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State v. Roy Lee Rittman, 2010 WI App 41

court of appeals decision; for Pittman: Kathleen M. Quinn; BiC; Resp. Br.; Reply Br.

Armed Robbery, § 943.32 – Dangerous Weapon
Although Rittman neither in fact possessed a dangerous weapon, his cautioning that no one would get hurt if the teller gave him money coupled with putting his hand in his pocket sufficed to prove the victim’s reasonable belief that he was threatening to use a dangerous weapon:

¶10      The statutes tell us in what is mostly a tautology that: “‘Reasonably believes’ means that the actor believes that a certain fact situation exists and such belief under the circumstances is reasonable even though erroneous.” Wis. Stat. § 939.22(32). In applying “reasonable belief” to the armed-robbery statute, Witkowski explains, as we have seen, that courts must consider “the circumstances of the individual case.” Witkowski, 143 Wis. 2d at 222, 420 N.W.2d at 422. Although Rittman tends to generalize the trial court’s finding of guilt by pointing out that the bank teller’s earlier involvement in bank holdups would make “understandable” “her belief that any bank robber is likely armed,” there is much more in this case than the mere overlay of experience:

•           Rittman’s note threatening harm;
•           his putting his only free hand in his pocket rather than keeping it out to scoop up the money he demanded;
•           his threat of harm if anyone tried to stop his getaway; and
•           his order to the teller to get down as he was escaping.

All of this combined to give the teller a reasonable belief that Rittman had a dangerous weapon with which he could “hurt” her if she did not do what he demanded. There was no need for the note to use the word “gun” or “bomb” to have the teller reasonably believe that she could be “hurt,” as the note threatened. Certainly, it would have been foolhardy for her to say to Rittman that she did not believe he could seriously hurt her because she did not see a gun and he did not specifically say he had one.

Hard to imagine why the court thinks publication necessary. Indeed, neither side requested publication. It’s long settled that armed robbery can be based on pretense; you don’t need an actual weapon, a hand in the pocket will do, or for that matter anything. (No sophomoric Mae West references, please.) In that broader sense this case adds absolutely nothing to settled caselaw. If there’s any factual permutation in relation to prior cases, it’s that Rittman didn’t explicitly say he had a gun, he merely implied as much. Does that minor permutation support publication, especially now that signed but unpublished opinions are citable?