Defendant appeals a judgment of conviction of two counts of robbery in the first degree, ORS 164.415, one count of robbery in the second degree, ORS 164.405, two counts of unlawful use of a weapon, ORS 166.220, and one count of attempted assault in the second degree, ORS 163.175. He asserts that the court erred: (1) in denying his motion to suppress evidence; (2) in refusing to instruct on the crime of menacing, ORS 163.190, as a lesser-included offense of first- and second-degree robbery; and (3) in delivering an “acquittal first” jury instruction. We affirm.
We state the facts and all reasonable inferences that may be drawn from them in the light most favorable to the state.
State v. Cervantes,
Defendant was charged with first-degree robbery by the “use or attempt to use a dangerous weapon”; with first-degree robbery while “armed with a deadly weapon”; and with second-degree robbeiy “by representing] by word or conduct that he was armed with what was purported to be a dangerous weapon.”
Defendant moved to suppress all evidence arising from the officers’ search of his apartment. He asserted that the officers lacked a warrant or exigent circumstances to justify a search without a warrant. Defendant argued that the state could not rely on his consent, because it was obtained by exploiting the unlawful arrest that preceded it. The trial court denied the motion on the ground that the search of the *122 apartment was justified by defendant’s “free and voluntary consent.”
During trial, defendant requested that the court instruct the jury regarding the crime of menacing. According to defendant, menacing is a lesser-included offense of both first- and second-degree robbery. The trial court declined to deliver the instruction. The state requested an “acquittal first” instruction pursuant to ORS 136.460(2), which provides that, the jury may consider a lesser-included offense only if it first finds the defendant not guilty of a charged offense. The court gave the state’s requested instruction.
We begin with defendant’s first assignment of error, that the trial court should not have denied his motion to suppress. He argues that the court should have granted the motion because the officers effectively seized him in his apartment without a warrant when they telephoned him and told him to step outside. In his view, because the unlawful seizure led to the search of his apartment and the discovery of inculpatory evidence, the evidence should have been suppressed as fruit of the poisonous tree. The state responds that the officers merely asked defendant to step outside, and so the telephone call did not amount to an unlawful seizure. In any event, the state argues, defendant consented to the search of his apartment.
We need not address whether the telephone call amounted to an unlawful seizure, because, even if it did, the fact remains that defendant consented to the search of the apartment.
In
State v. Rodriguez,
“Where, as here, the question of the voluntariness of the consent has not been raised, or where the court has determined that the consent was voluntary, unlawful police conduct occurring before a consent search still may affect the admissibility of evidence seized during that search. * * *
“Whether suppression is required in any such case will, however, depend on the nature of the connection between the unlawful police conduct and the evidence sought to be suppressed. As we have noted previously, evidence is subject to suppression in a criminal prosecution if it was ‘obtained in violation of a defendant’s rights under [Article I, section 9].’ State v. Davis, [313 Or 246 , 253,834 P2d 1008 (1992)] (emphasis supplied). Under that standard, there will have to be, at the very least, a causal connection between the unlawful police conduct and the evidence uncovered during the subsequent consent search. * * *
“A causal connection alone, however, still is not sufficient to require suppression. This court has rejected the so-called ‘but for’ test, which would require the suppression of any evidence that would not have been discovered “but for’ the unlawful police conduct. * * *
“* * * We think that evidence obtained during such a search should be suppressed only in those cases where the police have exploited their prior unlawful conduct to obtain that consent. * * *
“Mere physical presence as a result of prior unlawful conduct does not constitute exploitation of that conduct. Exploitation occurs when the police take advantage of the circumstances of their unlawful conduct to obtain the consent to search.”
Id. at 39-40.
This case is squarely controlled by Rodriguez. The trial court found that defendant gave “free and voluntary consent” to the search of his apartment. Even assuming for the sake of argument that defendant’s arrest was unlawful, nothing in the record suggests that, in obtaining that consent, the officers exploited their unlawful conduct.
*124 Defendant argues that the record does show that the officers exploited their unlawful conduct. According to defendant, because he responded to the officers’ request that he come outside, they were able to identify him and ask for his consent. The argument misperceives what constitutes “exploitation” under Rodriguez.
In
Rodriguez
itself, the Supreme Court cautioned that merely because consent would not have been obtained “but for” the unlawful conduct is not sufficient to require suppression. The police must “take advantage” of the unlawful conduct by, for example, trading on the unlawful conduct.
