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State v. Sewell

Decided: March 17, 1992.


On appeal from the Superior Court, Appellate Division, whose opinion is reported at 242 N.J. Super. 499 (1990).

For affirmance -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi, and Stein. For reversal -- None. The opinion of the Court was delivered by Handler, J.


In this criminal appeal, the Court must determine the level of culpability necessary to convert theft into robbery. The crime of theft becomes robbery when the defendant "inflicts bodily injury or uses force upon another" in the course of committing a theft. The facts of this case do not indicate, nor did the trial court instruct the jury to consider defendant's culpability when

he inflicted injuries and used force during a collision with several persons in the course of a theft. On defendant's appeal from his convictions of robbery, the Appellate Division reversed those convictions and remanded the matter for a new trial. The court construed the robbery statute to require that defendant's infliction of bodily injury or use of force be undertaken intentionally. One member of the Appellate Division Dissented from that standard of culpability, concluding that the injury/force aspect of robbery could be satisfied without intentional conduct by defendant. The State brings this appeal as of right, based on that partial Dissent.


The facts are not in dispute. On May 7, 1987, Matilda Albertelli was playing the slot machines at Atlantic City's Showboat Casino. She filled a small bucket with quarters and placed it between two slot machines, hanging her pocketbook to hide the bucket from view. As she played, she noticed someone moving her pocketbook. She turned to see defendant, Charles Sewell, take her bucket of coins and walk away with it. After shouting an alarm, Ms. Albertelli chased defendant and was joined in her pursuit by two security guards. In his flight, defendant collided with three women. Defendant first bumped into Mary Smith, causing the elderly woman to fall against a slot machine. As defendant reached the exit, casino patron Moe Werfel tripped defendant. Defendant fell, and security guard Curtis Brown grabbed him. As defendant struggled to break the guard's grasp, his arm struck Madelyn Frantzen. Defendant broke free and continued his flight. While running across the lobby, he ran into Mary Dillon. Three security guards eventually apprehended defendant.

Although no serious injuries resulted from those collisions, the evidence would support a finding that all three women suffered "bodily injury" as defined in N.J.S.A. 2C:11-1a ("physical pain, illness or any impairment of physical condition"). The

casino nurse treated Mary Smith's leg and back with a pain reliever and an ice pack, and her blood pressure remained elevated for a day. Madelyn Frantzen suffered a sore hip, which the nurse also treated with a pain reliever and ice. Mary Dillon suffered a sore chest for about a week, though she was unbruised.

Defendant was charged with four counts of second-degree robbery, N.J.S.A. 2C:15-1, one for each of the four people he allegedly injured in the course of committing a theft: Smith, Frantzen, Dillon and Brown, the security guard. The trial court charged the jury regarding the theft element of robbery, including the requirement that the taking be done purposely. With respect to the injury/force element, the court stated the following:

In addition to proving beyond a reasonable doubt that the defendant was in the course of committing the theft, the State must also prove beyond a reasonable doubt that while in the course of committing that theft, the defendant inflicted bodily injury or used force upon another.

The jury found defendant guilty of three counts of second-degree robbery and one count of simple assault, the latter relating to Brown. The court sentenced defendant to an aggregate fourteen-year term, with an aggregate six-year parole disqualifier.

The Appellate Division panel affirmed the simple assault conviction but, as previously noted, reversed the three robbery convictions and remanded them for a new trial. The majority reasoned that the trial court had erroneously failed to instruct the jury regarding the culpability required for the inflicts-bodily-injury-or-uses-force element of robbery. It construed the statute to require that defendant's infliction of bodily injury or use of force be done knowingly or purposely, not merely recklessly. 242 N.J. Super. at 502-03, 577 A.2d 537. It also ruled that defendant could be convicted of only one robbery because there was only one theft. Id. at 505, 577 A.2d 537. The Dissenting Judge disagreed with the standard of culpability required by the majority. The Dissent drew a parallel between

robbery and felony murder, and applied a theory of transferred culpability with respect to the injury/force element of robbery, concluding under that approach that the trial court should have charged the standards of recklessly and negligently as well as purposely and knowingly. Id. at 506-07, 577 A.2d 537.


We address preliminarily two matters relating to the application of the robbery statute to the facts of this case. Defendant's collisions with the three women occurred while he was attempting to escape after having stolen Ms. Albertelli's bucket of quarters. Under the robbery statute, acts that implicate the injury/force element must occur "in the course of committing a theft." N.J.S.A. 2C:15-1a. The robbery statute specifies that "[a]n act shall be deemed to be included in the phrase 'in the course of committing a theft' if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission." Ibid.; see State v. Mirault, 92 N.J. 492, 500-01, 457 A.2d 455 (1983). The trial court here correctly recognized in its charge to the jury that the physically-harmful acts of defendant had occurred in his flight following the theft, and could therefore satisfy the injury/force element of the robbery.

Additionally, each robbery is a separate crime, which entails a discrete theft from a single victim together with accompanying injury or force. State v. Carlos, 187 N.J. Super. 406, 455 A.2d 89 (App.Div.1982), certif. denied, 93 N.J. 297, 460 A.2d 693 (1983); see also State v. Mirault, supra, 92 N.J. at 497 n. 4, 457 A.2d 455 ("In Carlos, the presence of two threatened bystanders during theft from two other persons did not convert two thefts to four robberies."); State v. Lawson, 217 N.J. Super. 47, 51, 524 A.2d 1278 (App.Div.1987) ("A robbery conviction must be premised upon a separate theft."). Defendant, therefore, could be convicted of only one robbery because he had committed only one theft, namely, that entailed

in taking Ms. Albertelli's coins. The trial court nevertheless believed that defendant's infliction of physical harm on three separate persons in his attempt to escape constituted multiple robberies, notwithstanding the fact that there was only a single theft. The Appellate Division correctly reversed that ruling. 242 N.J. Super. at 505, 577 A.2d 537.


The critical issue for the Court in this case is to determine the culpability that a defendant must have when he inflicts injury or uses force against another in the course of a theft in order to escalate theft into robbery. The question arises because the statute defining second-degree robbery, N.J.S.A. 2C:15-1a, does not specify the mental state that must be shown with respect to the injury or force that accompanies a theft. It states only that "[a] person is guilty of robbery if, in the course of committing a theft, he: (1) Inflicts bodily injury or uses force upon another . . . ." N.J.S.A. 2C:15-1a(1).

The New Jersey Code of Criminal Justice provides a method for determining the relevant mental state with respect to statutes defining crimes or offenses that do not specify any applicable mental state. "[T]he absence of any express culpability requirement [in a criminal statute] brings into play the gap filler provision of N.J.S.A. ...

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