Was Carter guilty of larceny?

Goodwyn, J.

Issue

In this appeal of a conviction for grand larceny, we consider whether asportation and assertion of ownership of property is sufficient to prove intent to steal that property.

Jack Edward Carter was indicted by a Henrico County grand jury for stealing paint from a home improvement supply store (the store), in violation of Code § 18.2-95. Carter asserted at trial and in the Court of Appeals that the Commonwealth failed to prove he intended to steal the paint. At the conclusion of a bench trial, the circuit court convicted him of grand larceny and fixed his punishment at incarceration for a term of three years with the execution of two years and six months suspended Carter appeals.

Facts

On August 22, 2007, Jack Edward Carter and his friend Tracy Browning traveled by truck, with several other individuals, to a home improvement supply store in Henrico County. Pursuant to a predetermined plan, Carter entered the store and placed four 5-gallon buckets of paint, valued at $398.92, in a shopping cart. Browning waited outside for a few minutes and then followed Carter into the store. Browning waited for Carter by the “returns” desk, where customers could take items, previously purchased from the store, for a refund of the purchase price. Carter approached Browning and gave her the shopping cart containing the buckets of paint. As planned, Browning represented that the paint had been previously purchased from the store and requested payment for its return. LeDawn Sawyer, an assistant store manager who was called to approve the return, recognized Browning as someone she had been alerted to look for. Sawyer obtained Browning’s identification card and contacted a loss prevention employee, who summoned the police.

Police officers arrived at the store and spoke with Browning. Browning acknowledged the details of the plan she and Carter had made to seek a refund payment for paint that neither she nor Carter had purchased from the store. Browning admitted that “the deal was supposed to be that Mr. Carter was supposed to go into the [store], get some paint, bring it out somewhere [near] the refund desk. [Browning was] to go to the refund desk and ask for a refund on the paint.” There was no plan as to what she would do with the paint if the store refused to give her a refund.

The police officers received information from Browning regarding Carter’s location and went to arrest him. Carter tried to flee, but the police officers apprehended him.

At the conclusion of the Commonwealth’s evidence, Carter moved to strike the Commonwealth’s evidence on the basis that the Commonwealth failed to prove that he and Browning intended to steal the paint. The circuit court denied the motion. Carter did not present any evidence, and renewed his motion to strike, which the court denied.

Reasoning

Carter argues that, as a matter of law, the evidence presented by the Commonwealth was not sufficient to find him guilty of grand larceny because the Commonwealth failed to prove he had an intent to steal the paint. The Commonwealth claims that the asportation of the paint by Carter, and the assertion of ownership of the paint, pursuant to his plan, is sufficient evidence to support a finding that Carter intended to steal the paint so that it could be returned to the store for a refund.

Carter does not dispute that there was asportation of the paint by him, nor does he dispute that he and Browning were working together and that each is criminally responsible for the actions of the other. His sole assignment of error concerns the allegation that the scheme he was involved in with Browning did not involve stealing the store’s paint because, after asserting ownership of the paint, he and Browning planned to relinquish the paint upon receiving payment from the store, without removing the paint from the store. He notes there was no agreement as to what would be done with the paint if the store did not pay the refund.

In Virginia, larceny is a common law crime. We have defined larceny as “the wrongful or fraudulent taking of personal goods of some intrinsic value, belonging to another, without his assent, and with the intention to deprive the owner thereof permanently.” Stated simply, larceny requires that there be a taking and asportation of the seized goods, coupled with an intent to steal those goods. “The defendant’s intent to steal must exist at the time the seized goods are moved.”

We have stated that “[i]ntent is the purpose formed in a person’s mind at the time an act is committed.” “Intent may, and often must, be inferred from the facts and circumstances of the case, including the actions of the accused and any statements made by him.” It is undisputed that at the time he picked up the paint, Carter intended to have his accomplice assert ownership of the store’s paint without paying the store for that paint, and to ask the store to pay for its return. True to their scheme, Carter’s accomplice moved the paint, represented ownership of that paint to the store’s employee, and requested a refund payment.

Common law larceny requires a trespassory taking. Carter, in essence, asserts that there was no trespassory taking and intent to permanently deprive the store of its paint because his scheme did not involve the paint being at any time physically removed from the store. At the core of Carter’s defense is the issue of what constitutes sufficient possession and asportation to sustain a conviction for larceny from a self-service retail store.

A trespassory taking is a taking or removal of possession of property from the owner with felonious intent; a violation of an owner’s possessory right constitutes a trespassory taking. Because every customer in a self-service store has implied permission to move merchandise, placed on open display, unconcealed about the premises of the store, the trespassory taking and carrying away of the merchandise of another does not usually occur at such a store when the property is moved on the premises. If, however, there is some conduct by the customer which makes the customer’s possession clearly adverse to the store, there is a trespassory taking.

A trespassory taking is most easily proven by a defendant leaving the store without paying for merchandise. However, removal of the targeted property from the owner’s premises is not required for there to be a trespassory taking, and permanent loss by the owner is not a required element of larceny. One may be said to have taken another’s property by trespass though he has not removed it from the other’s premises or from his presence.” If the defendant does not leave the premises, the evidence must establish that the defendant in some way, within the store, exercised trespassory possession of the goods inconsistent with the owner’s rights.

The representation of ownership of the store’s paint by Carter’s accomplice was an exercise of possession clearly adverse to the store and inconsistent with the store’s right to its paint. It is also evidence of his accomplice’s immediate dominion and control of the paint. The assertion of ownership in seeking a refund was evidence of and, in fact, confirmed that there had been a trespassory taking of the paint, and it evidenced an intent to deprive the owner thereof permanently.

The trespassory taking, evidenced in the instant case by asserting ownership, is no different than a trespassory taking by walking out of the store without paying for the paint. At the point ownership of the paint was asserted, there was evidence that Carter and his accomplice had taken the store’s paint just the same as if they had walked out of the store with that paint. Where there is evidence that an individual has acted in a manner that is inconsistent with that of a prospective purchaser, and has exercised immediate dominion and control over the property, despite his continued presence within the owner’s store, such conduct establishes sufficient possession to constitute larceny. When one wrongfully takes property of another with intent to deprive the owner thereof, larceny is complete, though the accused afterwards abandons it.

“One who takes another’s property intending at the time he takes it to use it temporarily and then to return it unconditionally within a reasonable time—and having a substantial ability to do so—lacks the intent to steal required for larceny.” An intent to return, however, must be unconditional. Thus it is no defense to larceny that the taker intends to return the property only if he should receive a reward for its return, or only upon some other condition which he has no right to impose. According to their scheme, Carter and his accomplice intended to return the paint upon receipt of a payment for returning it, a condition which they had no right to impose.

Holding

We hold that the Court of Appeals did not err in concluding that the evidence was sufficient to support Carter’s conviction. For the foregoing reasons, the judgment of the Court of Appeals is affirmed.

