Defendant was charged with first-degree robbery for stealing clothing and shoes from a department store, with the aid of a pair of pliers. The trial court acquitted defendant of first-degree robbery, ORS 164.415,
The facts are undisputed. Phillips, a loss prevention supervisor at a department store, noticed defendant and another man acting suspiciously. Phillips saw defendant use a pair of pliers to cut through and remove a hard plastic surveillance device from a pair of shoes and put the shoes and some other items of clothing into his backpack. Defendant left the store without paying. Phillips followed defendant and saw that he was outside with the other man. When Phillips approached, defendant shouted, “Get him now[,]” waited for a few seconds, and began to run away. Phillips called 9-1-1 as he pursued defendant on foot. Defendant came to a stop, turned around, took “two hard steps” toward Phillips, removed the pliers from his pocket, and said, “Get the hell away from me.”
Defendant attempted to flee again, and Phillips continued pursuit. Eventually, defendant stopped running, and Phillips told him to return the stolen property. Defendant removed items from his backpack but continued walking away into an alley as he threw the clothing onto the ground. May, a loss prevention officer for the department store, arrived and retrieved the clothing. Defendant came back through the alley toward May “in an aggressive manner” with the pliers still in hand.
Defendant was charged by indictment with first-degree robbery, Count 1, and second-degree robbery, Count 2. Prior to trial, upon the state’s motion, the trial court dismissed Count 2. As to Count 1, the indictment alleged that
“[t]he defendant, on or about April 2, 2013, in Marion County, Oregon, did unlawfully and knowingly while in the course of committing theft, with the intent of preventing and overcoming resistance to defendant’s taking of property and retention of the property immediately after the taking, threaten the immediate use of physical force upon Kourtney May and John Phillips and use and attempt to use a dangerous weapon.”
Defendant waived his right to a jury and proceeded with a bench trial.
At the close of the state’s case, defendant moved for a judgment of acquittal. He argued that “there is no evidence that [defendant] threatened the use [of physical force].” He emphasized that the record did not reflect any sort of threatening motion toward Phillips or May, and, regardless, he was not within striking distance of Philips or May at any point while he held the pliers. Defendant further contended that there was no evidence that the pliers were a dangerous weapon in accordance with the statutory definition, which requires that the instrument is “readily capable of causing death or serious physical injury.” ORS 161.015(1). The state responded that the pliers could be considered a dangerous weapon in light of Phillips’s
During closing arguments, the trial court asked defendant if he was requesting the court to consider any lesser-included offenses. Defense counsel replied, “Yes. And I always have trouble with this[,]” but that the court should consider third-degree theft as a lesser-included offense. However, the state contended that second-degree robbery is a lesser-included offense “as charged in this case” because defendant wielded the pliers in a manner to convince Phillips and May “that it was dangerous.” The state further contended, “If it is not a robbery in the first degree * * * there is a case * * * on point on this exact issue I can show your Honor that robbery two is a lesser-included [offense of] robbery in the first degree as charged in this case.”
The trial court acquitted defendant of first-degree robbery. The court determined that a pair of pliers could be used as a dangerous weapon, based on the testimony in the case that a reasonable person would have believed, as May had believed, that defendant was carrying “a weapon of some kind * * * [regardless] whether they had a clear focus of what it was or not.”
“Robbery one and robbery two have already been brought up. * * * It is alleged here that the defendant used or attempted to use * * * a dangerous weapon. Robbery in the second degree would cover representing by words or conduct that the defendant was armed with what was purported to be a dangerous weapon.
“As [the prosecutor] alluded to in his closing argument, I believe that the evidence is sufficient to find beyond a reasonable doubt that the defendant committed robbery in the second degree, because I don’t have to find that [the pair of pliers] is a dangerous weapon or that it is not, but simply that it’s displayed in a manner under the circumstances I’ve already described for the purposes I’ve already described in a manner to purport to be a weapon.
“* * :|: ‡ *
“I will find you *** not guilty of robbery in the first degree, and guilty of the lesser-included offense of robbery in the second degree for the reasons that I have outlined.”
Defendant did not object to the court’s ruling or directly argue that second-degree robbery was not a lesser-included offense. He was sentenced to 70 months of incarceration and 36 months of post-prison supervision.
