Two police officers spotted the defendant sitting in an automobile near the curb. The lights were on and the motor was running. The officers parked their cruiser alongside the defendant’s automobile to block his exit. The defendant was unable to produce a proper registration and a search revealed burglar tools and a hypodermic needle. The judge instructed the jury that the “entering of the car, the closing of the door, turning the lights on, and starting the vehicle may be considered acts of control” and that larceny “would not require movement of the vehicle.” Would you convict the defendant under the New York larceny statute on these facts? See People v. Alamo, 315 N.E.2d 446 (N.Y. 1974).

         It is the fabric of the common law that asportation is an element of a completed larceny. The actions needed to gain possession and control over a wallet, including movement of the wallet which, in itself, is merely an element tending to show possession and control, are not necessarily the actions needed to gain possession and control of any automobile. A wallet, or a diamond ring, or a safe are totally inert objects susceptible of movement only by physical lifting or shoving by the thief. An automobile, however, is itself an instrument of transportation and when activated comes within the total possession and control of the operator. In this situation movement or motion is not essential to control. Absent any evidence that the vehicle is somehow fastened or immovable because of a mechanical defect, the thief has taken command of the object of the larceny. He has, in the words of subdivision 1 of section 155.05 of the Penal Law, wrongfully "taken" the property from its owner.

         It would be difficult to understand how a person who is operating a car, as defendant was under the authority just discussed, could be said nevertheless not to be in possession and control of that car. It is further to be noted that where the Legislature has specifically addressed itself solely to automobile taking, a person is guilty of unauthorized use where he "takes, operates, exercises control over, rides in or otherwise uses a vehicle."If operation of the automobile can effect a taking under the unauthorized use statute then operation ought also to suffice under the larceny statute.

         Finally, we do not, as stated in the dissent, "disregard" the relative constancy of the statute under which defendant was convicted. It is to be noted that not since 1942 have we in this jurisdiction been strictly bound to the ancient common-law concepts of larceny. Current subdivision 1 of section 155.05 of the Penal Law which was charged to the jury in the instant case and in very broad terms prohibits wrongful appropriation, taking, obtaining or withholding of another's property with the requisite intent. There is nothing in the definitions section which states that asportation is in all cases an essential element of such taking or obtaining. Subdivision 2 of section 155.00 defines "Obtain" as follows: "'Obtain" includes, but is not limited to, the bringing about of a transfer or purported transfer of property or of a legal interest therein, whether to the obtainer or another." Surely a person transfers an instrument of transportation to himself when he commences to operate the instrument for its intended purpose. At that point it comes under his sole dominion and control and, assuming requisite intent, amounts to the completed taking as envisioned under our broadened statutory concepts. To require that the vehicle be moved by the operator is to slavishly adhere to the auxiliary common-law element of asportation which is simply not necessary to the finding of the primary elements of dominion and control where an activated automobile is concerned (text taken directly from judgment of the court). 

Defendant Andreas Redondo was a deputy sheriff in the Merced County Sheriff’s Department. He was convicted of embezzlement and misdemeanor theft. He claimed that he should not be held liable for embezzlement based on his “momentary” use of his squad car to steal a lawnmower. Officer Wallace Broughton observed Redondo in the early hours of the morning place a lawnmower from the “Small Engine Doctor” in the trunk of Redondo’s squad car. As Broughton approached in his squad car, Redondo sped away and some time later was spotted by Broughton as Redondo’s car was leaving a tree orchard. Redondo denied having taken the lawnmower, which later was found in the orchard. Tire tracks, paint chips, and other evidence discovered in the defendant’s car were traced to the orchard. The squad car was owned by the Merced County Sheriff’s Department and was valued at $1,000.

         The embezzlement statute in California punishes the fraudulent appropriation of any property in an individual’s “possession or under his control by virtue of his trust” for any use “not in the due and lawful execution of his trust.” Redondo claimed that his use of the vehicle was incidental to the theft of the lawnmower, that the momentary use of the property does not constitute embezzlement, and that he did not possess an intent to permanently deprive the owner of the squad car or to deny the owner of the use of the car for an extended period of time. Was Redondo properly convicted under the California statute? See People v. Redondo, 24 Cal.Rptr.2d 143 (Cal.Ct.App. 1993).

         People v. Redondo, 24 Cal.Rptr.2d 143 (Cal.App. 1993). Section 514 defines the punishment for one convicted of embezzlement. It provides: "Every person guilty of embezzlement is punishable in the manner prescribed for theft of property of the value or kind embezzled; and where the property embezzled is an evidence of debt or right of action, the sum due upon it or secured to be paid by it must be taken as its value; if the embezzlement is of the public funds of the United States, or of this state, or of any county or municipality within this state, the offense is a felony, and is punishable by imprisonment in the state prison; and the person so convicted is ineligible thereafter to any office of honor, trust, or profit in this state."

         "Mr. Redondo was at the time of this offense, a Detective of the Merced sheriff's department, that he was a deputy of Sheriff Sawyer who's an officer of this county, that the vehicle that he was driving was the assigned—his assigned vehicle, and it was the property of this county, and that the value of that vehicle was approximately a thousand dollars, which is based upon a salvage value from the county persons who keep track of that." Defendant asserts that the amount of the theft should be limited to the reasonable value of the temporary use of the vehicle between 3 and 6 a.m. Defendant argues that such use was less than $400, the amount necessary to prove grand theft, and therefore his conviction should be reduced to a misdemeanor. Defendant made the same argument at sentencing, and the court rejected it.

         The People do not argue that defendant embezzled the stipulated value of the vehicle. The People contend that because the vehicle was bought, and the expenses to run the vehicle were paid, with public funds, defendant embezzled public funds. Pursuant to section 514 such embezzlement is a felony, regardless of the value of the property embezzled.

         Settled rules of statutory construction require that in criminal cases an ambiguity should be resolved in favor of the defendant. The term "funds" has a common meaning, as well as an expanded meaning given in particular situations. The ambiguity created by the differing meanings attributed to funds should be resolved in defendant's favor. Thus, we apply the common, more restricted, meaning here. If the Legislature had intended to make it felonious for a public official to embezzle any public property, it could have stated that embezzlement of public property is a felony. Money is property," but all property is not money. Thus, defendant is not culpable for a felony based on embezzlement of public funds under section 504 if what was stolen was not an available pecuniary resource of the public.

