Academic journal article Missouri Law Review

Assuming the Worst: Eliminating the Forcibly Steals Element from Second-Degree Robbery

Academic journal article Missouri Law Review

Assuming the Worst: Eliminating the Forcibly Steals Element from Second-Degree Robbery

Article excerpt

State v. Brooks, 446 S.W.3d 673 (Mo. 2014) (en banc).


The Supreme Court of Missouri recently decided two cases dealing with the troubling distinction between second-degree robbery and stealing. (1) The crimes of second-degree robbery and stealing are distinguished by whether the defendant uses or threatens the immediate use of physical force in the commission of the offense. (2) After three decades of disagreement within Missouri appellate courts over what standard should be applied when determining whether the defendant used or threatened the immediate use of physical force, the Supreme Court of Missouri stepped in to resolve the conflict in the case of State v. Brooks. (3) Unfortunately, the objective standard the court articulated was unclear in its application and will likely cause more confusion in the lower courts that try to interpret it. In an attempt to resolve the confusion surrounding the court's decision in Brooks, this Note attempts to define the standard articulated by the court, while also looking at alternative ways the Missouri General Assembly can resolve the conflict between robbery and stealing.

This Note begins with an exploration of the factual circumstances that gave rise to the court's determination that an objective standard should be applied when determining whether a threat of the immediate use of physical force exists in second-degree robbery cases. This Note then discusses the conflict among Missouri appellate courts regarding the determination of whether a threat of force exists, while also looking at how other states have handled this issue. Next, this Note provides an analysis of the Supreme Court of Missouri's reasoning in Brooks and, finally, explores how the objective standard articulated by the court will be applied, along with a possible alternative solution to the conflict between stealing and robbery in bank theft cases.


On August 25, 2011, Claude Dale Brooks entered a Regions Bank in St. Charles County dressed in a baggy sweatshirt, baseball hat, sunglasses, and dreadlocked wig. (4) When Brooks arrived at the counter, he handed the bank teller a note. (5) The note read, "Fifties, hundreds, no bait money and bottom drawer." (6) The bank teller, Angela Ebaugh, typically worked at the drivethrough window, but had moved to the lobby that day because the bank was busy. (7) After reading the note, Ebaugh slowly began to walk away from the counter to retrieve the money from her drawer near the drive-through window. (8) Unsure of what Ebaugh was doing, Brooks slammed his hand on the counter and told her to "get back here." (9)

Brooks then instructed Ebaugh to take the money from her drawer in the lobby, and Ebaugh explained that there was no money in that drawer and that she would have to go to the drawer by the drive-through to retrieve the cash. (10) Brooks watched intently as Ebaugh walked to the drive-through window, collected the bills from the bottom drawer, and laid the money on the counter in front of him. (11) Brooks also requested his note back, and Ebaugh complied. (12) Brooks then took the money, put it in a shopping bag, and left the bank. (13)

Once Brooks exited the bank, Ebaugh signaled the police by putting her bait bills on the counter. (14) When the police arrived, Ebaugh provided a description of Brooks and the events that had taken place at the bank. (15) The police noted that Ebaugh seemed quite nervous and upset. (16)

Meanwhile, a separate officer also responded to the call and began patrolling the area where Brooks was last seen. (17) The officer noticed Brooks walking down the sidewalk on a street near the bank, but he did not have dreadlocks or a hat as the description provided. (18) Nevertheless, the officer stopped Brooks to ask him whether he had seen anyone matching the description the officer provided. (19) Brooks replied that he saw someone matching that description running in the area and told the officer what direction he was heading. …

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