Submitted December 21, 2017
Multnomah County Circuit Court 15CR17483; Gregory F. Silver,
G. Lannet, Chief Defender, Criminal Appellate Section, and
Neil F. Byl, Deputy Public Defender, Office of Public Defense
Services, filed the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Peenesh H. Shah, Assistant Attorney General,
filed the brief for respondent.
Ortega, Presiding Judge, and Powers, Judge, and Mooney,
Or.App. 348] Case Summary: Defendant appeals from a judgment
of conviction for second-degree robbery resulting from an
incident in which he and an accomplice sought to steal
marijuana by force and his accomplice shot the victim in the
leg in the course of the robbery. Defendant argues that the
trial court erred (1) in denying his motion for judgment of
acquittal because he did not intend the degree of force used
by his accomplice, (2) in ruling that he did not qualify for
a lesser sentence, and (3) in ruling that the
mandatory-minimum sentence for that crime was not
unconstitutional, as applied to him. Held: (1)
Defendant was not entitled to acquittal given that he
expressed an intention before the robbery to use sufficient
force to support a second-degree robbery conviction; (2)
defendant did not qualify for a lesser sentence because, even
though defendant did not personally infect the physical
injury on the victim, that injury happened in the course of
the crime of which defendant was convicted; and (3)
defendant's sentence was not unconstitutionally
Or.App. 349] ORTEGA, P. J.
appeals from a judgment of conviction for second-degree
robbery resulting from an incident in which he and an
accomplice sought to steal marijuana by force and his
accomplice shot the victim in the leg in the course of the
robbery. On appeal, defendant argues that the trial court
erred in denying his motion for judgment of acquittal because
he did not intend the degree of force used by his accomplice.
He further argues that the court erred in ruling that he did
not qualify for a lesser sentence under ORS 137.712 because
the significant personal injury suffered by the victim was
not a result of the crime of which he was convicted. Finally,
he asserts that the mandatory-minimum sentence for that crime
is unconstitutional, as applied to him, under Article I,
section 16, of the Oregon Constitution. We conclude that
defendant was not entitled to acquittal given that he
expressed an intention before the robbery to use sufficient
force to support a second-degree robbery conviction. We
further conclude that defendant did not qualify for a lesser
sentence because, even though defendant did not personally
inflict the physical injury on the victim, that injury
happened in the course of the crime of which defendant was
convicted. Finally, we conclude that his sentence was not
unconstitutionally disproportionate. Accordingly, the trial
court did not err, and we affirm.
purposes of reviewing the trial court's denial of the
motion for judgment of acquittal, "we view the evidence
in the light most favorable to the state." State v.
Nickles, 299 Or.App. 561, 562, 451 P.3d 624 (2019). With
that view in mind, the relevant facts are as follows.
the victim, was at a laundromat when defendant, who Heckler
did not know, approached and asked if Heckler had marijuana
to sell. Heckler said that he had "an eighth" that
he wanted to get rid of and agreed to sell the marijuana to
defendant for $25. They exchanged phone numbers, and
defendant contacted Heckler later that night to send him an
address. Defendant testified that, when he did so, he
intended to steal the marijuana from Heckler. On his way to
the meeting place, defendant ran into a man he knew, J. C.
After defendant told J. C. that he was on his way [301
Or.App. 350] to steal marijuana from Heckler, J. C. asked to
come along. Defendant agreed and told J.C. what he planned to
do when Heckler took out the marijuana: "[E]ither I
snatch it or he gives it to me, puts it in my hand to let me
smell it and I run off." J. C. indicated his agreement
with that plan.
arrived at the address given to him by defendant and waited
outside of his car. Defendant and J. C. then arrived, and
they both approached the passenger's side of
Heckler's car. Heckler told them that "[o]nly the
person with the money can get in the car." Defendant
stepped back, and both J. C. and defendant indicated that J.
C. was the one with the money. Heckler then got in his car
and, as he unlocked the passenger-side door, he could hear
defendant and J. C. talking to each other, but it was
muffled, and one of them dropped something that sounded hard
when it hit the ground. J. C. bent over and picked up what
was dropped, then got in the passenger's side of
as J. C. got in the car, he pulled out a gun and pointed it
at Heckler's chest and instructed Heckler to give him the
marijuana. Heckler said, "Whoa, whoa, whoa. Hey
stop," but J. C. pointed the gun at Heckler's leg
and shot him. Heckler saw defendant at the driver-side door
of his car when he was shot. J. C. tried to grab
Heckler's car keys, but Heckler fought him off. J. C.
then got out of the car, and Heckler was able to drive away
and get medical help.
state charged defendant with one count of second-degree
assault, two counts of first-degree robbery, and two counts
of second-degree robbery. Defendant waived his right to a
jury, and the charges were tried to the court. At the close
of the state's case, defendant brought a motion for
judgment of acquittal on all the counts, which the court
denied. Defendant also argued in closing that the state did
not present sufficient evidence to convict him of any of the
charges under either a principal liability theory or an
accomplice liability theory.
trial court, in making its verdict, first addressed the
second-degree assault and first-degree robbery counts. For
those counts, the state's theory depended on defendant
knowing that J. C. had a gun. The trial court found that it
[301 Or.App. 351] could not make that ...