State v. Hall

942 P.2d 882, 149 Or. App. 358

Opinions

HASELTON, J.

Defendant appeals from his convictions for robbery-in the first degree, ORS 164.415, robbery in the third degree, ORS 164.395, and felon in possession of a firearm, ORS 166.270, which arose from three separate incidents. Defendant asserts, in part, that the trial court should have entered a judgment of acquittal on the charge of robbery in the third degree, because the state failed to prove that he “use[d] or threaten[ed] the immediate use of physical force upon another person.” ORS 164.395(1). We agree that the state’s proof was deficient in that regard and, consequently, we reverse the conviction for robbery in the third degree but affirm the remaining convictions and remand for resen-tencing.

In reviewing a denial of a motion for judgment of acquittal, we view the evidence in the light most favorable to the state to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” See State v. King, 307 Or 332, 339, 768 P2d 391 (1989). So viewed, the record as to defendant’s conviction for robbery in the third degree discloses the following:

On June 21, 1994, at about 10:40 in the evening, defendant walked into the McDonald’s restaurant at Jantzen Beach. Defendant, who wore sunglasses with a dark bandana over his head, was dressed in dark jeans and a dark jacket. He walked up to the counter where a McDonald’s employee, Ahyek, was working as a server and cashier. Defendant motioned for Ahyek, said, “Come here,” and, presenting a small paper bag, told her to “put all of the money into this bag.” Ahyek, who had been trained to cooperate in such situations, opened the cash register and gave defendant all of the money in the top drawer. Defendant then said, “No, I want what is underneath,” and Ahyek then gave him the money in the lower drawer. Defendant then said, “No, I want what is in the other drawers,” and Ahyek pulled out the remainder of the cash drawers and set them on the counter so that defendant could see that they were empty. Throughout the encounter, defendant neither displayed a weapon nor suggested that he might have a weapon. He made no threatening statements or gestures. Defendant then turned around and, without any further comment, began to walk out of the restaurant.

During defendant’s encounter with Ahyek, Atkinson, another McDonald’s employee, was sweeping the floor. As defendant walked toward the exit, he passed Atkinson, looked at him, and said something that Atkinson did not hear. A customer later told Atkinson that defendant “said something about not following him or something.” At about the same time that defendant was leaving the restaurant, Ahyek “started yelling.”¹ Atkinson turned to her and told her to dial 9-1-1, which she did. When Atkinson looked outside to find defendant, defendant was already gone.

Defendant was subsequently arrested and charged with robbery in the third degree, as well as other crimes arising from other incidents. The indictment alleged that defendant used or threatened to use physical force on Ahyek while committing the theft.

At trial, after all evidence had been submitted, the court sua sponte inquired whether the evidence was sufficient to support a conviction for robbery in the third degree and, particularly, whether the state had proven that defendant had “use[d] or threaten [ed] the immediate use of physical force.” ORS 164.395(1). The state argued that, although defendant had not made verbal threats or engaged in explicitly threatening behavior, an implicit threat was sufficient to satisfy the statute. The state further argued that the jury could find such an implicit threat based on defendant’s conduct and the fact that Ahyek yelled as defendant left the restaurant. The court agreed:

“I have to decide whether any — there is any basis in the evidence, including inferences, that can be drawn that would lead a reasonable jury to conclude that you threatened Miss Ahyek in some way; that, you know, just your presence there, the way it was going down combined with her reaction was enough to show a use or threat of use of physical force.

“And what [the prosecutor] has described in looking at all of the testimony and all of the circumstances, including the fact that she screamed when it was over, I can’t say that there is absolutely nothing there to go to a jury. If I can’t say there is absolutely nothing to go to a jury, no matter how I feel about it, the jury gets to decide it.”

The jury subsequently convicted defendant of, inter alia, robbery in the third degree.

