The Single Larceny Rule As Applied to Aggravated Robbery

Multiple Aggravated Robbery Counts May Be Combined Under the Single Larceny Rule

Single larceny rule and aggravated robbery.

Under the single larceny rule multiple thefts in the same criminal episode may be consolidated into one charge.

Three friends drove together to a cell phone store where they entered the store but did not lock the car doors. Bell was someone inside the store, but when he left he began checking cars in the parking lot for unlocked doors. He ended up inside of the three friends’ car, which led the three friends to run outside of the store to try to get Bell out of their car. Bell pointed his knife at the friends to keep them away. Eventually, Bell grabbed the purse that was on the floor of the passenger seat and started running. The three friends, store manager, and bystanders gave chase and were able to get the purse back, but Bell then grabbed the rental keys for another car that were inside of the friends’ car as well as some credit cards and took off again. The driver of a nearby car bumped Bell with his car and told him to drop the stolen items. Bell threw the items into some bushes, kept running, and was arrested by the police.

Bell told the police that he was on methamphetamine and had not slept for three days. He began vomiting at the police station, so he was sent to the hospital. He later stated that he could not remember any of the events that took place in the parking lot of the cell phone store. He was convicted of and sentenced for three crimes: aggravated robbery of the car, aggravated robbery of the purse, and brandishing a dangerous weapon in a fight or quarrel. On appeal, Bell challenged the first two convictions, which are both first degree felonies.

Bell contended that his trial counsel performed ineffectively by not seeking merger of the two aggravated robbery counts under the single larceny rule. This rule has evolved to limit charging discretion in the context of aggregating or separating theft counts based on their dollar values for the purpose of maximizing criminal liability. If the taking constitutes a single act, then there is one offense and the multiple ownership of the property taken is immaterial. In other words, if there is one intention, one general impulse, and one plan, even though there’s a series of transactions, there is only one offense.

What the Court of Appeals Did

The court explained that Bell completed the robbery when he attempted to take the car from the owner’s immediate presence by means of force or fear. Therefore, he robbed both the car and its contents, including the purse. A thief who steals a car may later remove its contents and decide to keep or discard an item. This court did not see a conceivable tactical basis for not seeking merger in the trial court. The State’s argument that defense counsel did not perform deficiently was that the merger motion would have been futile. Failing to file a futile motion does not constitute ineffective assistance of counsel. Thus, this court looked at whether a merger motion would have been futile or would have been granted.

In conclusion, the two aggravated robbery convictions had to be merged because Bell committed one aggravated robbery rather than two, as he could not be prosecuted once for stealing the purse with the car and a second time for stealing the purse from the car. Because a motion to merge would have been successful, not futile, and making the motion would have been risk-free, counsel performed ineffectively by not making it. Bell’s conviction of aggravated robbery in connection with the car was affirmed, and his conviction of aggravated robbery in connection with the purse was vacated.