## Facts

- Cruz shoplifted a pair of jeans from a store while unarmed.
- Two plainclothes store security officers followed Cruz into a parking lot and attempted to detain him.
- During a struggle, Cruz stated that he had a gun, though he did not.
- Cruz testified he did not know the pursuers were security, believed they were trying to rob him, and made the threat only to escape.
- Cruz was charged with armed robbery and assault with a dangerous weapon (based on the claimed gun).
- The jury convicted Cruz of unarmed robbery (as a lesser-included offense) and assault with a dangerous weapon.
- Postverdict, the trial judge dismissed the robbery indictment, finding no force used in the taking and that the later threat was too remote from the shoplifting.
- The Commonwealth appealed the robbery dismissal; Cruz appealed the assault conviction based on the denial of a self-defense instruction.

## Issues

1. Whether a threat made during immediate flight from shoplifting, while attempting to keep the stolen property and avoid apprehension, can satisfy the force element of robbery.
2. Whether the defendant was entitled to a jury instruction on self-defense using nondeadly force where evidence supported a mistaken but potentially reasonable belief he was being unlawfully attacked and his response was a verbal threat without an actual weapon.

## Decision

- The court reversed the dismissal of the robbery indictment and reinstated the unarmed robbery conviction.
- The court held the threat in the parking lot occurred during immediate flight and as part of efforts to retain the stolen property, sufficient to meet robbery’s force/threat element.
- The court vacated the assault with a dangerous weapon conviction and remanded for further proceedings.
- The court held it was error to refuse a requested self-defense instruction because the evidence, viewed favorably to the defendant, permitted a finding of nondeadly self-defense.

## Legal Principles

- Robbery may be established by force or threats used not only at the moment of taking, but also during immediate flight when used to carry away or retain stolen property and avoid apprehension.
- A defendant is entitled to a self-defense instruction when there is some evidentiary basis on which a rational jury could find the elements of self-defense, including a reasonable (even if mistaken) belief of unlawful attack and proportional nondeadly responsive force.
- A verbal threat, without an actual weapon and without an attempt to inflict deadly harm, may be treated as nondeadly force for purposes of determining whether a nondeadly self-defense instruction is warranted.

## Conclusion

The court reinstated the unarmed robbery verdict because threats made in immediate flight to keep stolen property can satisfy robbery’s force element, but vacated the assault conviction because the refusal to instruct on nondeadly self-defense improperly removed a jury question supported by the evidence.


Commonwealth v. Cruz, 61 Mass. App. Ct. 1110, 809 N.E.2d 1100 (2004)