On appeal, defendant assigns error to the trial court’s denial of a judgment of acquittal on the charge of robbery in the third degree. He reiterates that the state failed to prove that he “use[d] or threaten [ed] the immediate use of physical force” against Ahyek. We agree.

ORS 164.395(1) provides that a person commits robbery in the third degree if

“in the course of committing or attempting to commit theft the person uses or threatens the immediate use of physical force upon another person with the intent of:

“(a) Preventing or overcoming resistance to the taking of the property or to retention thereof immediately after the taking; or

“(b) Compelling the owner of such property or another person to deliver the property or to engage in other conduct which might aid in the commission of the theft.” (Emphasis supplied.)

Because the state does not contend that defendant actually used force, our inquiry is reduced to whether, from the evidence, a jury could find beyond a reasonable doubt that defendant threatened the immediate use of physical force against Ahyek.

The criminal code does not define “threaten” or “threat,” and no reported decision has comprehensively defined those terms in the context of ORS 164.395.² Two of our decisions do, however, give some guidance as to the meaning of “threaten” as used in the robbery statute. First, in State v. Dillman, 34 Or App 937, 580 P2d 567 (1978), rev den 285 Or 195 (1979), which involved a conviction for robbery in the second degree, ORS 164.405, we concluded that, where the defendant announced, “This is a stick-up, I mean it” and then pointed a pistol at each of four bank tellers in succession, the imposition of multiple convictions was proper:

“Although the 1971 Criminal Code Revision included robbery in the chapter entitled Offenses Against Property rather than Offenses Against Persons, the Commentary indicates that the gravamen of the robbery offense is the threat of harm to persons. Proposed Original Criminal Code, 155-56 (1970). This conclusion is reinforced by the statute itself, which does not require a completed theft as an element of the crime. Also, the degree of robbery varies according to the severity of the threat or danger of harm to the person, not according to the value of the property that is the subject of the theft or attempted theft. Thus, it appears that the legislature intended that the assault aspect of the crime of robbery be dominant and each person assaulted is the victim of the crime.

* * * *

“We conclude that because the distinctive aspect of robbery is the threat of violence to a person, when defendant pointed his gun at and demanded money from each of four different bank tellers, each teller was a victim of the robbery. Therefore, defendant committed four separate offenses.” 34 Or App at 941-42.

Second, in State v. Odoms, 117 Or App 1, 5, 844 P2d 217 (1992), rev den 316 Or 529 (1993), we affirmed a conviction for robbery in the third degree and, in so doing, commented that “[t]he record contains evidence from winch a rational jury could infer that defendant threatened, expressly or impliedly, to use physical force” against the victim. (Emphasis supplied.) Although we did not explicitly identify the evidence underlying that conclusion, our recounting of the pertinent facts included the following description of the interaction between the defendant and the victim, Kidwell:

“Defendant * * * took [Kidwell] to an apartment where some of his friends lived. That night, defendant instructed Kidwell about how to be a prostitute. The next day the two argued about Kidwell becoming a prostitute, and Kidwell tried to persuade defendant that she could do something else for him, such as sell drugs. When asked why she did not simply leave, she testified, T was scared to.’

“Over the next two or three days, Kidwell had sexual intercourse with defendant, engaged in sodomy with him, worked as a prostitute for him and signed a paper that defendant used to sell her car. He kept the money for himself. During those days, defendant hit Kidwell on at least one occasion, because she had not brought him enough money. When asked whether that money was for committing sex acts with people, she testified, ‘Yeah. I had to do it or else — I had to.’

“At some point during the three days, defendant drove Kidwell from Portland to Salem so that she could pick up some clothes at her sister’s house. She testified that she did not use that opportunity to escape from defendant, because she feared that he might hurt her sister or her nephew. On September 28, Kidwell was picked up by police. Her face was bruised. She told them what had happened.” Id. at 4.