Millette, J. with whom Koontz, J. joins dissenting

Larceny requires an intent to deprive the owner of its property permanently. I disagree with the majority’s statement that the essence of Carter’s argument is that there was no trespassory taking and intent to permanently deprive the store of its property because the paint was never physically removed from the store. Rather, Carter’s argument is that he never had the intent to keep the paint, and thus never intended to permanently deprive the owner of the paint. Carter’s intent was to use the paint as a vehicle in his scheme to defraud the store of the value of the paint. According to the evidence, the gravamen of Carter’s offense was not the larceny of the paint, but obtaining a fraudulent refund for the paint, constituting the crime of obtaining money by false pretenses. The elements of false pretenses are: (1) an intent to defraud; (2) an actual fraud; (3) use of false pretenses for the purpose of perpetrating the fraud; and (4) accomplishment of the fraud by means of the false pretenses used for the purpose, that is, the false pretenses to some degree must have induced the owner to part with his property.

 The evidence in this case could only establish that Carter, with the aid of Browning, was attempting to commit the crime of obtaining money by false pretenses. Both the Commonwealth and the circuit court clearly understood that there was never any intent to permanently deprive the store of the paint. The only intent was to fraudulently obtain the refund money by means of the false pretense that Browning had previously purchased the paint and was entitled to a refund.

In addition, there is no evidence to support a finding that Carter intended to take the paint and return it only in exchange for a refund. The Court of Appeals erred when it presumed that the circuit court concluded that Browning would have removed the paint from the store if she did not obtain a refund, because the evidence presented by the Commonwealth was that there was no intent by either Carter or Browning to ever take the paint out of the store. Browning testified that she did not know what she would have done if a return was refused, because that was not the scheme, and she and Carter had only discussed her obtaining the refund. There was no evidence of any intent to keep the paint, such as a need for the paint or even the means of removing the paint from the store. In fact, Carter was down the street in a bar waiting for Browning to come to him with the refund money. The Commonwealth never argued that Browning intended to keep the paint and, in fact, attempted to amend the indictment to indicate that money, instead of the paint, was the subject of the larceny. The Commonwealth argued that the property stolen in the larceny was the refund money. The circuit court never found an intent to permanently deprive the store of the paint because the court found that the intent was to steal money using the paint as a vehicle to get a refund.

Questions for Discussion

1. Describe the scheme followed by Browning and Carter.

2. Why does the Virginia Supreme Court conclude that the defendants committed a larceny?

3. Is the decision in Carter consistent with the decision in Gasparik?

4. Summarize the argument of the dissent in Carter.

Was Redondo properly convicted under the California statute?

Defendant’s conviction under section 504 was based on his fraudulent appropriation of his official vehicle to steal the lawnmower. Section 504 provides: “Every officer of this state, or of any county, city, city and county, or other municipal corporation or subdivision thereof, and every deputy, clerk, or servant of any such officer, and every officer, director, trustee, clerk, servant, or agent of any association, society, or corporation (public or private), who fraudulently appropriates to any use or purpose not in the due and lawful execution of his trust, any property which he has in his possession or under his control by virtue of his trust, or secretes it with a fraudulent intent to appropriate it to such use or purpose, is guilty of embezzlement.”

(1) Defendant argues that his use of the vehicle was purely incidental to the target offense and such momentary use of property cannot constitute embezzlement of the property. Defendant contends that in order for the taking to be a violation of section 504, it must be made with the intent to permanently deprive the owner of the property for at least an extended period of time.

In order to prove a violation of section 504, it must be shown that the defendant “is (1) an officer of a city or other municipal corporation or subdivision thereof or a deputy, clerk, or servant of such an officer (2) who fraudulently appropriated property in his possession and control entrusted to him for a use or purpose not in a lawful execution of that trust. These elements `may be proved by circumstantial evidence and reasonable inferences drawn from such evidence.’”

People v. Harby (1942) 51 Cal.App.2d 759 [125 P.2d 874] is most closely on point to the facts presented here. In Harby, a city councilperson used a city-owned automobile to travel more than 4,000 miles on a pleasure trip. He was charged with willful or corrupt misconduct in office in violation of section 504 and Los Angeles Municipal Code section 63.106. The appellate court found the defendant had embezzled property from the city. “To drive a city-owned automobile on a 4,000 mile pleasure jaunt was so clearly an appropriation of the vehicle to a private use that illustration and authority seem supererogatory. His only right to the Chrysler was to use it in performing the city’s business.” (51 Cal. App.2d at p. 770) “Such a journey without authorization required a use of the car that was inconsistent with its owner’s rights and inconsistent with the nature of the trust reposed in appellant and therefore it was an embezzlement.” (Id. at p. 771) The appellate court commented that “a journey subjected the automobile to substantial detriment. It was therefore to the extent of its use an embezzlement of the property of the city.” (Id. at p. 772)

Although defendant’s journey here was substantially briefer than the defendant’s journey in Harby, his use was without authorization and was clearly inconsistent with the owner’s rights and inconsistent with the nature of the trust reposed in defendant. Defendant not only used the automobile to steal the lawnmower, but used it to evade Sergeant Broughton at high speeds. By doing so, he subjected the automobile to detriment.

In People v. Dolbeer (1963) 214 Cal.App.2d 619, the defendant enlisted the aid of a phone company employee to provide him with a daily list of new phone company subscribers. After defendant was given the list, he quickly copied and returned them to the employee. (Id. at pp. 621-622) The appellate court found the lists were property because they were physical goods and had a value. (Id. at pp. 622–623) The appellate court also found that, even though the lists were returned promptly, an embezzlement had occurred and the defendant appropriated the lists with the intent to defraud. (Id. at p. 625)

Here, defendant’s use of the vehicle was for a very brief period of time, but defendant appropriated the property to a purpose not in the due and lawful execution of his trust. Section 504 defines a violation in broad terms as “any use or purpose not in the due and lawful execution of his trust.” Defendant’s utilization of the car, although brief, was an appropriation not in the public interest.

Did Ramirez obtain “anything of value”? How would you respond to Ramirez’s argument that this is an ex post facto prosecution based on the fact that the Wisconsin statute did not take effect until April 27, 1999?

Ramirez was an illegal resident of the United States and did not have a social security number. On September 2, 1997, Ramirez obtained employment at Trek Bike in Walworth county. On June 4, 1999, a human resources manager at Trek Bike reported to the police that a list of people with corresponding social security numbers had been discovered in the desk of a former employee who had been fired. One of the social security numbers was listed to a Jose Ramirez. A check with the social security administration revealed that this social security number was actually assigned to Benjamin Wulfenstein of Elko, Nevada. In an interview with the police, Ramirez stated that Jose Ramirez was his cousin and that Jose had sent him the social security card two years earlier. Ramirez admitted that he had used Wulfenstein’s social security number when he applied for employment at Trek Bike. Trek Bike terminated Ramirez on July 6, 1999.

