State v. Oliver

Citations: 221 Or. App. 233; 189 P.3d 1240; 2008 Ore. App. LEXIS 1085Docket: 050734311; A130957

Court: Court of Appeals of Oregon; July 23, 2008; Oregon; State Appellate Court

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Defendant appeals his conviction for second-degree robbery, third-degree robbery, and fourth-degree assault, following an incident where he pretended to possess a gun while demanding money from the victim. He raises several errors, but the court addresses only two. First, he argues that the trial court wrongly denied his motion for acquittal on the second-degree robbery charge, claiming that no reasonable person could have believed he was armed. The court finds no error in the trial court's decision, concluding that the evidence sufficiently showed he attempted to create a representation of being armed, regardless of the victim's belief. Second, defendant contends that the trial court erred by not merging his second-degree and third-degree robbery convictions. The state agrees with this assertion. Consequently, the court reverses and remands for the merger of the robbery convictions and resentencing but affirms the remaining convictions. The facts show that the defendant approached the victim at an ATM while pretending to hold a gun under his sweatshirt, demanding money, and subsequently assaulting her when she refused. The trial court denied his acquittal motion based on the premise that the evidence met the statutory requirements for second-degree robbery, even without the victim's belief in the representation of being armed.

Robbery in the second degree is defined under ORS 164.405(1) as occurring when a person violates ORS 164.395 and either represents by word or conduct that they are armed with what appears to be a dangerous or deadly weapon, or is aided by another person present. The critical issue in this case pertains to the interpretation of the term 'represents' and the requirement that the representation is of something that 'purports' to be a dangerous weapon. The court applies statutory construction principles from PGE v. Bureau of Labor and Industries to ascertain the legislature's intended meaning of these terms by examining the text within its context, and if needed, legislative history and case law.

The term 'represent' is defined as to clearly convey or bring to mind, while 'purport' means to convey an outward appearance of something, regardless of its truthfulness. This distinction is pivotal; the statute requires the defendant to represent that they are armed with what appears to be a dangerous weapon, not to successfully persuade the victim of its existence. Case law, such as State v. Riehl, supports that a mere communication of being armed suffices, irrespective of accuracy. Additionally, in State v. Lee, the court clarified that second-degree robbery does not require the intent to instill fear in the victim, but only a representation of being armed, highlighting the different mental states required for robbery versus menacing.

In State v. Vance, 285 Or 383, 591 P2d 355 (1979), the Supreme Court examined the elements required for first-degree robbery. The court referenced legislative history indicating that the second-degree robbery statute was designed to cover scenarios involving the use of toy weapons or threats with non-existent weapons, such as a finger in a pocket. The court noted that a defendant's claim of being armed may not always fulfill the statutory representation requirement, particularly if the threat is transparently inadequate, like pointing a finger and threatening to shoot. The defendant argued that the victim perceived him as unthreatening, but the court clarified that the focus should be on whether a rational juror could find the essential elements of the crime beyond a reasonable doubt, based on the evidence. The court found that the defendant's actions—approaching the victim with a finger under his sweatshirt and demanding money—satisfied the legal requirements for representation of a weapon. Additionally, the court addressed the trial court's failure to merge the defendant's third-degree and second-degree robbery convictions. Although the defendant had not raised this issue at trial, the court accepted the state's concession of error and decided to review it as a plain error. The court reversed and remanded the case for the merger of the robbery convictions and for resentencing, while affirming other aspects of the trial court's decision.