Robbery consists of the theft of anything of value from the person of another or from the immediate control of another, by use or threatened use of force or violence.

Whoever commits robbery is guilty of a third degree felony.

Whoever commits robbery while armed with a deadly weapon is, for the first offense, guilty of a second degree felony and, for second and subsequent offenses, is guilty of a first degree felony.

History: 1953 Comp., § 40A-16-2, enacted by Laws 1963, ch. 303, § 16-2; 1973, ch. 178, § 1.

Cross references. — For definition of deadly weapon, see 30-1-12 NMSA 1978.

For aggravated assault, see 30-3-2 NMSA 1978.

For assault with intent to commit a violent felony, see 30-3-3 NMSA 1978.

I. GENERAL CONSIDERATION.

Specification of "anything of value". — Because the use of the phrase "anything of value" in Section 30-16-2 NMSA 1978 to describe the stolen property does not specify what type of property theft will be punished, the state's legal theory of the crime supplies the "anything of value" element of robbery in cases where that crime is charged. State v. Gutierrez, 2011-NMSC-024, 150 N.M. 232, 258 P.3d 1024.

Specification of "anything of value" resulted in double jeopardy. — Where the child was charged with armed robbery for taking both an automobile and the keys to the automobile in violation of Section 30-16-2 NMSA 1978 and for the unlawful taking of a motor vehicle in violation of Section 30-16D-1 NMSA 1978, the child's conduct underlying both crimes was unitary; and both convictions required the same proof of the theft of the automobile, the unlawful taking of a motor vehicle conviction was subsumed by the robbery conviction and the child's conviction for both resulted in double jeopardy. State v. Gutierrez, 2011-NMSC-024, 150 N.M. 232, 258 P.3d 1024.

Crime of violence. — The district court properly included defendant's state robbery conviction as a violent felony under 18 U.S.C. § 924, the Armed Career Criminal Act. United States v. Lujan, 9 F.3d 890 (10th Cir. 1993).

Increased penalty provision strictly construed. — A more severe punishment on conviction for a second offense is deemed highly penal and therefore must be strictly construed. State v. Garcia, 1978-NMSC-039, 91 N.M. 664, 579 P.2d 790.

Enhanced sentence not double jeopardy. — Validly increasing a defendant's sentence after conviction according to the provisions of the enhancement statute does not amount to double jeopardy. State v. Stout, 1981-NMSC-045, 96 N.M. 29, 627 P.2d 871.

Sentencing statutes not conflicting. — Former Section 31-18-4 NMSA 1978 does not conflict with this section in providing that the first year of the statutory sentence for a felony, other than a capital felony, in commission of which a firearm was used, shall not be suspended; the two statutes are in harmony, each expressing a separate legislative intent. State v. Wilkins, 1975-NMCA-069, 88 N.M. 116, 537 P.2d 1012, cert. denied, 88 N.M. 319, 540 P.2d 249 (decided under prior law, statute repealed).

Even though this section provides an increased penalty for second or subsequent armed robberies, it does not conflict with the Habitual Offender Statute, 31-18-5 NMSA 1978 (now repealed), which applies only to a current felony "not otherwise punishable by death or life imprisonment," since second or subsequent armed robberies are punishable by life imprisonment. State v. Roland, 1977-NMCA-043, 90 N.M. 520, 565 P.2d 1037, cert. denied, 90 N.M. 637, 567 P.2d 486 (decided under prior law, statute repealed).

Habitual Offender Statute, 31-18-5 NMSA 1978 (now repealed), does not apply to second or subsequent armed robberies. State v. Roland, 1977-NMCA-043, 90 N.M. 520, 565 P.2d 1037, cert. denied, 90 N.M. 637, 567 P.2d 486 (decided under prior law, statute repealed).

Intent of provision. — The fact that the defendant was convicted in one criminal proceeding of two armed robberies charged under separate counts of one indictment was not sufficient to invoke the increased penalty provision of this section, which is intended to serve as a warning to first offenders and to provide increased punishment for those who persist in violations of the law after having been formally convicted. State v. Garcia, 1978-NMSC-039, 91 N.M. 664, 579 P.2d 790.

When enhanced penalty proper. — Any armed robbery offense committed subsequent to a conviction for armed robbery is a first degree felony calling for the enhanced penalty contemplated by this section. State v. Garcia, 1978-NMSC-039, 91 N.M. 664, 579 P.2d 790.

Pretrial notice of enhanced sentence not required. — The state is not required to give a defendant notice before trial on the substantive offense that enhancement may be sought after conviction. By filing a pleading seeking to enhance the defendant's sentence after conviction, the state complies with due process requirements. State v. Stout, 1981-NMSC-045, 96 N.M. 29, 627 P.2d 871.

II. MULTIPLE PROSECUTIONS OR PUNISHMENTS.

Single intent not applicable to robbery. — Robbery is not merely a property crime, but a crime against a person and the robbery statute is designed to protect citizens from violence and to punish the use of violence. The legislature intended to allow separate charges for each individual against whom violence or the threat of violence is separately used. The unit of prosecution for robbery is not based on the defendant's intent. State v. Bernal, 2006-NMSC-050, 140 N.M. 644, 146 P.3d 289.

Separate and discrete acts. — Where defendant had the intent to steal only one victim's property, but used separate and discrete acts of force and threats of force against two victims in an attempt to obtain that property, multiple attempted robbery charges do not violate double jeopardy. State v. Bernal, 2006-NMSC-050, 140 N.M. 644, 146 P.3d 289.

Single or multiple thefts. — Where property is stolen from the same owner and from the same place by a series of acts, if each taking is the result of a separate, independent impulse, each is a separate crime; but if the successive takings are all pursuant to a single, sustained criminal impulse and in execution of a general fraudulent scheme, they together constitute a single larceny, regardless of the time which may elapse between each act. State v. Allen, 1955-NMSC-015, 59 N.M. 139, 280 P.2d 298.