Based on this information, the State charged Ramirez with intentionally misappropriating the personal identifying information of an individual to obtain a thing of value without the individual’s consent pursuant to Wis. Stat. § 943.201(2). Wisconsin Stat. § 943.201(2) reads as follows:

“Whoever intentionally uses or attempts to use any personal identifying information or personal identification document of an individual to obtain credit, money, goods, services or anything else of value without the authorization or consent of the individual and by representing that he or she is the individual or is acting with the authorization or consent of the individual is guilty of a Class D felony.”

Wis. Stat. § 943.201(2) did not become effective until April 27, 1998, after the date he obtained employment at Trek Bike. After hearing the arguments of counsel, the trial court ruled that the offense was a “continuing charge, and every Friday when the checks were cut, he got money; and it was upon his representation that he … possessed lawfully this Social Security Number.” Ramirez then pled guilty and he takes this appeal.

Issue

Ramirez contends that even if Wis. Stat. § 943.201(2) creates a continuing offense, the only thing of value that he obtained as a result of his unauthorized use of Wulfenstein’s social security number was the opportunity of employment with Trek Bike. Since this event occurred before the effective date of the statute, Ramirez argues that the application of the statute represents an ex post facto law. If we reject this argument and conclude that Ramirez obtained something of value after the effective date of the statute, Ramirez argues that his conduct still was not criminal since § 943.201(2) does not create a continuing offense.

Reasoning

We first determine whether Ramirez obtained a thing of value as the result of his unauthorized use of Wulfenstein’s social security number. Ramirez contends that all he obtained was a job, which he describes as “the opportunity to work.” He says, “A job has no intrinsic value if it is obtained and then the employee squanders the opportunity and never begins to work. What makes a job valuable is the opportunity to work hard and earn money.” We think this is far too narrow a concept of the value of Ramirez’s employment at Trek Bike. True, Ramirez obtained employment at Trek Bike. But what Ramirez ultimately sought and obtained was the compensation and other economic benefits that flowed from the employment. Obviously these were things of value and since Ramirez obtained these things after the effective date of the statute, we hold that the statute as applied was not an ex post facto law.

Wisconsin Stat. § 943.201(2) makes it a crime to intentionally use the personal identifying information or document of another for purposes of obtaining “credit, money, goods, services or anything else of value” without the consent of the other person and by representing that the actor is the other person or is acting with the consent or authorization of such person. This crime has four elements: (1) the defendant’s intentional use of the personal identifying information or document; (2) the defendant’s use of such information to obtain credit, money, goods, services, or anything else of value; (3) the defendant’s use of such information without the authorization or consent of the other person; and (4) the defendant’s intentional representation that he or she was the other person or acted with such person’s authorization or consent.

Ramirez concedes that he intentionally used Wulfenstein’s social security number to conceal his illegal resident status and his true identity in order to obtain employment at Trek Bike and that he did so without Wulfenstein’s consent or authorization. Rather, it is the second element that lies at the heart of this case. This element requires that the defendant “obtain credit, money, goods, services or anything else of value.”

While Wis. Stat. § 943.201(2) may be clear enough as to what it criminalizes, it is not so clear as to whether it creates a continuing offense. Wis. Stat. § 943.201(2) requires that as a consequence of the identity theft, the defendant must have obtained “credit, money, goods, services or anything else of value.” Common sense would advise that in most cases of identity theft, that consequence will be a recurring, not an isolated, event. This suggests that the statute creates a continuing offense.

We must ascertain the legislative intent from the language of the statute in relation to its scope, history, context, subject matter and object intended to be accomplished. The legislative history of Wis. Stat. § 943.201(2) does not expressly speak to the issue of whether the legislation creates a continuous offense. However, the legislative history includes an article from the Los Angeles Times concerning proposed identify theft legislation in California. This article is informative because it speaks of the ongoing harm inflicted on victims of identity theft.

With just a few key information coordinates, a crook can start phone service in your name, open charge cards, take over your existing credit lines and change the address on hijacked accounts so statements go to a mail drop. The actual number of consumers affected and volume of loss have increased, however, as the industry surges toward $ 2 trillion a year in transactions. Incidents of identity fraud—the kind that leaves consumers most helpless—were reported at one major company to have risen 540% in the U.S. during the first half of 1995, and industry wide it is estimated to account for as much as $ 90 million of the $ 1.5 billion written off as card fraud losses, according to various industry sources. Patric Hedlund, Identity Crisis, L.A. TIMES, Mar. 11, 1997.

This history reveals that Wis. Stat. § 943.201(2) was targeted at much more than the isolated act of misappropriating the personal identifying information of another or the initial receipt by the defendant of a thing of value as a result of the misappropriation. Rather, the legislation addressed a problem of much larger proportion with far greater consequences. Given this scope, history, context, and legislative objective of the statute, we conclude that the legislature envisioned that the theft of a person’s identity would, in many instances, produce recurring episodes in which the defendant would obtain things of value as a result of the original act of identity theft. Hence, the statutory language, “to obtain credit, money, goods, services or anything else of value.” We therefore conclude that the statute creates a continuing offense.

Holding

From this it follows that Ramirez’s conduct in this case violated Wis. Stat. § 943.201(2) after the statute became effective. As a result of his unauthorized use of Wulfenstein’s social security number, Ramirez obtained money in the form of wages from Trek Bike over the course of his employment and after the effective date of the statute. Absent Ramirez’s unauthorized use of Wulfenstein’s social security number, Trek Bike could not have legally hired Ramirez. Because identity theft is a continuing offense and because Ramirez’s criminal conduct occurred after the statute became effective, the application of the statute against Ramirez did not violate the ex post facto provisions of the Wisconsin Constitution.

We hold that Ramirez obtained money in the form of wages, not merely the opportunity for employment, as the result of his unauthorized use of Wulfenstein’s personal identifying information. We also hold that the statute creates a continuing offense. Since Ramirez’s identity theft allowed him to obtain wages after the effective date of the statute, we hold that the application of the statute did not violate the ex post facto provisions of the Wisconsin Constitution.

Is the intentional breach of an Internet website’s terms of service sufficient to constitute a criminal violation of the CFAA?

This case raises the issue of whether (and/or when will) violations of an Internet website’s terms of service constitute a crime under the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030. The question in the present motion is whether an intentional breach of an Internet website’s terms of service, without more, is sufficient to constitute a misdemeanor violation of the CFAA.

