PEOPLE v SMITH-ANTHONY 

Docket No. 145371. Argued April 17, 2013 (Calendar No. 8). Decided July 30, 2013. 

 Chandra Valencia Smith-Anthony was convicted by a jury in the Oakland Circuit Court, 

Michael D. Warren, Jr., J., of larceny from the person, MCL 750.357. While monitoring closedcircuit television monitors at a Macy’s in Soutfield, Michigan, the store’s loss-prevention officer 

observed defendant acting suspiciously while shopping and proceeded to follow her in person, 

keeping defendant within visual range. The loss-prevention officer saw defendant select a 

perfume box set from a display and later slip it into one of her bags. The officer kept her 

distance but was close enough to observe and sometimes hear defendant. Defendant was stopped 

by the officer when she left the store with the item in her bag. In a split opinion, the Court of 

Appeals, SHAPIRO, P.J., and GLEICHER, J., WHITBECK, J., dissenting, reversed defendant’s 

conviction, concluding that the prosecution had failed to establish the from-the-person element 

of larceny from a person because there was no evidence that defendant had committed the 

larceny within the officer’s area of immediate presence or control as required by the statute. 296 

Mich App 413, 418-420 (2012). The Supreme Court granted the prosecution’s application for 

leave to appeal. 493 Mich 879 (2012). 

 In an opinion by Justice VIVIANO, joined by Chief Justice YOUNG, and Justices 

CAVANAGH, and MCCORMACK, the Supreme Court held: 

 To be convicted of larceny from the person, MCL 750.357, a defendant must take 

property from the physical person or immediate presence of a victim. For purposes of the 

larceny-from-the-person statute, the from-the-person element is satisfied when a defendant takes 

property that is in the physical possession of a victim or property that is in immediate proximity 

to a victim when the taking occurs. Although only occurring rarely in larceny-from-the-person 

cases, the from-the-person element is also satisfied when the property is taken from the victim’s 

constructive presence, which occurs when the defendant or the defendant’s accomplice uses 

force to create distance between victims and their property. The 2004 amendment to the robbery 

statute, MCL 750.530, as amended by 2004 PA 128, which removed the phrase “from the person 

of another” from its language, did not alter the meaning of “from the person” in the larcenyfrom-the-person statute. 

 1. Under MCL 750.357, a person who commits a larceny by stealing from the person of 

another is guilty of larceny from the person. Common-law courts interpreted the phrase “from 

the person” differently in robbery and larceny-from-the-person cases; in the context of robbery, 

Michigan Supreme Court

Lansing, Michigan

Syllabus Chief Justice: 

Robert P. Young, Jr. 

Justices: 

Michael F. Cavanagh 

Stephen J. Markman 

Mary Beth Kelly 

Brian K. Zahra 

Bridget M. McCormack 

David F. Viviano 

This syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader. 

Reporter of Decisions: 

Corbin R. Davis 
common-law courts interpreted “from the person” to include takings from the victim’s presence 

to account for the violence and intimidation that distinguishes robbery from larceny. Michigan 

courts originally recognized that to constitute larceny from the person, the property must have 

been taken from the physical person, a taking of property from the immediate presence of the 

owner was insufficient. This interpretation of “from the person” was later expanded to include 

the taking of property from the victim’s immediate presence. Contrary to earlier Court of 

Appeals’ decisions, the from-the-person element cannot be satisfied by a taking from a victim’s 

immediate area of control absent the immediate presence of the victim, with the exception of 

when a defendant uses force to create distance between victims and their property. The 

common-law meaning of “immediate presence” in the larceny-from-the-person context is 

consistent with the plain meaning of the word “immediate,” which means “having no object or 

space intervening, nearest or next.” For purposes of the larceny-from-the-person statute, the 

from-the-person element is satisfied when a defendant takes property that is in the physical 

possession of a victim or property that is in immediate proximity to a victim when the taking 

occurs. Although only occurring rarely in larceny-from-the-person cases, the from-the-person 

element is also satisfied when the property is taken from the victim’s constructive presence, 

which occurs when the defendant or the defendant’s accomplice uses force to create distance 

between victims and their property. 

 2. The 2004 amendment to Michigan’s robbery statute, which removed the phrase “from 

the person of another” from its language, did not alter the established meaning of “from the 

person” in the larceny-from-the-person statute. 

 3. In this case, the Court of Appeals properly reversed defendant’s conviction because 

there was insufficient evidence to support it. There was no evidence that defendant took 

property that was in the physical possession of or immediate proximity to the loss-prevention 

officer and there was no evidence that defendant used force or threats to distance the lossprevention officer from the property at the time of the taking. 

 Court of Appeals judgment affirmed. 

 Justice KELLY, joined by Justices MARKMAN and ZAHRA, dissenting, would have 

reversed the Court of Appeals and reinstated defendant’s conviction. She agreed that the 

Legislature’s 2004 amendment to the robbery statute did not alter the meaning of the phrase 

“from the person” as applied to the larceny-from-the-person statute but she disagreed with the 

majority’s interpretation of the phrase “from the person” to mean property taken from the 

person’s actual physical possession or from the person’s “immediate proximity,” which requires 

that, at the time of the taking, the property must be physically next to the victim without any 

intervening space. She believed that the majority’s interpretation (1) departs from Michigan 

Supreme Court jurisprudence, which, consistent with the common-law understanding of the 

phrase “from the person,” has never required that the property be physically next to the victim 

without any intervening space; (2) conflicts with Michigan Supreme Court jurisprudence 

recognizing that the Legislature codified the common-law understanding of the language “from 

the person” when it incorporated this language into the robbery and larceny-from-the-person 

statutes; (3) conflicts with Michigan Supreme Court jurisprudence recognizing that larceny from 

the person was a necessarily included lesser offense of robbery; (4) recasts English and Michigan 
common-law history in support of its unduly narrow interpretation of the phrase “from the 

person;” and (5) in the context of takings from a retail establishment, effectively conflates the 

crime of larceny from the person with either retail fraud or robbery. Instead, Justice KELLY

would have held that the phrase “from the person” must be interpreted as property that is taken 

from the person’s “immediate presence,” which is property that was taken while under the 

person’s personal protection and control, such that a taking of such property triggers a substantial 

risk that a violent altercation will occur. She believed her interpretation to be consistent with the 

established common-law meaning of the phrase “from the person,” which recognized that this 

phrase had the same meaning, as applied to both robbery and larceny-from-the-person cases. 

©2013 State of Michigan 
FILED JULY 30, 2013 

S T A T E O F M I C H I G A N 

SUPREME COURT 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellant, 

v No. 145371 

CHANDRA VALENCIA SMITHANTHONY, 

 Defendant-Appellee. 

BEFORE THE ENTIRE BENCH 

VIVIANO, J. 

In this case, we consider the meaning of the phrase “from the person of another” 

under MCL 750.357, the larceny-from-the-person statute. Until 2004, Michigan’s 

robbery statute contained this phrase as well, so we also consider whether the 2004 

amendment that removed this phrase from the robbery statute1

 altered the meaning of 

“from the person” in the larceny-from-the-person statute. 

 

1

 See MCL 750.530, as amended by 2004 PA 128. 

Michigan Supreme Court

Lansing, Michigan

Opinion Chief Justice: 

Robert P. Young, Jr. 

Justices: 

Michael F. Cavanagh 

Stephen J. Markman 

Mary Beth Kelly 

Brian K. Zahra 

Bridget M. McCormack 

David F. Viviano 
2

We hold that Michigan law requires a defendant to take property from the physical 

person or immediate presence of a victim to commit a larceny from the person. In rare 

cases, a taking outside of a victim’s immediate presence may satisfy the from-the-person 

element only if a defendant or the defendant’s accomplices use force or threats to create 

distance between a victim and the victim’s property. Because defendant in this case did 

not take property from the person or immediate presence of the victim, or use force or 

threats to separate a victim from the victim’s property, we conclude that she did not 

commit a larceny from the person. Accordingly, we affirm the judgment of the Court of 

Appeals, which reversed her conviction of larceny from the person. 

I. FACTS AND PROCEDURAL HISTORY 

On May 31, 2010, Khai Krumbhaar was working as a plain clothes loss-prevention 

officer at a Macy’s in Southfield, Michigan. Through one of Macy’s closed-circuit 

television monitors, Krumbhaar observed defendant carrying two bags, which she held 

“very, very closely.” According to Krumbhaar, defendant “appeared extremely nervous” 

and was “darting her eyes” in the direction of sales associates and customers. 

After watching defendant select a perfume set off a display case, Krumbhaar went 

to the sales floor to monitor her. Krumbhaar stayed far enough away to appear as if she 

were just another shopper, but stayed “fairly close” to defendant, at least close enough to 

observe her behavior. At times, she was within earshot of defendant. As Krumbhaar 

followed, she saw defendant “push[] the . . . [perfume] box down into her grocery bag.” 

After this, Krumbhaar “stayed back giving [defendant] some space,” until she saw 
3

defendant “walking very quickly” out of the store into the main mall area.2

 Outside the 

Macy’s store, Krumbhaar confronted defendant, identified herself as a Macy’s lossprevention officer, and asked defendant about the perfume set. Defendant began shouting 

and ran from Krumbhaar; Krumbhaar gave chase and captured defendant, who allegedly 

scratched and bit Krumbhaar as she tried to restrain defendant. 

The prosecution charged defendant with unarmed robbery,3

 second-degree retail 

fraud,4

 and possession of marijuana.5 On the first day of trial, the prosecution dismissed 

the latter two charges, although defendant objected to the dismissal of the second-degree 

retail-fraud charge.6

 The prosecution’s only witness was Krumbhaar, who testified to the 

above facts. After closing argument, and upon defendant’s request, the circuit court 

instructed the jury on the elements of larceny from the person.7

 The court explained that 

to find defendant guilty of larceny from the person, the jury would have to find that 

“property was taken from Khai Krumbhaar’s person or from Khai Krumbhaar’s 

 

2

 At trial, Krumbhaar explained that Macy’s policy prohibits its loss-prevention officers 

from confronting suspected shoplifters until after they have left the store. 