Question for jury. — Whether acts of defendant and companions in stealing victim's vodka and later returning, whipping victim and stealing money, constituted two offenses or only one was a question of fact for the jury under instructions to disregard testimony of more than one taking if they found the takings constituted separate offenses. State v. Allen, 1955-NMSC-015, 59 N.M. 139, 280 P.2d 298.

Two convictions for one conspiracy unconstitutional. — Because the defendant robbed two different victims but only one conspiracy to commit the robberies existed, it was violation of double jeopardy to convict the defendant for two conspiracies, as he was punished twice for the same offense. State v. Jackson, 1993-NMCA-092, 116 N.M. 130, 860 P.2d 772, cert. denied, 115 N.M. 795, 858 P.2d 1274.

Charge of larceny is necessarily included in charge of robbery. State v. Eckles, 1968-NMSC-079, 79 N.M. 138, 441 P.2d 36.

Legislative intent for separate punishments. — As each offense includes one statutory element not included in the other, the presumption is that the legislature intended to punish separately the two offenses of aggravated assault and armed robbery. State v. Armijo, 2005-NMCA-010, 136 N.M. 723, 104 P.3d 1114.

Attempted robbery and conspiracy to commit robbery. — Convictions for attempted robbery and conspiracy to commit robbery did not violate the constitutional prohibition against double jeopardy. State v. Carrasco, 1997-NMSC-047, 124 N.M. 64, 946 P.2d 1075.

Unitary conduct in commission of murder and robbery. — Since the defendant's conduct in stabbing and robbing a cabdriver was unitary, the elements of armed robbery were subsumed by the elements of felony murder in the course of an armed robbery and conviction and sentencing of the defendant for both felony murder and the underlying felony of armed robbery violated double jeopardy. State v. Contreras, 1995-NMSC-056, 120 N.M. 486, 903 P.2d 228.

Double jeopardy. — State v. Maes, 1983-NMCA-073, 100 N.M. 78, 665 P.2d 1169 is no longer considered to be controlling authority, because the analysis contained therein predates, and has been replaced by, the two-pronged analysis of Swafford v. State, 1991-NMSC-043, 112 N.M. 3, 810 P.2d 1223 for determining whether a defendant's right to be free from double jeopardy is violated by his convictions. State v. Armijo, 2005-NMCA-010, 136 N.M. 723, 104 P.3d 1114.

Convictions for felony murder and robbery, because they arise out of unitary conduct, violate the defendant's right to be free from double jeopardy. State v. Duffy, 1998-NMSC-014, 126 N.M. 132, 967 P.2d 807.

Where armed robbery provided the underlying felony for defendant's first degree murder conviction, the elements of the former crime were subsumed within the elements of the murder offense and, therefore, reversal of defendant's conviction and sentence for armed robbery was required. State v. Foster, 1999-NMSC-007, 126 N.M. 646, 974 P.2d 140.

Plaintiff who was convicted in a justice of the peace court (now replaced by magistrate courts) of petty misdemeanor of receiving stolen property, and was later convicted in the district court of the second degree felony of armed robbery, was not placed in double jeopardy, and the state was not barred or estopped from prosecuting and convicting him for the armed robbery. State v. Gleason, 1969-NMCA-054, 80 N.M. 382, 456 P.2d 215.

The defendant's acts of taking truck keys and using them to drive the truck away supported separate convictions for armed robbery and unlawful taking of a vehicle, and his double jeopardy right to be free from multiple punishment was not violated by his sentence for unlawful taking. State v. McGruder, 1997-NMSC-023, 123 N.M. 302, 940 P.2d 150.

Grand larceny and armed robbery merged. — Where the act of grand larceny was necessary to, or incidental to, the crime of armed robbery which the defendant committed, the offense of grand larceny was merged with the graver offense of armed robbery, and hence although the defendant was properly convicted of both armed robbery and grand larceny, he could not be doubly punished for both of those crimes. State v. Quintana, 1961-NMSC-108, 69 N.M. 51, 364 P.2d 120; State v. Montano, 1961-NMSC-174, 69 N.M. 332, 367 P.2d 95.

Offense of receiving stolen property cannot be included within armed robbery. State v. Mares, 1968-NMCA-042, 79 N.M. 327, 442 P.2d 817.

No bar to subsequent prosecution. — The facts necessary to sustain a conviction of receiving stolen property could not possibly sustain a conviction of armed robbery, which is essential to make a prior conviction a bar to a subsequent prosecution and conviction for a greater offense. State v. Mares, 1968-NMCA-042, 79 N.M. 327, 442 P.2d 817.

The fact that defendant pleaded guilty, or at least indicated his guilt and was thereupon convicted of receiving stolen property, which property later turned out to be a portion of the property taken by him in the armed robbery, in no way clothed him with immunity from being charged, tried and convicted of the far more serious offense of which he was guilty. State v. Mares, 1968-NMCA-042, 79 N.M. 327, 442 P.2d 817.

No bar to dual punishments. — The offenses of receiving stolen property and armed robbery fail to fall within the prohibition against punishment for more than one offense because the criminal intent essential to the felony of armed robbery is not an essential element of the petty misdemeanor of receiving stolen property. State v. Mares, 1968-NMCA-042, 79 N.M. 327, 442 P.2d 817.

Merger with aggravated battery. — Aggravated battery merges with a robbery offense when the defendant's intent to take a victim's purse includes an intent to injure the victim. State v. Gammil, 1989-NMCA-005, 108 N.M. 208, 769 P.2d 1299, overruled in part on other grounds, State v. Fuentes, 1994-NMCA-158, 119 N.M. 104, 888 P.2d 986, cert. denied, 119 N.M. 168, 889 P.2d 203 (1995).

Offense of aggravated battery did not merge with armed robbery. State v. Sandoval, 1977-NMCA-026, 90 N.M. 260, 561 P.2d 1353, cert. denied, 90 N.M. 637, 567 P.2d 486.

