State v. WilliamsState v. Williams
E. Nani Apo, Assistant Attorney General, Salem, argued the cause and filed the briefs for respondent on review. Also on the briefs were Dan Rayfield, Attorney General, and Benjamin Gutman, Solicitor General.
DeHOOG, J.
The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed in part, and the case is remanded to the circuit court for further proceedings.*
* On appeal from Baker County Circuit Court, Matthew B. Shirtcliff, Judge. 330 Or App 222 (2024) (nonprecedential memorandum opinion).
Under the Oregon Criminal Code, a person commits the crime of third-degree robbery if, in relevant part, the person “uses or threatens the immediate use of physical force upon another person” during a theft or attempted theft.
In this case, the trial court denied defendant‘s motion for judgment of acquittal, in which he had asserted that the evidence was insufficient to establish “physical force.” See State v. Williams, 330 Or App 222, 223 (2024) (nonprecedential memorandum opinion). The Court of Appeals affirmed, concluding that defendant‘s challenge was foreclosed by that court‘s own case law. Id. at 223 (citing State v. Johnson, 215 Or App 1, 5-6, 168 P3d 312, rev den, 343 Or 366 (2007) (holding that a person uses “physical force” for purposes of the robbery statute by “taking the victim‘s property so quickly that resistance is futile“)). As explained below, we conclude that the legislature did not intend the crime of robbery to encompass conduct such as defendant engaged in here. Rather, based on the text, context, and legislative history of
I. BACKGROUND
A. Standard of Review
“Because the issue on review arises from the trial court‘s denial of defendant‘s motion for judgment of acquittal, we view the evidence in the light most favorable to the
B. Factual and Procedural History
RH, who was a guest at a motel, left his room to get something from his car. While walking to the parking lot, RH noticed that defendant, whom he did not know, was walking next to him. RH retrieved the item from his car and walked back to the motel. Defendant remained at RH‘s side. At the entrance to the motel, RH removed his keycard from a pocket, unlocked the door, and asked defendant if he was coming in. Without giving an answer, defendant grabbed the keycard from RH‘s hand and ran into the motel. RH followed defendant and suggested to him that they go to the front desk “to take care of this.” Defendant then ran back outside through the same door, at which point RH saw defendant throw the key card into the air. RH went to the lobby to alert a manager, who called the police. While waiting for the police, the manager saw defendant walking out of a motel room that was not his. The manager yelled for defendant to stop. Instead, defendant ran off, and RH and the manager chased after him. Eventually, RH caught defendant and pinned him against a doorframe until police arrived. RH testified that defendant did not verbally threaten him or otherwise say anything during this encounter.
A police officer arrived at the motel and questioned defendant. According to the officer, defendant told him that he had initially believed that RH‘s keycard was his own, even though defendant had not been a guest at the motel. Defendant claimed that, upon realizing his error, he had thrown the keycard to the ground. The officer also took a statement from RH, who was “very clear that there was no physical altercation * * * when the card was taken.” According to the officer, there also was no evidence that defendant had made any direct contact with RH‘s hand when defendant grabbed the keycard from him.
“(1) A person commits the crime of 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 or unauthorized use of a vehicle.”
(Emphasis added.)
After the state rested its case at trial, defense counsel moved for judgment of acquittal. Defendant did not dispute the theft component of the robbery charge.2 He argued, however, that the state had failed to present sufficient evidence that, in the course of committing or attempting theft, he had “used or threatened the immediate use of physical force upon” RH, as required by
“There were not even any words exchanged. So the question is whether the simple act of removing the card from the person‘s hand is an act of physical force. And here * * * it‘s very clear that my client did not even touch [RH]‘s hand. It is simply an act of certainly what could be alleged as a theft.”
In response, the state argued that the Court of Appeals’ decision in Johnson foreclosed defendant‘s motion. See Johnson, 215 Or App at 5-6 (holding that a person uses “physical force” sufficient to support a robbery conviction by “taking the victim‘s property so quickly that resistance is futile“).
“And the alleged victim did indicate that this happened very fast. The [d]efendant moved—grabbed it quickly.