3

 MCL 750.530. 

4

 MCL 750.356d. 

5

 MCL 333.7403(2)(d). 

6

 Defendant argued that the retail-fraud charge was “more indicative of what happened on 

the date in question[.]” 

7

 The circuit court instructed the jury on the elements of larceny from the person on the 

theory that this offense was a lesser included offense of robbery. As we will explain 

below, the court erred by giving this instruction. 
4

immediate area of control or immediate presence.”8

 After deliberating, the jury acquitted 

defendant of unarmed robbery, but found her guilty of larceny from the person. 

On review, the Court of Appeals reversed defendant’s conviction in a split 

published opinion. The majority concluded that the prosecution presented no evidence 

that defendant had committed the larceny within Krumbhaar’s “area of immediate 

presence or control.”9

 The court noted that Krumbhaar “never testified that she was even 

within arm’s length of defendant”10 or that “Krumbhaar was even close enough to 

defendant to have touched her or to have snatched the box from defendant’s hands.”11 

Accordingly, the court held that the prosecution had failed to prove a larceny “from the 

person” of Krumbhaar because “[p]roof of ‘stealing from the person of another’ requires 

more than vague proximity between the victim and the perpetrator.”12

Writing in dissent, Judge WHITBECK disagreed. He believed that Krumbhaar’s 

testimony that she was close enough to defendant to see her and hear her as she moved 

throughout the store was sufficient proof, as a matter of law, to establish that the taking 

occurred within her “immediate area of control or immediate presence.”13

 

8

 (Emphasis added.) This instruction was consistent with CJI2d 23.3, the model jury 

instruction for this offense. 

9 People v Smith-Anthony, 296 Mich App 413, 418; 821 NW2d 172 (2012). 

10 Id. at 419. 

11 Id. at 419 n 2. 

12 Id. at 420 (citation omitted). 

13 Id. at 432 (WHITBECK, J., dissenting). 
5

We granted the prosecutor’s application for leave to appeal, directing the parties to 

address: 

(1) whether the evidence was sufficient to prove beyond a 

reasonable doubt that the crime of larceny from a person, MCL 750.357, 

was committed within the “immediate area of control or immediate 

presence” of the loss prevention officer who witnessed the theft; (2) 

whether the 2004 amendment of the robbery statute, 2004 PA 128 

(amending MCL 750.530), altered the definition of “presence” with respect 

to the larceny-from-the-person statute; and, if not (3) whether the commonlaw definition of the phrase “from the person” remains consistent with the 

common-law definition of “presence.”[14] 

II. STANDARD OF REVIEW 

We review de novo questions of statutory interpretation.

15 Our goal in interpreting 

a statute is to ascertain and “give effect to the intent of the Legislature.”16 We enforce the 

clear and unambiguous language of the statute as written.

17 To determine whether the 

prosecutor has presented sufficient evidence to sustain a conviction, we review the 

evidence in the light most favorable to the prosecutor and determine “whether a rational 

trier of fact could find the defendant guilty beyond a reasonable doubt.”18

 

14 People v Smith-Anthony, 493 Mich 879 (2012). 

15 People v Stone, 463 Mich 558, 561; 621 NW2d 702 (2001). 

16 Id. at 562. 

17 Id.

18 People v Tennyson, 487 Mich 730, 735; 790 NW2d 354 (2010) (citation and quotation 

omitted). 
6

III. ANALYSIS 

A. INTERPRETING “FROM THE PERSON” 

Under MCL 750.357, a person who commits a larceny by stealing from “the 

person of another” is guilty of larceny from the person.19 To determine whether there 

was sufficient evidence to establish this element, we must first determine the meaning of 

the statutory phrase “from the person.” The Legislature has instructed that any “technical 

words and phrases” that “have acquired a peculiar and appropriate meaning in the law, 

shall be construed and understood according to such peculiar and appropriate meaning.”20 

And in the criminal-law context, common-law doctrine informs the meaning of a statute 

when the Legislature uses common-law terms.21 Because the phrase “from the person” 

has an extensive history at common law, we now turn to that history to determine if the 

phrase has acquired a “peculiar and appropriate meaning.” 

Common-law courts interpreted the phrase “from the person” differently in 

robbery cases and larceny-from-the-person cases. The first statute to separately 

criminalize larceny from the person was enacted in England in 1565.22 The purpose of 

 

19 See MCL 750.357 (“Any person who shall commit the offense of larceny by stealing 

from the person of another shall be guilty of a felony, punishable by imprisonment in the 

state prison not more than 10 years.” [emphasis added]). 

20 MCL 8.3a; see also Const 1963, art 3, §7 (“The common law and the statute laws now 

in force, not repugnant to this constitution, shall remain in force until they expire by their 

own limitations, or are changed, amended or repealed.”). 

21 See People v McDonald, 409 Mich 110, 117; 293 NW2d 588 (1980). 

22 Anno: What Constitutes Larceny “From a Person,” 74 ALR3d 271, 276; 8 Eliz c 4, 

§ 2 (1565). 
7

this law was to punish pickpockets, so courts construed it narrowly, requiring that a thief 

steal an object attached to or physically possessed by the victim to satisfy the “from the 

person” element of larceny from the person.23 At the same time, jurists interpreted the 

phrase “from the person” more broadly in robbery cases. In those cases, courts 

interpreted “from the person” differently to account for circumstances in which robbers 

used force or threats of force in the commission of a theft. As Professor Rollin Perkins 

has explained, “One of the illustrations of robbery, given by the early writers, is the 

wrongful driving off of another’s horse or sheep while he, although present, is by 

violence or intimidation prevented from interfering.”24 Thus, in robbery cases, commonlaw courts and scholars interpreted “from the person” to include takings from a victim’s 

presence to account for the violence and intimidation that distinguishes robbery from 

larceny. In the words of Sir Edward Coke, writing about the crime of robbery in the 

1700s, “that which is taken in [someone’s] presence, is in law taken from his person.”25 

Hence, at common law, the meaning of “from the person” depended on whether the crime 

at issue was robbery or larceny from the person.26

 

23 74 ALR3d 271, 276-277. 

24 Perkins & Boyce, Criminal Law (3d ed, 1982), p 346, citing 3 Coke, The Third Part of 

the Institutes of the Laws of England (1797), p 68; 1 Hale, The History of the Pleas of the 

Crowns, p *533; 1 Hawkins, A Treatise of Pleas of the Crown, c 34, § 5 (6th ed). 

25 3 Coke, p 69. 

26 We disagree with the premise of the third question on which we granted leave to appeal 

in this case. In the larceny-from-the-person context, the phrase “from the person” had a 

more restrictive meaning at common law than “presence.” 
8

There is a split of authority in American jurisdictions with regard to whether 

larceny from a person requires a taking directly from the body of the victim or merely 

from the victim’s immediate presence. Some states followed the common-law approach 

to the offense of larceny from the person and required physical contact between the stolen 

object and the victim.27 But this position is now a minority view. Courts in the majority 

of states that criminalize this offense have adopted the view that “from the person” 

includes the area within a victim’s immediate presence.28 Explaining the rationale for the 

evolution of the law in this area, the Supreme Court of Minnesota stated that the phrase 

“from the person” included the “immediate presence” of a victim because, in any taking 

from this area, “the rights of the person to inviolability would be encroached upon, and 

 

27 See, e.g., People v McElroy, 116 Cal 583, 586; 48 P 718 (1897) (holding that property 

“shall at the time [that it was taken] be in some way actually upon or attached to the 

person, or carried or held in actual physical possession”); Terral v State, 84 Nev 412, 

413-414; 442 P2d 465 (1968) (citation omitted) (explaining that “from the beginning 

[larceny from the person] required ‘an actual taking from the person; a taking from his 

presence was not sufficient as it was in robbery’”); State v Lucero, 28 Utah 2d 61, 63; 

498 P2d 350 (1972) (following Terral); Wilder v State, 30 Ala App 107, 108; 1 So 2d 

317 (1941) (following McElroy).

28 See, e.g., People v Pierce, 226 Ill2d 470, 483; 877 NE2d 408 (2007) (recognizing the 

split of authority on this issue and adopting majority view); State v Kobylasz, 242 Iowa 

1161, 1166-1168; 47 NW2d 167 (1951) (recognizing that some courts require that the 

property be “taken off the person,” citing McElroy and Wilder, but declining to construe 

the larceny-from-the-person statute so narrowly and instead applying the immediate 

presence standard); State v Jones, 499 SW2d 236, 238-240 (Mo Ct App, 1973) (following 

Kobylasz); Banks v State, 74 Ga App 449, 451-452; 40 SE2d 103 (1946) (construing the 

phrase “from the person of another” as used in both the robbery and larceny-from-theperson statutes of that state and holding that “it is unnecessary that the taking of the 

property should be directly from one’s person, but it is sufficient if it be taken while in 

his possession and immediate presence”) (emphasis added) (quotation marks and citation 

omitted). 
9

his personal security endangered, quite as much as if his watch or purse had been taken 

from his pocket.”29 

Prior to 1970, Michigan appears to have taken the minority view, requiring an 

actual taking from the physical person of the victim.30 For example, in People v Gadson, 

this Court reviewed the sufficiency of the evidence for the from-the-person element in a 

larceny-from-the-person case.31 At trial, there was evidence presented that the defendant 

had taken the victim’s wallet, but it was unclear whether the defendant had taken the 

wallet directly out of the victim’s pocket or after it had fallen out of his pocket during a 

scuffle. This Court held that there was insufficient evidence on the from-the-person 

element because there was reasonable doubt regarding whether the defendant took the 

wallet from the victim’s pocket. We emphasized that “[u]nder [MCL 750.357], an 

essential element of the larceny charged in the instant case . . . is that it was accomplished 

by ‘stealing from the person of another.’”32 Although not stated explicitly, the facts of 

the case make it clear that “physical possession” was the governing standard in Michigan 

law. 