Separate punishment for armed robbery and aggravated battery is consistent with legislative intent and does not constitute double jeopardy. State v. Fuentes, 1994-NMCA-158, 119 N.M. 104, 888 P.2d 986, cert. denied, 119 N.M. 168, 889 P.2d 203 (1995).

Aggravated battery does not constitute lesser included offense. — The concept of lesser included offenses is not involved in a prosecution for armed robbery and aggravated battery because either offense can be committed without committing the other offense. State v. Sandoval, 1977-NMCA-026, 90 N.M. 260, 561 P.2d 1353, cert. denied, 90 N.M. 637, 567 P.2d 486.

Elements of aggravated battery and armed robbery differ. — Since taking the victim's purse was a fact required to be proved under the armed robbery charge, but not under the aggravated battery charge, and application of force was a fact required to be proved under the aggravated battery charge, while threatened use of force would be acceptable proof under the armed robbery charge, the elements of the two crimes were not the same. State v. Sandoval, 1977-NMCA-026, 90 N.M. 260, 561 P.2d 1353, cert. denied, 90 N.M. 637, 567 P.2d 486.

Sentences for robbery and aggravated burglary proper. — Since theft is a necessary element of robbery but it is not necessarily involved in aggravated burglary, which requires only the element of intent to commit felony or theft, while an unauthorized entry is an element of aggravated burglary but not of robbery, the crimes did not involve the same elements, and therefore, defendant could be sentenced for each of these crimes. State v. Ranne, 1969-NMCA-029, 80 N.M. 188, 453 P.2d 209.

Consecutive sentences for armed robbery and false imprisonment were proper; since the elements of the two crimes are dissimilar and the evidence required to establish each crime is independent, it was clear the crimes did not merge even when considered in light of the facts. State v. Moore, 1989-NMCA-073, 109 N.M. 119, 782 P.2d 91, cert. denied, 109 N.M. 54, 781 P.2d 782; State v. Ibarra, 1993-NMCA-040, 116 N.M. 486, 864 P.2d 302, cert. quashed, 117 N.M. 744, 877 P.2d 44 (1994), and cert. denied, 513 U.S. 1157, 115 S. Ct. 1116, 130 L. Ed. 2d 1080 (1995).

Robbery of money and unlawful taking of vehicle not merged. — Unlawful taking of a vehicle in violation of 64-9-4A, 1953 Comp., was not a necessary ingredient of offense of robbery of money by use or threatened use of force and violence; hence, defendant committed two separate and distinct criminal offenses, and the fact that they were committed on the same day, or even that one succeeded the other as part of one episode of criminal activity, did not cause them to merge. State v. Eckles, 1968-NMSC-079, 79 N.M. 138, 441 P.2d 36 (decided under prior law, statute repealed).

Convictions for robbery and battery against a household member did not violate double jeopardy. — Where defendant, who was a former employee of a restaurant, had an intimate romantic relationship with the victim who was the assistant manager of the restaurant; under the guise of returning the victim's cell phone, defendant approached the victim outside the restaurant, grabbed two money bags containing receipts of the restaurant that the victim intended to deposit; and when defendant grabbed the money bags, defendant struck the victim in the face and fled the scene, defendant's conviction for robbery and battery against a household member did not violate double jeopardy. State v. Gutierrez, 2012-NMCA-095, 286 P.3d 608, cert. denied, 2012-NMCERT-008.

III. ELEMENTS OF OFFENSE.

Criminal intent. — Theft is an element of the crime of robbery and it includes the concept of criminal intent. State v. Nelson, 1971-NMCA-152, 83 N.M. 269, 490 P.2d 1242, cert. denied, 83 N.M. 259, 490 P.2d 1232.

Aggravated assault and armed robbery distinguished.— Aggravated assault contains an element that armed robbery does not: striking at a victim instead of just threatening him. Armed robbery contains an element that aggravated assault does not: taking victim's property with the intent to permanently deprive victim of the property. State v. Armijo, 2005-NMCA-010, 136 N.M. 723, 104 P.3d 1114.

Intent to steal. — A specific criminal intent, the intent to steal, is an essential element of the crime of robbery, and the use or threatened use of force or violence does not eliminate such an intent as an element of that crime. State v. Puga, 1973-NMCA-079, 85 N.M. 204, 510 P.2d 1075.

Element of "carrying away" may be satisfied without actual possession. — The instant that a cashier, under coercion from the defendant, removes money from a cash register, the element of "carrying away" the money is satisfied, even though the defendant is apprehended prior to his actually taking possession of the money. State v. Williams, 1982-NMSC-041, 97 N.M. 634, 642 P.2d 1093, cert. denied, 459 U.S. 845, 103 S. Ct. 101, 74 L. Ed. 2d 91 (1982).

Larceny plus force. — The presence of violence, actual or constructive, is an essential ingredient of robbery, but not of larceny, so that robbery is a compound or aggravated larceny, composed of the crime of larceny from the person with the aggravation of force, actual or constructive, used in the taking. State v. Wingate, 1975-NMCA-035, 87 N.M. 397, 534 P.2d 776.

Use or threatened use of force is essential element of robbery under this section. State v. Martinez, 1973-NMCA-120, 85 N.M. 468, 513 P.2d 402.

Armed robbery. — Armed robbery may involve the use of force or the threat of force. State v. Armijo, 2005-NMCA-010, 136 N.M. 723, 104 P.3d 1114.

Force or intimidation is gist of offense under this section. State v. Sanchez, 1967-NMCA-009, 78 N.M. 284, 430 P.2d 781.

Amount or degree of force is not determinative factor in establishing the use of force in robbery. State v. Martinez, 1973-NMCA-120, 85 N.M. 468, 513 P.2d 402; State v. Segura, 1970-NMCA-066, 81 N.M. 673, 472 P.2d 387, cert. denied, 81 N.M. 669, 472 P.2d 383.

