra. The fact that the defendant didn’t have a gun on his person when he was arrested hours later doesn’t undercut the presumption, because it is entirely plausible that the defendant had a gun at the time of the robbery, but disposed of it before his arrest. Cf. State v. Joyner, 312 N.C. 779 (1985) (the defendant robbed the victim at gunpoint; he was arrested six hours later and led officers to the gun he said he used, an unloaded .22 rifle with no firing pin; sufficient evidence supported his armed robbery conviction because the gun might have been altered in the interim between crime and arrest). To sum up, when a defendant claims he has a gun but the evidence clearly shows otherwise – as in the scenario I use with new magistrates – he shouldn’t be charged with armed robbery. When a defendant claims he has a gun and there’s no evidence to the contrary, he may be charged and the state is entitled to a mandatory presumption on the deadly weapon element. When a defendant claims he has a gun and there’s only inconclusive evidence to the contrary, he may be charged but there is no mandatory presumption. Of course, some fact patterns will fall in a gray area – for example, when a robber claims he has a gun but doesn’t show it, then is apprehended on foot a few minutes thereafter, and the police find no gun on his person and no gun along his flight path. But making tough decisions like that is why magistrates get paid the big bucks!