 

29 State v Eno, 8 Minn 220, 223 (1863). 

30 The dissent disagrees with this point and relies heavily on the case of People v 

Covelesky, 217 Mich 90; 185 NW 770 (1921), superseded by statute as recognized by 

People v Williams, 491 Mich 164, 171-173; 814 NW2d 270 (2012), to explain its 

interpretation of “from the person.” It is worth noting that Covelesky, like most of the 

authority cited by the dissent, involved a robbery. Moreover, the facts of Covelesky are 

significantly different from the larceny-from-the-person cases discussed in this opinion 

because that case involved a home invasion with a high degree of violence. 

31 People v Gadson, 348 Mich 307, 309-310; 83 NW2d 227 (1957). 

32 Id.
10

Two subsequent Court of Appeals cases took the same approach as Gadson and 

applied the physical-possession standard to the crime of larceny from the person. In 

People v Stevens, the defendant and his accomplice were convicted of robbery after they 

took money from a safe and from under a desk while they held a storeowner at 

gunpoint.33 On appeal, the defendant claimed that the trial court erred by not instructing 

the jury on the lesser-included offense of larceny from the person, but the Court of 

Appeals disagreed. The court stated that there was “no evidence” for that offense 

because the “taking was from the safe and from the under the desk; there was no taking 

from the person of the victim.”34 Similarly, in People v Johnson, the Court of Appeals 

reviewed a case in which the defendant stole property from a room in the victim’s home 

while the victim was in the bathroom.35 The court stated that this crime could not 

constitute a larceny from the person and openly rejected the immediate presence 

approach stating, “What is required is that the property in question actually be taken from 

the person of another; a taking of property from the immediate presence of the owner is 

insufficient.”36 Hence, before 1970, Michigan courts had consistently identified 

Michigan as a physical-possession state.37

 

33 People v Stevens, 9 Mich App 531, 532; 157 NW2d 495 (1968). 

34 Id. at 534 (emphasis added). 

35 People v Johnson, 25 Mich App 258, 264; 181 NW2d 425 (1970). 

36 Id.

37 We have found no other cases before this Court’s opinion in People v Gould, 384 

Mich 71, 80; 179 NW2d 617 (1970), that discuss the appropriate taking standard in 

the larceny-from-the-person context. There are cases in which Michigan courts have 

applied the larceny-from-the-person statute to situations in which the victim was in 
11

However, in the 1970 case of People v Gould,

38 this Court adopted the immediate 

presence approach, holding that “the taking of property in the possession and immediate 

presence of the [victims] . . . was sufficient to sustain a verdict against defendant Gould 

of larceny from the person.” Notably, this Court did not distinguish or overturn the 

physical-possession cases, nor did we address the text of Michigan’s larceny-from-theperson statute. But Gould’s holding represented a decided shift to the majority, 

immediate presence view of larceny from the person. Since Gould, this Court has 

interpreted the phrase “from the person of another” to include takings from the 

possession and immediate presence of the victim.39

Despite this Court’s consistent application of the immediate presence test since 

Gould, the Court of Appeals has expanded the definition of “from the person.” For 

example, in People v Perkins, the court stated that the from-the-person element could be 

satisfied by a taking “from the person or from the person’s immediate area of control or 

 

physical possession of his or her property. See, e.g., People v Tucker, 222 Mich 564, 

569; 193 NW 206 (1923); People v Newsom, 25 Mich App 371, 374; 181 NW2d 551 

(1970). In contrast, we can find no Michigan cases applying the immediate presence 

standard in the larceny-from-the-person context—or even using the phrase—prior to 

the Court of Appeals opinion in People v Gould, 15 Mich App 83, 87; 166 NW2d 530 

(1968), aff’d in part and rev’d in part 384 Mich 71 (1970), where it was used for the 

first time and rejected as the proper standard.

38 Gould, 384 Mich at 80. 

39 See People v Perkins, 473 Mich 626, 633; 703 NW2d 448 (2005); People v Beach, 429 

Mich 450, 484 n 17; 418 NW2d 861 (1988); People v Chamblis, 395 Mich 408, 425; 236 

NW2d 473 (1975), overruled in part on other grounds People v Cornell, 466 Mich 335, 

357; 646 NW2d 127 (2002) (stating, in dicta, that “[w]e are committed to the view 

that . . . larceny from the person embraces the taking of property in the possession and 

immediate presence of the victim”) (emphasis added). 
12

immediate presence.”

40 However, the addition of “immediate area of control” as a 

independent category is an incorrect statement of the law and appears to stem solely from 

the model criminal jury instructions.41 The Court of Appeals’ formulation erroneously 

suggests that the element can be satisfied by a taking from the victim’s immediate area of 

control, regardless of whether the taking was from the victim’s immediate presence. This 

is an expansion of the law because we have always interpreted Michigan’s larceny-fromthe-person statute to require the actual presence of the victim at the time of the taking, 

absent circumstances in which defendants use force to create distance between victims 

and their property. Because this expansion is not grounded in statute or the decisions of 

this Court, we repudiate it. In keeping with this Court’s precedent, we adhere to a more 

restrictive definition of “from the person” that requires the victim to be immediately 

present when the property is taken.42

In addition to declaring that Michigan is an immediate presence jurisdiction, 

Gould also applied a doctrine that had developed in robbery cases. In this and many 

 

40 People v Perkins, 262 Mich App 267, 272; 686 NW2d 237 (2004), aff’d 473 Mich 626 

(2005) (citing CJI2d 23.3 and People v Wallace, 173 Mich App 420, 426; 434 NW2d 422 

(1988) in turn quoting CJI 23:2:01) (emphasis added). 

41 Beyond its citation to CJI2d 23.3, the Court of Appeals in Perkins cited to Wallace. 

However, Wallace provides no further guidance because it cites solely to CJI2d 23.3, 

which “do[es] not have the official sanction of this Court.” People v Petrella, 424 Mich 

221, 277; 380 NW2d 11 (1985). 

42 See Perkins, 473 Mich at 633 (“In order to commit a larceny from the person, the 

defendant must steal something from a person in that person’s presence.”); Gould, 384 

Mich at 80 (“[I]t is sufficient if the property be taken from the presence of the victim . . . 

[that is] within his area of control.”) (Citations and quotation marks omitted). 
13

other states, courts have had to address the recurring problem of robbers who claim that 

their convictions should be reversed due to a lack of proof on the from-the-person 

element, even though the robbers’ own use of force or threats was what created distance 

between victims and their property. In such circumstances, courts in nearly every 

American jurisdiction have invoked the rule that robbery defendants cannot negate the 

from-the-person element of their crimes by using force or threats to remove victims or 

keep them away from their property.43 Instead, courts treat victims as constructively 

present with the property, presuming that a victim would have retained possession of 

their property “if no[t] overcome by violence or prevented by fear, [from] retain[ing] his 

 

43 See, e.g., United States v Kimble, 178 F3d 1163, 1168 (CA 11, 1999) (“person or 

presence” standard in the federal carjacking statute, 18 USCA § 2119, deemed similar to 

standard for robbery, was met here, as had the car owner “not been in fear for his safety, 

he could have reached the car and prevented its taking”); United States v Lake, 150 F3d 

269, 273 (CA 3, 1998) (rational jury could have found that the car was taken from the 

victim’s presence where the victim “could have prevented the taking of her car if she had 

not been fearful that [the defendant] would shoot or otherwise harm her”); People v 

Blake, 144 Ill 2d 314, 320-321; 579 NE2d 861 (1991) (presence standard satisfied where 

the victims were immobilized on second floor of residence while property taken from 

first floor); Commonwealth v Stewart, 365 Mass 99, 108; 309 NE2d 470 (1974) 

(defendant properly convicted of robbing the victim by taking money from a safe where 

the victim could have prevented the taking if not intimidated by robber); State v Calhoun, 

72 Iowa 432, 436; 34 NW 194 (1887) (affirming that “presence” standard was satisfied 

where the defendant took money and watch from the victim after binding victim in one 

room of her house and extorting from her the location of the money); Towner v State, 812 

So2d 1109, 1113-1114 (Miss Ct App, 2002) (“presence” element satisfied where the 

defendant ordered two women, one employee and one co-owner, into restaurant’s office 

at gunpoint and took money from the office, proximity and control existed as to each 

woman, and thus constituted two robberies); Price v Commonwealth, 59 Va App 764, 

769-770; 722 SE2d 653 (2012) (concluding that “the items taken from [the victim’s] 

purse located in another room of the trailer were close enough to her and sufficiently 

under her control that, had she not been subjected to violence and intimidation by the 

intruders, she could have attempted to prevent the taking of her personal items”). 
14

possession of it.”44 For ease of reference, we will refer to this latter concept as 

“constructive presence.” 