         The services of the deputy were not a commodity paid for and received and then diverted from their authorized purpose. Here, the automobile was a commodity paid for and received and then diverted from its authorized purpose. There was no evidence presented below that defendant sought to be or was paid during the time he stole the lawnmower. In discussing the challenge to the vagueness of the statute, the appellate court in applying the well-established meaning to "public funds," it cannot be said that the use of the automobile was an embezzlement of the public funds. Under section 514, the offense is alternatively provable as a felony if the value of the item embezzled exceeds the dollar amount necessary to prove grand theft, $400. The value of the loss of use suffered by the county must exceed $400 to make the offense a felony. The only evidence presented at trial established the salvage value of the automobile at $1,000. No evidence was presented as to the value of the limited use of the automobile. It certainly had value, but we have no reason to believe the value is anything near $400. Because the evidence failed to establish either embezzlement of public funds in any amount or the embezzlement of public property to the extent of more than $400in value, we reduce the embezzlement to a misdemeanor (text taken directly from judgment of the court). 

         Ronald Nellon inherited $142,409. He is described as possessing an obviously “subnormal intellectual capacity.” During a period of roughly five weeks in 1992, Nellon purchased six trucks from the general manager of Quirk Chevrolet in Braintree, Massachusetts. Nellon would purchase a truck and soon thereafter “trade it in” for a more expensive truck, receiving far less than he paid in the trade-in. For instance, on July 9, 1992, Nellon received a trade-in allowance of $5,876 on a truck that he bought the previous day for $14,625. The odometer read 26 miles. The dealership’s profit margin was $4,313. The next day, he received a trade-in allowance of $5,530 on a truck that he purchased the day before for $13,818. The odometer read 20 miles, and the profit came to $5,085.

             Reske, the general manager of the auto dealership, was charged with false pretenses. The court ruled that a false statement may be inferred from the “inordinate profit margin . . . the manifestly unrealistic trade-in allowances, and from the inflation over sticker prices,” all of which were contrary to customary practice. Nellon overpaid roughly $23,651 on the six transactions. Was Reske guilty of false pretenses? Was he guilty of larceny by trick? Note that a Florida statute makes it a crime to obtain or use the funds of an elderly or disabled person if the accused “knows or reasonably should know the elderly person or disabled adult lacks the capacity to consent.” See Commonwealth v. Reske, 684 N.E.2d 631 (Mass. App. Ct. 1997).

          Commonwealth v. Reske, 684 N.E.2d 631 (Mass. Ct.App. 1997). The core of Reske's defense is that he made no false statements of fact, that prices are a matter of opinion, and —the defense comes to this—it is not a crime to fool a willing dupe. It is commonplace that prices, unless regulated, are subject to market fluctuation. That does not mean, however, that there is no such thing as a false statement about the value of an item that is for sale. Here, the finder of fact may infer a false statement as to the value of the six trucks sold by Quirk, to Nellon from the inordinate profit margin, from the manifestly unrealistic trade-in allowances, and from the inflation over sticker prices. There was evidence of market norms, that those norms had been exceeded by manipulation of trade-ins and base prices, that those norms were so exceeded that the dealership thought it proper to make restitution. A salesman under Reske's supervision quit his job because he thought what was being done to Nellon was so immoral. An experienced dealer, Reske knew that the prices he was charging Nellon had no relation to what he customarily charged. This could be inferred from his doctoring of the prices in the first contract, prepared in accordance with customary prices and profit margins by salesmen who reported to him. False statements of value could also be inferred, from evidence given by an experienced car dealer that sales above sticker price were not normal, nor was it normal to take $ 7,000 off the price of a vehicle that had been driven only for 24 hours and 33 miles. When David Quirk, the principal of Quirk Chevrolet, noticed the pattern of sales to Nellon, he ordered that no more sales be made to Nellon and Quirk made full restitution to Nellon for the amounts he had been overcharged.

     There is a distinction between stating the price of a mine, a share of corporate stock, a piece of jewelry, or a work of art, as to which values are freighted with opinion, and goods sold as widely to the general public as new automobiles. It is simply not correct to suppose that automobile prices are so relative that it is not possible to state a false price. There are acceptable yardsticks. Dealer invoice prices are obtainable information and they set the base. Sticker prices, except for one brand of car which has a sales policy of selling at sticker price, are the ceiling. A price over sticker price would not be justifiable. Fair trade-in prices can be established through an industrial reference source known as the Blue Book.
     Nevertheless, the dissenting opinion insists that in the absence of some express statement by Reske that the prices charged or the values given in trade were fair market prices and values, there is no false statement of a fact. We think that far too literal—certainly in the peculiar circumstances of this case. The confidence man is generally subtle when winning the confidence of the mark and a false pretence may consist of an act, symbol, or token calculated to deceive, such as grossly off-market prices or credits stated on forms of an established automobile agency selling a respected line of automobiles. It is not necessary to have direct evidence that a representation was false. It is enough if all the circumstances considered together would warrant the jury in concluding that it was untrue." A false pretence may be made by implication as well as by verbal declaration . . . .  
     Reske wanted those false values to be accepted by Nellon. He expected them to be accepted because Nellon's impaired cognitive capacities rendered him a gullible mark. The days may be over when caveat emptor was a byword of capitalism and a sucker had only himself to blame. Even at the apogee of economic Darwinism, however, there was an underlying assumption that the mark had normal mental capacity. . . .
     The dissent advances the somewhat curious proposition that, unless a statute defines as a crime the selling or buying of property to or from a manifestly incompetent person at greatly inflated profit margins, which any person of normal understanding would reject as unacceptable, then there is no crime. The law is not so inelastic. Larceny by false pretences is a crime of ancient lineage, originally enacted in 1757 by Parliament to supplement the common law. It is a statute broad in scope and its application is not "limited to cases against which ordinary skill and diligence cannot guard; . . . one of its principal objects is to protect the weak and credulous from the wiles and stratagems of the artful and cunning". . .

     Precisely so. Here the mark's disability was the key necessary to Reske's being able to relieve him of his money through a false pretence of ordinary dealing in the automobile market. Nellon was quintessentially weak and credulous. Reske crossed the prohibitory line, and did so following a repetitive pattern. . . . The unfortunate Nellon did rely on Reske's inflated and deflated figures and paid whatever he was asked for, thus, parting with at least $23,651, which, in the aggregate, could not honestly have been charged. As to each of the six transactions, the amount of overcharge was substantially above $250.
     Proof of the elements of larceny by false pretences were, thus, put before the trial judge and he rightly denied the motion for a required finding of not guilty (text taken directly from judgment of the court ).  

