Submitted January 9, 2018
County Circuit Court 16CR07240; Jesse C. Margolis, Judge.
G. Lannet, Chief Defender, Criminal Appellate Section, and
Zachary Lovett Mazur, Deputy Public Defender, Offce of Public
Defense Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Greg Rios, Assistant Attorney General, fled the
brief for respondent.
Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi,
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.
Or.App. 244] Conviction for assault in the third degree
reversed; remanded for resentencing; otherwise affirmed.
Or.App. 245] DEHOOG, J.
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.
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.
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.
arriving at Fred Meyer, Goff waited in the driver's seat
of the Ford while Wright and Griffith went into the
store. 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.
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 ...