In Gould, this Court applied the constructive-presence exception in a larcenyfrom-the-person case for the first time in Michigan.45 But a careful reading of the 

opinion shows that the court was applying this exception within its traditional limits, not 

expanding the meaning of “presence” for all larceny-from-the-person cases. The 

prosecutor had charged all the defendants in Gould with robbery, and no one disputed 

that the defendants had used force and threats of force (one co-defendant brandished a 

gun) to move the victims away from the cash register. The defendants forced a waitress 

to lie face-down on the floor in another room, making it impossible for her to be near the 

cash for which she was responsible. Thus, even though this Court affirmed defendant 

Gould’s conviction of larceny from the person, Gould is consistent with other precedent 

that prevented defendants from negating the from-the-person element of their crimes 

through the use of force.46

 

44 Commonwealth v Homer, 235 Mass 526, 533; 127 NE 517 (1920). 

45 Gould, 384 Mich at 80. 

46 In Gould, this Court’s holding has caused some confusion regarding its reach—perhaps 

best demonstrated by the fact that the dissent in this case and the Court of Appeals 

majority both believe it supports their view. We take this opportunity to clarify its 

holding, for which the Court appears to have given alternative rationales. To the extent 

the larceny supporting defendant Gould’s conviction was the taking of money directly 

from the wallet of the customer present in the restaurant at the time of the holdup, there 

was an actual taking from the person. On the other hand, to the extent the larceny was 

the taking of money from the cash register and cigar box, after the waitress was forcibly 

sequestered in another room, the constructive-presence exception was applicable. We 

recognize that the former point could be interpreted as rendering the remainder of Gould
15

In summary, Gould established two principles of law within the larceny-from-theperson context. First, it established Michigan as an immediate presence jurisdiction. 

Second, it established that the constructive-presence exception from robbery cases could 

apply in larceny-from-the-person cases, provided there was evidence that the defendant 

or an accomplice had used force or threats of force to keep a victim away from his or her 

property.47

B. THE EFFECT OF THE 2004 ROBBERY-STATUTE AMENDMENT 

We next consider whether the 2004 amendments to Michigan’s robbery statute 

had any effect on the meaning of “from the person” in the larceny-from-the-person 

context. We conclude that they did not. 

Before 2004, the unarmed-robbery statute prohibited using force or violence to 

“steal and take from the person of another, or in his presence[.]”48 The 2004 

amendments removed the phrase “from the person of another” from the robbery statute. 

As amended, the statute now prohibits anyone who is “in the course of committing a 

 

as dicta. However, even if dicta, its holding is now well settled, and its continued validity 

is not at issue. 

47 We do not believe that Gould should be read as a wholesale importation of robbery 

doctrine into larceny-from-the-person law, such that the presence element for each 

offense is coextensive. As noted, Gould applied the constructive-presence doctrine in the 

larceny-from-the-person context. Although it is not entirely clear how a doctrine that 

expands the prohibited taking zone when force or threats are present can logically be 

applied to a crime that does not require force or threats as an element, it is clear that 

Gould established the outer limit of the taking zone in larceny-from-the-person cases. 

However, the dissent’s interpretation, which expands the prohibited taking zone even in 

the absence of force or threats, goes well beyond the standard in Gould or any other case. 

48 MCL 750.530, 1931 PA 328 (emphasis added). 
16

larceny of any money or other property” from using “force or violence against any person 

who is present[.]”49

These changes were prompted by this Court’s decision in People v Randolph, in 

which we considered whether Michigan’s robbery statute permitted a transactional theory 

of robbery.50 This approach allows a robbery conviction even where a defendant uses 

force for the first time after completing a taking, and we concluded that the robbery 

statute then in force did not permit this.51 In response to our decision, however, the 

Legislature amended the robbery statute and codified the transactional theory.52

At issue in Randolph and the subsequent statutory changes was at what point in 

the commission of the crime force had to be used for a theft to constitute a robbery. The 

meaning of “from the person” in either robbery or larceny-from-the-person cases was not 

at issue in the exchange between the Legislature and this Court. Consequently, there is 

nothing to suggest that the Legislature intended to change the meaning of “from the 

person” in the larceny-from-the-person statute by removing this phrase from the robbery 

statute. We conclude, therefore, that “from the person” in the larceny-from-the-person 

statute has the same meaning now as it did before the 2004 amendments.53 The 

 

49 MCL 750.530, as amended by 2004 PA 128 (emphasis added). 

50 People v Randolph, 466 Mich 532, 546; 648 NW2d 164 (2002), superseded by statute 

as recognized by Williams, 491 Mich at 171-173. 

51 Id.

52 See Williams, 491 Mich at 184. 

53 However, the 2004 amendments have affected the relationship between robbery and 

larceny from the person. We have previously held that larceny from the person is a 

necessarily lesser included offense of robbery. Beach, 429 Mich at 484. “Necessarily 
17

immediate presence test is still the governing standard in this area, and it is to the 

meaning of “immediate presence” that we now turn. 

C. THE MEANING OF “IMMEDIATE PRESENCE” 

Perhaps because Michigan was not an immediate presence jurisdiction until 

Gould, there is scant caselaw explaining the scope of the immediate presence standard. 

However, this standard has been the subject of legal commentary, and courts in many 

other states have applied the same standard in deciding their own larceny-from-theperson cases. Courts and commentators alike have emphasized that this standard requires 

immediate proximity between the object and the victim. As Professor Perkins has 

explained, “[I]f a man carrying a heavy suitcase sets it down for a moment to rest, and 

remains right there to guard it, the suitcase remains under the protection of his person.”54 

Even objects that are relatively close to a person are not considered to be in the person’s 

immediate presence unless they are immediately next to the person. Hence, the North 

Carolina Supreme Court ruled that there was no larceny from the person where a thief 

stole a bank bag from a kiosk while the bank teller was 25 to 35 feet away.55 Likewise, 

the Colorado Court of Appeals concluded that a person could not be convicted of larceny 

 

included lesser offenses are offenses in which the elements of the lesser offense are 

completely subsumed in the greater offense.” People v Nickens, 470 Mich 622, 626; 685 

NW2d 657 (2004). Under MCL 750.530(2), a defendant who uses force in fleeing a 

larceny is guilty of robbery. Therefore, robbery does not require that the taking have 

been made in the “immediate presence” of the victim. As a result, larceny-from-theperson is no longer a necessarily included lesser offense of robbery. 

54 Perkins & Boyce, p 342 (emphasis added). 

55 State v Barnes, 345 NC 146, 150-151; 478 SE2d 188 (1996). 
18

from the person after taking a purse out of a shopping cart because the victim was not 

actually holding or pushing the cart at the time of the taking.56 In contrast, a defendant 

was properly convicted of larceny from the person in Virginia when he stood two feet 

away from a store employee but reached within inches of the victim to take cash out of a 

register.57 Courts have also affirmed larceny-from-the-person convictions where a thief 

stole a pocketbook from trousers that the victim was using as a pillow,58 and where a car 

driver’s billfold was taken off the seat immediately next to her.59 From these cases a 

clear rule emerges: the immediate presence test can only be satisfied if the property was 

in immediate proximity to the victim at the time of the taking. In other words, the 

common-law meaning of “immediate presence” in the larceny-from-the-person context is 

consistent with the plain meaning of the word “immediate,” which means “having no 

object or space intervening, nearest or next.”60

 

56 People v Smith, 121 P3d 243, 247-248 (Colo App, 2005). 

57 Garland v Commonwealth, 18 Va App 706, 710; 446 SE2d 628 (1994). 

58 Banks, 74 Ga App at 450-452. 

59 Kobylasz, 242 Iowa at 1166-1168. 

60 Random House Webster’s Unabridged Dictionary (1998). The dissent interprets our 

opinion as saying that “only in the rare instance that property is taken by ‘use of force or 

threats of force to create distance between a victim and the victim’s property’ might 

property that is otherwise not affixed to the victim constitute a taking ‘from the person.’” 

Post at 10. Later on, the dissent states that we are essentially “equating ‘immediate 

presence’ with ‘attached to the person.’” Post at 10 n 30. This is not true. As we 

explained, the immediate presence test is satisfied when a defendant takes “property from 

the physical person or immediate presence of a victim.” (Emphasis added.) Physical 

attachment is sufficient, but not necessary to satisfy the immediate presence test. 
19

IV. APPLICATION 

Even when viewed in the light most favorable to the prosecutor, the facts of this 

case do not satisfy the immediate presence standard, which includes actual possession, or 

the constructive-presence exception. In this case, the loss-prevention officer was not in 

possession of the property at the time that it was taken. The record established only that 

she was “fairly close” to defendant in Macy’s. At the moment defendant actually 

completed the taking by putting the perfume set into her bag, the loss-prevention officer 

was following defendant through the store while pretending to be another shopper.61 

Even though the loss-prevention officer remained close enough to observe defendant’s 

behavior and was also at times within earshot of her, there was ample “intervening space” 

between the alleged victim and the property that defendant took, such that defendant did 

not take the perfume set from the immediate presence of the victim. 

Notwithstanding the intervening space between the alleged victim and the stolen 

property, the jury still convicted defendant of larceny from the person. This conviction 

was arguably reasonable under the current jury instruction, CJI2d 23.3, which contains 

the phrase “immediate area of control.” The jury may have interpreted this phrase to 

mean that a larceny from the person could occur in an area that the victim was 

responsible for, even if the taking was not from the victim’s immediate presence. 

However, as mentioned above, a finding that the taking occurred within the victim’s 

 

61 In a larceny case, the crime is completed when the taking occurs. Randolph, 466 Mich 

at 543.
20

“immediate area of control” does not satisfy the from-the-person element absent a finding 

that the taking was from the victim’s person or immediate presence. 

While the Court of Appeals described the immediate presence standard using the 

colloquial phrase “personal space,”62 it correctly applied the immediate presence 

standard. Thus, the Court of Appeals rightly concluded that because defendant did not 

take any property from the loss-prevention officer’s immediate presence, she did not 

commit a larceny from the person. And although the prosecutor alleged that defendant 

used force to retain possession of the perfume set after she had stolen it, there was no 

evidence that defendant used force or threats to separate the victim from the perfume set 

before it was taken. Consequently, the constructive-presence doctrine does not apply in 

this case. For these reasons, we affirm the judgment of the Court of Appeals, which 

reversed defendant’s conviction. 