“He wouldn‘t have had—an inference can be drawn that he wouldn‘t have had time to even squeeze down and sort of resist based on [defendant‘s] quick actions. And I was wrestling with this before I even read this case and thinking that technically force could be action depending on your definition of force. If it‘s—if you move quickly and intend to use force and intend to react, [in]tend to make contact with somebody quickly to take something, I do think that could be sufficient so that they don‘t know if your intent is so that they won‘t know in time to overcome any resistance.
“I think in light of [Johnson] and this clear finding especially as it relates to the perpetrator‘s intent and the fact that swift action is determined sufficient to effectively create a situation where the victim doesn‘t have time to resist. In light of this caselaw and that definition I do think there‘s sufficient evidence to deny the judgment of acquittal as to the use of force.
“So I‘m going to give that to the jury based on the case law and that finding. So the motions are denied on judgment of acquittal.”
Defendant appealed, challenging the denial of his motion for judgment of acquittal. Among other things, defendant contended that, to the extent that the Court of Appeals’ decision in Johnson had held that third-degree robbery “can be accomplished without violent force,” that opinion conflicted with State v. Hamilton, 348 Or 371, 378, 233 P3d 432 (2010), in which this court stated that “actual or threatened violence” is the factor that “transforms” theft to robbery. Defendant acknowledged that Hamilton did not directly address the degree of force required to qualify as “physical force” for purposes of
In the Court of Appeals, the state, like the trial court, relied on Johnson, arguing that defendant had not satisfied that court‘s “stringent standard” for overruling its own precedent. See State v. Civil, 283 Or App 395, 417, 388 P3d 1185 (2017) (Court of Appeals’ “plainly wrong” standard is “rigorous” and “satisfied only in exceptional circumstances“). The state further argued that “force” had more than one plausible meaning, contrary to defendant‘s assertion that “force” necessarily meant a significant degree of energy or strength. As for this court‘s decision in Marshall, the state argued that the interpretation of the “forcible compulsion” element of
The Court of Appeals affirmed the trial court, concluding in a short nonprecedential memorandum opinion that Johnson controlled and that defendant‘s arguments for overruling that opinion were neither qualitatively new nor sufficiently persuasive to satisfy Civil‘s “rigorous” standard. Williams, 330 Or App at 223.
Defendant sought review in this court, which we allowed.
II. DISCUSSION
As in the Court of Appeals, the principal dispute between the parties in this court concerns the meaning of “physical force” in the phrase “physical force upon another
On review, defendant constructs his primary argument around Gaines. But rather than focusing on the plain meaning of “force,” as he did in the Court of Appeals, defendant urges us to construe “physical force” consistently with its established legal meaning at the time the robbery statutes were enacted in 1971, which, according to defendant, was “violent force capable of causing physical pain, bodily harm, or injury.” See
For its part, the state does not dispute that “physical force” could be a legal term of art. The state contends, however, that it does not matter whether we give that term its legal or ordinary meaning; in the state‘s view, our conclusion should be the same either way: “physical force,” as used in the robbery statutes, encompasses “any degree of bodily force.” As for defendant‘s alternative argument, the state contends that Marshall is inapposite, because its holding is not based on the text, context, or legislative history of
Rather, for the reasons set forth below, we conclude that “physical force upon another person” means contact with another person that either causes bodily harm to the person or is reasonably capable of creating a sense of fear or danger that such harm will occur.4
A. The Disputed Text: “Physical Force”
We begin with the text of
“(1) A person commits the crime of 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 or unauthorized use of a vehicle.”
(Emphasis added.)