Rodriguez,
In this case, it is undisputed that the police already had identified defendant from the victim’s report. When they asked defendant to come out from his apartment, defendant complied without objection. When Cumiford asked for consent, there were no threats or promises made or offered. There is no evidence of the officers trading on their alleged unlawful conduct. There is no evidence that they took advantage of the situation in any way. Defendant’s response to the officers’ request to come outside the apartment certainly provided the opportunity for the officers to ask for his consent to search the apartment. But there is no evidence that it was the reason for seeking the consent. Instead, the record shows that the reason for asking for consent to search the apartment was the victim’s report that defendant had participated in a robbery.
Defendant insists that, even if his consent was not obtained by unlawful exploitation under the state constitution, it was obtained by unlawful exploitation under the federal constitution. Under the federal constitution, the controlling inquiry is “the purpose or flagrancy of the official
*125
misconduct” and whether a defendant’s consent was “sufficiently an act of free will to purge the primary taint” of the misconduct.
United States v. Perez-Esparza,
609 F2d 1284, 1289 (9th Cir 1979);
see also
Peppard,
We turn to the second assignment of error, that the trial court should have instructed the jury that menacing is a lesser-included offense of first- and second-degree robbery. Defendant argues that he was entitled to the instruction on menacing, because the crimes of first- and second-degree robbery cannot be committed without also committing menacing. The state argues that the crime of menacing requires proof that defendant intended to place the victim in fear of imminent serious physical injury, which is not required to prove either first- or second-degree robbery.
We review the trial court’s refusal to instruct the jury on a lesser-included offense for errors of law.
State v. Moses,
ORS 163.190 provides that a person commits the crime of menacing “if by word or conduct the person intentionally attempts to place another in fear of imminent serious physical injury.” It bears emphasis that the statute requires proof of an intent to create fear, not that the actor create actual fear in a victim.
The relevant provisions of ORS 164.415 provide that a person commits the crime of robbery in the first degree if, in committing or attempting to commit a theft, the person either is armed with a dangerous weapon or uses or attempts *126 to use a dangerous weapon and uses or “threatens the immediate use of physical force upon another person.” Similarly, the relevant provisions of ORS 164.405 provide that a person commits the crime of robbery in the second degree if, in committing or attempting to commit a theft, the person “[represents by word or conduct that the person is armed with what purports to be a dangerous or deadly weapon” and uses or threatens immediate use of physical force.
The first question is whether the elements of menacing necessarily are included in the offenses of first- and second-degree robbery. With respect to first-degree robbery, the answer is straightforward. Menacing requires that the defendant intend to place another person in fear of imminent serious physical injury. First-degree robbery requires use or a threat of immediate use of physical force, but it does not require that the defendant intend to place the victim in fear of physical injury. For example, first-degree robbery may be committed by a person who stalks a victim from behind, attacks the victim with a deadly weapon, and takes his or her possessions. Whether the defendant intends to create a state of fear in the victim is irrelevant to the commission of the crime. We conclude that the elements of menacing are not necessarily included in the elements of first-degree robbery.
Second-degree robbery poses a somewhat closer question. The offense requires proof that the defendant represent that he or she is armed with a dangerous weapon. We have previously held that a defendant “represents” to the victim that he or she is armed only if the defendant actually communicates that fact to the victim.
State v. Zimmerman,
The second question is whether the elements of menacing nevertheless are set forth in the accusatory instrument. As we have noted above, the indictment merely tracks the statutory language of first- and second-degree robbery. It does not allege that defendant intended to place the victim in fear of imminent serious physical injury.
Defendant insists that he was entitled to the menacing instruction because the evidence adduced at trial was sufficient to support a conviction on the lesser offense. In
State v. Washington,
“If defendant’s approach were to be adopted, we believe that trial courts would be receiving requests for instructions limited only by the imagination and ingenuity of the defendant. Requests for such instructions would act only to further complicate the jury’s decision-making process. * * * [TJrial judges, not being certain whether the requested instruction were actually proper under the new standard, would usually give the instruction in order to avoid any possibility of reversible error on appeal. This would not only needlessly prolong the court’s instructions, but would also add to the number of issues which the jury would be required to consider — thereby substantially increasing the possibility for jury confusion and compromise verdicts.”
Id. at 839-40. We conclude that the trial court did not err in failing to deliver an instruction on the offense of menacing.
We are left with defendant’s final assignment of error, that the court should not have delivered an “acquittal *128 first” instruction to the jury. According to defendant, the delivery of that instruction violated his right to a fair trial guaranteed by Article I, section 11, of the Oregon Constitution, and violated his right to “jury autonomy” guaranteed by Article I, section 16. He also asserts, without elaboration, that the delivery of the instruction violates the United States Constitution. The state argues that defendant failed to preserve his state constitutional contentions and that, as to the federal constitution, defendant is simply wrong.
Since the briefing in this case, we decided
State v. Horsley,
Affirmed.