Finally, there is a related common-law doctrine that provides additional support 

for our conclusion. At common law, courts treated the taking of merchandise off a shelf 

or rack as a larceny from a building, not larceny from a person.63 Such takings were 

considered larcenies from a person only if an employee had been exercising direct control 

over the specific property at the time of the taking. As Professor Perkins explains, 

Goods on open shelves, goods standing on the floor, goods arranged 

on tables or counters are normally treated as within the protection of the 

building. One distinction, however, is to be noted. If a jewel or other 

valuable thing, normally kept out of open reach of customers, is placed on 

the counter under the eye of the storekeeper or clerk while it is being 

 

62 Smith-Anthony, 296 Mich App at 418. 

63 See Perkins & Boyce, pp 340-341. 
21

examined by a customer, this is regarded as under the personal protection 

of the storekeeper or clerk at the moment, rather than under the protection 

of the building; whereas articles placed on the counter with the expectation 

that they will remain there all day, unless purchased, are under the 

protection of the building.[64]

Here, the dissent asserts that the loss-prevention officer had “personal protection 

and rightful control” over the gift box because she was “[a]n employee of Macy’s 

responsible for preventing thefts of Macy’s store items.”65 While we agree that a lossprevention officer has a specific duty to prevent theft, that duty, standing alone, does not 

bring the gift box within the loss-prevention officer’s immediate presence. For the 

perfume set to be under her personal protection for the purposes of a larceny from her 

person, she would have had to have taken possession of the merchandise at issue before 

defendant pilfered it.66 Without this act of dominion, the perfume set remained only 

under the “protection” of the store. As a result, defendant did not take any property from 

the person of the loss-prevention officer. This provides additional support for our 

conclusion that the Court of Appeals properly reversed defendant’s conviction. 

V. THE DISSENT’S RISK-OF-ALTERCATION TEST 

In explaining its interpretation of the law, the dissent describes its test for whether 

a taking occurs in the immediate presence of a victim as whether “a taking of such 

 

64 Id.

65 Post at 17. 

66 See Perkins & Boyce, p 340 (internal citation omitted) (“If property is in the pocket of 

some person within the building, or under his personal care at the moment in some other 

way, it is not regarded as within the protection of the building . . . [and t]he stealing of 

such property . . . [is a] larceny from the person.”). 
22

property triggers a substantial risk that a violent altercation will occur.”67 The most 

significant problem with this new test is that it expands the prohibited taking zone well 

beyond a person’s immediate presence and into a large and undefined area.68 The limits 

of this new prohibited taking zone are difficult to discern and likely arbitrary. A victim 

could plausibly observe a thief from 100 feet away and yet still have a chance of catching 

up to and confronting the thief if the victim chose to do so. Hence, even a taking at this 

distance could trigger “a substantial risk that a violent altercation will occur.” Because 

the typical store theft occurs well within this range, it would seem that, under the 

dissent’s proposed standard, most routine shoplifting incidents could be charged as 

larcenies from the person. That result conflicts with the established limits of the 

immediate presence standard. 69

VI. CONCLUSION 

Michigan law requires a taking from the person or immediate presence of a victim 

to satisfy the from-the-person element for the crime of larceny from the person. This 

 

67 Post at 19. 

68 Id. While this Court has stated before that “larceny from the person involves a 

substantial risk of physical force,” Perkins, 473 Mich at 634, that statement was merely 

an explanation of the Legislature’s purpose in enacting the statute, not a description of 

the prohibited taking zone. 

69 Although the dissent tries to show that its test has limits by listing “a few nonexhaustive examples” that do not create a substantial risk of altercation, post at 18, it is 

difficult to discern how these examples fail to satisfy the dissent’s own test. For 

example, it seems there would still be a “risk of altercation” in the case of “a security 

guard who observes [a theft] via closed-circuit monitor,” so long as there was still a 

chance that the security guard could leave the monitor and confront the thief. 
23

standard is satisfied when the defendant takes property that is in the physical possession 

of a victim or property that is in immediate proximity to a victim when the taking occurs. 

Only in the rare larceny-from-the-person case in which the constructive-presence 

exception applies may a taking outside of a victim’s immediate presence satisfy the fromthe-person element. The 2004 amendments to Michigan’s robbery statute did not change 

these established requirements. 

In this case, there was no evidence that defendant took property that was in the 

physical possession of or immediate proximity to the loss-prevention officer, and there 

was no evidence that defendant used force or threats to distance the loss-prevention 

officer from the property at the time of the taking. As a result, there was insufficient 

evidence that defendant took property “from the person” of the loss-prevention officer. 

The Court of Appeals properly reversed defendant’s conviction, so we affirm the 

judgment of Court of Appeals. 

 David F. Viviano 

 Robert P. Young, Jr. 

 Michael F. Cavanagh 

Bridget M. McCormack
S T A T E O F M I C H I G A N 

SUPREME COURT 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellant, 

V No. 145371 

CHANDRA VALENCIA SMITHANTHONY, 

 Defendant-Appellee. 

MARY BETH KELLY, J. (dissenting). 

We granted oral argument on the application to consider the meaning of the “from 

the person” element of the larceny-from-the-person statute.1

 While I agree with the 

majority that the Legislature’s 2004 amendment of the robbery statute2

 did not alter the 

meaning of that phrase as it applies to larceny from the person, I disagree with the 

majority’s interpretation of that phrase to mean “immediate presence,” such that there is 

no “space intervening” between the victim and the object taken. In adopting this new 

definition of “from the person,” the majority today recasts Michigan’s common-law 

history to support its narrow definition of “from the person” as requiring actual physical 

possession at the time of the taking and effectively transforms the crime of larceny from 

the person into either shoplifting or robbery. Because this has never been the law of this 

state, I respectfully dissent and would reinstate defendant’s conviction. 

 

1

 MCL 750.357. 

2

 See MCL 730.530, as amended by 2004 PA 128. 
2

I. ANALYSIS 

A. “FROM THE PERSON” 

The phrase, “from the person,” has acquired a long-settled meaning in our 

common law, and we thus construe this language consistent with its common-law 

understanding.3

 In this regard I recognize, like the majority, that the origin of larceny 

from the person far predates Michigan’s statehood. As Sir William Blackstone recorded 

in 1771, the English common law distinguished between two types of larceny from the 

person: those accomplished by “privately stealing,” like pickpockets, and those 

accomplished “by open and violent assault,” the former of which constitutes larceny from 

the person and the latter of which is robbery.4

 These crimes at common law, then, shared 

identical elements, both requiring that the taking be “from the person,” except that 

robbery involved the additional element of fear and violence.5

 

Contrary to the majority’s view then, the meaning of “from the person” in the 

English common law, did not “depend[] on whether the crime at issue was robbery or 

 

3

 MCL 8.3a; Const 1963, art 3, § 7 (“The common law and the statute laws now in force, 

not repugnant to this constitution, shall remain in force until they expire by their own 

limitations, or are changed, amended or repealed.”). 

4

 4 Blackstone, Commentaries on the Laws of England, p *241. 

5

 As Sir Edward Coke recognized, the crimes were exactly the same except for the 

element of fear specific only to robbery. 3 Coke, The Third Part of the Institutes of the 

Laws of England (1797), p 68 (“By putting him in fear . . . this circumstance maketh the 

difference between a robber and cutpurse: both take it from the person, but this takes it 

[secretly and privately], without assault or putting in fear, and the robber by violent 

assault, and putting in fear.). See 4 Blackstone, at **242-243 (describing the additional 

element of fear or violence inherent in the crime of robbery as “the criterion that 

distinguishes robbery from other larcenies” and noting that if the taking is not “from his 

person or in his presence” there is no robbery). 
3

larceny from the person.”6

 Rather, in regard to the “from the person” element, both 

crimes required that the property taken be taken from the person or in his presence; as 

such, it was not necessary that the property be attached to the person, only that it be under 

his personal protection and control.7

 Indeed, as Sir Edward Coke noted with respect to 

the phrase “from the person”—which Sir Coke expressly recognized was applicable to 

both robbery and larceny from the person—“that which is taken in his presence, is in law 

taken from his person.”8

 

Michigan’s first larceny-from-the-person statute was enacted in 1838, one year 

after Michigan became a state, and incorporated the common-law phrase “from the 

 

6

 For this proposition, the majority appears to rely primarily on the statutory offense of 

larceny from the person that applied to pickpocketing and required that the property be 

attached to the person. See 8 Eliz, c 4, § 2 (1565). The majority assigns too much 

significance to this point of statutory law, as it does not inform the meaning of “from the 

person” at common law. 

7

 As an example of a taking from “the person of another or in his presence,” Blackstone 

referenced a man who “drives away [another person’s] sheep or his cattle . . . ,” which are 

clearly not attached to the person, but under his personal protection and control. 4 

Blackstone at *243. 

8

 3 Coke at 69. Modern legal commenters are in agreement that, traditionally, the phrase 

“from the person of another” includes a taking of property from the person’s presence, 

which is a taking that occurs where the property is under the person’s personal protection 

and control at the time of the taking. See Perkins & Boyce, Criminal Law (3d ed), p 342 

(“Property is stolen ‘from the person,’ if it was under the protection of the person at the 

time.”); 4 Torcia, Wharton’s Criminal Law (15th ed), § 458, p 15 (“[P]roperty is deemed 

to be within a victim’s ‘presence’ when it is within his control.”); 3A Gillespie, Michigan 

Criminal Law & Procedure (2d ed), § 1804, p 471 (“[T]he statute defining the crime of 

larceny from a person protect[s] the person or immediate presence of the victim from 

invasion . . . .”). 
4

person.”9

 In the same tradition as the English common law, the Michigan Legislature has 

adopted statutes in which offenders are punished more harshly for larceny from the 

person than simple larceny, based on the recognition that stealing from a person’s 

presence “involves a substantial risk of physical force . . . .”10 In 1931, the larceny-fromthe-person statute was recodified as part of the Penal Code, and since then, continues to 

incorporate the common-law phrase “from the person.” That the Legislature has never 

altered the language “from the person” in the larceny-from-the-person statute, indicates 

that we should interpret that phrase consistent with the common-law rule at the time of 

enactment in 1838. Mainly, that “from the person,” as understood in the context of both 

larceny from the person and robbery, must be interpreted as property that is taken from 

the person’s “immediate presence,” which is property that was taken while under the 

person’s personal protection and control. 