Like the parties and the courts below, we focus on the term “physical force.” In doing so, however, we remain cognizant that, to qualify as “physical force,” the force used (or threatened to be used) must be “upon another person.” That is, there is no contention that the robbery statutes reach conduct or threatened conduct exerted solely upon an
Neither
As noted, there is no real dispute whether the legislature intended to give “physical force” in the robbery statutes an ordinary or specialized meaning. Rather, the dispute is essentially whether, assuming that the legislature intended “physical force” to have an established legal meaning, it necessarily intended to limit that term to the meaning given to it in legal dictionaries, which defendant contends would limit its scope to violent force. As we will explain, although the legislature intended the term “physical force” to reflect various criminal laws in existence at the time that it enacted the robbery statutes, it does not appear to have wholly adopted a specific legal definition, such as that found in legal dictionaries. See Marshall v. PricewaterhouseCoopers, LLP, 371 Or 536, 541, 539 P3d 766 (2023) (“When a term is drawn from the legal field, we often look to its established legal meaning as revealed by, for starters at least, legal dictionaries.” (Internal quotation marks omitted.)). Rather, the legislature appears to have intended to give that term a somewhat broader meaning,
Turning to that analysis, then, we start by considering any standard dictionary definitions that “physical force” may have. See State v. Eggers, 372 Or 789, 798, 558 P3d 830 (2024) (dictionaries serve as the “starting point in our analysis because they provide a range of possible meanings that a given word could reasonably have“). As the parties acknowledge, our most frequent source of ordinary meaning, Webster‘s Third New Int‘l Dictionary, does not define “physical force” as a whole, but it does define that term‘s constituent parts, “physical” and “force.” Beginning with “force,” Webster‘s defines that word as:
“1 a : strength or energy esp. of an exceptional degree : active power : vigor b : physical strength or vigor of a living being * * * c : power to affect in physical relations or conditions *** 3 a : power, violence, compulsion, or constraint exerted upon or against a person or thing * ** b : strength or power of any degree that is exercised without justification or contrary to law upon a person or thing c : violence or such threat or display of physical aggression toward a person as reasonably inspires fear of pain, bodily harm, or death.”
Webster‘s at 887 (unabridged ed 2002).6
As we previously noted in Eggers, the Webster‘s definition of “force” covers a “wide range of conduct[.]” 372 Or at 799. Although some senses of “force” speak to a “violent” or an “exceptional” degree of strength, others invoke “strength or power of any degree that is exercised without justification or contrary to law upon a person or thing.” Webster‘s at 887
At the time the robbery statutes were enacted, another standard resource, The American Heritage Dictionary of the English Language, defined “force,” in relevant part, as “[c]apacity to do work or cause physical change; strength; power;” and “[p]ower made operative against resistance; exertion[.]” The American Heritage Dictionary of the English Language 513 (1st ed 1969); see, e.g., DCBS v. Muliro, 359 Or 736, 747, 380 P3d 270 (2016) (consulting American Heritage Dictionary as additional source of ordinary meaning). Moreover, the synonyms that American Heritage provides for “force” include “compel,” “coerce,” and “constrain,” and it goes on to explain that the term “usually implies the exertion of physical strength or the operation of circumstances that permit no alternative to compliance.” Thus, although the American Heritage entry does not use the term “violence,” it otherwise largely tracks one of the meanings of “force” articulated in Webster‘s: “power, violence, compulsion, or constraint exerted upon or against a person or thing.” Webster‘s at 887. Moreover, that definition aligns in part with defendant‘s interpretation of “physical force,” in that it conveys a measure of compulsion sufficient at least to temper any response: “operat[e] against resistance“; “compel“; “coerce“; or “constrain[.]” American Heritage at 513. But although the American Heritage definition of “force” might well encompass violent conduct, nothing in that definition necessarily excludes forms of compulsion that are not violent. That observation, together with the fact that Webster‘s more broadly defines “force” as including “power of any degree,” Webster‘s at 887 (emphasis added), forecloses at this stage any conclusion that the state‘s proposed meaning—“any degree of bodily force“—is implausible. See Eggers, 372 Or at 799 (making same observation with regard to meaning of “physical force” in
Turning to “physical,” that word, unlike the word it modifies—“force“—appears to have a rather straightforward connotation when used in the phrase “physical force.” Although Webster‘s provides several definitions for “physical,” the only sense that coheres grammatically with “force” relates to bodily force:
“4 a : of or relating to the body ([physical] strength)—often opposed to mental[.]”