On appeal, defendant argues that the trial court erred by entering a judgment of conviction for second-degree robbery because second-degree robbery is not a lesser-included offense of first-degree robbery, as it was alleged in the indictment in this case. State v. Zimmerman,
We agree with the state and conclude that defendant’s argument is unpreserved. Generally, assignments of error that are not raised in the trial court will not be considered on appeal. ORAP 5.45. To preserve an argument for appellate review, “a party must provide the trial court with an explanation of his or her objection that is specific enough to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted.” State v. Wyatt,
In this case, the trial court afforded the parties an opportunity to propose lesser-included offenses for its consideration. At that time, the state contended that the court could find defendant guilty of second-degree robbery. Defendant made no objection to the state’s argument and did not otherwise alert the court that it could not find defendant guilty of second-degree robbery based on the text of the indictment.
Defendant alternatively argues that we review his unpreserved assignment as plain error and exercise our discretion to correct it. We may review an unpreserved assignment of error as “an error of law apparent on the record” under ORAP 5.45(1) if certain conditions are met: (1) the error is one of law; (2) the error is “apparent,” that is, the legal point is obvious and is not reasonably in dispute; and (3) the error appears "on the face of the record,” that is, “[w]e need not go outside the record or choose between competing inferences to find it, and the facts that comprise the error are irrefutable.” State v. Brown,
In this case, defendant contends that the error is plain because this court’s decision in Zimmerman,
We first address the argument that the trial court plainly erred. The asserted error does present the same issue decided in Zimmerman — that is, that second-degree robbery is not a lesser-included offense of first-degree robbery but “may be treated as a lesser included offense of first-degree robbery if the accusatory instrument recited sufficient facts to satisfy each element of second-degree robbery.”
To the extent that the state contends that Zimmerman must be “overruled (or distinguished) in light of Osborne and Riehl[,]” and is therefore not plain error, we disagree. Our conclusions in those cases simply do not bear on our clear holding in Zimmerman that the charging instrument must allege facts sufficient to satisfy each element of second-degree robbery and that, as alleged, the indictment “said nothing about defendant representing to the victim or anyone else that he was armed with a dangerous weapon.” Id. Indeed, in Riehl, we reaffirmed our holding in Zimmerman that “not all of the elements of second-degree robbery are necessarily included in the elements of first-degree robbery.”
The remaining question is whether this court should exercise its discretion to correct the error, and we conclude that doing so is appropriate. The factors that bear upon our exercise of discretion include
“the competing interests of the parties; the nature of the case; the gravity of the error; the ends of justice in the particular case; how the error came to the court’s attention; and whether the policies behind the general rule requiring preservation of error have been served in the case in another way, i.e., whether the trial court was, in some manner, presented with both sides of the issue and given an opportunity to correct any error.”
Ailes,
Here, those factors weigh in favor of exercising our discretion to correct the trial court’s error. First, the error is grave, because it “misstates the nature and extent of defendant’s conduct” as he was charged and “could have significant implications with regard to any future calculation of his criminal history.” State v. Valladares-Juarez,
Reversed.
Notes
ORS 164.415 provides, in part:
“(1) A person commits the crime of robbery in the first degree if the person violates ORS 164.395 [third-degree robbery] and the person:
“(a) Is armed with a deadly weapon;
“(b) Uses or attempts to use a dangerous weapon; or
“(c) Causes or attempts to cause serious physical injury to any person.”
ORS 164.405 provides, in part:
“(1) A person commits the crime of robbery in the second degree if the person violates ORS 164.395 [third-degree robbery] and the person:
“(a) Represents by word or conduct that the person is armed with what purports to be a dangerous or deadly weapon; or
“(b) Is aided by another person actually present.”
In turn, “dangerous weapon” is defined as “any weapon, device, instrument, material or substance which under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or serious physical injury.” ORS 161.015(1).
Phillips testified at defendant’s bench trial that he felt threatened when he saw defendant gripping the pliers and stepping toward him.
May saw that defendant had the pliers in his hand as he came toward her, but, at the time, she did not know what the object was and believed that it could have been a weapon.
As to any purported threat made to May, the court ruled that defendant had already relinquished the stolen property at the time of his encounter with her and that “any display of a weapon or a threat must be done at the time when the defendant has and is trying to retain the property or is trying to take the property.”
Defendant argues that the matter is preserved, despite the absence of an objection, in light of this court’s consideration of a preservation question in State v. Andrews,
The indictment in Zimmerman alleged:
‘“The said defendant, on or about October 24, 1997, in the County of Multnomah, State of Oregon, did unlawfully and knowingly use and threaten the immediate use of physical force upon [the victim], and did use and attempt to use a dangerous weapon, to wit: a knife, while in the course of committing and attempting to commit theft of property * *
In Riehl, we explained that, consistent with Zimmerman, “the only question is whether the allegations of the indictment state all the elements of second-degree robbery.”