From Dillman and Odoms, we conclude that what distinguishes robbery in the third degree from simple theft, ORS 164.015,³ is the former’s “assaultive” character, i.e., the actual use of physical force or the threat of immediate use of physical force against the victim. See Dillman, 34 Or App at 941-42. We further conclude, consistent with those holdings and common usage,⁴ that a defendant “threatens the immediate use of physical force” when, by words or conduct, the defendant communicates his or her determination to use physical force if the victim does not promptly accede to the defendant’s demands. The standard is one of objective reasonableness: Would a person in the victim’s position reasonably regard the defendant’s words or conduct as communicating the requisite threat?

Applying that definition, we conclude that the evidence was insufficient to support a conviction for robbery in the third degree. The evidence shows only that defendant demanded cash and that Ahyek acquiesced in that demand. There is no evidence that defendant made verbal threats or engaged in conduct that indicated that he would, in fact, immediately resort to physical force unless his demand was met. Moreover, although there was evidence that Ahyek “yelled” after defendant had turned from the counter and was leaving the restaurant, there is no evidence as to why Ahyek yelled. Certainly, Ahyek herself did not testify that she regarded defendant’s conduct as threatening.⁵ On these facts, the state may well have proven theft, but it did not prove robbery.⁶

The dissent asserts that our conclusion cannot be squared with Odoms. See 149 Or App at 369. To the contrary, Odoms is materially distinguishable. There, as noted, the record disclosed that, during the same period in which the robbery occurred, the defendant hit the plaintiff on at least one occasion, causing her face to be bruised. 117 Or App at 4. The record in Odoms further disclosed that the victim had not attempted to escape from the defendant, and had submitted to prostitution, because she was frightened of the defendant and feared that he might hurt members of her family: “I was scared to.” “Yeah, I had to do it or else — I had to.” Id. Here, the theft did not occur in the context of threats or physical violence by defendant. Nor, as noted, did Ahyek ever state that she was frightened by defendant. The express or implied threats in Odoms simply did not occur here.

We note, moreover, that the meaning of “implied threat” in Odoms is uncertain. Odoms used that term once, in cursory fashion, without explanation. We are unaware of any other Oregon decision that has used, much less amplified, that term. At the very least, however, an “implied threat” must mean something more than the circumstantial potential for violence that exists in every personal theft. Otherwise, “threatens the immediate use of physical force upon another person” would, as a practical matter, be read out of the statute. Accord ORS 174.010 (in construing a statute, a court shall not “insert what has been omitted, or [ ] omit what has been inserted”).

The dissent would do just that. In finding sufficient evidence of an “implied threat” here, the dissent points to defendant’s proximity to Ahyek during the course of the encounter and defendant’s insistence that Ahyek produce all the available cash. See 149 Or App at 369-70. Those facts will be present in virtually every face-to-face theft.⁷ Accord Parnell v. State, 389 P2d 370, 374 (Okl Crim App. 1964) (“ ‘[WJhere a person parts with money upon a mere demand made in a rough, positive voice, with an oath, the taking is not robbery; the menace not being such as to excite reasonable apprehension of danger’ ” (quoting Davis v. Commonwealth, 21 Ky L Rep 1295, 54 SW 959 (1900))); State v. Peebles, 138 Tex Crim 55, 134 SW2d 298, 299 (1939) (threat made on busy sidewalk that, if victim did not give defendant money he would “leave her like he left a woman the night before,” could not support robbery conviction).

It cannot be gainsaid that here, as in every personal theft, there was a generic potential for violence. That circumstantial potential is not, however, sufficient, without more, to establish the statutorily prescribed threat of the “immediate use of physical force upon another person.”⁸ In this case, there was no evidence from which a jury could find, beyond a reasonable doubt, that defendant either expressly threatened Ahyek or intimated to Ahyek that he would resort to physical force unless she followed his instructions. We thus conclude that the trial court erred in denying a judgment of acquittal on the charge of robbery in the third degree.