Webster‘s at 1706 (emphasis in original); see also Marshall, 350 Or at 219 n 10 (observing, in the context of the first-degree sexual abuse statute, that “‘physical’ force is *** bodily or material (as opposed to mental or moral) force“).8
So understood, the use of the word “physical” to modify force does not materially advance our understanding of the degree of force necessary to qualify as “physical force” for purposes of the robbery statute. It is, however, consistent with the statutory requirement under
Collectively, those dictionary definitions suggest to us that, in isolation, the term “physical force” refers to “bodily or material force,” as we reasoned in Marshall, but that “force” itself does not necessarily have a minimum threshold. Thus, “physical force” can be “violent,” as defendant contends, but in ordinary usage it can also fall well short of such character, so long as it constitutes an exertion or showing of strength or power of at least some degree—“any degree“—upon another person. Webster‘s at 887 (emphasis added). And although, given their common themes of “strength,” “vigor,” and “compulsion,”
In contrast to those general usage dictionaries, which only define “physical” and “force” separately, Black‘s provides a legal definition for the combined term “physical force.” See Black‘s at 1304 (4th ed 1951). And, as noted, that definition is consistent with defendant‘s interpretation, defining “physical force” as “[f]orce applied to the body; actual violence.” See id. at 54 (defining “actual violence” and stating that “[t]he term violence is synonymous with physical force, and the two are used interchangeably in relation to assaults“). Thus, to the extent that the legislature intended to use “physical force” as a legal term of art, that resource tends to support defendant‘s view that, to commit robbery, one must use or threaten violence with the intent to overcome resistance on the part of another.
B. “Physical Force” in Context
We do not, of course, rely solely on dictionary definitions, nor do we construe statutory text in isolation. As we have explained, dictionary definitions “should not be relied on to resolve a dispute about plain meaning without critically examining how the definition fits into the context of the statute itself.” State v. Gonzalez-Valenzuela, 358 Or 451, 461, 365 P3d 116 (2015); see also State v. Cloutier, 351 Or 68, 96, 261 P3d 1234 (2011) (stating that dictionaries “do not tell us what words mean, only what words can mean, depending on their context and the particular manner in which they are used” (emphasis in original)). We therefore proceed to the relevant context, which, under our framework, includes other provisions of
The immediate context 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 or unauthorized use of a vehicle.”
Neither of those paragraphs expressly informs the meaning of “physical force.” They do not, for example, state that “physical force” must be “violent force capable of causing physical pain, bodily harm, or injury,” as defendant contends, nor that “any degree” of force will suffice, as the state suggests. However, by prohibiting conduct intended to accomplish a certain result—here, “[p]reventing or overcoming resistance” or “[c]ompelling” another to take some action—the legislature seems most likely to have sought to address bodily contact with another person that is capable of achieving such results. That is, acts or threats that are incapable of countering resistance or discouraging noncompliance do not seem to have been the legislature‘s concern. Stated yet another way, the legislature‘s most likely focus was on conduct—the threatened or actual use of physical force—and its consequences—the creation of actual or potential harms—rather than on a person‘s particular intent, regardless of any potential consequence. Yet, construing “physical force” to encompass “any degree of bodily force,” as the state urges, would effectively blur that focus, as it would punish a defendant for robbery when the person‘s conduct was materially indistinguishable from theft. Although that consequence does not compel defendant‘s understanding of the robbery statute, it weighs against the state‘s argument equating “physical force” with “any degree of bodily force.”
Beyond those immediate provisions, the relevant context of
Viewed as a whole, the robbery statutes can be seen as working together to define the respective degrees of robbery. Third-degree robbery, as defined under
“(a) Represents by word or conduct that [they are] armed with what purports to be a dangerous or deadly weapon; or
“(b) Is aided by another person actually present.”
Similarly, a person commits first-degree robbery under
“(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.”
Like the underlying third-degree robbery statute, those provisions appear to focus on the harm that a person‘s conduct causes or the risk that it creates, lending further support to the notion that the degree of force used or threatened is significant, i.e., that not just “any degree” of force will do.
