§708-842  Robbery; "in the course of
committing a theft".  An act shall be deemed "in the course of
committing a theft or non-consensual taking of a motor vehicle" if it
occurs in an attempt to commit theft or non-consensual taking of a motor
vehicle, in the commission of theft or non-consensual taking of a motor
vehicle, or in the flight after the attempt or commission. [L 1972, c 9, pt of
§1; am L 2006, c 230, §43]



 



COMMENTARY ON §708-842



 



  The nature and operation of this section is concisely
explained by the Model Penal Code:



This provision
is unusual only insofar as it makes classification of robbery depend in part on
behavior after the theft might be said to have been accomplished.  The thief's
willingness to use force against those who would restrain him in flight
strongly suggests that he would have employed it to effect the theft had there
been need for it.  No rule-of-thumb is proposed to delimit the time and space
of "flight," which should be interpreted in accordance with the rationale. 
The concept of "fresh pursuit" will be helpful in suggesting
realistic bounds between the occasion of the theft and a later occasion when
the escaped thief is apprehended.[1]



  Previous Hawaii statutory law failed to provide a standard
for the determination of the duration of the "theft" aspect of a
robbery--a standard which is needed in order to determine when the employment
of force or threatened force converts the "theft" into a
"robbery."



 



SUPPLEMENTAL COMMENTARY ON §708-842



 



  Act 230, Session Laws 2006, established motor vehicle theft
as part of the offenses of robbery in the first and second degrees.  House
Standing Committee Report No. 665-06.  Act 230 amended this section to conform
to the amendments made to the offenses of robbery in the first and second
degrees.



 



Case Notes



 



  Theft and attempted theft, regardless of degree, are included
offenses of first degree robbery.  81 H. 309, 916 P.2d 1210.



  Force was not used "in the course of committing
theft" where force used was while defendant was returning stolen liquor
bottle to store owner.  9 H. App. 263, 833 P.2d 902.



 



__________



§708-842 Commentary:



 



1. M.P.C., Tentative Draft No. 11, comments at 70 (1960).