Houa Vang Lee allowed his cousin Mai Yang, a friend, James Her, and two of Her and Yang’s friends from Milwaukee to stay the night at Lee’s home in the Twin Cities in Minnesota on New Year’s Eve. All of these individuals allegedly were members of the Imperil Gangsters. They left the next morning. Her was subsequently arrested in Milwaukee on a burglary charge and, while in custody, informed the police that he had information concerning two drive-by shootings that had occurred in the Twin Cities on New Year’s Eve.

         Her told the police that along with other members of the Imperial Gangsters, he had stolen firearms in Wisconsin that were then stored in Lee’s garage and were used by the gang in shootings in the Twin Cities. Several firearms, ammunition, and a bag of marijuana were subsequently uncovered in Lee’s garage; two of the firearms were traced to Wisconsin and the serial numbers on a third had been altered. Her alleged that Lee had asked Her to deliver some weapons that could be used in the ongoing gang warfare in the Twin Cities.

         Her testified that members of the gang spent their first night in the Twin Cities in a motel and then spent the weekend at Lee’s house. He recounted that the members of the Imperial Gangsters had been involved in a fight on New Year’s Eve with members of a rival gang and that several gang members left a party at Lee’s house on two occasions to carry out drive-by shootings. Lee did not participate in either incident, but according to Her, Lee was in the garage when the gang members were reloading their firearms. Lee also reportedly “kind of” told them to “take care” of a second house belonging to a member of the rival gang and asked Her to let another gang member use Her’s car for a second drive-by shooting.

         Lee testified that at the time that he was arrested, he was living with his wife and three small children. He was a full-time student and worked at two part-time jobs. Lee admitted that he had been a member of the Imperial Gangsters, but that after being convicted of intimidation in the mid-1990s he had quit the gang. Lee admitted that he continued to socialize with gang members because they were relatives and friends. Lee testified that Her had asked Lee to rejoin the gang but that Lee declined, having decided to pursue a positive direction in his life.

         Lee denied knowledge of the stolen firearms in his garage. He claimed that he permitted his cousin, Mai Yang to store some of his belongings in Lee’s garage because they were “so closely related.” Lee also claimed that Yang knew that Lee was married and had three children, and Lee did not believe that Yang would place Lee in jeopardy by storing weapons in his garage. Lee claimed that he only witnessed Yang store clothes, blankets, a towel, a pillow, a backpack, and books in the garage. Lee explained that he had permitted the gang members to stay at his house because they lacked money for a hotel and that Lee’s wife was spending New Year’s Eve weekend elsewhere.

         Lee testified that he permitted Yang and the others to attend the New Year’s party at his home, but instructed the gang members to remain in the kitchen so as not to frighten the other guests. He testified that Her and the others disappeared at one point and on their return, Lee had given Yang money for beer and asked Her to let Yang use Her’s car because Lee’s car was blocked by his guests’ automobiles. Lee further testified that he was aware that the members of the gang were smoking marijuana during the party. He explained that he permitted the gang members to spend the night because they were drunk, but told them to leave as soon as possible in the morning because he had promised his wife that he would have nothing to do with gang members. Lee’s conviction for receiving stolen firearms was affirmed by the Minnesota Supreme Court. Did Lee have control over the stolen firearms? Was there the required criminal intent? See State v. Lee, 683 N.W.2d 309 (Minn. 2004).

         State v. Lee, 683 N.E.2d 309 (Minn. 2004). The jury found Lee guilty as charged. The district court sentenced Lee to a 27-month prison term for receiving stolen property for the benefit of a gang and concurrent terms of 13 months for the controlled substance crime and one year and one day for the firearm offense. Lee appealed.

         Over the years, the words used by the Minnesota legislature to describe the conduct proscribed in the theft and receiving stolen property statutes evolved, overlapping sufficiently so that in a prosecution for receiving stolen property, it is no defense that the defendant was the thief. The state has the discretion to charge a person with the offense which is best supported by the available evidence and which carries a penalty commensurate with the culpable acts involved. But a person may not be convicted of both theft and receiving stolen property with respect to property involved in the same transaction.

         The receiving stolen property statute, Minn. Stat. § 609.53, subd. 1 (2002), provides in relevant part that "any person shall be criminally liable who receives, possesses, transfers, buys or conceals any stolen property or property obtained by robbery, knowing or having reason to know the property was stolen or obtained by robbery.”

         Here, under the state's theory of the case and the evidence presented, at Lee's direction, Her transferred stolen firearms from Milwaukee to the garage of Lee's home for the benefit of a gang, activity that falls within the conduct prohibited as receiving stolen property. Both Lee and Her could have been charged and convicted of receiving stolen property.

         You cannot find the defendant guilty of a crime on the testimony of a person who could be charged with that crime, unless that testimony is corroborated by other evidence that tends to convict the defendant of the crime. Such a person who could be charged for the same crime is called an accomplice.

         The state also introduced evidence that drive-by shootings took place on New Year's Eve; that firearms found in Lee's townhome garage had been stolen from a Wisconsin residence and that the serial numbers on one of the firearms in Lee's garage had been altered. Lee testified that Her and his friends "presented as a gang"; that Her's car was used by the gang twice that night; that Lee asked Her for Her's car keys for the second excursion and that Her stayed behind. Lee testified that he was aware of marijuana use during his party; and he testified that his car was "blocked from getting out of the garage," and that he gave his cousin permission to store belongings in the garage and allowed gang members into his garage when his wife was not home, thereby exercising dominion and control over the area in which the firearms and marijuana were found. In closing argument, the state focused on the evidence corroborating Her's testimony, including that of Lee, as well as evidence independently connecting Lee to the offenses. Also, the district court's general instructions on witness credibility alerted the jury to the potential for conflicting motivations behind certain testimony. Although the omission of the instruction on accomplice testimony was error, our independent review of the record compels the conclusion that beyond a reasonable doubt the omission did not have a significant impact on the verdict.

         A person may constructively possess contraband jointly with another person. To prove constructive possession, the state must prove that: (1) the police found the item in a place under the defendant's exclusive control to which other people did not normally have access, or (2) if the police found it in a place to which others had access, that there is a strong probability, inferable from the evidence, that the defendant was, at the time, consciously exercising dominion and control over it. Our decision that the omission of an instruction on accomplice corroboration was harmless error "similarly reflects our rejection of defendant's contention that the evidence corroborating [Her's] testimony was insufficient"(text taken directly from judgment of the court).