In recognition that “from the person” is a common-law phrase, our jurisprudence 

has long-adhered to the phrase’s common-law meaning. Over nine decades ago, in 

 

9

 The first version of the larceny-from-the-person statute is nearly identical to the current 

statute. It provided: 

Every person who shall commit the offence of larceny, by stealing 

from the person of another, shall be punished by imprisonment in the state 

prison not more than five years, or in the county jail not more than one 

year. [1838 RS, part 4, tit I, ch 4, § 16.] 

10 See People v Perkins, 473 Mich 626, 634; 703 NW2d 448 (2005) (explaining why the 

Legislature has chosen to subject a defendant who steals from the person of another to 

greater penalties than those imposed on a defendant who steals property outside a 

person’s presence). 
5

People v Covelesky,

11 this Court acknowledged that the phrase “from the person” must be 

interpreted as having the same meaning that those terms acquired at common law at the 

time that the statute was enacted.12 This Court construed the meaning of “from the 

person” consistent with the common law to mean property that is “taken ‘in the owner’s 

presence.’”13 The Court then expounded on the meaning of “presence,” explaining that 

“presence” does not necessarily contemplate that the property be “‘in actual contact with 

the person of the one from whom it is taken,’” but that the element is satisfied if the 

property taken is property that is under the person’s “‘personal protection and control.’”14 

The Court explained that “personal protection,” in turn, extends to “cover all one’s 

effects within a not easily defined distance over which his presence may be deemed to 

 

11 People v Covelesky, 217 Mich 90, 97-98; 185 NW 770 (1921), superseded by statute as 

recognized by People v Williams, 491 Mich 164, 171-173; 814 NW2d 270 (2012). 

Although Covelesky was decided 10 years before the 1931 codification of the larceny-ofthe-person statute, its discussion is relevant because, as explained, the Legislature has 

never departed from the phrase “from the person” in the larceny-from-the-person statute. 

12 Covelesky, 217 Mich at 97-98. Covelesky discussed the meaning of “from the person” 

in the context of a robbery charge. As explained, “from the person” was formerly an 

element of both robbery and larceny from the person and because the element has 

historically meant the same thing for both crimes the caselaw discussing “from the 

person” in the context of robbery is informative. 

13 Id., quoting 34 Cyclopedia of Law & Procedure, p 1798. 

14 Covelesky, 217 Mich at 97, quoting 23 R C L, pp 1142-1143. Implicit in the notion 

that the property only need be within the person’s personal protection or control is the 

principle that the person from whom the property is taken need not be the actual owner of 

the property; rather, it suffices if the property is merely under the person’s possession or 

control. See Durand v People, 47 Mich 332, 334; 11 NW 184 (1882) (“Neither is it 

necessary that the person assaulted must have been the actual owner of the property 

intended to be taken. As against a wrong-doer, an actual possession or custody of the 

goods would be sufficient.”). 
6

have sway . . . .”15 As examples, the Court indicated a taking “from the person” may 

occur when the defendant, by causing fear or through violence, separates a person from 

the immediate presence of their property, and then takes the property from another room 

or even from another building.16

 Following this Court’s decision in Covelesky, this Court affirmed the common-law 

meaning of “from the person” nearly ten years later in People v Cabassa.

17 There, the 

defendant robbed a gas station of which the victim was the attendant. The Court 

explained that the defendant took property “from the person” because the attendant, 

although not the actual owner of the property stolen, was in actual possession and control 

of the money taken.18 In so holding, the Court again endorsed the view that “if [an 

object, due to the defendant’s acts of violence or putting in fear,] be away from the 

owner, yet under his control, in another room of the house . . . it is nevertheless in his 

 

15 Covelesky, 217 Mich at 98, quoting 2 Bishop’s New Crim Law (8th ed), §§ 1177-1178, 

p 677. 

16 Id. at 98-99. Therein, we quoted two examples from 2 Bishop’s New Crim Law at 

§§ 1177-1178, which indicate that a taking from another room or building satisfies the 

“from the person” requirement where the defendant is the cause of the person being in the 

other room or building: 

5. One who binds another in one room of his house, and compels 

him to tell where valuables may be found in another room; or confines 

another in his smokehouse fifteen steps from the dwelling house, commits 

robbery by feloniously taking the sought-for things from the other room or 

building. [Covelesky, 217 Mich at 98.] 

17 People v Cabassa, 249 Mich 543; 229 NW 442 (1930). 

18 Id. at 546-547. 
7

personal possession; and, if he is deprived thereof, it may well be said it is taken from his 

person.”19

This Court quoted this same language more recently in People v Gould, where we 

upheld the defendant’s conviction for larceny from the person where he took money from 

a restaurant’s cash register and cigar box after “forc[ing] the waitress and her sole 

customer to lie face down on the floor of another room . . . .”20 We held that the money 

was “in the possession and immediate presence of the waitress and customer . . . .”21 In 

so holding, the Court rejected the argument that a defendant must take the property from 

its actual owner, explaining that it is sufficient for larceny from the person that “‘“the 

property be taken from the presence of the victim . . . [that is,] within his area of 

control.”’”22 

Five years after Gould, in People v Chamblis, this Court reaffirmed its 

commitment to “the view that the crime of larceny from the person embraces the taking 

of the property in the possession and immediate presence of the victim.”23 And, nearly 

fifteen years after Chamblis, in People v Beach, the Court again reaffirmed that “the 

 

19 Id. at 547, quoting State v Calhoun, 72 Iowa 432; 34 NW 194 (1887) (quotation marks 

omitted; emphasis added). 

20 People v Gould, 384 Mich 71, 74, 80; 179 NW2d 617 (1970). 

21 Id. at 80. 

22 Id., quoting Commonwealth v Subilosky, 352 Mass 153, 166; 224 NE2d 197 (1967), in 

turn quoting Anderson, Wharton’s Criminal Law & Procedure, § 553. 

23 People v Chamblis, 395 Mich 408, 425; 236 NW2d 473 (1975), overruled in part on 

other grounds People v Cornell, 466 Mich 335, 357; 646 NW2d 127 (2002). 
8

crime of larceny from the person embraces the taking of property in the possession and 

immediate presence of the victim.”24 Thus, in an unbroken chain of caselaw dating back 

nearly a hundred years, this Court has continually interpreted the phrase “from the 

person” to mean from a person’s “immediate presence” and, consistent with this 

common-law meaning, has defined the scope of “immediate presence” to extend beyond 

a person’s physical reach. Given these precedents, “immediate presence,” as that phrase 

has been consistently interpreted in our jurisprudence, plainly includes property that is 

taken while under the person’s personal protection and control. 

I would therefore reverse the Court of Appeals’ holding that “from the person” 

means that property must be taken from the victim’s “personal space.” The Court of 

Appeals’ interpretation, which essentially ignores the common-law meaning of “from the 

person,” appears motivated by a concern that the threat of violence inherent in the crime 

of larceny from the person is absent if the taking does not occur within the victim’s 

“personal space.”25 This policy concern is unfounded: The common-law meaning of 

“from the person” accounts for the reality that property taken from a person’s immediate 

presence may pose as great (or greater) a threat to the victim’s personal safety, as the 

threat created by a taking that occurs within arm’s reach. As this Court explained in 

 

24 People v Beach, 429 Mich 450, 484 n 17; 418 NW2d 861 (1988) (quotation marks and 

citation omitted). 

25 The Court of Appeals, People v Smith-Anthony, 296 Mich App 413, 418; 821 NW2d 

172 (2012), cites People v Perkins, 262 Mich App 267, 272; 686 NW2d 237 (2004), aff’d 

473 Mich 626 (2005), in support of its view, but Perkins does not support the proposition 

that the increased risk of violence is only activated when a defendant takes the property 

from the victim’s “personal space.” 
9

People v Perkins, because “[i]n order to commit a larceny from the person, the defendant 

must steal something from a person in that person’s presence,” and, thus, “[u]nless the 

victim submits to the theft or does not notice the theft, physical force will almost 

certainly be used in response,” “larceny from the person is a crime that by its nature, 

involves a substantial risk that physical force against the person or property of another 

may be used in the course of committing the offense.”26 Accordingly, it follows that the 

focus of whether property is taken from a person’s immediate presence and is under his 

personal protection and control is on whether, at the time the taking occurs, the proximity 

between the defendant and the victim triggers a substantial risk that a violent altercation 

will occur.27 I would therefore hold that “from the person” for purposes of the larcenyfrom-the-person statute means property taken in the person’s immediate presence, which 

 

26 Perkins, 473 Mich at 632-633 (quotation marks and citation omitted). 

27 The analysis in this regard is not on the victim’s conduct, i.e., whether or at what point 

the victim may choose to confront the thief, but simply on whether the taking occurs 

within a proximity that poses a substantial risk of physical altercation. While this 

distance cannot be defined with specificity and is dependent on the facts of each 

particular case, it is clear that no such risk of violence exits when a thief steals from a 

victim who observes the taking from a safe distance that presents no opportunity to retake 

the property. Accordingly, that a victim could, according to the majority, “plausibly 

observe a thief from 100 feet away, and yet still have a chance of catching up to and 

confronting the thief if the victim chose to do so,” ante, at 22, unnecessarily fixates on the 

victim’s conduct. Nor does this analysis place “difficult to discern” and “arbitrary” 

limitations on determining whether a taking occurs within a proximity that poses the risk 

of physical altercation; rather, the determinant of such proximity is simply common sense 

and what is objectively reasonable under the circumstances. For example, it is 

implausible that a taking, which occurs ten car lengths (approximately 100 feet) from the 

victim, could trigger a substantial risk that a violent altercation will occur. 
10

includes property that is under the person’s personal protection and control such that a 

taking of such property triggers a substantial risk that a violent altercation will occur.28

B. THE MAJORITY’S NEW “IMMEDIATE PRESENCE” STANDARD 

Notwithstanding this Court’s long-standing adherence to the common-law 

meaning of “from the person,” the majority narrowly defines this phrase to require that 

the taking occur within the victim’s “immediate proximity,” meaning that there can be no 

“intervening space” between the victim and the property taken.29 In fact, according to the 

majority, only in the rare instance that property is taken by “use of force or threats of 

 

28 Contrary to the majority’s assertion, this interpretation does not create an expansive 

“new test” for determining whether a taking occurs in the victim’s immediate presence, 

but is plainly supported by over nine decades of our jurisprudence. 