Facts

The Indictment included the following allegations (not all of which were established by the evidence at trial). Drew, a resident of O’Fallon, Missouri, entered into a conspiracy in which its members agreed to intentionally access a computer used in interstate commerce without (and/or in excess of) authorization in order to obtain information for the purpose of committing the tortuous act of intentional infliction of emotional distress upon “M.T.M.,” subsequently identified as Megan Meier (“Megan”). Megan was a 13-year-old girl living in O’Fallon who had been a classmate of Drew’s daughter Sarah. Pursuant to the conspiracy, on or about September 20, 2006, the conspirators registered and set up a profile for a fictitious 16 year old male juvenile named “Josh Evans” on the MySpace website, and posted a photograph of a boy without that boy’s knowledge or consent. Such conduct violated MySpace’s terms of service. The conspirators contacted Megan through the MySpace network (on which she had her own profile) using the Josh Evans pseudonym and began to flirt with her over a number of days. On or about October 7, 2006, the conspirators had “Josh” inform Megan that he was moving away. On or about October 16, 2006, the conspirators had “Josh” tell Megan that he no longer liked her and that “the world would be a better place without her in it.” Later on that same day, after learning that Megan had killed herself, Drew caused the Josh Evans MySpace account to be deleted.

The jury found the Defendant “guilty” “of accessing a computer involved in interstate or foreign communication without authorization or in excess of authorization to obtain information in violation of Title 18, United States Code, Section 1030(a)(2)(C) and (c)(2)(A), a misdemeanor.”

Reasoning

As Jae Sung (Vice President of Customer Care at MySpace) (“Sung”) testified at trial, MySpace is a “social networking” website where members can create “profiles” and interact with other members. Anyone with Internet access can go onto the MySpace website and view content which is open to the general public such as a music area, video section, and members’ profiles which are not set as “private.” However, to create a profile, upload and display photographs, communicate with persons on the site, write “blogs,” and/or utilize other services or applications on the MySpace website, one must be a “member.” Anyone can become a member of MySpace at no charge so long as they meet a minimum age requirement and register.

In 2006, to become a member, one had to go to the sign-up section of the MySpace website and register by filling in personal information (such as name, email address, date of birth, country/state/postal code, and gender) and creating a password. In addition, the individual had to check on the box indicating that “You agree to the MySpace Terms of Service and Privacy Policy.” The terms of service did not appear on the same registration page that contained this “check box” for users to confirm their agreement to those provisions. In order to find the terms of service, one had (or would have had) to proceed to the bottom of the page where there were several “hyperlinks” including one entitled “Terms.” Upon clicking the “Terms” hyperlink, the screen would display the terms of service section of the website. A person could become a MySpace member without ever reading or otherwise becoming aware of the provisions and conditions of the MySpace terms of service by merely clicking on the “check box” and then the “Sign Up” button without first accessing the “Terms” section.

As used in its website, “terms of service” refers to the “MySpace.com Terms of Use Agreement” (“MSTOS”). The MSTOS in 2006 stated, inter alia:

“This Terms of Use Agreement (“Agreement”) sets forth the legally binding terms for your use of the Services. By using the Services, you agree to be bound by this Agreement.  By using the Services, you represent and warrant that (a) all registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are 14 years of age or older; and (d) your use of the Services does not violate any applicable law or regulation.”

The MSTOS prohibited the posting of a wide range of content on the website including (but not limited to) material that: a) “is potentially offensive and promotes racism, bigotry, hatred or physical harm of any kind against any group or individual”; b) “harasses or advocates harassment of another person”; c) “solicits personal information from anyone under 18”; d) “provides information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous”; e) “includes a photograph of another person that you have posted without that person’s consent”; f) “involves commercial activities and/or sales without our prior written consent”; g) “contains restricted or password only access pages or hidden pages or images”; or h) “provides any phone numbers, street addresses, last names, URLs or email addresses.” MySpace also reserved the right to take appropriate legal action (including reporting the violating conduct to law enforcement authorities) against persons who engaged in “prohibited activity” which was defined as including, inter alia: a) “criminal or tortuous activity”, b) “attempting to impersonate another Member or person”, c) “using any information obtained from the Services in order to harass, abuse, or harm another person”, d) “using the Service in a manner inconsistent with any and all applicable laws and regulations”, e) “advertising to, or solicitation of, any Member to buy or sell any products or services through the Services”, f) “selling or otherwise transferring your profile”, or g) “covering or obscuring the banner advertisements on your personal profile page. ” The MSTOS warned users that “information provided by other MySpace.com Members (for instance, in their Profile) may contain inaccurate, inappropriate, offensive or sexually explicit material, products or services, and MySpace.com assumes no responsibility or liability for this material.” Further, MySpace was allowed to unilaterally modify the terms of service, with such modifications taking effect upon the posting of notice on its website. Thus, members would have to review the MSTOS each time they logged on to the website, to ensure that they were aware of any updates in order to avoid violating some new provision of the terms of service. Also, the MSTOS provided that “any dispute” between a visitor/member and MySpace “arising out of this Agreement must be settled by arbitration” if demanded by either party.

At one point, MySpace was receiving an estimated 230,000 new accounts per day and eventually the number of profiles exceeded 400 million with over 100 million unique visitors worldwide. Generally speaking, MySpace would not monitor new accounts to determine if they complied with the terms of service except on a limited basis, mostly in regards to photographic content. Sung testified that there is no way to determine how many of the 400 million existing MySpace accounts were created in a way that violated the MSTOS. The MySpace website did have hyperlinks labeled “Safety Tips” (which contained advice regarding personal, private and financial security vis-a-vis the site) and “Report Abuse” (which allowed users to notify MySpace as to inappropriate content and/or behavior on the site). MySpace attempts to maintain adherence to its terms of service. It has different teams working in various areas such as “parent care” (responding to parents’ questions about this site), handling “harassment/cyberbully cases, imposter profiles,” removing inappropriate content, searching or underage users, etc. As to MySpace’s response to reports of harassment: “It varies depending on the situation and what’s being reported. It can range from … letting the user know that if they feel threatened to contact law enforcement, to us removing the profile, and in rare circumstances we would actually contact law enforcement ourselves.”

Profiles created by adult MySpace members are by default available to any user who accesses the MySpace website. The adult members can, however, place privacy settings on their accounts such that only preauthorized “friends” are able to view the members’ profile pages and contents. For members over 16 but under 18, their profiles are by default set at “private” but can be changed by the member. Members under 16 have a privacy setting for their profiles which cannot be altered to allow regular public access. To communicate with a member whose profile has a privacy setting, one must initially send a “friend” request to that person who would have to accept the request. To become a “friend” of a person under 16, one must not only send a “friend” request but must also know his or her email address or last name.

In 2006, the CFAA (18 U.S.C. § 1030) provided in relevant part that:

“(a) Whoever—

(2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains—

(A) information contained in a financial record of a financial institution, or of a card issuer as defined in section 1602(n) of title 15, or contained in a file of a consumer reporting agency on a consumer, as such terms are defined in the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.);

(B) information from any department or agency of the United States; or

(C) information from any protected computer if the conduct involved an interstate or foreign communication;

…

shall be punished as provided in subsection (c) of this section.