Michael Warren Scherz was convicted of first-degree robbery, which in Washington can be committed by the “display” of what appears to be a firearm or other dangerous weapon. Scherz entered a bank in downtown Spokane wearing camouflage clothing and approached a teller and stated that “I need about a thousand dollars. I have a hand grenade in my pocket and I need a thousand dollars.” The teller asked whether he was serious and Scherz responded, “yes.” The teller testified that she was “fearful” and that she gave him $1,000. He placed the money in his pocket and left the bank. The teller did not see a hand grenade or any other weapon. Scherz soon thereafter was arrested by FBI agents in a nearby hotel lobby. He told the arresting agent that at the bank that he had reached into his left jacket pocket and pulled out the end of a set of toenail clippers “just a little bit to see the silver, so she’d think it was a grenade.” The FBI agent seized a pair of toenail clippers from Scherz. None of the bank employees who witnessed the robbery saw the toenail clippers or anything that appeared to be a weapon. Scherz appealed his conviction on the grounds that he did not “display” a weapon. The prosecutor argued that a verbal indication of a weapon satisfies the display requirement. Would you vote to affirm Scherz’s conviction? Is the bank teller’s testimony important in your decision? What if Scherz actually had a grenade in his pocket? Should Scherz be held liable for first-degree robbery if the teller realized that Scherz was threatening her with the metal end of the toenail clippers? What about in the event that Scherz displayed a realistic looking toy grenade? See State v. Scherz, 27 P.3d 252 (Wash.Ct.App. 2001).

         State v. Sherz, 27 P.3d 252, (Wash.App. 2001). Scherz contends that the court erred in instructing the jury that words alone are sufficient to constitute the element of displaying what appears to be a deadly weapon. Mr. Scherz argues that some physical manifestation of the presence of a weapon in addition to words are required in order to satisfy the display element for first degree robbery. He asserts his conduct did not meet that element because no one in the bank saw anything resembling a weapon or any movement such as a hand to the pocket to indicate the presence of a weapon. And, the toenail clippers are irrelevant because no one saw them either.

         According to the prosecution, a mere verbal indication of a weapon is sufficient to meet the display element. This is because the effect of fear and apprehension compelling the victim to comply with the defendant's demand for money is the same regardless of whether the defendant brandished the weapon or the victim actually saw it. Sherz contended that his conduct did not meet the "display" element of first degree robbery because he did not exhibit any weapon to the victims' sight. The court first observed that the first degree robbery statute does not define "display," but that its dictionary meaning includes "'to spread or stretch out or wide: unfold . . . exhibit to the sight or mind . . . manifest, disclose . . . .'" Moreover, by enacting the first degree robbery statute, it appeared the Legislature intended to proscribe conduct in the course of a robbery that leads the victim to believe the robber is armed with a deadly weapon, whether or not the weapon is actually loaded and operable, and whether it is real or a toy. .

         The Washington appellate court stated that to convict the defendant of the crime of robbery in the first degree, each of the following elements of the crime must be proved beyond a reasonable doubt: (1) That on or about [the] 30th day of August, 1999, the defendant unlawfully took personal property from the person or in the presence of another; (2) That the defendant intended to commit theft of the property; (3)That the taking was against the person's will by the defendant's use or threatened use of immediate force, violence or fear of injury to that person; (4) That force or fear was used by the defendant to obtain or retain possession of the property; and (5) That in the commission of these acts the defendant displayed what appeared to be a firearm or other deadly weapon; and (6) That the acts occurred in the State of Washington.
The court went on to hold [that[ a mere verbal statement that one is armed with a weapon does not constitute the display of a deadly weapon. Used in a statutory context, the term display requires some physical manifestation beyond a mere verbal threat of harm with a deadly weapon. Accordingly, the State had to present evidence that the alleged robber committed a menacing physical act beyond his verbal indication that he was armed, in order to fall within the parameter of the first degree robbery statute. Mr. Scherz's mere statement he had a hand grenade is akin to [a] mere verbal threat to blow up the bank with nitroglycerin. Critically, not only did no witness see the silver end of the toenail clippers, but there is also no evidence in the record that anyone saw Mr. Scherz motion toward his pocket or make any physical gesture indicating a weapon along with the verbal threat. No witness was asked that question.

         The prosecution nevertheless contends that the dictionary definition of "display" includes exhibiting to the sight or mind, thus making Mr. Scherz's verbal threat of a deadly weapon a display to the mind. And, any physical act by Mr. Scherz would only have reinforced the verbal display already completed. The prosecution thus concludes that Mr. Scherz's words were the equivalent of a "toy gun," which the victim was not expected to investigate to determine if it was real.

         Mr. Scherz's mere statement allowed the victim only to imagine a weapon, yet to perceive a threat that satisfied the elements of second degree robbery. Although the effect of fear on the victim may be the same, the defendant's verbal statement without more is insufficient for first degree robbery. Under the particular facts of this case, the judge's instruction was an incorrect statement of the law and the court erred in giving it to the jury.

         Accordingly, Mr. Scherz's contention that the evidence was insufficient to support the conviction for first degree robbery is correct because there was no evidence of the display of what appeared to be a weapon. The instruction told the jury it could convict of first degree robbery if it found Mr. Scherz used force or fear to obtain the money or, if in commission of the acts he displayed what appeared to be a deadly weapon. Given that the victim Ms. Boehme testified she was fearful, it is impossible to tell whether the jury was misled into reaching a verdict for first degree robbery because she gave up the money out of fear. This denied Mr. Scherz a fair trial. The first degree robbery conviction is reversed and the case remanded for entry of judgment and resentencing on the charge of second degree robbery (which does not require the display of what appeared to be a firearm or deadly weapon).

The devastation of New Orleans by Hurricane Katrina in August 2005 flooded a significant portion of the city and, in the early days of the emergency, prevented the police from patrolling the city. People who were not able or willing to leave the city or to evacuate to a shelter often found themselves stranded by the flood. Even individuals in areas unaffected by the flood waters lacked electricity and basic services. The media reported that some people broke into stores and seized food, water, and medication. Others reportedly took advantage of the devastation to take trunk loads of beer and alcohol, televisions, computers, jewelry, bicycles, expensive clothes, and stripped automobiles of batteries and stereos. The gun sections of various stores were completely cleaned out. In the early days of the devastation, understaffed police and National Guard troops often stood helplessly by and watched as people broke into stores. Wide-scale looting also occurred in the devastated towns of Biloxi and Gulfport, Mississippi. Some store owners posted signs warning, that “You loot, I Shoot.”

