Summary
holding that the threatening of five persons to effect the theft of a hotel's receipts constituted one robbery, notwithstanding a phrase in the statute that robbery is committed if, in the course of committing a theft, the person "threatens the imminent use of force against the person of anyone who is present"
Summary of this case from Wheat v. StateOpinion
NO. 7875
July 21, 1982
APPEAL FROM FIRST CIRCUIT COURT HONORABLE FRANK T. TAKAO, JUDGE.
RICHARDSON, C.J., NAKAMURA, JJ., RETIRED JUSTICE MARUMOTO, ASSIGNED IN PLACE OF LUM, J., EXCUSED, RETIRED JUSTICES OGATA AND MENOR ASSIGNED TEMPORARILY.
Edmund K.U. Yee (Yamamoto Yee, of counsel) for defendant-appellant.
Peter B. Carlisle, Deputy Prosecuting Attorney for plaintiff-appellee.
The defendant Vili Salua Faatea was convicted of five counts of robbery in the first degree pursuant to HRS § 708-840(1)(b)(ii). He was sentenced to an extended prison term of life without the possibility of parole for a period of ten years based on the trial court's finding that the defendant was a multiple offender. He appeals.
The facts of this case are not in dispute. On the morning of September 17, 1979, the defendant and a companion entered the accounting office of the Ramada Inn. Among those present in the office at that time were Carleton E. Hardin, Jr., assistant manager at the Ramada Inn; Clarence P. Palenapa, front desk clerk; Emma Keawe-Aiko, accounting clerk; Teresa M. McGraw, senior accountant; and Patricia K. Utz, director of personnel. The defendant pointed a gun at Hardin's head and said, "[E]veryone down on the floor. [T]his is a holdup." The people were warned to stay down on the floor or their heads would be "blown off." The two escaped with the hotel's weekend receipts and a box containing petty cash. The total amount of money taken was approximately $25,000. The defendant was charged in a five-count indictment with robbing each of the foregoing individuals.
On this appeal, the defendant contends that he was erroneously prosecuted, convicted, and sentenced for multiple counts of robbery based on the single incident described above. The robbery statute under which he was charged provides as follows:
§ 708-840 Robbery in the first degree. (1) A person commits the offense of robbery in the first degree if, in the course of committing a theft:
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(b) He is armed with a dangerous instrument and:
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(ii) He threatens the imminent use of force against the person of anyone who is present with intent to compel acquiescence to the taking of or escaping with the property.
The State contends that the phrase "threatens the imminent use of force against the person of anyone who is present" justifies the multiple-count indictment and conviction returned against the accused. The defendant, on the other hand, argues that in order for an incident to give rise to multiple-count robbery convictions, there must exist multiple thefts and not just multiple aggravating circumstances. He points out that all the money asked for and taken belonged to Ramada Inn and that none of the five people threatened in separate counts of the indictment was asked for or gave up his personal property.
This court has held that robbery is merely an aggravated form of theft, State v. Brighter, 62 Haw. 25, 608 P.2d 855 (1980), and inasmuch as there was but one act of theft here, from one owner, we are constrained to hold that the defendant could be convicted and sentenced for but one robbery offense. The theft was of Ramada Inn property, and each of the five employees named were simply custodians of the property for the benefit of their employer. The threatened use of force was directed against all five for the purpose of effectuating the unlawful taking of their employer's property. It was this threat which converted the taking from theft to robbery. Thus, there was only one aggravated theft (robbery) for which a sentence could be imposed.
We note that other courts have reached the same results. See State v. Canty, 469 F.2d 114 (D.C. Cir. 1972) (holding that the robbery of each of four bank tellers did not constitute a separate "taking" within the meaning of the federal bank robbery statute and therefore defendant could not be convicted on four counts of robbery based on a single incident); People v. Nicks, 23 Ill. App.3d 435, 319 N.E.2d 531 (1974) (holding that where the defendant robbed a store owner and two cashiers, separately, but all in one transaction, he could only be convicted of one count of armed robbery); Rogers v. State, 396 N.E.2d 348 (Ind. 1979) (holding that the defendant was improperly convicted on two counts of robbery of a grocery store despite the fact that money was taken from two employees); Williams v. State, 395 N.E.2d 239 (Ind. 1979) (holding that an individual who robs a business establishment, taking that business's money from four employees, can be convicted of only one count of armed robbery); State v. Potter, 285 N.C. 238, 204 S.E.2d 649 (1974) (holding that when the lives of all employees in a store are threatened and endangered by the use or threatened use of a firearm incident to the theft of their employer's money or property, a single robbery is committed); State v. Whipple, 156 N.J. Super. 46, 383 A.2d 445 (1978) (holding that the defendant's robbery of a liquor store and its owner constituted but a single transaction, which could not be fractionalized to enhance the defendant's punishment for a single crime).
We reverse and remand with instructions to the trial court to enter judgment of conviction against the defendant for a single offense of robbery. All five counts are to be treated as one single count for the purpose of entering a new judgment and sentence.
We find the defendant's other specifications of error to be without merit.