…

(c) The punishment for an offense under subsection (a) or (b) of this section is—

…

(2)(A) except as provided in subparagraph (B), a fine under this title or imprisonment for not more than one year, or both, in the case of an offense under subsection (a)(2), (a)(3), (a)(5)(A)(iii), or (a)(6) of this section which does not occur after a conviction for another offense under this section, or an attempt to commit an offense punishable under this subparagraph; …

(B) a fine under this title or imprisonment for not more than 5 years, or both, in the case of an offense under subsection (a)(2), or an attempt to commit an offense punishable under this subparagraph, if—

(i) the offense was committed for purposes of commercial advantage or private financial gain;

(ii) the offense was committed in furtherance of any criminal or tortuous act in violation of the Constitution or laws of the United States or of any State; or

(iii) the value of the information obtained exceeds $ 5,000 …

As used in the CFAA, the term “computer” “includes any data storage facility or communication facility directly related to or operating in conjunction with such device” 18 U.S.C. § 1030(e)(1). The term “protected computer” “means a computer—(A) exclusively for the use of a financial institution or the United States Government …; or (B) which is used in interstate or foreign commerce or communication .” § 1030(e)(2). The term “exceeds authorized access” means “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.” (§ 1030(e)(6))

During the relevant time period herein, the misdemeanor 18 U.S.C. § 1030(a)(2)(C) crime consisted of the following three elements:

“First, the defendant intentionally [accessed without authorization] [exceeded authorized access of] a computer;

Second, the defendant’s access of the computer involved an interstate or foreign communication; and

Third, by [accessing without authorization] [exceeding authorized access to] a computer, the defendant obtained information from a computer … [used in interstate or foreign commerce or communication].”

In this case, a central question is whether a computer user’s intentional violation of one or more provisions in an Internet website’s terms of services (where those terms condition access to and/or use of the website’s services upon agreement to and compliance with the terms) satisfies the first element of section 1030(a)(2)(C). If the answer to that question is “yes,” then seemingly, any and every conscious violation of that website’s terms of service would violate federal law.

Treating a violation of a website’s terms of service, without more, to be sufficient to constitute “intentionally access[ing] a computer without authorization or exceed[ing] authorized access” would result in transforming section 1030(a)(2)(C) into an overwhelmingly overbroad enactment that would convert a multitude of otherwise innocent Internet users into misdemeanant criminals … One need only look to the MSTOS terms of service to see the expansive and elaborate scope of such provisions whose breach engenders the potential for criminal prosecution. Obvious examples of such breadth would include: 1) the lonely-heart who submits intentionally inaccurate data about his or her age, height and/or physical appearance, which contravenes the MSTOS prohibition against providing “information that you know is false or misleading”; 2) the student who posts candid photographs of classmates without their permission, which breaches the MSTOS provision covering “a photograph of another person that you have posted without that person’s consent”; and/or 3) the exasperated parent who sends out a group message to neighborhood friends entreating them to purchase his or her daughter’s girl scout cookies, which transgresses the MSTOS rule against “advertising to, or solicitation of, any Member to buy or sell any products or services through the Services.” However, one need not consider hypotheticals to demonstrate the problem. In this case, Megan (who was then 13 years old) had her own profile on MySpace, which was in clear violation of the MSTOS which requires that users be “14 years of age or older.” No one would seriously suggest that Megan’s conduct was criminal or should be subject to criminal prosecution.

Holding

In sum, if any conscious breach of a website’s terms of service is held to be sufficient by itself to constitute intentionally accessing a computer without authorization or in excess of authorization, the result will be that section 1030(a)(2)(C) becomes a law “that affords too much discretion to the police and too little notice to citizens who wish to use the [Internet].

Should the Texas appellate court affirm Sonnier’s conviction?

The essential elements of theft by receiving are: (1) that a theft occurred by another person; (2) the defendant received the stolen property; and (3) when the defendant received the stolen property she knew it was stolen. Under the statute and the indictment, the State had the burden to prove beyond a reasonable doubt, that appellant had actual subjective knowledge that the speakers were stolen. The evidence, viewed in the light most favorable to the prosecution, shows:

– On the same day the speakers were stolen, two men brought them to a pawn shop to hock them.

– When the pawn shop refused to accept the speakers because neither man would offer identification, the two men left, and then returned with appellant.

– Appellant pawned the four speakers for the two men. She used her driver’s license, giving her correct name and address. She received $ 225 for the four speakers, about $ 56 for each, while they were worth at least $ 350 each.

The State emphasized in the trial court, and on appeal, that the sheer value of the speakers is enough for the trial court to find appellant knew they were stolen. The State argues that selling stolen property for less than market value is some evidence that the seller knew the property was stolen. However, here the speakers were pawned, not sold, and the evidence does not indicate that the pawn shop paid an unusually low amount to pawn the speakers. Further, the evidence does not show that appellant, or any reasonable person of common experience, would likely even know the market value of the speakers. We cannot say that the circumstances in this case exclude every other reasonable hypothesis except the hypothesis that appellant knew the speakers were stolen when she pawned them. We find, under the circumstances, appellant just as reasonably could have been doing a favor for her friends or acquaintances when she accompanied them to the pawn shop and used her own ID so the speakers could be pawned.

Appellant was in possession of the speakers when she pledged them at the pawn shop. This was a distinct and conscious assertion of a right to the property. She pawned the speakers on the day they were stolen, a “recent” possession. The explanation for appellant’s possession of the speakers came from the State’s witnesses, as well as appellants. The evidence is uncontradicted that two men possessed the speakers and tried to pawn them. It was only when the two men were not allowed to pawn the speakers that they left, and then returned to the same pawn shop accompanied by appellant. The explanation for appellant’s possession or control over the speakers is clear and uncontested—the two men requested her help in getting the speakers pawned. There is no evidence of what the two men told appellant in order to get her help. We find nothing in the record to contradict the hypothesis that appellant may have believed the speakers belonged to one of the two men. There is not one shred of evidence placing appellant at the complainant’s club at the time the speakers were removed; the evidence, instead, points only to complainant’s prior employee, Burton, as the likely thief.

Did Scull’s impersonation of McGovern constitute forgery?

Common law forgery has three elements: (a) The false making or material alteration (b) with intent to defraud (c) of a writing which, if genuine, might be of legal efficacy. McGovern and Scull contend that under the facts, the first element cannot be established. They rely on the common law precept that authority to sign another’s name to a written instrument negates a charge of forgery regardless of fraud or falsehood in the transaction. Whatever validity this argument may have in other contexts, we do not believe that those cases control a traveler’s check transaction.

 The purchaser’s agreement to sign each traveler’s check at the time of purchase and to countersign the checks only in the presence of the person cashing them, in our view, invalidates his attempt to authorize another to sign his name. Traveler’s checks are unique. These instruments are negotiated freely because of the assured credit of the check issuer and relative ease of determining signature validity. The traveler’s check contract clearly denies the purchaser the right to authorize another to sign for him or her.