         President Bush announced that there “ought to be zero tolerance” of this type of antisocial behavior during the emergency, whether it involves “looting, or price-gouging at the gasoline pump or taking advantage of charitable giving, or insurance fraud.” The arrival of federal troops and additional National Guard units at the end of the week resulted in the restoration of order and a decision to evacuate the entire remaining population of New Orleans.

LARCENY

         Looting in New Orleans (2004). The "looters" might rely on the necessity defense to justify the taking of essential items. This might justify the seizure of food and other essentials, but it does not clearly support the taking of luxury items. On the other hand, deadly force clearly cannot be used to prevent the taking of property and authorities are limited to that degree of force that is reasonably required to prevent the taking of property. The threat seemed to be confined to property and did not extend to the individual store owner or occupant.

         Jesus O., a juvenile, was charged under California law with grand theft “from the person” of a cellular telephone. Mario H. and three middle school friends left a fast food restaurant in Van Nuys, California. Jesus O. and Roberto A. followed and confronted them in an alley and announced “Assassin Kings.” They asked Mario if he had any money, and Mario explained that he did not have any money. Jesus suddenly “sucker punched” one of Mario’s friends in the mouth, and a fight ensued. At one point during the scuffle, Roberto pulled out a knife and threatened to “shank” Mario. Mario and his friends fled down the alley and jumped over a fence. Roberto found Mario’s cellular telephone lying in the alley, and Roberto picked it up and placed it in his pocket. Jesus and Roberto were both convicted of grand theft (and attempted robbery). The court of appeals held that the cellular telephone was not taken from Mario’s “person” and reduced Jesus’s conviction to petty theft. California divides theft into petty theft and grand theft. Grand theft includes property taken from the person of another. The California Supreme Court was asked to determine whether Jesus had stolen the telephone “from the person” of Mario. In People v. McElroy, 48 P. 718 (1897), an important precedent in California on this question, the victim had taken his trousers off and was using them as a pillow. The defendant took the money from the trousers while the victim slept. The supreme court reversed the defendant’s conviction, holding that the “money was no more on [the victim’s] person . . . than if it had been concealed under his bed or elsewhere about it, or left in his clothes upon a chair or hanging on the wall.” As a judge, how would you rule in this case? See People v. Jesus O., 152 P.3d 1100 (Cal. 2007).

         People v. Jesus O., 152 P.3d 1100 (Cal. 2007).

          The crime of theft is divided into two degrees, petty theft and grand theft. As relevant here, Penal Code section 487 provides: “Grand theft is theft committed”[w]hen the property is taken from the person of another.” We must decide whether the evidence supports a finding that Jesus and Roberto committed grand theft from the person when Roberto took the cellular telephone. The seminal California case interpreting the “from the person” requirement dates from the 19th century. In People v. McElroy (1897) 48 P. 718, the defendant took $17 from a wallet in the pocket of the victim's trousers. The victim had taken the trousers off and was using them as a pillow. The defendant took the money while the victim slept. Convicted of grand larceny “from the person” under Penal Code former section 487, the predecessor version of today's grand theft statute, the defendant appealed. We reversed the conviction, finding the defendant did not take the property from the person. We explained that “[t]he stealing of property from the person has been from an early period under the English statutes treated as a much graver and more heinous offense than ordinary or common theft—partly by reason of the ease with which it can be perpetrated and the difficulty of guarding against it, and partly because of the greater liability of endangering the person or life of the victim. The same general reason and purpose animate the modern statutes, including our own . . . .” We then considered whether, to be a taking from the person, “the property must be actually on, or attached to, the person, or merely under the eye, or within the immediate reach, and so constructively within the control of the owner.”
     After reviewing the authorities, we found that the statute's “obvious purpose was to protect persons and property against the approach of the pickpocket, the purse-snatcher, the jewel abstracter, and other thieves of like character who obtain property by similar means of stealth or fraud, and that it was in contemplation that the property shall at the time be in some way actually upon or attached to the person, or carried or held in actual physical possession—such as clothing, apparel, or ornaments, or things contained therein, or attached thereto, or property held or carried in the hands, or by other means, upon the person; that it was not intended to include property removed from the person and laid aside, however immediately it may be retained in the presence or constructive control or possession of the owner while so laid away from his person and out of his hands. . . . Had the legislature intended that the offense should include instances of property merely in the immediate presence, but not in the manual possession about the person, it would doubtless have so provided, as it has in defining robbery. Robbery is defined as ‘the felonious taking of personal property in the possession of another from his person or immediate presence,’ etc., while the requirement of this offense is that it shall be ‘taken from the person.’ ”
    We concluded that the facts of the case “did not constitute grand larceny within the statute. The garment from which the money was taken was not at the time on the person of [the victim]; it was folded up and used as a part of his bed. Had the garment alone been taken under like circumstances the theft could not be held to have been from the person. A man does not wear his bed as he does his clothes. The money was no more on his person in any proper sense than if it had been concealed under his bed or elsewhere about it, or left in his clothes upon a chair or hanging on the wall.”
    Applying this test to this case, obviously the telephone was no longer on Mario's person when Roberto picked it up from the ground in the alley. Mario was a substantial distance away at the time. But McElroy is not quite on point, for here the telephone was on Mario's person when Jesus and Roberto first assaulted him. Mario did not voluntarily lay it aside, but instead dropped it unintentionally while fleeing from Jesus and Roberto. McElroy does not answer the question whether the fact that the telephone was on the victim's person when the assault began supports the grand theft finding.
     This case is distinguishable. Here the evidence shows the juvenile intended to steal when the assault began. The juvenile argues that in those cases the thieves intended to steal the property actually taken while it was still on the victims' person. In this case, no evidence exists that the juveniles were even aware of the telephone's existence before they picked it up from the ground; therefore no evidence exists that they intended to steal the telephone until they observed it on the ground, i.e., until after it had become separated from the victim's person. This is a factual difference, but not one that mandates a different outcome.
     In this case, there was evidence that, while the telephone was still on Mario's person, the juvenile asked him if he had any money. This evidence supports a finding that the juvenile and his cohort intended to steal property of some kind, even if not specifically the telephone, when the assault that caused Mario to drop the telephone began, i.e., when the telephone was on Mario's person. This generalized intent to steal at the time the telephone was on the victim's person satisfies the larcenous intent element of grand theft. The circumstance that the juveniles asked for money, which they did not succeed in obtaining, rather than specifically for the telephone, which they did eventually obtain, is not significant. The required mental state is an intent to steal, not an intent to steal specific property. In this case, the juveniles took the telephone from Mario's person with the intent to steal, although in two steps. First, they wrongly caused the telephone to become separated from the person; then they actually gained possession of it. The taking began with the initial assault, when the telephone was on the person, and only ended when the juveniles picked it up from the ground. Thus, and in response to the last paragraph of the dissent, the property was physically connected to the victim's person when the juvenile began to take it. The victim did not relinquish personal possession of the telephone voluntarily but only due to the juvenile's wrongful act. These facts pose a “threat of injury or death” to the victim just as surely as—and perhaps more than—some of the cases upholding a finding of theft from the person, and thus satisfy the rationale for making theft from the person a more serious crime than ordinary theft. 