Compulsion the issue. — Where force is charged under this section, the issue is not how much force was used, but whether the force was sufficient to compel the victim to part with his property. State v. Sanchez, 1967-NMCA-009, 78 N.M. 284, 430 P.2d 781.

Force or intimidation is gist of offense. — Under this section the force or fear must be the moving cause inducing the victim to part unwillingly with his property. State v. Sanchez, 1967-NMCA-009, 78 N.M. 284, 430 P.2d 781.

Amount or degree of force is not determinative factor. — The use or threatened use of force or violence is not, in and by itself, sufficient to sustain a conviction for robbery; it must be the lever by which the thing of value is separated from the person or immediate control of another. State v. Baca, 1971-NMCA-142, 83 N.M. 184, 489 P.2d 1182; see also State v. Martinez, 1973-NMCA-120, 85 N.M. 468, 513 P.2d 402.

Implicit threat. — Neither statutory language nor case law limit the term "threat" to explicit, verbal threats of force. State v. Hernandez, 2003-NMCA-131, 134 N.M. 510, 79 P.3d 1118, cert. denied, 2003-NMCERT-002, 134 N.M. 723, 82 P.3d 533.

Force used for mere escape not sufficient. — Under the facts of the present case, the victim's money was removed and separated from his person by stealth, and the defendant's use of a weapon only after the money was separated from the victim was merely an action to hold victim at bay as he escaped from the motel. The use of force to retain property or to facilitate escape does not satisfy the force element necessary for the crime of robbery. Thus, there was insufficient evidence to support the defendant's conviction for armed robbery. State v. Lewis, 1993-NMCA-165, 116 N.M. 849, 867 P.2d 1231.

Intimidating reasonable man. — Under this section where fear or intimidation is charged, it is necessary to show that the circumstances were such as to cause a reasonable man to apprehend danger and that he could be reasonably expected to give up his property in order to protect himself. State v. Sanchez, 1967-NMCA-009, 78 N.M. 284, 430 P.2d 781.

Assault and putting in fear. — It was not necessary that the assault be "with force and violence," if it was done by "assault and putting in fear." Territory v. Abeita, 1873-NMSC-001, 1 N.M. 545 (decided under prior law).

Armed robbery is not offense distinct from robbery; the offense is robbery whether or not armed, and whether or not one is an accessory; "armed robbery" is a way to commit "robbery" and, if done in that way, the penalty is greater but the basic offense remains robbery. State v. Roque, 1977-NMCA-094, 91 N.M. 7, 569 P.2d 417, cert. denied, 91 N.M. 4, 569 P.2d 414.

Robbery of a deceased person. — Where defendant, with the assistance of others, robbed and then killed the victim, left the scene only to return several hours later to empty the victim's pocket of cash and pour gasoline throughout the residence and on the victim's body and set the residence on fire, defendant was properly convicted under the robbery statute for the second robbery, because the principle of law that one cannot be guilty of robbery if the victim is a deceased person does not apply where a robbery and homicide are a part of the same transaction and are so interwoven with each other as to be inseparable, and it is reasonable to conclude that defendant's second robbery and the subsequent arson were directly connected with the original robbery and killing, and therefore the second robbery can rationally be linked to the murder that enabled the robbery. State v. Montoya, 2017-NMCA-033, cert. denied.

Degree of force a jury issue. — The question of whether or not the snatching of the purse from the victim was accompanied by sufficient force to constitute robbery is a factual determination, within the province of the jury's discretion. State v. Clokey, 1976-NMSC-035, 89 N.M. 453, 553 P.2d 1260.

Gun as deadly weapon. — There was no room for argument that gun with which defendant was armed when he committed assault and robbery was not a dangerous weapon, whether loaded or unloaded. State v. Montano, 1961-NMSC-174, 69 N.M. 332, 367 P.2d 95.

BB gun as a deadly weapon. — Although a BB gun is not a deadly weapon as a matter of law, where the state was prepared to show that defendant pointed what looked to the victim to be a handgun at the victim's stomach area and demanded money, a jury could reasonably conclude that the gun and the manner of use indicated that it was a weapon that could inflict a dangerous wound. State v. Fernandez, 2007-NMCA-091, 142 N.M. 231, 164 P.3d 112.

Ownership. — The crime of robbery requires that the property taken be in the immediate control of another; however, the property need not be owned by the person from whom it was taken. State v. Kenny, 1991-NMCA-094, 112 N.M. 642, 818 P.2d 420, cert. denied, 112 N.M. 499, 816 P.2d 1121.

IV. INDICTMENT AND INFORMATION.

Reference to statute sufficient. — Indictment charging defendant with "robbery while armed with a deadly weapon contrary to 40A-16-2, 1953 Comp. [Section 30-16-2 NMSA 1978]" was not deficient for failure to include phrase "by use or threatened use of violence" since such phrase was contained in the definition of, and was included in the word, robbery, and since an indictment was sufficient if it identified the crime charged by reference to the statute establishing the offense. State v. Walsh, 1969-NMCA-123, 81 N.M. 65, 463 P.2d 41.

Alternative charges. — Charge of both robbery and armed robbery in indictment was not duplicitous because all that was charged was that the one robbery was committed in two ways, namely, robbery without specification of the means and robbery by firearm, and such was not duplicity, but alternative pleading. State v. Roque, 1977-NMCA-094, 91 N.M. 7, 569 P.2d 417, cert. denied, 91 N.M. 4, 569 P.2d 414.

Bill of particulars. — Defendant's motion for bill of particulars should have been granted, furnishing name and type of store where the robbery allegedly occurred, whether a safe, vault or other depository was involved and the name of the person or persons allegedly intimidated or threatened, and failure to grant motion was reversible error. State v. Graves, 1963-NMSC-183, 73 N.M. 79, 385 P.2d 635 (decided under prior law).

