Defendant appeals a judgment of conviction after a trial to the court on one count of second-degree robbery, ORS 164.405(1), and one count of unauthorized usе of a vehicle, ORS 164.135(1). He argues that the trial court erred in entering judgment on the robbery count and in imposing an unlawful term of post-prison supervision on the robbery count. We agree that the trial court erred in entering judgment on the second-degree robbery count. Our decision makes it unnecessary to address the alleged sentencing error.
Thе facts are not in dispute. Defendant stole a car, drove to a grocery store, entered the store, and took groceries without paying for them. A struggle ensued whеn store employees attempted to stop him. Defendant threatened to draw a knife and stab one of the employees, but he did not actually draw a weaрon during the struggle. He was charged with first-degree robbery. The first count of the indictment read:
“The said defendant, on or about October 24, 1997, in the County of Multnomah, State of Oregon, did unlawfully аnd 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 * * * ”
The second count was identical, except that it omitted specific reference to the knife.
Thе trial court found defendant guilty on the unauthorized use count and acquitted him on the two first-degree robbery counts, finding that defendant did not use or attempt to use a weapon. It nevertheless entered a conviction on what it ruled was the lesser included offense of second-degree robbery, finding that, although defendant had not used a weaрon, he had represented by conduct that he possessed one. The trial court imposed a sentence of 70 months on the second-degree robbery conviction, with 24 months of post-prison supervision. The court later increased the term of post-prison supervision to 36 months, based on intervening legislation that increased the crime seriousness ranking for second-degree robbery. The court also imposed a concurrent sentence of 13 months’ imprisonment and 12 months’ post-prison supervision оn the unauthorized use conviction.
On appeal, defendant first argues that his conviction for second-degree robbery must be reversed, because second-degrеe robbery is not a lesser included offense of first-degree robbery. According to defendant, the two crimes contain different elements. The state argues that the elеments are essentially the same and that, in any event, this court previously has stated that second-degree robbery is a lesser included offense of first-degree robbery.
ORS 136.460(1) provides, in part:
“Upon a charge for a crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the accusatory instrument and guilty of any degree inferior thereto * *
In
State v. Boyum, 25 Or
App 51, 54-55,
We begin with a comparison of the elements of first-degree and second-degree robbery. A person commits first-degree robbery if he or she commits robbery and
“(a) Is armed with a deadly weapon; or
“(b) Uses or attempts to use a dangerous weapon; or
“(c) Causes or attempts to cause serious physical injury to any person.”
ORS 164.415. In contrast, second-degree robbery occurs when a person commits robbery and:
“(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.”
ORS 164.405(1). The state argues that second-degree robbery is a lesser included offense of first-degree robbery, because “clearly, one who uses or attempts to use a knife against another necessarily represents by conduct that he or she has a knife.” Defendant argues that the state’s argument does not necessarily follow. We agree with defendant.
In this case, defendant was found guilty of second-degree robbery under ORS 164.405(l)(a), that is, because he committed robbery and reprеsented by his conduct that he was armed with a dangerous or deadly weapon. The question is whether that element — representing to be armed with a dangerous or deadly wеapon — is necessarily contained in the elements of first-degree robbery. Review of the elements of first-degree robbery readily leads to the conclusion that the disputed element of second-degree robbery is not necessarily contained in the greater crime. First-degree robbery may be committed if the individual committing the crime is “armed with a deadly weapon.” ORS 164.415(l)(a). The person committing the crime need not actually use the deadly weapon, much less make any representations abоut it.
First-degree robbery also may be committed if the individual committing the crime “[u]ses or attempts to use a dangerous weapon.” ORS 164.415(l)(b). Using or attempting to use a dangerous weаpon does not always necessitate making a representation about it. To “represent” generally means to “bring clearly before the mind: cause to be known, felt, or apprehended: present esp. by description.” Webster’s Third New Inf l Dictionary, 1926 (unabridged ed 1993). An individual committing a robbery may use a weapon without causing the victim to know, feel, or apprehend that fact, as when the individual brandishes a gun at a blind victim while taking the victim’s wallet.
To the extent that there is any ambiguity in the phrasing of the elements of the first- and second-degree robbery statutes, the legislative history removes any doubt as to the legislature’s intentions. The Criminal Law Revision Commission’s Commentary on the criminal code explains that the sеcond-degree robbery statute
“raises the crime to robbery in the second degree if the robber creates the impression that he is armed * * *. [The statute] is intended to cover the type of robbery in which the actor is, in fact, unarmed, but conveys to the victim the impression that he has a weapon. * * * This [statute] would make it second-degree robbery if the robber uses a note, a ‘hand-in-pocket’ technique or a fake weapon to convey the impression that he is armed with a ‘dangerous or deadly weapon.’ ”
Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report, § 150, 155 (1970) (emphasis in original).
The state is correct that, in at least two prior cases, we have stated that seсond-degree robbery is a lesser included offense of first-degree robbery.
State v. Coffin,
We therefore conclude that, although in some— indeed, in many — cases the crimes of first- and second-degree robbery may overlap, one crime is not necessarily subsumed in the other. A comparison of the elements of the two crimes makes clear thаt second-degree robbery is not a lesser included offense of first-degree robbery.
Even so, second-degree robbery may be treated as a lesser included offеnse of first-degree robbery if the accusatory instrument recited sufficient facts to satisfy each element of second-degree robbery.
Cook,
Defendant next argues that the trial court erred in increasing his term of post-prison supervision from 24 to 36 months, because the statute increasing the crime seriousness ranking for second-degree robbery did not go into effect until аfter he committed the crime. The issue, however, is academic in light of our conclusion that the trial court erred in entering the conviction on that count.
Judgment of conviction for second-degree robbery reversed; otherwise affirmed.