The state points out that those statutes do not require a defendant to have “actually caused anyone harm.” True, but that may miss the point. Much like the third-degree robbery statute, which elevates a simple theft to the more serious crime of robbery based on a person‘s use or threatened use of physical force, the second-degree robbery statute does essentially the same thing based upon the person
In addition to the robbery statutes, the legislature has enacted other criminal statutes that include the phrase “physical force” and that provide additional context for
Starting with
Next,
Finally, the phrase “physical force” appears in a series of statutes defining the “justification” defenses. See
In enacting those defenses, the legislature implicitly recognized that certain uses of “physical force” would be
Turning to our prior case law for any guidance that it provides, we note that this court has not previously been tasked with construing “physical force” in the context of the robbery statutes. But we have previously construed other aspects of the robbery statutes in other cases. We examine those decisions below to determine whether they shed any light on the meaning of “physical force” as it appears in
First, in State v. Hall, 327 Or 568, 572, 966 P2d 208 (1998), this court construed the term “threatens” as it appears in the following phrase: ”threatens the immediate use of physical force upon another person,”
We again considered the robbery statutes in State v. Zweigart, 344 Or 619, 188 P3d 242 (2008). There, the court considered whether there was sufficient evidence to affirm a defendant’s first-degree robbery conviction. Id. at 632. The defendant had “orchestrated” a plan to kill his wife. Id. at 622, 633. Specifically, he had enlisted an accomplice to “stage a burglary at [the defendant’s] home, and[,] in the process, kill his wife.” Id. at 622-23. The accomplice entered the defendant’s home at night pretending to be a burglar, while the defendant secretly played along. Id. at 623. After the accomplice ordered the defendant and his wife to get out of bed, he followed them at gunpoint downstairs and into the garage, where he took several weapons from a cabinet. Id.11 Based on that evidence, this court had “no difficulty concluding” that the accomplice—and by extension the defendant—had “acted with force or threat of force.” Id. at 632-33.
Finally, this court has considered the robbery statutes in two other cases that help solidify our understanding of what constitutes “physical force“: State v. White, 346 Or 275, 211 P3d 248 (2009), and State v. Hamilton, 348 Or 371, 233 P3d 432 (2010). Although those decisions addressed merger—specifically whether the guilty verdicts for multiple counts of robbery should merge into a single conviction—and not the meaning of “physical force,” they demonstrate that this court has consistently understood the robbery statutes to focus on the sense of fear that a defendant’s conduct creates.
In White, the defendant was found guilty of two counts of second-degree robbery based on an incident at a grocery store. 346 Or at 277. The defendant had been alleged in the first count to have committed robbery while purporting to be “armed with a dangerous *** weapon,” see
In reaching that conclusion in White, we stated that the “common concern” of the robbery statutes is “the threat or likelihood of violence to the victim[.]” Id. 289-90 (emphasis added). We went on to make a broader comment about the key distinction between the crimes of theft and robbery:
“Robbery is the taking of property using threats of violence or otherwise creating a sense of fear in the victim, thus forcing the victim to hand over property. It is the concept of fear or threat of violence that separates robbery from mere theft. See Black’s Law Dictionary 924 (6th ed 1991) (robbery defined as ‘[f]elonious taking of money *** in the possession of another *** and against his will, accomplished by means of force or fear’ (emphasis added)); 4 William Blackstone, Commentaries on the Laws of England 241 (1769) (‘Open and violent larciny [sic] from the person, or robbery, *** is the felonious and forcible taking, from the person of another, of goods or money to any value, by putting him in fear.’ (Original emphasis omitted; emphasis added.)). The use or threat of violence is what causes the victim to part with property, and that coercive effect is what each of the robbery statutes addresses.”
Id. at 290 (first and last emphases added).
This court’s decision in Hamilton reflected the same understanding. 348 Or at 378-79. In that case, the defendant had entered a bar late at night to commit a theft. Id. at 373. He fired gunshots into the ceiling and ordered everyone to drop to the floor. Id. He then held multiple employees at gunpoint and demanded that they hand over money from a cash register. Id. The employees complied. Id. The defendant was later arrested and ultimately convicted of multiple counts of second-degree robbery, each count based on threats against a separate category of victims, including patrons and staff. Id. at 373-74. On appeal, the defendant argued that the trial court should have merged the jury’s guilty verdicts because the legislature had intended the “victim” of robbery to be “the person from whom property is taken or demanded, and not bystanders, observers, or other persons who might suffer collateral harm.” Id. at 374. This court disagreed, reasoning that there had been multiple victims of the defendant’s conduct because the “victim” of a robbery includes “a person against whom a defendant uses or threatens violence in the course of committing or attempting to commit theft, which can, but does not have to, be the owner or possessor of the property.” Id. at 378 (emphasis added).