Moreover, under the facts presented here, the businesses cashing the checks were deliberately deceived into believing that the person signing the checks was the purchaser. They, as much as Citibank, were defrauded in the transaction because Scull was impersonating McGovern. This case, therefore, differs from cases in which the person accepting the instrument was informed of the purported authorization. If the authorization was valid, there would be no forgery and no defrauding of the cashing person. Of course, a person who cashes a traveler’s check in those circumstances is on notice that the issuer of the check may refuse to honor the instrument because of an invalid signature. But the knowledge of the cashing person that the person signing is acting in a representative capacity negates a charge of forgery. When the person signing the traveler’s checks is an imposter, however, his unauthorized signature on a traveler’s check, when accompanied by an intent to defraud, constitutes common law forgery.

McGovern, the purchaser of the traveler’s checks, knew the effect his actions would have on Citibank and on the business cashing them, indeed, appellants conceded that this was the sole purpose of having Scull sign the checks. Scull was an imposter and possessed no authority to sign the checks because McGovern could not grant him this authority. When coupled with the appellants’ intent to defraud, the unauthorized signature on the otherwise legally sufficient instruments constituted common law forgery. The elements of the offense having been established, the court concluded that the convictions must stand (text taken directly from judgment of the court).

Did Williams take the victim’s wallet through the “use of force, however slight”?

Issue

In this case, we called upon to determine whether robbery or theft occurs when an unconscious, intoxicated victim is rolled over onto his side and his wallet is stolen out of his pants pocket.

Facts

On September 2, 1985, the appellant, Ronald Williams, and the victim were drinking wine with Frank Morrow and an unidentified male on the corner of Ninth and Parade Streets in Erie, Pennsylvania. The victim passed out on his back. Eyewitnesses observed appellant roll the victim onto his side and remove his wallet from his pants pocket. The police were called. When the police arrived, one of the eyewitnesses motioned them to the direction of the appellant, Frank Morrow and the other man who were walking very fast to an apartment building which they attempted to enter. The police, however, surrounded the three men and arrested them.

At the trial, three eyewitnesses testified that they saw the appellant roll the victim over and remove his wallet. The appellant was found guilty of criminal conspiracy and robbery. On July 18, 1986, appellant was sentenced to an aggregate term of three to seven years imprisonment.

Williams contends the evidence was insufficient to convict him of robbery in that the evidence established that the victim was unconscious and unaware that the appellant rolled the victim over to take his wallet.

Reasoning

Appellant argues that robbery cannot be committed upon an unconscious, voluntarily intoxicated victim because such a victim is unaware of the taking and no force is necessary to compel him to part with conscious control of his property to the thief. The Commonwealth responds that to support a conviction under 18 Pa.C.S.A. § 3701(a)(1)(v), it is only necessary to show that some force was applied to the victim in the course of the theft. The Commonwealth argues that the “rolling over” of the victim meets the “force however slight” requirement for conviction of robbery under § 3701(a)(1)(v). We, however, agree with appellant and find that a simple theft rather than a robbery, as defined by the applicable statute and case law, occurred.

In Commonwealth v. Brown, 484 A.2d 738 (1984), a defendant who came up behind the victim and took her pocketbook by pulling it off her arm was convicted of robbery. Our Supreme Court affirmed his conviction.

The force used in taking the purse from the victim’s arm was a harmful touching of the person, accompanied with sufficient force to compel the victim to part with the conscious control of her property, and supports a robbery conviction under § 3701. This conduct substantially differs from the case of the thief who merely takes the property of another with intent permanently to deprive him thereof, using no force or threat of force on the victim—like the pickpocket. Such conduct is nonviolent, poses no threat to the victim who is unaware of the taking, and is accordingly graded less severely than robbery. A victim who is aware of the taking of property from his person is apt to reflex action to protect himself and his property and thus may be injured by the felon.

For this reason robbery has always been considered a greater harm against society because violence is caused or threatened. The ordinary citizen has the right to go about his way free from the fear of attack to his person from those who would deprive him of control over his goods. That right is violated even by the slight tug on the arm by the purse thief who must use force to wrench the purse from the arm of the victim without regard to her safety. The force may be actual or constructive; “[a]ctual force is applied to the body; constructive force is the use of threatening words or gestures, and operates on the mind.”

In Commonwealth v. Smith, 481 A.2d 1352 (1984), defendant stole a pack of cigarettes from a blind man’s pants pocket. The blind man, unaware of the taking, did not offer any resistance. This Court found the evidence insufficient to sustain a conviction of robbery. In reversing the defendant’s conviction, this Court stated: “[t]he elements of robbery as defined by § 3701(a)(1)(v) are (1) that the defendant physically take or remove property, (2) from the person of another, (3) by use of force however slight. Here, as appellant concedes, the first two elements were proved. However, with respect to the third element, and that the evidence was therefore insufficient.”

Construing the phrase “force however slight” to exclude a taking by stealth alone is consistent with this purpose because a taking by stealth alone is not as likely to result in injury to the victim as a taking by “force”; for “however slight” the force may be, the victim may be prompted by it to resist, and injury may ensue. In recognition of this possibility, § 3701(a)(1)(v) has as its special purpose that greater punishment should be inflicted on those who use “force however slight” than on those who by resort to stealth void the use of force.

Likewise, in Commonwealth v. Windell, 529 A.2d 1115 (1987), this Court reversed the judgment of sentence of robbery where the defendant allegedly had removed a coin purse and wallet from a pocketbook carried by a passenger on a bus. In concluding that the element of force was missing, this Court explained: “[a]lthough the evidence was sufficient to permit an inference that appellant was on the bus and took the victim’s purse and wallet, there was no evidence to connect him or the theft with the pushing which the victim experienced.”

Appellate courts in this Commonwealth have not had the opportunity to consider the narrow issue of whether robbery can be committed upon an unconscious victim. However, the cases quoted above indicate that the phrase “force however slight” envisions that the victim must be aware of the force and, because of the force, feel compelled to part with his or her property.

In Commonwealth v. Smith, and Commonwealth v. Windell, convictions of robbery were reversed because the victim was aware of neither the taking nor the “force” utilized to accomplish the taking. Admittedly, the fact scenario in the instant case is distinguishable from that in Smith and Windell. In this case, unlike Smith and Windell, appellant rolled the victim onto his side in order to remove the wallet. If the victim in this case had been aware of this force, a robbery conviction might have stood based upon the possible distinction between the force used to roll the victim over, and the force used to remove the wallet. However, the victim was not aware of any force in this case; consequently, we find that appellant cannot be found guilty of robbery.