         Archer was convicted of embezzlement by a New Mexico jury and appealed to the court of appeals. At the time of his offense, Archer was on probation and was required to remain within 150 feet of his telephone. As a condition of probation, Archer signed a statement agreeing to wear an electronic monitoring device (EMD) around his ankle, which communicated electronically with a computer connected to his telephone. This enabled probation authorities to confirm that Archer was at home and close by the telephone. Archer removed the EMD, damaging the device, and threw it into a field. In New Mexico, embezzlement involves an individual’s “converting to his own use . . . anything of value, which he has been entrusted, with fraudulent intent to deprive the owner thereof.” Would you affirm Archer’s conviction for embezzlement? See State v. Archer, 943 P.2d 537 (N.M. App. 1997).

         State v. Archer, 943 P.2d 547 (N.M.App. 1997).

         On appeal, Defendant does not dispute that he violated his probation or that he may have committed the lesser crime of criminal damage to property. Defendant contends that his actions do not constitute the specific crime of embezzlement. We analyze Defendant's actions in light of the specific statutory elements of embezzlement and affirm.
The embezzlement statute, NMSA 1978, Section 30-16-8 (Cum. Supp. 1996), states: "Embezzlement consists of the embezzling or converting to his own use of anything of value, with which he has been entrusted, with fraudulent intent to deprive the owner thereof." The Uniform Jury Instruction 14-1641, further defines the elements of embezzlement:

         For you to find the defendant guilty of embezzlement, . . . the state must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:

         1. The defendant was entrusted with ___. . . ;

         2. The defendant converted this ___ (property or money) to the defendant's own use. "Converting something to one's own use" means keeping another's property rather than returning it, or using another's property for one's own purpose [rather than] [even though the property is eventually used] for the purpose authorized by the owner;

         3. At the time the defendant converted ___ (property or money), the defendant fraudulently intended to deprive the owner of the owner's property. "Fraudulently intended" means intended to deceive or cheat;

         Defendant first argues that there was no showing of a traditional fiduciary relationship, without which he maintains an embezzlement conviction cannot stand. We disagree. Our earlier case of State v. Moss, 487 P.2d 1347 (Ct. App. 1971), stands for the proposition that a specific or technical fiduciary relationship is not necessary to sustain an embezzlement conviction under New Mexico law. While some jurisdictions may require a special fiduciary relationship, such as employment or agency, as an element of the crime, New Mexico does not. Defendant maintains there was no such evidence because Defendant, a convicted felon, was not holding the EMD under any assumption of trust or confidence on his part. We disagree. "Entrustment" occurs when property is committed or surrendered to another with a certain confidence regarding the care, use, or disposal of that property. As Moss states, the usual and ordinary meaning of "entrustment" is applicable unless an expression of legislative intent requires otherwise. In determining what is required by the element of entrustment, we are guided by legislative intent in enacting the embezzlement statute.
     The crime of embezzlement did not exist at common law. Larceny, a common law crime, required that the thief take property from the victim's possession and that there be a "trespass in the taking." When the defendant is in lawful possession of the owner's property, which the defendant then fraudulently converts to his or her own use, the defendant cannot be convicted of larceny because there is no trespassory taking. Statutes establishing embezzlement as an offense were passed to eliminate this loophole in the common law. We construe the term "entrusted" in New Mexico's embezzlement statute in accordance with this objective and in a manner to accomplish the legislative intent.
     It is clear from the evidence that when the State turned over the EMD to Defendant, the State was relying on Defendant to act in a manner consistent with, and not adverse to, the State's interests with respect to the EMD. Defendant was after all on probation; he was free from incarceration on the strength of just such assurances that he would do what he was told and live up to his promises. Defendant even signed a written agreement with his probation officer by which he created these assurances with respect to his continued care and possession of the EMD. The agreement states:

EMD WEARER'S AGREEMENT

         1. I Andre Archie, understand that the electronic monitoring device (EMD) and all of its accessories are the property of the Adult Probation Parole Division of the Corrections Department with the State of New Mexico.

         2. I accept full responsibility for the care of and return of the electronic monitoring device.

         3. I understand that it is my responsibility to immediately notify the Adult Probation Parole Office if the monitor is damaged in any way or if the bracelet is purposely/accidentally removed from my leg.

         4. I understand that if any part of the electronic monitoring device is damaged or lost while it is in my possession, I will be charged with Embezzlement, Theft, or Criminal Damage. The cost of the device is $ 1,950.00.