29 In concluding that “immediate presence” is established only if property is taken 

“immediate[ly]” from the victim’s person, the majority relies exclusively on the term 

“immediate” while completely ignoring the term “presence,” essentially equating 

“immediate presence” with “attached to the person.” As support for its new “immediate 

presence” standard, the majority relies on the common dictionary definition of the term 

“immediate.” However, as acknowledged by the majority, “immediate presence” is a 

“technical phrase” that has “acquired a peculiar and appropriate meaning in the law,” and 

thus “shall be construed and understood according to such peculiar and appropriate 

meaning.” MCL 8.3a; see also Const 1963, art 3, § 7. Consequently, it is not appropriate 

for the majority to consult a lay dictionary in its attempt to define this phrase. 

 Notwithstanding its reliance on common dictionary definitions, the majority 

asserts that it is “not true” that it has equated immediate presence with physical 

possession because under its standard, property taken either “from the physical person or

immediate presence of a victim” is sufficient. Ante, at 18 n 60. However, there is no 

meaningful distinction between these two circumstances given that, under the majority’s 

interpretation, the latter requires that there be no “intervening space” between the victim 

and the object, or that the object be physically “next” or “nearest” to the victim. In 

essence, then, to satisfy “immediate presence” under the majority’s standard requires that, 

at the time of the taking, the property be physically touching, or otherwise physically next 

to, the victim without any intervening space, i.e., actual physical possession. 
11

force to create distance between a victim and the victim’s property” might property that is 

otherwise not affixed to the victim constitute a taking “from the person.” This 

interpretation, however, inexplicably departs from this Court’s jurisprudence, which 

holds that “immediate presence” “cover[s] all one’s effects within a not easily defined 

distance over which his presence may be deemed to have sway.”30 Indeed, this Court has 

never held that an object must be, as the majority holds, “immediately next to the person” 

or effectively in the victim’s actual physical possession in order for the taking to be in the 

person’s “immediate presence.” Thus, by adopting an interpretation that is incompatible 

with the well-established meaning of “immediate presence” as recognized in this state for 

nearly a century, the majority has created a “new test” that represents a sea change in 

Michigan’s common law. 

 

30 Covelesky, 217 Mich at 98 (citation and quotation marks omitted). Because this 

Court’s jurisprudence does not support the majority’s interpretation of “from the person” 

to require that the property be “immediately next to the person at the time of the taking,” 

the majority relies on caselaw from other jurisdictions, the factual circumstances of 

which (not surprisingly) support the majority’s purported measure of immediate 

proximity, which necessarily requires that the property be attached to the victim’s person. 

While the manner in which other states have construed their respective larceny-from-theperson statutes is entirely inapposite, I would be remiss not to note that multiple cases 

from other jurisdictions are also consistent with my interpretation of “from the person.” 

See State v Calhoun, 72 Iowa 432; 34 NW 194, 196 (1887) (holding that “[i]f [property] 

be away from the owner, yet under his control, in another room of the house . . . it is 

nevertheless in his personal possession; and, if he is deprived thereof, it may well be said 

it is taken from his person.”); State v Jones, 499 SW2d 236, 237-240 (Mo Ct App, 1973) 

(the defendant, who reached through the open passenger-side window and took the 

victim’s purse off of the passenger seat as the victim was exiting her vehicle on the 

driver’s side, was found to have taken property “from the person.”); and In re Welfare of 

DDS, 396 NW2d 831 (Minn, 1986) (a radio that was not actually on the person of another 

but only in that person’s presence was held to have been taken “from the person.”). See 

also Subilosky, 352 Mass at 166. 
12

Despite adopting an immediate presence standard that represents a vast departure 

from Michigan jurisprudence, the majority avoids overruling even a single case of this 

Court. Yet, the majority does not explain how it is able to do so where its holding 

conflicts with (1) all of our cases that have held that the Legislature codified the 

common-law understanding of the language “from the person” when it incorporated this 

language into the robbery and larceny-from-the-person statutes;31 (2) all of our robbery 

cases that have held that “from the person” includes from the person’s “immediate 

presence;”32 (3) all of our larceny-from-the-person cases that have held that “from the 

person” includes from the person’s “immediate presence;”33 and (4) all of our cases that 

 

31 See, e.g., Covelesky, 217 Mich at 98-99 (“The words ‘from the person of another,’ 

found in our statutory definition of robbery, must be held to have been used in the same 

sense and with the same meaning that these terms had acquired at common law at the 

time the statute was enacted, and the offense of robbery under the statute may be 

committed by violence or putting in fear, and feloniously taking money or other things of 

value from the person or in the presence and under the immediate control and possession 

of the person assaulted.”) (quotation marks and citation omitted). 

32 See, e.g., Covelesky, 217 Mich at 97 (“To constitute robbery, it is essential that there be 

a taking from the person. To satisfy this requirement, it is sufficient that property be 

taken in the owner’s presence.”) (quotation marks and citation omitted); Cabassa, 249 

Mich 543. 

33 See, e.g., Gould, 384 Mich at 80 (“We hold that the taking of property in the 

possession and immediate presence of the waitress and customer in this case was 

sufficient to sustain a verdict against defendant Gould of larceny from the person.”); 

Chamblis, 395 Mich at 425 (“We are committed to the view that the crime of larceny 

from the person embraces the taking of property in the possession and immediate 

presence of the victim.”); Beach, 429 Mich at 485 (same); Perkins, 473 Mich at 633 (“In 

order to commit a larceny from the person, the defendant must steal something from a 

person in that person’s presence.”). 
13

have held that larceny from a person was a necessarily included lesser offense of robbery 

(at least before 2004).34

Indeed, the majority reforms this state’s common-law history, as well as English 

common law as previously explained in this dissent. In particular, the majority ignores 

the significance of the historical relationship between larceny from the person and 

robbery and the fact that our jurisprudence has consistently recognized that larceny from 

the person constitutes a necessarily included lesser offense of robbery.35 It follows, then, 

that all of the elements of robbery and larceny from the person are exactly the same, 

including “from the person,” except for the additional element of force or violence 

inherent only in the crime of robbery. The majority, however, has interpreted “from the 

person” to mean something entirely different from how this phrase was understood in the 

context of robbery before the 2004 amendments to the robbery statute, thereby 

retroactively transforming larceny from the person into a cognate offense, rather than a 

lesser included one. 36

 

34 See, e.g., People v Calvin, 60 Mich 113, 121; 26 NW 851 (1886) (“Each of these 

offences under our statutes and at common law, to-wit, robbery and larceny from the 

person, include the stealing and taking of property from the person,--one by force and 

violence; the other need not be with force or violence; it may be by stealth.”); Chamblis, 

395 Mich at 424 (“Larceny from the person is ‘robbery’ absent the element of force”) 

(emphasis in the original.); Beach, 429 Mich at 484 n 17 (“Robbery is committed only 

when there is larceny from the person, with the additional element of violence or 

intimidation”) (quotation marks and citation omitted.). 

35 See, e.g., Calvin, 60 Mich 113; Chamblis, 395 Mich 408; Beach, 429 Mich 450. See 

also Perkins, Criminal Law (2d ed), pp 279, 281. 

36 The majority makes the pronouncement, in dicta, that as a result of the 2004 

amendment of the robbery statute, larceny from the person “is no longer a necessarily 

included lesser offense of robbery.” Ante, at 17 n 53. However, this issue has never been 
14

Next, the majority invents a tension in the evolution of the meaning of “immediate 

presence,” indicating that Michigan law once required actual physical possession, not 

merely immediate presence, to establish the from-the-person element for larceny from the 

person.37 The majority uses this supposed conflict in our caselaw to justify its departure 

from the unabated meaning of “immediate presence.” However, the conflict referenced 

by the majority simply does not exist. For example, the majority infers from the facts in 

People v Gadson,

38 that our jurisprudence once interpreted “immediate presence” to 

require that the property be physically attached to the person. Gadson, however, provides 

no analysis regarding the meaning of “from the person,” but simply held that larceny 

from the person was not established where the evidence was insufficient to prove that a 

 

litigated in this Court. Furthermore, defendant has waived the issue whether larceny 

from the person remains a lesser included offense of robbery in light of the 2004 

amendment because defendant requested an instruction on larceny from the person as a 

lesser included offense of robbery and did not raise the issue on appeal. See People v 

Kowalski, 489 Mich 488, 504-505; 803 NW2d 200 (2011) (indicating that counsel’s 

express approval of the instructions constitutes a waiver of any instructional error). In 

any event, the meaning of “from the person” is unaffected by the 2004 amendment of the 

robbery statute, given that the majority agrees that the amendment had no effect on the 

meaning of “from the person” in the larceny-from-the-person context. 