Cavanaugh, J. dissenting

My review of the legal authority in this case, particularly the elements of robbery set out in 18 Pa.C.S.A. § 3701(a)(1)(v), convinces me that the criminal act committed by this appellant was robbery. The act of rolling this unconscious victim onto his side and removing the victim’s wallet from his pants pocket constitutes a physical taking of property from the person of another by use of “force however slight,” and therefore this appellant was properly charged with robbery rather than theft. My reading of the cases is in accord with this interpretation. “It is clear to us that any amount of force applied to a person while committing a theft brings that act within the scope of robbery under § 3701(1)(a)(v) [sic] … The degree of actual force is immaterial, so long as it is sufficient to separate the victim from his property in, on or about his body.”

The robbery statute does not require among its elements that the victim be aware of the taking or that he part with conscious control of his property. Since the majority opinion concludes otherwise, I dissent from that portion of the opinion. The defendant was convicted of robbery under section 3701(a)(1)(v) after rolling an intoxicated, unconscious person and removing his wallet. Relying upon the reasoning in Smith and Windell, our Court reversed the conviction, concluding that because the victim was not aware of the force utilized to take the property, the defendant could not be convicted of robbery.

Here, Bedell took the wallet out of the victim’s hand and ran away with it. The victim was fully aware of the taking, which had been accomplished with some force, however slight. Based upon the foregoing case law, we conclude that Bedell used force to take the wallet and therefore, there was a factual basis for the guilty plea. See Brown, 484 A.2d at 742; Commonwealth v. Ostolaza, 267 Pa. Super. 451, 406 A.2d 1128, 1130-31 (Pa. Super. 1979) (stating in dicta that defendant who grabbed a wallet out of the victim’s hand resulting in a brief tug-of-war for the wallet could have been charged and convicted of robbery under section 3701(a)(1)(v)).

Would you affirm Ridgeway’s conviction?

The appellant, Darryl Ridgeway, appeals his judgment and sentence for one count of robbery with a deadly weapon, raising two issues on appeal, only one of which merits discussion. He argues that the trial court erred in denying his motion for judgment of acquittal. We disagree and find that, in a light most favorable to the State, competent, substantial evidence supported all the elements of the charged offense such that the motion for judgment of acquittal was properly denied.

The appellant entered a gas station in the early morning hours and asked the clerk for cigarettes. The appellant asked the clerk if he was working alone, to which the clerk responded affirmatively. The appellant then demanded all the money in the cash register. After the clerk refused, the appellant took a step back, reached for his pocket, and jumped over the counter. As the appellant jumped over the counter, the clerk pulled out his personal knife. In an attempt to defend himself, the clerk lunged at the appellant twice. On the second lunge, the knife pierced and became lodged in the appellant’s back as he jumped back over the counter. The appellant proceeded toward the exit, but stopped halfway between the door and the counter. Upon stopping, the appellant pulled the knife from his back, turned with the knife in his hand, faced the clerk, and took four steps toward the clerk. Feeling defenseless and unsure of the appellant’s next move, the clerk ran out the back door and called the police. The appellant exited the store with the knife in his hand, entered his vehicle, and drove away with the knife. The appellant was charged and convicted of one count of robbery with a deadly weapon.

On appeal, the appellant argues that the trial court erred in denying his motion for judgment of acquittal because the State failed to prove that he had the requisite intent to commit robbery of the knife and also failed to prove that there was a taking of the knife.

A motion for judgment of acquittal is reviewed on appeal by the de novo standard of review. Pagan v. State, 830 So.2d 792, 803 (Fla.2002). The question presented by the motion is whether, in a light most favorable to the State, the evidence is legally adequate to support the charge. Jones v. State, 790 So.2d 1194, 1197 (Fla. 1st DCA 2001). A motion for judgment of acquittal should not be granted “unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law” (quoting Lynch v. State, 293 So.2d 44, 45 (Fla.1974)). If competent, substantial evidence is presented to support the conviction, an appellate court will generally not reverse the denial of a motion for judgment of acquittal. Pagan, 830 So.2d at 803.

First, the appellant did not preserve any issue regarding the taking of the knife because he failed to present the specific legal argument to the trial court below. See Archer v. State, 613 So.2d 446, 448 (Fla.1993). The appellant concedes that his general motion for judgment of acquittal could be considered insufficient, but argues that appellate review is not precluded because the error was fundamental. See F.B. v. State, 852 So.2d 226, 230 (Fla.2003) (finding an exception to the preservation requirement where the evidence is insufficient to show that a crime was committed at all). We find no support for the appellant’s argument for error, let alone fundamental error.

For the crime of robbery, the State must prove the following elements beyond a reasonable doubt:

(1) The appellant took the knife from the person or custody of the clerk.

(2) Force, violence, assault, or putting in fear was used in the course of the taking.

(3) The knife had some value 1.

(4) The taking was with the intent to permanently or temporarily deprive the clerk of his right to the knife or any benefit from it or appropriate the knife of the clerk to his own use or to the use of any person not entitled to it.

See Fla. Std. Jury Instr. (Crim.) 15.1; § 812.13(1), Fla. Stat. (2011).

To prove the crime of robbery with a deadly weapon, the State must further prove that, in the course of committing the robbery, the appellant carried a deadly weapon. § 812.13(2)(a), Fla. Stat. (2011). An act will be deemed “in the course of committing the robbery” if it “occurs in an attempt to commit robbery or in flight after the attempt or commission.” § 812.13(3)(a), Fla. Stat. (2011)

As to the taking, the State presented the clerk’s testimony and evidence in the form of surveillance video footage with multiple camera angles showing that, after being stabbed, the appellant stopped, took the knife from his back, turned around, took four steps toward the clerk with the knife in his hand, and then left the store with the knife. Although the appellant took the knife out of his back rather than the clerk’s hands, property need not be in “the actual physical possession or immediate presence of the person who was robbed” for a taking to occur. Perry v. State, 801 So.2d 78, 86–87 (Fla.2001) (citing Jones v. State, 652 So.2d 346, 350 (Fla.1995)). Rather, “property is taken from the person or custody of another if it is sufficiently under the victim’s control so that the victim could have prevented the taking had [he] not been subjected to the violence or intimidation by the robber.” Perry, 801 So.2d at 87. Here, the clerk could have prevented the taking had he not been intimidated enough to brandish the knife for protection. As such, the taking occurred when the appellant pulled the knife from his back, turned, and took four steps toward the clerk with the knife in his hand.

The appellant argues that no taking occurred because the clerk gave him the knife, or abandoned the knife, when the clerk stabbed him and subsequently fled the store. We disagree with this argument as giving or abandonment implies that the clerk voluntarily relinquished the knife. We are hard-pressed to find that the clerk voluntarily relinquished his best defense mechanism against the appellant under the circumstances.

