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State v. Chisholm

Court of Appeals of Oregon

September 5, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
BRITTENY RACHAEL CHISHOLM, aka Brittney Chisholm, aka Brittney Rachael Chisholm, aka Brittany Rachel Chisolm, Defendant-Appellant.

          Submitted January 9, 2018

          Curry County Circuit Court 16CR07240; Jesse C. Margolis, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Zachary Lovett Mazur, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Greg Rios, Assistant Attorney General, fled the brief for respondent.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case Summary:

         Defendant, who waited in a getaway truck as her co-conspirators carried out a robbery, appeals a judgment of conviction for second-degree robbery, frst-degree aggravated theft, and third-degree assault. ORS 164.405; ORS 164.057; ORS 163.165. Defendant assigns error to the trial court's denial of her motion for judgment of acquittal on the assault charge. She argues that she cannot be held liable as an accomplice because the record contained insufficient evidence to support the inference that she intended to aid and abet in that offense. In defendant's view, convicting her of assault is akin to imposing accomplice liability on the grounds that the assault was a natural and probable consequence of the planned robbery, which would be an impermissible application of the accomplice statute. Held: The evidence was insufficient to permit a reasonable factfinder to find, beyond a reasonable doubt, that defendant had the requisite intent to aid and abet in the commission of the assault.

         [299 Or.App. 244] Conviction for assault in the third degree reversed; remanded for resentencing; otherwise affirmed.

         [299 Or.App. 245] DEHOOG, J.

         As defendant waited nearby in a designated getaway truck, her three coconspirators drove to a Fred Meyer store and carried out their plan to rob an armored vehicle driver conducting a routine banking run. As a result of her involvement in that criminal episode, defendant was convicted of second-degree robbery, first-degree aggravated theft, and third-degree assault. ORS 164.405; ORS 164.057; ORS 163.165. On appeal, defendant does not challenge her robbery or theft convictions; she does, however, assign error to the trial court's denial of her motion for judgment of acquittal on the charge of assault. Defendant argues that the evidence presented at trial was insufficient to support the necessary inference that she had intended to aid and abet an assault that one of her codefendants committed in the course of the robbery. She contends that she therefore cannot be held liable as an accomplice for that offense. In defendant's view, convicting her of assault in this case would be akin to imposing accomplice liability on the grounds that the assault was a natural and probable consequence of the planned robbery, which has been held to be an impermissible application of the accomplice statute. See, e.g., State v. Lopez-Minjarez, 350 Or. 576, 583, 260 P.3d 439 (2011) (rejecting natural and probable consequences theory of accomplice liability). We agree with defendant that the evidence was insufficient to permit a reasonable factfinder to find, beyond a reasonable doubt, that she had the requisite intent to aid and abet in the commission of the assault for which she was convicted. We therefore reverse her conviction for third-degree assault and otherwise affirm.

         In a challenge to a trial court's denial of a motion for judgment of acquittal, we review the evidence "in the light most favorable to the state to determine whether a rational trier of fact, making reasonable inferences, could have found the essential elements of the crime proved beyond a reasonable doubt." State v. Hall, 327 Or. 568, 570, 966 P.2d 208 (1998) (citing State v. Cunningham, 320 Or. 47, 63, 880 P.2d 431 (1994); see also State v. Allison, 325 Or. 585, 587-88, 941 P.2d 1017 (1997) (applying that standard of review following [299 Or.App. 246] a bench trial). We recite the facts as presented at trial with that standard in mind.

         Defendant and three men-Wright, Goff, and Griffith (defendant's romantic partner)-planned and executed a robbery at a Fred Meyer store in Brookings. Their target was a security guard who worked for an armored car company and regularly collected and delivered the store's bank deposits. In furtherance of their plan, the group drove from Gold Beach to Brookings in two pickup trucks. Defendant drove alone in a white GMC, while Griffith drove a white Ford with Wright and Goff as his passengers. Shortly before reaching Brookings, the two trucks separated; Griffith drove the Ford to Fred Meyer with the other two men, while defendant drove the GMC to wait for the men in a nearby church parking lot.

         Upon arriving at Fred Meyer, Goff waited in the driver's seat of the Ford while Wright and Griffith went into the store.[1] When their intended victim walked out of the store carrying the bank deposits, he noticed the men's pickup truck parked where his partner would normally be waiting with the armored car. As the victim walked towards that area, one of the men who had entered the store grabbed the money bag and pulled it from his hand while the other man pepper sprayed him across the face. The victim testified that the pepper spray had caused significant pain; on a scale of one to 10, he rated his pain at that moment as having been "about 18." The two men then jumped into the Ford pickup truck, and all three men drove to the church parking lot where defendant had been waiting. When they reached the church, the three men joined defendant in the GMC and Griffith took over as the driver. A church employee saw the group hastily changing vehicles, and, suspecting that they were involved in a crime, called 9-1-1.

         As the GMC pulled away from the church, Curry County Sherriff John Ward saw the truck and, recognizing that it matched the description given by the church employee, began to follow. When Ward activated his overhead lights, [299 Or.App. 247] the GMC pulled off of the road and drove over an embankment into an area of heavy brush, where it eventually became high-centered on a boulder. All four occupants climbed out of the truck and ran. Officers quickly found defendant and Goff who had been hiding in the brush nearby. Goff later stated that, while they had been ...


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