V. EVIDENCE.

A. IN GENERAL.

Admission of unavailable accomplice's tape recorded custodial police interview was not harmless error because it provided key evidence directly inculpating defendant convicted of felony murder, and remaining circumstantial evidence against him, although strong, was disputed. State v. Johnson, 2004-NMSC-029, 136 N.M. 348, 98 P.3d 998, cert. denied, 543 U.S. 1177, 125 S. Ct. 1334, 161 L. Ed. 2d 162 (2005).

Statement by defendant. — Testimony that defendant said, "I was going to do something but I was too scared," while hearsay, was admitted without objection and, therefore, was competent in robbery prosecution. State v. Baca, 1971-NMCA-142, 83 N.M. 184, 489 P.2d 1182.

Defendant's pecuniary condition. — In prosecution for robbery while armed with dangerous weapon under Laws 1921, ch. 20, § 1 evidence of accused's pecuniary condition, on the question of motive, was properly excluded. State v. Tapia, 1937-NMSC-077, 41 N.M. 616, 72 P.2d 1087.

Other crime. — In prosecution for aggravated burglary, armed robbery and rape it was proper to go into details of another rape some five blocks away about an hour later, in order to establish both characteristic conduct and possession of knife and flashlight involved in first crime. State v. Lopez, 1969-NMCA-057, 80 N.M. 599, 458 P.2d 851, cert. denied, 80 N.M. 607, 458 P.2d 859, and cert. denied, 398 U.S. 942, 90 S. Ct. 1860, 26 L. Ed. 2d 279 (1970).

Other offenses. — In armed robbery prosecution, reference in defendant's statement to two other offenses committed in a continuous sequence immediately preceding robbery, in light of alibi defense and identity issue was properly not deleted. State v. Stout, 1971-NMCA-028, 82 N.M. 455, 483 P.2d 510.

Polygraph test results. — Where armed robbery was committed in daylight in victim's home and took about 20 minutes, throughout which time victim was in presence of the perpetrator, and victim identified defendant as that person, admission into evidence of polygraph test results as per stipulation of the defense, without objection at trial, was not a denial of a fair trial or due process. State v. Chavez, 1969-NMCA-109, 80 N.M. 786, 461 P.2d 919 (decided under prior law).

Exhibits admissible. — There was no abuse of discretion on part of trial judge in admitting into evidence moneybags and contents stolen by robbers, along with jacket the same color as one worn by one robber and pistol which would match general description of robbery weapon, which items were found in car driven by defendant which he and companion abandoned, and checks stolen at same time, which were on person of companion. State v. Beachum, 1970-NMCA-119, 82 N.M. 204, 477 P.2d 1019.

Weight of evidence. — Defense argument that items of stolen property were not shown to have been in possession of defendants went to the weight to be accorded this evidence and not its admissibility, where evidence indicated that defendants had possession of the property in cafe and attempted to destroy or conceal it. State v. Santillanes, 1970-NMCA-003, 81 N.M. 185, 464 P.2d 915.

Absence of alibi witness. — Where defendant in trial for armed robbery proceeded to trial without objection, knowing that alibi witness was not present, without applying for writ of attachment or other process to secure her presence, and during hearing upon motion for new trial, trial court heard witness' testimony and concluded it was not probable that a different result would have been reached had her testimony been produced at trial, it could not be said that court abused its discretion in refusing to grant a new trial. State v. Milton, 1969-NMCA-099, 80 N.M. 727, 460 P.2d 257.

B. SUFFICIENCY.

Circumstantial evidence. — Circumstantial evidence may suffice to establish the corpus delicti, and it may also suffice as proof of the identity of the perpetrator of a crime. State v. Santillanes, 1970-NMCA-003, 81 N.M. 185, 464 P.2d 915.

Corpus delicti plus identity of robber. — Proof sufficient to sustain a conviction of the crime of robbery involves proof of two distinct propositions, namely, the theft of something of value from the person of another or from the immediate control of another by use or threatened use of force or violence, and that such theft was done by the person or persons charged; in other words, proof of the corpus delicti and the identity of the accused. State v. Santillanes, 1970-NMCA-003, 81 N.M. 185, 464 P.2d 915.

Corpus delicti proven. — Corpus delicti in prosecution for armed robbery was sufficiently proven by testimony of complaining witness that he was the victim of a robbery by some person armed with a dangerous weapon. State v. Nance, 1966-NMSC-207, 77 N.M. 39, 419 P.2d 242, cert. denied, 386 U.S. 1039, 87 S. Ct. 1495, 18 L. Ed. 2d 605 (1967).

Threatened use of force. Where a defendant points a note at the teller's cash drawer, keeps his other hand hidden from view, states that the teller should give him everything, and directs the teller not to use the alarm, a reasonable fact finder could conclude that this combination of actions threatened force and caused the teller to hand over the contents of the cash drawer State v. Hernandez, 2003-NMCA-131, 134 N.M. 510, 79 P.3d 1118, cert. denied, 2003-NMCERT-002, 134 N.M. 723, 82 P.3d 533.

Identification adequate. — Where victim and witness of robbery perpetrated by two masked men described, on the night of the robbery, the robber and the clothes he was wearing, and at trial identified clothes found in defendant's apartment and defendant himself on basis of his posture, size and stoop, there was sufficient evidence to establish that defendant was one of the men involved in the robbery. State v. Quintana, 1961-NMSC-108, 69 N.M. 51, 364 P.2d 120; see also State v. Montano, 1961-NMSC-174, 69 N.M. 332, 367 P.2d 95.

Victim identification. — Where the victim positively identified the defendant, this testimony, alone, was held sufficient to sustain the conviction. State v. Hunt, 1972-NMCA-026, 83 N.M. 546, 494 P.2d 624.

Exact role of defendant immaterial. — Although evidence as to which of the robbers took the change was sparse and conflicting, this did not matter. The jury was instructed on aiding and abetting and the evidence was substantial that defendant was at least an aider and abettor of the robbery of the change. State v. Urban, 1974-NMCA-046, 86 N.M. 351, 524 P.2d 523.

