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State v. Tolbert

Court of Appeals of Oregon

November 21, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
CHRISTOPHER CORTEZ TOLBERT, Defendant-Appellant.

          Submitted September 7, 2018

          Marion County Circuit Court 16CR39028, 15CR15802, 15CR11686; Dale Penn, Judge. (Judgments) Donald D. Abar, Judge. (Amended Judgment in Case No. 16CR39028)

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kristin A. Carveth, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Shannon T. Reel, Assistant Attorney General, fled the brief for respondent.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary:

         Defendant appeals a judgment of conviction for third-degree robbery, ORS 164.395, assigning error to the trial court's denial of his motion for judgment of acquittal. Defendant argues that the state failed to prove he used force to retain the stolen item “immediately after the taking” such that his theft constituted a robbery. Held: The trial court erred in denying defendant's motion for judgment of acquittal. The legislature intended robbery to encompass situations involving the use of force during flight, but not situations when the thief uses force at some later point after the theft is completed and when the thief is no longer trying to escape from the scene of the theft. Accordingly, the Court of Appeals determined that, on this record, the evidence was insufficient to prove that defendant's force was used “immediately after” the theft.

          [295 Or.App. 7]

          [295 Or.App. 8] DeVORE, J.

         Defendant appeals a judgment of conviction for third-degree robbery, ORS 164.395, assigning error to the trial court's denial of his motion for judgment of acquittal.[1]Defendant argues that the state's evidence failed to prove he used force to retain the stolen item "immediately after the taking" such that his theft constituted a robbery. The state argues a rational factfinder could conclude otherwise, contending that nothing intervened between the theft and the force to sever the two events. We agree with defendant that, on this record, the evidence was insufficient to prove that his force was used "immediately after" the theft. Accordingly, we reverse and remand the judgment of conviction as to third-degree robbery, remand for resentencing, and otherwise affirm.[2]

         When reviewing the denial of a motion for judgment of acquittal, we recount the facts in the light most favorable to the state. State v. Rennets, 213 Or.App. 423, 425, 162 P.3d 1006 (2007) (citation omitted). On the day in question, defendant and a companion entered Sunglass Hut, a store at the Woodburn Premium Outlets shopping center. The men caught the attention of the store's manager, who found their behavior "suspicious." The manager observed defendant remove a pair of sunglasses from a display case, try them on, and then leave the store without returning them. As defendant was leaving the store, the manager called mall security to report the theft.

         Security guards-who are located throughout the mall-identified someone meeting defendant's description in another store, Men's Wearhouse. A security guard came to Sunglass Hut and, with the manager, viewed the security camera footage to confirm the suspect's identity. The manager then went to Men's Wearhouse, which is visible from [295 Or.App. 9] Sunglass Hut, but 12 stores-nearly one city block-away There, she met the head of security, who relayed that police were on the way. As the manager waited nearby for police to arrive, she saw defendant emerge from Men's Wearhouse. Defendant sat on a bench with a soda, looking at his phone.

         When a police officer arrived, approximately 10 to 15 minutes had elapsed since the manager's call to security. The officer approached defendant, asking him to chat at a nearby location. Defendant complied. However, when defendant noticed the manager, he began "yelling and screaming" that he had put the glasses back and that the manager was racist. The manager told defendant that they would "call it a day" if he returned the sunglasses, but defendant adamantly denied having the item. Because defendant was "causing such a scene," the officer grabbed his forearm, telling him that he was under arrest. A struggle ensued. Defendant said, "I'm not letting you handcuff me, I'm not going anywhere," pushing the officer and attempting to flee. Two additional officers assisted in detaining defendant as he continued yelling, swinging his arms, kicking, "pulling away," "thrashing," and "jerking around." The officers eventually handcuffed defendant and, with some difficulty, placed him in a patrol car. The sunglasses were found in defendant's pocket.

         Defendant was charged with third-degree robbery. That statute provides, in relevant part:

"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 ...

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