N.M. Stat. § 30-16-2 (2026)

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.

                                      ANNOTATIONS

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.