Collectively, the text and context of
ORS 164.395
When construing statutes drafted by the Criminal Law Revision Commission, which include
The commission’s official commentary does not directly address the meaning of “physical force” as it appears in the third-degree robbery statute. However, the commentary does make three points that support our preliminary conclusion regarding that meaning. First, the commentary demonstrates that the commission intended, in revising the robbery statutes, to retain the historical connection between the crimes of robbery and assault. Second, it shows that the commission intended to recast robbery from a crime focusing on the violation of another’s property rights to one addressing the threat or use of violence during a completed or attempted theft. And third, the commentary indicates that the distinction between robbery and the crime of “theft by extortion” is merely temporal in nature, which, as we will explain, further supports an interpretation of “physical force” as encompassing conduct evoking fear of bodily harm.
The commentary first observes that, in Oregon, robbery has historically been intertwined with assault. Commentary § 150 at 155 (citing Merrill v. Gladden, 216 Or 460, 463-64, 337 P2d 774 (1959) (noting that “robbery can only be consummated through an assault” and defining an “assault” as “an intentional attempt by one person by force or violence to do an injury to the person of another coupled with the present ability to carry the intention into effect” (internal quotation marks omitted))); see also State v. Broom, et al., 135 Or 641, 646, 297 P 340 (1931) (describing robbery as “open and violent larceny from the person“).
“Any person, not being armed with a dangerous weapon, who by force and violence, or by assault, or by putting in fear of force and violence or assault, robs, steals, or takes from the person of another any money or other property which may be the subject of larceny, shall be punished upon conviction by imprisonment in the penitentiary for not more than 15 years.”
(Emphasis added.)
Thus, under former
The commentary notes that the revised robbery statutes, as a whole, would “retain[] the rationale” of the former robbery statutes, “i.e., the prohibition against forcible taking of property from another[.]” Id. at 155. At the same time, the “scope” of the robbery statutes would expand to include both attempted and completed thefts of property. Id. That expansion followed Michigan’s approach in its revised robbery statute, under which the “primary concern” was not whether a defendant had actually taken property from a victim, but was instead “the physical danger to the victim and his difficulty in protecting himself from sudden attacks against his person or property[.]”13 Id. The commentary
Echoing that commentary, discussions in the subcommittee tasked with drafting the revised robbery statutes suggest that the objective was to retain the connection between assault and robbery that had existed in the former robbery statutes. During one drafting session, Donald Paillette, the commission’s project director, spoke of the commission’s intent to retain that historical connection in an exchange with Senator John D. Burns, the subcommittee’s chairman:
Senator Burns: “I think we’ve got a serious policy consideration to make because in the current code, assault and robbery go hand in hand. As a matter of fact, the assault statutes contain the provisions for robbery—the unarmed robbery, the armed robbery, and so on. Here, what we’re doing is we’re separating robbery from assault completely, and this has been the trend. *** Now what’s the rationale behind the separation?”
Paillette: “Well actually, depending on how you look at this draft, I don’t think we’re really departing, we’re not really separating assault from the theft[.] If anything, I think we’re moving in the direction of saying this is really a type of an assault more than anything else.”
Tape Recording, Criminal Law Revision Commission, Subcommittee No. 1, June 22, 1968, Tape 7, Side 1.
More directly, Paillette added that the revised robbery statutes would retain the principle that “assault is fundamental to robbery“:
“Certainly, as far as Oregon court[s have] been concerned, assault is fundamental to robbery. *** So we’re retaining that. We’re saying that this is an assault but we’re also saying that to make it robbery, there doesn’t have to be any property taken. That’s the big difference.”
As for what exactly constituted “assault,” at the time the commission was working on the revised the Criminal
However, those statutes did not contain a single, consistent definition of “assault.” See State v. Wilson, 218 Or 575, 582, 346 P2d 115 (1959) (“We have no statute defining the crime of assault alone.“). As this court observed, sometimes the statutes used “assault” interchangeably with the crime of “battery,” and sometimes to describe conduct short of battery. Id. at 583; see also State v. Garcias, 296 Or 688, 692, 679 P2d 1354 (1984) (stating that “[w]hat conduct fell within the definition of assault was not always clear“).