         In addition, although Defendant argues that the transfer of possession was only for the State's benefit, Defendant received the benefit of being placed on probation, rather than being incarcerated. Therefore, assuming that Defendant is correct in arguing that he must receive a benefit, we are satisfied from the record that there was an entrustment of property sufficient to meet the requirements of the statute.
     Defendant argues there was no evidence that he "converted" the EMD "to his own use"; instead, he disposed of the EMD or abandoned it but did not put it to "use" within the meaning of the statute. Again, we do not agree. When a person having possession of another's property treats the property as his own, whether he uses it, sells it, or discards it, he is using the property for his own purpose. Because Defendant threw away the EMD in an effort to end the State's ability to monitor his movements, there was evidence in this case that Defendant was using the EMD for his own purpose.
     According to Professor LaFave, the gravamen of conversion is interfering with the rights of the owner, either to the property itself or to the benefit from the manner in which the property was supposed to have been used. The details of the interference are less important than the interference itself. Professor LaFave describes the manner of the interference in broad terms: "using it up, selling it, pledging it, giving it away, delivering it to one not entitled to it, inflicting serious damage to it, claiming it against the owner . . . each of these acts seriously interferes with the owner's rights and so constitutes a conversion" within the meaning of embezzlement. The statutory reference that the wrongdoer's conversion must be "to his own use" is more a reference to a "use" other than that authorized by the owner; or as LaFave states: "These words are not to be taken literally, however, for it is not a requirement for a conversion that the converter gain a personal benefit from his dealing with the property."
       Defendant also claims there was no evidence of the kind of specific fraudulent intent that is necessary to support a conviction for embezzlement. Defendant protests that the district court had to infer intent, since it had not been specifically shown by the State. We do not see this as a basis for reversal. Defendant threw away the EMD after removing it, contrary to his promises in the EMD Wearer's Agreement. This gives rise to a reasonable inference that Defendant fraudulently intended to deprive the State of its property and the intended use thereof. Defendant knew that the EMD belonged to the State and not to him. Defendant also knew that he was not free to dispose of the EMD by throwing it away. Intent involves a defendant's state of mind and is seldom, if ever, susceptible to direct proof. Therefore, intent may be proved by circumstantial evidence. Under the circumstances of this case, it was reasonable for the fact finder to infer that Defendant threw away the State's property with the specific fraudulent intent "to deprive the owner thereof." Fraudulent intent is defined as an intent "to deceive or cheat." In light of Defendant's surreptitious actions, the evidence supports a reasonable inference to that effect.

         Christopher Coleman was convicted by a California jury of carjacking and appealed his conviction on the grounds that there was “insufficient evidence to support his conviction for carjacking.” Oscar Aguayo owned Tony’s Glass Service and drove a Chevrolet truck for business purposes and a white Chevrolet Silverado truck for personal business. On December 10, 2004, he arrived at work at 8 a.m. and parked the Silverado. He placed the car keys to the Silverado in a closet in the back work area of the repair shop and left the premises. Several hours later, Coleman walked into the shop, and the officer manager, Ms. Ortega, explained to Coleman that they did not repair auto glass and that they could not repair his windshield. At 5 p.m., Ortega was preparing to leave when Coleman walked back into the shop and demanded the keys to the truck. Ortega got up from the desk, and the appellant followed her with a gun pointed at her head and again stated that he wanted the keys to the truck. Ortega walked to the back of the shop, opened the closet, and gave the appellant the keys to the Silverado, which Coleman then drove away. Carjacking in California is defined as “the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.” Compare the facts in Coleman to the facts in Montero. As a judge, how would you decide this case? See People v. Coleman, 146 Cal. App. 4th 1363 (Cal. App. 2007).

         Ortega was not within physical proximity to the Silverado, the keys she relinquished were not her own, and there was no evidence that she had been or would a driver or passenger in the Silverado. These facts are too far removed from the type of situation that the statute punishing carjacking was designed to prevent.

        Lamont Darrell Carter appealed his conviction for robbery and for conspiracy to commit common law robbery to a North Carolina appellate court. On May 20, 2004, Sean Rowlett, who worked for Express Teller Services, went to replenish an ATM machine in a grocery store. Rowlett carried a canvas bag inside of which was a plastic bag containing over $100,000 in cash. He placed the bag in a grocery cart and began to fill the ATM with cash. Rowlett felt a “spray” in the back of his head that he described as like a “water gun.” He touched the back of his head, looked at his hand, and discovered that the spray was orange, and the back of his head began to burn. He believed that he might have been the victim of pepper spray or mace. Rowlett turned to his left toward the shopping cart and discovered that the bag containing the money was gone. He looked out the door and saw an individual running away with the sack who later turned out to be Carter. Rowlett had been instructed not to give chase, and he remained in the store and called the police. Was Carter properly convicted of robbery? See State v. Carter, 650 S.E.2d 650 (N.C. App. 2007).

State v. Carter, 650 S.E.2d 650 (N.C.App. 2007).

         Common law robbery "is the felonious taking of money or goods of any value from the person of another, or in his presence, against his will, by violence or putting him in fear." "It is not necessary to prove both violence and putting in fear—proof of either is sufficient." The primary element in dispute here is the final one: Taking the property "by violence or putting [the victim] in fear." Generally the element of force in the offense of robbery may be actual or constructive. Although actual force implies personal violence, the degree of force used is immaterial, so long as it is sufficient to compel the victim to part with his property or property in his possession. On the other hand, under constructive force are included "all demonstrations of force, menaces, and other means by which the person robbed is put in fear sufficient to suspend the free exercise of his will or prevent resistance to the taking . . . [.] No matter how slight the cause creating the fear may be or by what other circumstances the taking may be accomplished, if the transaction is attended with such circumstances of terror, such [as] threatening by word or gesture, as in common experience are likely to create an apprehension of danger and induce a man to part with his property for the sake of his person, the victim is put in fear."

The key distinction here is that, while there clearly was a battery, it did not induce Rowlett to part with the money. The facts as evidenced from Rowlett's own testimony was that he was sprayed with an unidentifiable substance, felt the back of his head to see what it was, and then turned around to find defendant already running out the door with the money. Certainly, spraying someone with pepper spray, even on the back of the head, is a use of force, but in this instance that force did not instill the fear necessary such that defendant's obtaining the money could be considered common law robbery.

