§ 28-324 — Robbery; penalty

Nebraska § 28-324

• Jurisdiction: Nebraska
• Ch. 28: Crimes and Punishments

Text

(1) A person commits robbery if, with the intent to steal, he forcibly and by violence, or by putting in fear, takes from the person of another any money or personal property of any value whatever.
(2) Robbery is a Class II felony.

Legislative History

Source: Laws 1977, LB 38, § 39. Annotations: 1. Elements 2. Miscellaneous 1. Elements To find the element of taking "by putting in fear" under this section, the finder of fact must determine from the context established by the evidence whether the defendant's conduct would have placed a reasonable person in fear. State v. Garcia, 302 Neb. 406, 923 N.W.2d 725 (2019). Whether a person intends to destroy, abandon, or gift property to another, there is an "intent to steal" under this section if such property was taken with the intention of permanently depriving the owner of it. State v. Barfield, 272 Neb. 502, 723 N.W.2d 303 (2006). If the sight of a weapon, whether it is operative or not, instills fear in the victim, that is sufficient under subsection (1) of this section. State v. Propst, 228 Neb. 722, 424 N.W.2d 136 (1988). Robbery of contraband may be subject to the penal sanction of this section. State v. Dwyer, 226 Neb. 340, 411 N.W.2d 341 (1987). Under the statute, a robbery is committed when property is taken from a person through the use of force, violence, or intimidation; however, the taking is sufficient if the property is taken from the individual's personal presence, protection, or control. It need not be taken from the person himself. State v. Sutton, 220 Neb. 128, 368 N.W.2d 492 (1985). In a case where defendant repeatedly sexually assaulted his victim and, during a pause in the assaults, took money from her purse when it was not in the immediate control of the victim, the factfinder was permitted to infer that the necessary elements of force and intent were present and to find the defendant guilty of robbery. State v. Welchel, 207 Neb. 337, 299 N.W.2d 155 (1980). Evidence of a principal's intent to steal drugs from an undercover officer who had just purchased them from him was sufficient to support the defendant's conviction for aiding and abetting robbery; the principal told the officer to give him the drugs back, the officer refused at first and tried to leave, the principal took the money out of his pocket and insisted that the officer take his money back and give the drugs to the principal, the officer ultimately gave the drugs to the principal and took his money back, the officer felt threatened during the incident and felt that he had no choice but to give the drugs to the principal, and the principal had no right to the drugs after the transaction was complete. State v. Burbach, 20 Neb. App. 157, 821 N.W.2d 215 (2012). For purposes of the robbery statute, "stealing" has commonly been described as taking without right or leave with intent to keep wrongfully; the focus of the statute is on the intent to deprive the owner of his or her property permanently, to keep it from him or her. State v. Burbach, 20 Neb. App. 157, 821 N.W.2d 215 (2012). 2. Miscellaneous The crime of being an accessory to a felony, as defined in section 28-204, is not a lesser-included offense of the crime of robbery. State v. Arthaloney, 230 Neb. 819, 433 N.W.2d 545 (1989). Where information charging an individual with robbery contains the name "McDonald's Restaurant" as the name of the person robbed, it is not of such a fundamental character as to make the indictment wholly invalid and, as such, objection to it was waived by the defendant's plea. State v. Coleman, 209 Neb. 823, 311 N.W.2d 911 (1981). When a person found guilty of a substantive crime as well as being a habitual criminal is improperly sentenced, both sentences must be set aside and the case remanded for proper sentencing. State v. Rolling, 209 Neb. 243, 307 N.W.2d 123 (1981). Evidence of a defendant's fingerprints has probative value; and it is for the jury to determine, in light of all other evidence, whether such evidence permits an inference to be drawn that beyond a reasonable doubt defendant was the person who committed the offense in question. State v. Pena, 208 Neb. 250, 302 N.W.2d 735 (1981).