365 P.3d 142
Or. Ct. App.2015Background
- Defendant was indicted for first-degree robbery for stealing clothing and shoes using pliers; second-degree robbery count was initially charged but dismissed by the state before trial.
- At trial (bench trial), loss-prevention employees saw defendant cut a security device with pliers, place items in a backpack, leave without paying, and flee; he later brandished pliers from about 10–12 feet and said words like “Get the hell away from me.”
- Trial court acquitted defendant of first-degree robbery, finding the pliers were not used from a distance sufficient to be a "dangerous weapon" under ORS 161.015(1), but convicted him of second-degree robbery as a lesser-included offense.
- Defendant did not object at trial to the court’s use of second-degree robbery as a lesser-included offense and was sentenced to 70 months’ imprisonment.
- On appeal, defendant argued the conviction could not stand because, as alleged in the indictment, second-degree robbery was not a lesser-included offense of the charged first-degree robbery (relying on State v. Zimmerman).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether second-degree robbery is a lesser-included offense of the charged first-degree robbery given the indictment's language | State: second-degree robbery may be treated as lesser-included because defendant’s conduct (displaying pliers) purportedly represented a weapon | Devore: indictment language mirrors Zimmerman and does not allege facts that defendant represented he was armed, so robbery 2 is not a lesser-included offense | Court: error was plain; indictment did not allege the representation element, so robbery 2 is not a lesser-included offense and conviction reversed |
| Preservation of issue on appeal | State: issue unpreserved because defendant failed to object at trial | Defendant: urges plain-error review despite lack of objection | Court: issue was unpreserved but met plain-error criteria and the court exercised discretion to correct it |
| Whether later cases (Riehl, Osborne) undermine Zimmerman | State: Riehl and Osborne justify treating robbery 2 as lesser-included in this case | Defendant: Zimmerman controls because indictment language is identical to Zimmerman | Court: Riehl/Osborne distinguishable and do not overrule Zimmerman; Zimmerman governs here |
| Whether pliers constituted a "dangerous weapon" for robbery 1 | State: testimony that victims felt threatened supports weapon finding | Defendant: distance and manner of display precluded weapon finding | Trial court: pliers could be considered a weapon for some purposes, but here distance precluded satisfying first-degree robbery element; this factual finding was not disturbed on appeal |
Key Cases Cited
- State v. Zimmerman, 170 Or App 329 (Or. Ct. App.) (charging instrument must allege facts satisfying each element of robbery in the second degree for it to be a lesser-included offense of first-degree robbery)
- State v. Riehl, 188 Or App 1 (Or. Ct. App.) (reaffirmed that robbery 2 elements are not always subsumed in robbery 1; indictment must allege all elements)
- State v. Osborne, 242 Or App 85 (Or. Ct. App.) (holding a displayed knife could satisfy the "uses or attempts to use a dangerous weapon" element for robbery 1 in appropriate circumstances)
- Ailes v. Portland Meadows, Inc., 312 Or 376 (Or.) (standards for discretionary correction of plain error)
- State v. Brown, 310 Or 347 (Or.) (plain-error test elements)
- State v. Fults, 343 Or 515 (Or.) (additional considerations weighing whether to correct unpreserved error)