      The State argues to this Court that the above-quoted language means that any time a person's "resistance to the taking" of property is "prevent[ed]," constructive force—and therefore a common law robbery—has occurred. This meaning only appears when the phrase is taken out of context. The full sentence states: "under constructive force are included 'all demonstrations of force, menaces, and other means by which the person robbed is put in fear sufficient to [1] suspend the free exercise of his will or [2] prevent resistance to the taking[.]" That is, the person must not only be prevented from resisting; that prevention must be accomplished by putting the person in fear. The State's argument that Rowlett's lack of resistance proves that he was put in fear is unconvincing, particularly considering Rowlett's own testimony that he was instructed not to give chase in the event of a robbery.
       Although we must take the facts in the light most favorable to the State here, the record shows no evidence that the money was taken from Rowlett by the use of violence or putting him in fear. However, the remaining elements of common law robbery—that defendant took money from the person of another, or in his presence, against his will—together constitute the crime of larceny from the person.
     As our Supreme Court has stated, "larceny from the person differs from robbery in that larceny from the person lacks the requirement that the victim be put in fear." Defendant also argues to this Court that, because the money involved was in a cart to Rowlett's side, it was not taken from his person or presence as required for a conviction of common law robbery. The requirement for the crime of larceny from the person is slightly different, so we consider defendant's argument on this point here.
      For the crime of larceny from the person, the property must be taken "'from one's presence and control'" which our Supreme Court has stated means "the property stolen must be in the immediate presence of and under the protection or control of the victim at the time the property is taken." As this explanation suggests, our courts' holdings as to when larceny from the person has been committed have concentrated on the physical proximity of the victim to the property when it was taken. In the case at hand, Rowlett had the money close at hand and was in the middle of the replenishment transaction with the ATM when the money was removed from his possession. Further, although the money does not appear from the record to have been in Rowlett's line of sight, as we noted in Barnes, "if a man carrying a heavy suitcase sets it down for a moment to rest, and remains right there to guard it, the suitcase remains under the protection of his person.” Thus, we find substantial evidence was presented for all the elements of larceny from the person, and as such remand this case for sentencing on that basis.

         At roughly 5 a.m., Alfonso Gomez broke into an Anaheim, California, restaurant. He covered two surveillance cameras with duct tape and broke open and took money from an ATM in the lobby. Gomez then went to the second floor and searched the manager’s office for money. As Gomez went downstairs, he heard the manager, Ramon Baltazar, unlock the front door. Gomez removed a handgun from his backpack and went to the restaurant kitchen. Baltazar noted that the alarm had been deactivated and the ATM damaged, and he heard noise in the kitchen and saw the glow of a flashlight. He went outside to his truck and rang 911. As he spoke to the police dispatcher, Baltazar spotted Gomez exit a side door and walk away. Baltazar shadowed Gomez in his car at a distance of 100 to 150 feet. Gomez fired two shots at Baltazar, explaining that he wanted to scare Baltazar. Gomez drove away and was arrested shortly thereafter with money in his backpack. He was convicted of robbery and burglary. Robbery under the California statute is defined as the “felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” Taking has two aspects: (1) possession of property or caption and (2) carrying the property away or asportation. The asportation continues until the offender reaches a place of safety. Gomez contended on appeal that he did not take “property” from the “person or immediate person” of the defendant through “force or fear.” Is Gomez guilty of robbery? See People v. Gomez, 179 P.3d 917 (Cal. 2008).

People v. Gomez, 179 P.3d 917 (Cal. 2008).

         Section 211 defines robbery as “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” Robbery is, therefore, a species of aggravated larceny. To elevate larceny to robbery, the taking must be accomplished by force or fear and the property must be taken from the victim or in his presence.

      In robbery, the elements of larceny are intertwined with the aggravating elements to make up the more serious offense. The issue here is the temporal point at which the elements must come together. The answer lies in the fact that robbery, like larceny, is a continuing offense. All the elements must be satisfied before the crime is completed. However, as we explain in greater detail below, no artificial parsing is required as to the precise moment or order in which the elements are satisfied. This conclusion is consistent with decades of California jurisprudence.
     Larceny requires the taking of another's property, with the intent to steal and carry it away. “Taking,” in turn, has two aspects: (1) achieving possession of the property, known as “caption,” and (2) carrying the property away, or “asportation.”  Although the slightest movement may constitute asportation, the theft continues until the perpetrator has reached a place of temporary safety with the property.
     The “force or fear” element comes into play not during caption but during asportation, the crime is still a robbery. The question raised by the facts of this case is a related one: If the “immediate presence” element arises not at caption but during asportation, is there a robbery? The answer is yes and for the same reason articulated in Cooper and Anderson: robbery is a continuing offense. If the aggravating factors are in play at any time during the period from caption through asportation, the defendant has engaged in conduct that elevates the crime from simple larceny to robbery.
     Here, by concluding that the “immediate presence” element of robbery may be satisfied during the asportation phase, even when the victim is not present at the time the defendant gains possession of the property, we do not extend the statutory language. Decades of case law have made clear that robbery in California is a continuing offense, the “taking” comprising asportation as well as caption. Our holding that the crime of robbery occurs when property is forcefully retained in the victim's presence, even when the victim was not present at its initial caption, is completely consistent with the Legislature's decision to treat robbery as an aggravated larceny. Although classified in the Penal Code as a crime against the person, robbery is actually a crime against both the person and property. “Robbery violates the social interest in the safety and security of the person as well as the social interest in the protection of property rights.” Both interests are implicated when a victim attempts to regain property from a perpetrator who is carrying it away, even if the victim was absent at the time of the initial theft.      Defendant argues that “the law does not encourage vigilantism and citizens are ill equipped to engage in law enforcement.” Neither does the law encourage theft, or require that a citizen sit meekly by while a violent felon makes off with the victim's property. “When the perpetrator and victim remain in close proximity, a reasonable assumption is that, if not prevented from doing so, the victim will attempt to reclaim his or her property.” We reject any effort by defendant to shift the blame to the victim. It is the conduct of the perpetrator who resorts to violence to further his theft, and not the decision of the victim to confront the perpetrator, that should be analyzed in considering whether a robbery has occurred. As we observed in People v. Ramos (1982) 639 P.2d 908, “the central element of the crime of robbery [is] the force or fear applied to the individual victim in order to deprive him of his property.” That deprivation of property occurs whether a perpetrator relies on force or fear to gain possession or to maintain possession against a victim who encounters him for the first time as he carries away the loot.
     Here, there is sufficient evidence from which the jury could find that defendant used force to retain the stolen money that was in Baltazar's immediate presence when the force was used. In resolving sufficiency of the evidence claims, “an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” The evidence supports the jury's determination that defendant used force to retain the property, and sufficiently satisfies the immediate presence element. While Baltazar did not confront defendant inside the restaurant, he followed in his truck after defendant left carrying the money in his backpack. When defendant realized he was being followed, he fired two shots at Baltazar from a distance of 100 to 150 feet. As the Court of Appeal stated, “[I]f not overcome by [defendant's] resistance, Baltazar could have caught up to him . . . . The only reason this didn't happen is that [defendant]—and his pistol—didn't let it. [Defendant] should not be rewarded for taking violent actions that prevented Baltazar from getting any closer to him. It would certainly be anomalous to say a robbery occurs if you allow the victim to catch up with you and then hit him, but not if you keep him away by shooting at him.”