As to the next element that force, violence, assault, or putting in fear was used in the course of the taking, the State presented evidence that the clerk felt the need to defend his life when the appellant jumped over the counter. “In the course of a taking” is defined as an act that “occurs either prior to, contemporaneous with, or subsequent to the taking of the property and if it and the act of taking constitute a continuous series of acts or events.” § 812.13(3)(b), Fla. Stat. (2011). Here, the appellant placed the clerk in fear prior to taking the knife. Alternatively, the appellant brandished the knife and took four steps toward the clerk subsequent to taking the knife from his back, which resulted in the clerk running from the store. Both instances involve a continuous series of acts between the taking and putting the clerk in fear. See Messina v. State, 728 So.2d 818, 819 (Fla. 1st DCA 1999) (stating that robbery is not limited to situations in which the defendant has used force at the precise time the property is taken).

The State also presented evidence regarding the appellant’s actions on the day of the incident and testimony at trial that indicated he intended to permanently or temporarily deprive the clerk of the knife. The intent to deprive must be shown at the time of the taking. In Bailey, the defendant engaged the victim in an altercation, during which the defendant took the victim’s gun. The defendant claimed the taking was solely to disarm the victim during the altercation, yet the defendant maintained possession of the gun for some six weeks after the altercation. The jury convicted the defendant for the crime of robbery. On appeal, the defendant argued there was insufficient evidence to show that he had the intent to permanently deprive the victim of his gun. Essentially, this Court determined that the State may show intent by the highlighting the circumstances of the defendant’s actions prior to or after the taking. Consequently, this Court affirmed the conviction because the State presented sufficient evidence and “the jury weighed the defendant’s exculpatory testimony along with the State’s evidence that the defendant retained the property for some time. [T]he jury obviously arrived at the belief that the intent to steal was present at the time of the taking.”

Here, the appellant took the knife out of his back, took four steps toward the clerk, and then left with the knife. Furthermore, the appellant testified that he had no intention of returning the knife to the clerk as he feared being stabbed again. Finally, the State presented evidence that the appellant carried a deadly weapon during the course of committing the robbery of the knife. “In the course of committing the robbery” is an act that “occurs in an attempt to commit robbery or in flight after the attempt or commission.” § 812.13(3)(a), Fla. Stat. (2011). Here, the appellant carried the knife after committing a robbery of said knife. If the appellant had stumbled out of the store with the knife still lodged in his back or threw the knife in a trash can as he left the store, our analysis may have been different. Under the facts presented, the question is not whether this Court would arrive at the same result as the jury. Rather, the question before this Court is whether there is competent, substantial evidence to support the verdict. We find the State presented competent, substantial evidence to support each element of the charged crime of robbery with a deadly weapon. Accordingly, the trial court’s denial of the appellant’s motion for judgment of acquittal was appropriate.

Clark, J. dissenting

The state charged Appellant with armed robbery for being stabbed. Simply, there was one knife, which Appellant simultaneously came into possession of and armed himself with upon being stabbed. The state’s theory is absurd, and the trial court erred by denying Appellant’s requested judgment of acquittal on the charge of armed robbery. This Court should exercise care that the issue of the clerk’s lawful right to defend himself from a robbery is not confused with the issue of whether Appellant robbed the clerk of his knife. I therefore dissent.

After learning the clerk was working alone, Appellant jumped over the counter toward the clerk and demanded money and cigarettes by threat of violence. The store clerk refused to give Appellant any money or cigarettes. As the empty-handed Appellant was jumping back over the counter, the store clerk buried a Gerber knife into Appellant’s back. Appellant walked a few steps, stumbled, and removed the knife from his back. As Appellant removed the knife from his back, he turned back toward the store clerk, who then hurriedly left the building. Thereafter, so did Appellant.

For armed robbery, the state must thus show two things: a robbery and that Appellant was armed. Here, the state argues the same evidence (appellant was stabbed with a knife) fulfills both. “Robbery” means “The taking of money or other property ․ from the person or custody of another, with intent to either permanently or temporarily deprive the person ․ of the money or other property, when in the course of taking there is the use of force, violence, assault, or putting in fear.” § 812.13(1), Fla. Stat.

A robbery is enhanced from a second-degree felony to a first-degree felony “if, in the course of committing the robbery, the offender carried a firearm or other deadly weapon.” § 812.13(2)(a), Fla. Stat. An offender’s flight after the commission of the robbery is considered to be “in the course of committing the robbery.” § 812.13(3)(a), Fla. Stat.

Because robbery is a specific intent crime, Appellant had to have the specific intent to commit the crime. The intent to commit a robbery includes the specific intent to steal; that is, to deprive the owner or custodian of property either permanently or temporarily. “[I]t is imperative that the intent to steal exist at the time of the taking.” Accordingly, to prove robbery, the state has to prove that at the time Appellant was stabbed by the store clerk, he intended to permanently or temporarily deprive the clerk of his knife.

The state also had to prove that Appellant was armed “during the commission of” or in flight from the robbery. Note that the state’s theory of armed robbery was not that Appellant armed himself with the deadly weapon after unsuccessfully demanding money and cigarettes, intending to use his new-found weapon to again seek money and cigarettes. But instead, it was that Appellant committed the armed robbery when he obtained possession of the knife (the one in his back) from the clerk: He was now armed, and he stumbled away with the knife. He robbed, while armed, the knife the clerk had just plunged into his back.

Being stabbed cannot equate to “taking” a knife. To “take” means to “get into one’s possession by voluntary action.” It means “to obtain possession or control without the owner’s consent.” “Obtain” means “to gain or attain usually by planned action or effort.” Thus, “taking” implies a conscious, intentional, voluntary act on the part of the one taking something. “Taking” something from somebody contemplates the taker voluntarily do something to obtain possession of the thing he or she takes.

Here, there is no evidence Appellant ever saw the knife before he was stabbed with it; no evidence he knew the knife existed before he was stabbed with it; no evidence he wanted the knife; no evidence he asked for or demanded the knife. Consequently, there is no evidence Appellant took the knife with intent to deprive the store clerk of it, either permanently or temporarily.

To be sure, the knife was “given” to Appellant. The store clerk gave—even if temporarily—the knife to Appellant when he plunged it into his back. However, the passive act of taking delivery of the knife (in his back and through his now-collapsed lung) cannot be construed to constitute an intentional act of taking on Appellant’s part. Appellant did not take the knife. It was, quite literally, forced upon him. Appellant did not ask for the knife, did not demand the knife, and did not voluntarily accept the knife when it was “given” to him—in fact, he immediately took the knife out from where it had been lodged.

Taken to its logical end, will a person poisoned with Ricin be charged with armed robbery of the Ricin? After all, he now possesses a deadly weapon and “took” it from the poisoner. Being poisoned—or in this case stabbed—is simply not a crime. It is fundamental error to convict a person where there is a complete absence of a prima facie showing of the essential elements of a crime. The state had a host of charging options available to prosecute Appellant for his crimes. Instead, the state proceeded on an absurd theory: that Appellant formed the necessary intent to steal the knife when he found it stuck in his back. The trial court should have entered a judgment of acquittal of armed robbery.