Mere presence insufficient. — If proof disclosed only presence of defendant at scene of robbery it would not support a conviction. State v. Santillanes, 1970-NMCA-003, 81 N.M. 185, 464 P.2d 915.

Where state did not contend that defendant and his companions entered service station with any thought or intention of committing a crime, and acts relating to alleged robbery commenced after defendant had been shot and placed in his car, defendant could only have committed robbery as accessory or as aider and abettor and only if the record showed that defendant shared the criminal intent and purpose of the principals, mere presence without some outward manifestation of approval being insufficient. State v. Salazar, 1967-NMSC-187, 78 N.M. 329, 431 P.2d 62.

Defendant's participation not shown. — Evidence was insufficient to support verdict against individual who remained in back seat of car while two companions got out and beat and robbed person who had been given a ride, where there was no showing of a community of purpose to accomplish the crime, or any acts, words, signs or motions that would evince a design to encourage, incite or approve of the crime. State v. Lucero, 1957-NMSC-062, 63 N.M. 80, 313 P.2d 1052.

Driver of getaway car. — Testimony that complaining witness was beaten and robbed by two individuals with whom he had been riding, while driver of the car kept the motor running, saw what occurred and drove the getaway car was sufficient to find driver guilty as a principal. State v. Lucero, 1957-NMSC-062, 63 N.M. 80, 313 P.2d 1052.

Mere presence insufficient. — Verdict of attempted armed robbery was supported by substantial evidence where defendant was driver of car stationed outside liquor store and lounge awaiting commission of armed robbery by others, one of whom had pulled gun on manager and told him to lie down behind counter when robbery was abandoned after witness walked into store and started screaming. State v. Paul, 1972-NMCA-043, 83 N.M. 619, 495 P.2d 797.

Firing at police. — Shooting by defendant at police who were pursuing car in which he and robber were passengers which was fleeing scene of crime was evidence that defendant approved the robbery and shared the robber's criminal intent, and was sufficient to sustain armed robbery conviction. State v. O'Dell, 1973-NMCA-124, 85 N.M. 536, 514 P.2d 55.

Exclusive possession of stolen property. — Articles stolen from store by robbers which were found a short time later in front seat of car driven by defendant constituted evidence which would support conclusion that defendant was in exclusive possession of the property, despite fact that another person accompanied defendant in the car. State v. Beachum, 1970-NMCA-119, 82 N.M. 204, 477 P.2d 1019.

Possession insufficient absent other facts. — Although recently stolen property found in exclusive possession of defendant will not alone support a verdict of guilt, circumstances of flight, apprehension only minutes after robbery a short distance from scene of crime, and finding of clothing in car driven by defendant fitting description of eye witnesses, constituted sufficient circumstance of guilt in addition to possession of property stolen to support verdict. State v. Beachum, 1970-NMCA-119, 82 N.M. 204, 477 P.2d 1019.

Seizure of weapon during commission of robbery. — When defendant acquires a weapon during the commission of a robbery and then uses the weapon to harm or threaten the victim, or to acquire additional possessions from the victim, he is guilty of armed robbery. State v. Hamilton, 2000-NMCA-063, 129 N.M. 321, 6 P.3d 1043, cert. denied, 129 N.M. 249, 4 P.3d 1240.

The determination of whether a defendant who seizes a weapon during the commission of a robbery is armed "while" committing the robbery is highly fact sensitive. When the defendant acquires the weapon and how he uses it after its acquisition are paramount. State v. Hamilton, 2000-NMCA-063, 129 N.M. 321, 6 P.3d 1043, cert. denied, 129 N.M. 249, 4 P.3d 1240.

Codefendant's use of weapon. — Where several defendants were prosecuted for robbery, all tried as principals, proof that one was armed with dangerous weapon was sufficient to satisfy allegation of the information that all were so armed, and allegation that dangerous weapon was held in hands of one defendant was surplusage. State v. Kimbell, 1930-NMSC-075, 35 N.M. 101, 290 P. 792.

Deadly character of weapon not established. — In prosecution for robbery while armed with a deadly weapon, where defendant was convicted as an accessory, evidence that other man raised a tire tool, the size, length or weight of which was not described, over service station attendant's head "like a threat," without more, was insufficient for a determination that tire tool was capable of producing death or great bodily harm or a weapon with which dangerous wounds could be inflicted. State v. Gonzales, 1973-NMCA-153, 85 N.M. 780, 517 P.2d 1306.

Surprise not equivalent to force. — The defendant's motion for a directed verdict, questioning the sufficiency of the evidence for a conviction of armed robbery, should have been sustained, where witness only testified that he had been taken by surprise and not that by force or fear he had been induced to part with anything of value. State v. Baca, 1971-NMCA-142, 83 N.M. 184, 489 P.2d 1182.

Jostling victim. — Evidence of jostling or causing the victim to fall as property is taken is a sufficient showing to establish the use of force. State v. Martinez, 1973-NMCA-120, 85 N.M. 468, 513 P.2d 402.

Evidence sufficient. — Where the victim identified defendant in court and testified that defendant was in a white car that drove up alongside the victim, that defendant grabbed the victim's purse, and that the purse and its contents had value and a police officer testified that the victim's driver's license, which was in the purse, was found during an inventory search of a vehicle in which defendant was a passenger, there was sufficient evidence to support defendant's conviction for robbery. State v. Verdugo, 2007-NMCA-095, 142 N.M. 267, 164 P.3d 966, cert. quashed, 2008-NMCERT-011, 145 N.M. 531, 202 P.3d 124.

