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If you've read the chapter on robbery in the OCDLA [https://www.ocdla.org/cart/detail_newocdla.cfm?i=942 Major Crimes and Defenses Manual], you know that threatening to use force in order to escape after you've been caught shoplifting is not a robbery. So, if you have stolen something, are chased, drop the items to the ground, and only after you've dropped the items, threaten the victims with harm or otherwise struggle to escape, the motion for judgment of acquittal on robbery should be granted.

But if the items are still in your possession when you use force or threaten force, you won't win the MJOA.

Yet there are times the shoplifter will use a threat of force to escape, and that really is his only motivation, but the stuff he stole is in his pockets (or somewhere else in his pants) and there really isn't time to stop everything, dump the property, then threaten force. At this point, he doesn't care about the property, he really doesn't. He only cares about escape. But he had the property, he made the threat, and in the light most favorable to the state, the threat was made to retain possession of the contraband.

This is when you should ask for a special jury instruction. Nothing elaborate. Simply ask the judge to tell the jury that "threats or force used only to further the defendant's escape does not constitute robbery."

Wait, you'll say. Why can't I just argue it? You can, but if I may repeat a metaphor I used at the OCDLA Annual Conference this year, the players on the field don't decide where the goal line is. The jurors want to know from the judge where the goal line is. And it's in your best interest that the goal line is as clear and clean and unambiguous as you can make it. Then, you can spend your time arguing to the jury why the state never made it across that line.

And, as always, if the judge denies the instruction, you have a better-than-average shot at reversal.
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	And, as always, if the judge denies the instruction, you have a better-than-average shot at reversal.		And, as always, if the judge denies the instruction, you have a better-than-average shot at reversal.
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