37 This assertion is not, as the majority seems to suggest, dependent on this Court’s 

decision in Covelesky, but is simply consistent with the meaning of “from the person” as 

that phrase was interpreted at common law. Again, this Court’s caselaw does not support 

the majority’s supposition that Michigan ever adopted the minority view and required an 

actual taking from the physical person of the victim. The authorities cited by the majority 

actually support this point. 

38 People v Gadson, 348 Mich 307; 83 NW2d 227 (1957) 
15

theft occurred in the first instance. There is no other case from this Court that adopts a 

standard other than the common-law one articulated in part A of this dissent.39

In a similar manner, the majority recharacterizes People v Gould as creating a 

previously unrecognized “constructive presence” exception to its immediate presence 

standard. Under this alleged exception, property that is not attached to the victim at the 

time of the taking will be deemed to have been taken “from the person,” if the victim 

could have retained possession of the property but for the defendant’s use of force or 

intimidation to separate the victim from his property. The majority premises the creation 

of this exception, in part, on the idea that a defendant may not negate the from-the-person 

element for purposes of establishing robbery by using force or intimidation to prevent the 

victim from retaining possession of his property. Although such a principle itself is not 

objectionable, a fair reading of Gould indicates that it in no way stands for that principle 

nor did it articulate, let alone adopt, the majority’s new “constructive presence” 

exception. Rather, as previously explained, Gould held that the taking of property in the 

victims’ immediate presence and within their area of protection and control was sufficient 

to sustain a conviction of larceny from the person, notwithstanding that the victims were 

not in actual physical possession of the property at the time of the taking.40 

 

39 The majority’s reliance on two Court of Appeals cases, People v Stevens, 9 Mich App 

531; 157 NW2d 495 (1968), and People v Johnson, 25 Mich App 258; 181 NW2d 425 

(2005), is also not persuasive because we are not bound by these lower court decisions. 

40 The majority “believe[s] that Gould should [not] be read as a wholesale importation of 

robbery doctrine into larceny-from-the-person law” and that the standard articulated in 

this dissent “expands the prohibited taking zone . . . well beyond the standard in Gould.” 

Ante, at 15 n 47. The majority’s belief, however, is premised on its use of the phrase 

“from the person” as having one meaning in the context of robbery and having another 
16

Perhaps even more concerning is the result of the majority’s new “immediate 

presence” standard, in the context of takings from a retail establishment. By holding that 

there can be no “intervening space” between the victim and the property taken unless its 

“constructive presence” exception applies, the majority essentially eviscerates the offense 

of larceny from the person in all instances not involving a taking where the property is 

physically attached to the victim. That is, if, in the absence of actual physical possession, 

larceny from the person can only be established when the “constructive presence” 

exception applies, then the actual offense committed would be robbery because the 

offense would necessarily involve force or intimidation. Comparatively, if, in the 

absence of force or intimidation, larceny from the person can only be established when 

property is attached to the victim at the time of the taking, then the absence of property 

physically attached to the victim places the crime within the definition of retail fraud.41 

Under the majority’s standard, then, the prosecutor’s discretion to pursue a charge of 

larceny from the person in the context of a taking from a retail establishment is limited to 

those very rare instances in which the defendant is actually a pickpocket. 

 

different meaning in the context of larceny from the person, which, of course, is 

unsupportable under our law. Moreover, the majority does not explain how this dissent’s 

interpretation of “from the person” expands the “taking zone” beyond that recognized at 

common law. 

41 See MCL 750.356c and MCL 750.356d. The majority concedes that Michigan is an 

“immediate presence” jurisdiction rather than one that requires the victim to have actual 

physical possession of the property taken. Notwithstanding this concession, in adopting 

the “constructive presence” exception the majority has transformed larceny from the 

person into a crime that can only be committed when the victim has actual physical 

possession of the property taken. 
17

In summary, the majority’s new immediate presence standard overrules nearly one 

hundred years of this Court’s jurisprudence, without any mention of stare decisis, recasts 

the historical understanding of “from the person” in both Michigan’s and England’s 

common law, and unduly narrows the crime of larceny from the person such that, 

effectively, it is conflated with either shoplifting or robbery. I would instead adhere to 

this Court’s long-standing recognition of that phrase which, consistent with its meaning 

at common law, includes the taking of objects that are within a person’s immediate 

presence and under that person’s personal protection and control. 

C. APPLICATION 

Application of the unabated meaning of “from the person” to the facts of this case, 

leads to the conclusion that the evidence was sufficient to support defendant’s conviction. 

Macy’s loss-prevention officer Krumbhaar testified that defendant, after trying on a pair 

of shoes, completed the larceny by pushing the gift box into her grocery bag. At that 

time, Krumbhaar observed the taking from a distance close enough to hear defendant 

interact with a sales associate. As an employee of Macy’s responsible for preventing 

thefts of Macy’s store items, Krumbhaar had personal protection and rightful control over 

the gift box at the time of taking.42 Taking these facts in a light most favorable to the 

 

42 The majority concludes that for Krumbhaar to establish personal protection over the 

gift box, “she would have had to have taken possession of [it] before defendant pilfered 

it.” However, actual possession, although sufficient, has never been required in our 

jurisprudence. See People v Randolph, 466 Mich 532, 556; 648 NW2d 164 (2002) 

(MARKMAN, J., dissenting), superseded by statute as recognized by Williams, 491 Mich 

at 171-173 (“[A]lthough [the] defendant had initially seized items from the shelf of the 

Meijer store, the security guards continued to exercise protective custody and control 

over that property, because they continued to monitor [the] defendant and they still had 

the right to take the property back. Therefore, the property was ‘in [their] presence’ 
18

prosecution, a reasonable jury could conclude beyond a reasonable doubt that defendant 

unlawfully took the gift box from Krumbhaar’s immediate presence. Krumbhaar’s 

testimony that defendant was within her “visual range” and was “fairly close,” is 

sufficient to satisfy the meaning of “from the person,” contrary to defendant’s argument. 

Rather, as previously explained, “from the person” includes the taking of objects that are 

within a person’s immediate presence and under that person’s personal protection and 

control such that a risk of a physical altercation exists, as in the instant case. I would 

therefore conclude that the evidence was sufficient to support the jury’s finding that the 

gift box was taken “from the person of another.” 

To reach this conclusion, and affirm this Court’s adherence to the common-law 

meaning of “from the person,” is not to say that all shopliftings constitute larceny from 

the person. Indeed, there are multiple scenarios where a defendant who is caught 

shoplifting is guilty of only retail fraud or simple larceny rather than larceny from the 

person. A few non-exhaustive examples of such instances include (1) a defendant who 

completes the larceny without being seen; (2) a defendant who completes the larceny 

while a security guard observes via closed-circuit monitor; (3) a defendant who is 

stopped by a security guard because of a suspicious bulge in the defendant’s clothing or 

other suspicious behavior following the completed larceny; or (4) the defendant triggers 

the store’s security alarm after the completed larceny and is stopped by a security 

 

within the meaning of MCL 750.530 when [the] defendant, by assault, attempted to 

unlawfully deprive the security guards of the property.”). The majority in Randolph in no 

way disagreed with Justice MARKMAN’s conclusion that the property was taken “in the 

presence” of the security guards, even though they did not actually possess the property 

before it was taken. 
19

guard.43 While defendant suggests that she could, at most, be guilty of third-degree retail 

fraud, it is clear that none of these scenarios existed and the evidence, in my view, 

supports a jury finding that defendant took the gift box from Krumbhaar’s person.44

IV. CONCLUSION 

The majority’s new rule deviates from the historical meaning of “from the person” 

as it has been understood in this Court’s jurisprudence. By defining “immediate 

presence” to require that there be no “intervening space” between the person and object 

taken, the majority has effectively ruled that the property must be attached to the person. 

This Court, however, has never, until today, held that immediate presence requires that 

the victim have actual physical possession of the property at the time of the taking. 

I would adhere to this Court’s well-established jurisprudence and hold that “from 

the person” for purposes of the larceny-from-the-person statute means property that is 

 

43 Given this guidance, it is simply untrue that “most routine shoplifting incidents could 

be charged as larcenies from the person.” Ante, at 22. While the majority believes that 

these examples “fail to satisfy th[is] dissent’s own test,” based on its speculation that a 

risk of altercation “would still” arise where a security guard observes a theft via closedcircuit monitor, the majority again misapprehends the focus of our analysis by wrongly 

concerning itself with the victim’s conduct. Ante, at 22 n 69. 

44 Defendant also argues that the evidence only supports a conviction for third-degree 

retail fraud because Macy’s, and not Krumbhaar, owned the gift box and suggests that 

she was mischarged. However, as previously explained, “from the person of another” 

does not require a showing that the property was taken from the actual owner; the fact of 

custody and possession is enough. Durand, 47 Mich at 334; Cabassa, 249 Mich at 546-

547. Further, that the evidence may have supported a charge of third-degree retail fraud 

is irrelevant; just because the evidence may have supported that charge, as well as a 

charge for larceny from the person, does not mean that defendant cannot be convicted of 

the latter. The prosecutor has broad discretion in selecting the charges it pursues against 

a defendant, People v Venticinque, 459 Mich 90, 100; 586 NW2d 732 (1998), and, 

notably, it was defendant who requested an instruction on larceny from the person. 
20

taken from a person’s “immediate presence,” which includes property that is under the 

person’s personal protection and control such that a taking of such property triggers a 

substantial risk that a violent altercation will occur. Applying the legally correct 

understanding of the larceny-from-the-person statute, and considering the evidence in a 

light most favorable to the prosecution, the evidence was clearly sufficient to support 

defendant’s conviction. I would therefore reverse the judgment of the Court of Appeals 

and reinstate defendant’s conviction for larceny from the person. 

 Mary Beth Kelly 

 Stephen J. Markman 

 Brian K. Zahra