Defendant’s second assignment of error asserts, with respect to all charges, that the court erroneously accepted his waiver of counsel. We have reviewed, and reject, that assignment without further discussion. We have also reviewed, and reject without further discussion, the arguments presented in defendant’s supplemental brief.

Conviction for robbery in the third degree reversed; otherwise affirmed; remanded for resentencing.

Footnotes

1

The record does not disclose why Ahyek yelled or what, if anything, she yelled.

2

We have, however, addressed the meaning of “threat” in other criminal contexts. For example, in State v. Chakerian, 135 Or App 369-70, 900 P2d 511 (1995), affd 325 Or 370, 938 P2d 756 (1997), we noted that, for purposes of construing the anti-rioting statute, ORS 166.015, a “threat” could encompass “entirely nonexpressive behaviors” that “serve as ‘an indication of something impending and usually undesirable or unpleasant,’ ” 135 Or App at 376-77, quoting Webster's Third New International Dictionary 2382 (unabridged 1976). See also State v. Scott, 63 Or 444, 447, 128 P 441 (1912) (“Threat” for purposes of a former anti-extortion statute (now codified in substantially revised form at ORS 164.075) meant “a written or verbal declaration of the purpose of the one making it to work an injury to the person, property, or rights of another, and designedly uttered or promulgated by the individual making the threat, either directly or by some agency set in operation by him or with his consent in such a way as to bring the threat to the notice of or cause it to operate upon the mind of the person threatened.”).

3

ORS 164.015 provides, in part:

“A person commits theft when, with intent to deprive another of property or to appropriate property to the person or to a third person, the person:

“(1) Takes, appropriates, obtains or withholds such property from an owner thereof!.]”

4

Webster’s Third New International Dictionary 2382 unabridged (1993) defines “threat” as

“Is an indication of something impending and [usually] undesirable or unpleasant * * * as a: an expression of an intention to inflict evil, injury, or damage on another [usually] as retribution or punishment for something done or left undone * * * b: expression of an intention to inflict loss or harm on another by illegal means and [especially] by means involving coercion or duress of the person threatened!.]”

The same source defines “threaten”:

“1: to utter threats against: promise punishment, reprisal, or other distress to * * * 2 * * *: to charge under pain of punishment: warn * * * 3: to promise as a threat: hold out by way of menace or warning!.)”

5

In referring to Ahyek’s testimony, we do not imply that her subjective reaction — or nonreaction- — -is dispositive. Again, the operative standard is one of objective reasonableness. Nevertheless, a particular victim’s subjective perception or reaction may be probative, albeit not conclusive, of how an objectively reasonable person in the victim’s position might regard a defendant’s behavior.

6

The state argues, alternatively, that the statement defendant made to Atkinson, or to the nearby customer, as defendant left the restaurant constituted a threat, and that that threat was sufficient to support the verdict. However, the indictment specifically named Ahyek as the victim, without any reference to Atkinson or any other person. The jury instructions tracked the indictment. There was no evidence that Ahyek heard defendant’s statement as he left the restaurant; thus, that statement could not have constituted a threat to Ahyek.

7

The dissent also notes that defendant was wearing clothing, which Ahyek described as a “disguise.” 149 Or App at 369-70. The dissent does not explain, nor do we understand, how the “disguise” evinced anything more than defendant’s desire to conceal his identity. Cf. State v. Valdez, 277 Or 621, 628, 561 P2d 1006 (1977) (“shined shoes, sharp clothes, neat ‘Afro’ haircuts, and people who stand and stare at officers” are not grounds for suspecting criminal activity).

8

The dissent invokes various federal decisions as authority for its position. See 149 Or App at 371-72. Those decisions apply 18 USC § 2113(a), a statute whose terms are much broader than those of ORS 164.395(1). Most significantly, the federal statute permits conviction upon proof of “intimidation,” an element that is considerably less precise than “threatens the immediate use of physical force.”