Where defendant approached an employee of a hotel in the hotel laundry room, struck the employee in the face with a closed fist, beat the employee over the head with a hard plastic tube, took the keys to the hotel office, and took money from the hotel cash drawer, there was sufficient evidence that defendant formed the intent to commit robbery before or during the time defendant committed the battery on the employee. State v. Lopez, 2011-NMCA-071, 150 N.M. 34, 256 P.3d 977, cert. denied, 2011-NMCERT-005, 150 N.M. 666, 265 P.3d 717.

Circumstantial evidence, sufficient to sustain the defendant's conviction for robbery, included evidence placing defendant and his distinctly colored car at the service station on the afternoon before the robbery, evidence that the robber departed the scene in this car after the robbery, the description of the robber given by a witness and defendant's own statement against his interest. State v. Milton, 1974-NMCA-094, 86 N.M. 639, 526 P.2d 436.

Where defendant had told witnesses before and after the murder that he was going to rob/had robbed someone and no money was found on murdered victim but there was evidence that victim had money, there was sufficient evidence introduced for jury to find that defendant committed armed robbery. State v. Montoya, 1984-NMSC-073, 101 N.M. 424, 684 P.2d 510.

Evidence was sufficient to support defendant's conviction as an accessory to armed robbery, where his confession, found to be voluntary, was corroborated by other evidence at trial. Church v. Sullivan, 942 F.2d 1501 (10th Cir. 1991).

Evidence that defendants intruded into husband and wife's home, beat and kicked the husband, and dragged both of them into a closet prior to absconding with money and jewelry, sufficed for a conviction for robbery. State v. Ibarra, 1993-NMCA-040, 116 N.M. 486, 864 P.2d 302, cert. quashed, 117 N.M. 744, 877 P.2d 44 (1994), and cert. denied, 513 U.S. 1157, 115 S. Ct. 1116, 130 L. Ed. 2d 1080 (1995).

Where there was evidence that defendant or accomplice or both assaulted victim and split the money taken from the victim, this is sufficient evidence for the conviction of robbery, as principal or as an accessory. State v. Lopez, 2005-NMSC-036, 138 N.M. 521, 123 P.3d 754, overruled on other grounds by State v. Rudy B., 2010-NMSC-045, 149 N.M. 22, 243 P.3d 726.

Credibility and weight of evidence for jury. — Where although the evidence concerning armed robbery was conflicting it substantially supported the verdict, the credibility of the witnesses and the weight to be given their testimony was for the jury to determine. State v. Valles, 1972-NMCA-027, 83 N.M. 541, 494 P.2d 619.

Jury to determine facts. — Whether defendant had gun in her hand as testified to by robbery victim was for the jury to resolve. State v. Encee, 1968-NMCA-012, 79 N.M. 23, 439 P.2d 240.

VI. INSTRUCTIONS.

Scope of appellate review regarding jury charge. — Comparing the elements of aggravated assault, a compound offense that has three alternate ways of being charged, with armed robbery, another offense for which the statute contains alternatives, the appellate court looks only to the statutes as charged to the jury and disregards the inapplicable statutory elements. State v. Armijo, 2005-NMCA-010, 136 N.M. 723, 104 P.3d 1114.

Instructions substantially following language of statute was sufficient. State v. Lopez, 1969-NMCA-057, 80 N.M. 599, 458 P.2d 851, cert. denied, 80 N.M. 607, 458 P.2d 859, and cert. denied, 398 U.S. 942, 90 S. Ct. 1860, 26 L. Ed. 2d 279 (1970).

More clarity possible. — Court of appeals held that while an instruction in robbery prosecution on the requisite intent to steal would have been a clearer statement as to that element, an instruction in the language of the statute was legally sufficient. State v. Puga, 1973-NMCA-079, 85 N.M. 204, 510 P.2d 1075.

Use or threat of violence. — Since "use or threatened use of force or violence" is an essential element of this crime, a failure to instruct on this essential element is reversible error. State v. Walsh, 1969-NMCA-123, 81 N.M. 65, 463 P.2d 41.

Putting victim in fear. — Instruction requiring acquittal if jury believed that defendant did not with force and violence take the property would have been erroneous since jury might have been satisfied that there was an "assault and putting in fear," which with other essential ingredients of the offense was all that was requisite for a conviction. Territory v. Abeita, 1873-NMSC-001, 1 N.M. 545 (decided under prior law).

Intent adequately covered. — Defendant's argument that since he was charged with being accessory to an attempted armed robbery and where there was no evidence of a demand for money or goods, he was entitled to a specific intent instruction within the general intent instruction was without merit where a separate instruction on attempt was given as well as an instruction on armed robbery setting out requirement of specific intent. State v. Paul, 1972-NMCA-043, 83 N.M. 619, 495 P.2d 797.

Train hold-up. — The phrase "holding up," when used in instructions in relation to an attack upon a train, meant the forcible detention of a train with intent to commit a robbery or some other felony. Territory v. McGinnis, 1900-NMSC-019, 10 N.M. 269, 61 P. 208, overruled on other grounds by State v. Deltenre, 1966-NMSC-187, 77 N.M. 497, 424 P.2d 782 (decided under prior law).

Fruits of crime. — Since a determination by jury that defendant had in his possession the fruits of the crime does not justify a finding of guilt unless there is evidence of other circumstances connecting the defendant with the offense, the jury should also be instructed as to the requirement of proof by the state of other circumstances by which the defendant is linked to the crime charged. State v. Graves, 1963-NMSC-183, 73 N.M. 79, 385 P.2d 635.

Possession of unidentified money. — The court in its instructions in robbery case, must explain to the jury the rules of law with respect to possession of unidentified money, so that the jury will have a guide in making its determination of what weight, if any, is to be given to this type of evidence; the jury must be satisfied beyond a reasonable doubt that the defendant had in his possession the actual fruits of the crime, or a part thereof. State v. Graves, 1963-NMSC-183, 73 N.M. 79, 385 P.2d 635.