This court eventually settled on a definition of “assault” in Gladden. 216 Or at 463-64. After surveying the history of that offense, the court concluded that an “assault” is “an intentional attempt by one person by force or violence to do an injury to the person of another coupled with the present ability to carry the intention into effect.” Id. Thus, the meaning of “assault” had “solidified sufficiently” by the time of the commission’s work that it included both “an act which reasonably puts one in fear of corporal injury” and “an act intended to cause corporal injury by one who has the present ability to carry out such intent.” Garcias, 296 Or at 693 (citing Commentary § 94 at 95).14
The second notable point about the commentary is that it reflects, as Paillette put it, that the “primary thing” that the revised robbery statutes would do would be to “shift the focus of the attention from the taking of the property to the risk of injury, the violence to the victim.” See Tape Recording, Criminal Law Revision Commission, Subcommittee No. 1, June 22, 1968, Tape 7, Side 1. That is, the very reason for the robbery statutes was to address conduct that causes or “reasonably puts one in fear of corporal injury,” Garcias, 296 Or at 693, and not the act of theft underlying an alleged robbery. To construe the term “physical force” as the state would, to encompass “any degree” of force, would return the focus to the act of theft itself, contrary to the objective that the commentary expresses.
The third aspect of the commentary that informs our interpretation of “physical force” is the commentary’s distinction between robbery and the substantive crime of “theft by extortion.” The commentary notes that, by “prohibiting the threat of ‘immediate use’ of physical force,” the revised robbery statute was “distinguishable from theft by extortion.” Commentary § 150 at 154-55. In turn, the commission defined “theft by extortion” in a separate section, providing that a person commits the crime, in relevant part, if they “compel[] or induce[] another person to deliver property *** by means
The underlying discussions of the commission similarly support that understanding. During a meeting of the subcommittee that drafted the theft by extortion statute (the same subcommittee that drafted the robbery statutes), Paillette explained that the commission had chosen to model the theft by extortion statute on New York’s version of that offense, rather than on the Model Penal Code, because it drew a clear temporal distinction with robbery:
“And [the] initial draft follows the New York approach ***, rather than the Model Penal Code. Although I don’t think that in substance there’s much difference between the two, *** it seems to me that the New York approach *** made a clear distinction between this and robbery. *** I don’t think the language in the Model Penal Code draws that distinction well enough. In other words, they don’t use ‘future.’ They don’t use ‘physical injury to the person threatened in the future.’ And *** if you just say that you obtained property by threatening to inflict bodily injury, that’s robbery it seems to me, or it can be robbery. If you take property from a person by threatening to inflict bodily harm on them, that’s robbery, not larceny [by extortion].”
And in a later meeting of the subcommittee, Kathleen Beaufait, Deputy Legislative Counsel, had a follow-up exchange with Paillette that echoed Paillette’s earlier comments:
Beaufait: “If you are standing with a gun saying, ‘your money or your life,’ [versus] in the future, 20 seconds from now, ‘I’m going to shoot you if you don’t pull your wallet out.’ *** The distinction is that’s robbery and this is extortion.”
Paillette: “That’s what we wanted to do—to make sure that we didn’t have a section here that would be equally applicable with the crime of robbery to a certain set of facts. *** [I]f a man comes up to you and he has a gun, or even if he doesn’t have a gun, and he says that I want you to give me your money or I’m going to shoot you, that would be robbery. It would be clearly robbery, but it’s a threat to do bodily harm. And a threat to do bodily harm to this person could be extortion if it’s a threat to do harm to him in the future. If he says, you pay me $500 or you won’t live till sundown, you see, that gets to be in the extortion area then.”
Tape Recording, Criminal Law Revision Commission, Subcommittee No. 1, Mar 23, 1968, Tape 10, Side 2.
Beyond those records of the commission, we find further indications of the commission’s intended meaning of the robbery statute in the legislative discussion of Senate Bill (SB) 40 (1971), which codified the commission’s work. That discussion reflects that the legislature understood—and adopted—the commission’s objectives in drafting the robbery statute, as outlined above.
The Senate first took up discussion of SB 40 in February of 1971. Before the Senate Committee on Criminal Law and Procedure, Paillette presented extensive testimony about the revised Criminal Code. In regard to robbery, Paillette stated that the revised statutes would effectively subsume the existing offenses that had criminalized assault if committed with the intent to commit other substantive crimes, including robbery:
“The draft does not contain any ‘assault with intent to commit’ crimes, such as we have on the books now, [like] ‘assault with intent to commit robbery.’ Because of our definition of ‘robbery,’ the intent to commit crimes are no longer necessary because robbery *** under our definition is [the] intent to forcibly take the property of another, and the actual taking of the property is not an element of robbery.”
