APPEAL from the Circuit Court of Kankakee County; the Hon.
PATRICK M. BURNS and the Hon. JOHN F. MICHELA, Judges, presiding.
MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
This consolidated appeal by defendant Lee Arthur Smith was made from convictions of robbery and intimidation entered in the Circuit Court of Kankakee County after jury trials of the cases. In case No. 77-393, which involved the Montgomery Ward store in Kankakee, defendant was sentenced to six to 20 years on a conviction for robbery and to a concurrent sentence of three to 10 years on the intimidation conviction. In case No. 78-68, involving the K-Mart store in Kankakee, defendant was sentenced to 6 2/3 to 20 years on the robbery conviction and to a concurrent term of 3 1/3 to 10 years on the intimidation conviction. In the second case, No. 78-68 (involving the K-Mart store), the trial judge directed that the sentences entered in that case were to be served consecutively to the sentences entered in No. 77-393 (involving the Montgomery Ward store). See Ill. Rev. Stat. 1975, ch. 38, par. 1005-8-4.
There are two issues which are common to both appeals and which formed the basis for this consolidation on appeal. In both of the cases, the defense argued that the evidence presented was not sufficient to support the conviction for robbery. It is argued that there was no taking from the person or presence of the victim since (it is contended) there was no threat of imminent harm. As a second issue, the defendant also argues, in both instances, that intimidation is a lesser included offense of robbery, and that, in the event the robbery convictions were affirmed, the intimidation convictions should be vacated.
The record in 78-68 discloses that in the early afternoon of October 16, 1976, defendant Smith telephoned the manager of the K-Mart store in Kankakee. Defendant informed the manager that bombs had been planted in the store and that the bombs would be detonated in 12 minutes unless the manager put $10,000 in a bag and delivered the bag with the money to a phone booth at a nearby service station. Smith was apparently calling from the phone booth at that time. The manager then gathered $4,500, which was all he could then raise, and placed it in a bag. He took it to the designated nearby phone booth and placed it there. He left after depositing the bag in the booth. A security guard kept watch on the phone booth and saw a man, later identified as the defendant, pick up the bag a short while thereafter, who walked away with the bag. In the pursuit which followed, the guard lost sight of the man and the police, who were then notified, were unable to locate him. The defendant was apprehended a week later, after the incidents involved in the Montgomery Ward case.
In 77-393, it was shown that defendant phoned the manager of the local Montgomery Ward store in Kankakee in the early afternoon of October 23, 1976. Defendant informed the manager that bombs had been planted in the store and defendant said that he would detonate the bombs within six minutes unless the manager delivered $10,000 in cash to a specified nearby location. Defendant was apparently making the call from a tavern near the specified dropoff point. Defendant also indicated in the phone conversation that he would detonate the bombs if police were called or if the store was evacuated. The manager immediately notified police who then arranged for a delivery of paper, instead of cash, in a store money bag. They also set up surveillance around the drop-off point. The manager walked to the specified location and there placed the bag in the grass off the sidewalk as he had been directed. The manager then returned to the store which had been evacuated. A short time later, police officers at the drop-off scene, observed defendant arrive in an automobile, get out of the car and then proceed to the area where the bag was located. Defendant walked back and forth, always checking in both directions in the general vicinity and, finally, he picked up the bag. He was arrested at that time by the police.
The first issue which is common to both cases on appeal is whether the evidence was sufficient to sustain a conviction for robbery. Robbery is defined in section 18-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 18-1) as follows:
"(a) A person commits robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force.
(b) Sentence. Robbery is a Class 2 felony."
The defense contends that the facts of the two cases do not establish a taking from the person or presence of the managers and that the facts do not show threats of imminent use of force. The defense argues that the offenses committed by the defendant were theft only and attempted theft (Ill. Rev. Stat. 1975, ch. 38, pars. 16-1, 8-4). We do not believe that this position is sound.
1, 2 As stated in People v. Patton (3d Dist. 1978), 60 Ill. App.3d 456, 459, 376 N.E.2d 1099:
"The gist of that offense [robbery] is the force and intimidation used in the taking from the person against his will [citation]; and the degree of force necessary to constitute robbery must be such that the power of the owner to retain his property is overcome, either by actual violence physically applied, or by putting him in such fear as to overpower his will." (People v. Williams, 23 Ill.2d 295, 178 N.E.2d 372 (1961).)
It has been established that the cause which gives rise to the fear need not be contemporaneous with the taking but may precede it. (People v. Stewart (1st Dist. 1977), 54 Ill. App.3d 76, 80, 369 N.E.2d 131.) As also noted in People v. Howell (4th Dist. 1973), 11 Ill. App.3d 391, 393, 296 N.E.2d 760, it is the element of force or intimidation, and the resulting fear in the person assaulted or threatened, which makes the difference between robbery and theft. The threat made to the managers in these two cases was to detonate a number of bombs in their stores within minutes (six minutes in one case and 12 minutes in the other), if defendant's instructions were not complied with by the managers. The circumstance that the threat came over the telephone did not reduce the resulting fear produced or the element of personal confrontation involved.
3, 4 With the designation of nearby drop-off points, the store managers had every reason to believe that the caller was in the nearby area and would detonate the bombs. In one case, the caller threatened to detonate the bombs if the store was evacuated. The fear which resulted from these threats obviously began at the moment they were received over the telephone and in all probability did not abate until after the stores had been thoroughly searched by police experts. Statements made over the telephone to the store managers, that the bombs were in the stores and would be detonated within a matter of a few minutes, were threats of the imminent use of force. (People v. Stewart (1st Dist. 1977), 54 Ill. App.3d 76, 369 N.E.2d 131.) As a result of the fear engendered by such threats, the managers were directed, against the wills of the managers, to part with property in possession of the managers and belonging to the respective stores. The evidence in both cases demonstrates that property was to be taken from the managers by the threat of great violence. The evidence was, therefore, sufficient to sustain the robbery convictions entered by the circuit courts>.
5 Defense argues that the convictions should not be sustained since there was no taking from the person or presence of the store managers. In People v. Braverman (1930), 340 Ill. 525, 173 N.E. 55, the Illinois Supreme Court recognized that a taking of property constituting a robbery could be accomplished without that taking occurring in the actual or immediate presence of the owner or custodian. In Braverman, the robbers took money from a safe while the victims of the robbery were in another room. In the instant case, the defendant, calling from nearby points in each case, made threats of great and imminent harm unless money was delivered to specified, certain nearby locations. When confronted with these threats of force, the managers walked to the drop-off points specified by the defendant and there parted with possession and control over certain property. At the time the managers gave up possession of the property under threat of violence, they had no way of knowing where the defendant was, and they had good reason to fear and believe he was in the immediate area. In the Montgomery Ward situation, there was testimony that indicated that defendant watched from a nearby tavern as the money bag, presumed to be full of money, was delivered. Obviously, the taking from the person or ...