Entrapment. — Where there was no evidence that informer who drove getaway car either persuaded or induced defendant to commit armed robbery, defendant was not entitled to instruction on entrapment. State v. Sweat, 1972-NMCA-092, 84 N.M. 122, 500 P.2d 207.

Instruction on larceny required. — Because robbery is an aggravated larceny, larceny is necessarily included within the offense of robbery, so that defendant had the right to have instructions on the lesser included offenses of larceny submitted to the jury, since there was evidence from several defense witnesses which tended to establish larceny. State v. Wingate, 1975-NMCA-035, 87 N.M. 397, 534 P.2d 776.

An instruction on larceny should have been given since there was evidence that the defendant's shoving of the victim was part of his drunkenness, and that the purse was taken without force sufficient to constitute robbery. State v. Curley, 1997-NMCA-038, 123 N.M. 295, 939 P.2d 1103.

Charge on lesser offense not supported. — Where testimony of victim did not give rise to any other conclusion than that defendant committed the robbery while armed, defendant was not entitled to have the jury instructed on the lesser offenses because there was no evidence to establish them. State v. Sweat, 84 N.M. 122, 500 P.2d 207.

Directing verdict. — In a prosecution for unarmed robbery, a motion for a directed verdict is to be determined by viewing the evidence in the light most favorable to the state. State v. Sanchez, 1967-NMCA-009, 78 N.M. 284, 430 P.2d 781.

Self-defense instruction refused since defendant entered store with weapon, prepared to rob. — Where a murder defendant entered a store with a weapon, prepared to commit armed robbery if the circumstances permitted it, such facts can only reasonably point to the commission of a felony in a situation which is, of itself, "inherently or foreseeably dangerous to human life," and a self-defense instruction is properly refused. State v. Chavez, 1983-NMSC-037, 99 N.M. 609, 661 P.2d 887.

Voluntary intoxication. Where the defendant presented no evidence that he was intoxicated to any degree, let alone to the point that it affected his ability to form the necessary mental state for robbery, a specific-intent crime, he was not entitled to an instruction on voluntary intoxication; mere evidence that the defendant consumed an intoxicant is not enough to warrant an intoxication instruction. State v. Hernandez, 2003-NMCA-131, 134 N.M. 510, 79 P.3d 1118, cert. denied, 2003-NMCERT-002, 134 N.M. 723, 82 P.3d 533.

VII. SUBSEQUENT ARMED ROBBERY OFFENSES.

Subsequent armed robbery offenses. — Proof of prior armed robbery convictions should be presented to the judge and established by a preponderance of the evidence. State v. Villegas, 2009-NMCA-023, 145 N.M. 592, 203 P.3d 123, cert. denied, 2009-NMCERT-001, 145 N.M. 655, 203 P.3d 870.

Prior armed robbery not also used with habitual offender statute. — A prior armed robbery conviction may not be used for ehancement under both this section and the habitual offender provision; accordingly, in the case of a defendant who has one prior burglary, one prior armed robbery, and one current armed robbery, the sentence for the current offense, discounting any reduction for mitigating circumstances, should be that for a second armed robbery plus a one-year enhancement for the prior burglary under the habitual offender statute. State v. Keith, 1985-NMCA-012, 102 N.M. 462, 697 P.2d 145, cert. denied, 102 N.M. 492, 697 P.2d 492.

Law reviews. — For article, "The Confusing Law of Criminal Intent in New Mexico," see 5 N.M.L. Rev. 63 (1974).

For comment, "Definitive Sentencing in New Mexico: The 1977 Criminal Sentencing Act," see 9 N.M.L. Rev. 131 (1978-79).

For annual survey of New Mexico law relating to criminal law, see 12 N.M.L. Rev. 229 (1982).

For annual survey of New Mexico law relating to criminal law, see 13 N.M.L. Rev. 323 (1983).

For annual survey of New Mexico law relating to criminal procedure, see 13 N.M.L. Rev. 341 (1983).

For note, "Search and Seizure - Automobile Inventory Search Exception to the Fourth Amendment Expanded by State v. Williams," see 13 N.M.L. Rev. 689 (1983).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 67 Am. Jur. 2d Robbery §§ 1 to 9.

Taking property from the person by stealth as robbery, 8 A.L.R. 359.

What constitutes attempt to commit robbery, 55 A.L.R. 714.

Other robberies, admissibility of evidence of, 42 A.L.R.2d 854.

Gambling or lottery paraphernalia as subject of robbery, 51 A.L.R.2d 1396.

Stolen money or property as subject of robbery, 89 A.L.R.2d 1435.

Purse snatching as robbery or theft, 42 A.L.R.3d 1381.

Robbery by means of toy or simulated gun or pistol, 81 A.L.R.3d 1006.

Robbery, attempted robbery, or assault to commit robbery, as affected by intent to collect or secure debt or claim, 88 A.L.R.3d 1309.

Use of force or intimidation in retaining property or in attempting to escape, rather than in taking property, as element of robbery, 93 A.L.R.3d 643.

Pocket or clasp knife as deadly or dangerous weapon for purposes of statute aggravating offenses such as assault, robbery, or homicide, 100 A.L.R.3d 287.

Coercion, compulsion, or duress as defense to charge of robbery, larceny, or related crime, 1 A.L.R.4th 481.

Dog as deadly or dangerous weapon for purposes of statutes aggravating offenses such as assault and robbery, 7 A.L.R.4th 607.

Walking cane as deadly or dangerous weapon for purposes of statutes aggravating offenses such as assault and robbery, 8 A.L.R.4th 842.

Parts of the human body, other than feet, as deadly or dangerous weapons for purposes of statutes aggravating offenses such as assault and robbery, 8 A.L.R.4th 1268.

Fact that gun was unloaded as affecting criminal responsibility, 68 A.L.R.4th 507.

"Intimidation" as element of bank robbery under 18 USCS § 2113(a), 63 A.L.R. Fed. 430, 163 A.L.R. Fed. 225.

77 C.J.S. Robbery § 1 et seq.