Tape Recording, Senate Committee on Criminal Law and Procedure, SB 40, Feb 23, 1971, Tape 5, Side 2.
Further, Paillette confirmed that the revised robbery statutes “concentrate[d] not on the property aspect of the crime, but on the threat to the personal safety of the victim“:
“Actually, [the robbery statute’s] place for purposes of classification and organization of the code, is included in the area of crimes against property but it could just as logically be placed in the crimes against persons, particularly in view of the way we have redefined the crime of robbery. We have three degrees of robbery, all of which are classified as felonies and all of which concentrate not on the property aspect of the crime, but on the threat to the personal safety of the victim.”
Tape Recording, Senate Committee on Criminal Law and Procedure, SB 40, Mar 3, 1971, Tape 7, Side 1 (emphasis added).
Discussing the commission’s proposed theft by extortion statute in a separate hearing, Paillette explained the crime’s temporal distinction with robbery:
“The crime [of theft by extortion] should also be distinguished from the crime of robbery because here we’re talking about a threat to do something in the future rather a threat to do something immediately with the idea of forcing someone to turn over property to you on the immediate threat of bodily injury, [which] of course would be robbery under our definition.”
Tape Recording, Senate Committee on Criminal Law and Procedure, SB 40, Mar 2, 1971, Tape 4, Side 1 (emphasis added).
Paillette later testified before the House Committee on Judiciary, confirming—albeit less directly—that the
“Under present Oregon law, robbery can only be consummated through an assault plus a taking of property from the person assaulted. Now the bill is in language *** to cover instances in which the property is taken from someone other than the person threatened. For example, a very common kind of situation is where a robber goes into the home of a store owner or a bank manager and the threat is directed at the person in the home—the wife, the children—and *** this becomes robbery even though the threat is directed at a party other than the owner or the property is taken from a third person.”
Tape Recording, House Committee on Judiciary, SB 40, Apr 26, 1971, Tape 28, Side 1.
When it ultimately codified the commission’s proposed revisions to the Criminal Code, the legislature adopted the proposed robbery statutes verbatim, including their “physical force” component. See
It follows that the legislative history strongly supports the same interpretation of “physical force” that our examination of the text and context led us to. That is, to qualify as a “use or threatened use of physical force,” a person’s conduct must cause or create a heightened risk of the same kinds of harms that an actual or threatened assault causes or creates. Those harms include both bodily injury and the reasonable fear that such bodily injury will occur. Thus, based upon our review of the text and context, buttressed by our assessment of the legislative history, we conclude that the legislature intended for “physical force upon another person” under
D. Whether Defendant’s Conduct Constituted a Use of “Physical Force”
Applying that construction of “physical force” to the facts of this case, we conclude that no rational juror could find that defendant’s conduct rose to the level of force contemplated by the legislature. First, there is no evidence that, in physically snatching the motel keycard from RH’s hand, defendant caused him bodily harm, let alone did so with the requisite intent. Nor were the circumstances such that defendant’s indirect contact with RH was reasonably capable of creating a sense of fear or danger that such harm would occur. Although Hall involved a threatened use of physical force rather than an actual use, as is the state’s theory in this case, this court’s opinion in Hall is instructive in that regard.
As noted earlier, in Hall, this court explained that a threat of physical force under the robbery statute may be “implicit,” so long as, under the circumstances, a defendant’s physical or verbal conduct is something that “announces that a person’s welfare is in danger.” Hall, 327 Or at 573. We concluded that the evidence in that case was sufficient to show that the defendant had implicitly threatened a restaurant employee when he had disguised his identity, entered a restaurant late at night, gone to the counter near a cash register, demanded that the victim come closer to him and “[p]ut all the money into [his] bag,” and repeated to her, “I want all of your money.” Id. at 570-71.
Here, in marked contrast, the only evidence was that defendant had briefly walked alongside RH until they both reached the motel entrance, quickly grabbed the keycard from RH’s hand, and run off. The state does not identify anything about the circumstances that may have created a frightening atmosphere, nor does it contend that defendant’s conduct was itself capable of creating a sense of
The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed in part, and the case is remanded to the circuit court for further proceedings.