State v. Cartwright, C

• Decision Date: 11 June 1979
• Docket Number: No. C,C
• Citation: 595 P.2d 1289,40 Or.App. 593
• Parties: STATE of Oregon, Respondent, v. Daniel Webster CARTWRIGHT, Appellant. 78-05-07671; CA 12273.
• Court: Oregon Court of Appeals

Page 1289

595 P.2d 1289

40 Or.App. 593

STATE of Oregon, Respondent, v. Daniel Webster CARTWRIGHT, Appellant.

No. C 78-05-07671; CA 12273.

Court of Appeals of Oregon.

Argued and Submitted March 22, 1979.

Decided June 11, 1979.

David E. Groom, Salem, argued the cause for appellant. With him on brief, was Gary D. Babcock, Public Defender, Salem.

Melinda L. Bruce, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on brief, were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.

Before SCHWAB, C. J., and TANZER, RICHARDSON and ROBERTS, JJ.

ROBERTS, Judge.

Defendant appeals from his conviction for attempted assault in the second degree, contending it was error for the trial judge to convict him for this crime after acquitting him of robbery in the first degree, the crime for which he was indicted. The sole issue before us is whether assault in the second degree is a necessarily included offense of robbery in the first degree. We find that it is not and reverse.

ORS 136.465 states:

"In all cases, the defendant may be found guilty of any crime the commission of which is necessarily included in that with which he is charged in the accusatory instrument or of an attempt to commit such crime."

In State v. Washington, 273 Or. 829, 543 P.2d 1058 (1975), the Supreme Court interpreted this statute to permit conviction for a lesser offense when it is either necessarily included in the statutory definition of the crime charged or expressly included in the criminal offense as charged in the indictment. 273 Or. at 835, 543 P.2d 1058.

We examine first the statutory definitions. ORS 164.415 defines robbery in the first degree as follows:

"(1) A person commits the crime of robbery in the first degree if he violates ORS 164.395 and he:

"(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.

"(2) Robbery in the first degree is a Class A felony."

ORS 164.395 provides:

"(1) A person commits the crime of robbery in the third degree if in the course of committing or attempting to commit theft he uses or threatens the immediate use of physical force upon another person with the intent of:

"(a) Preventing or overcoming resistance to his taking of the property or to his retention thereof immediately after the taking; or

"(b) Compelling the owner of such property or another person to deliver the property or to engage in other conduct which might aid in the commission of the theft.

"(2) Robbery in the third degree is a Class C felony."

The definition for assault in the second degree is codified at ORS 163.175.

"(1) A person commits the crime of assault in the second degree if he:

"(a) Intentionally or knowingly causes serious physical injury to another; or

"(b) Intentionally or knowingly causes physical injury to another by means of a deadly or dangerous weapon; or

"(c) Recklessly causes serious physical injury to another by means of a deadly or dangerous weapon under circumstances manifesting extreme indifference to the value of human life.

"(2) Assault in the second degree is a Class B felony."

ORS 161.405 provides in relevant part:

"(1) A person is guilty of an attempt to commit a crime when he intentionally engages in conduct which constitutes a substantial step toward commission of the crime."

The state argues that since the aggravating element which elevates a defendant's conduct from third to first degree robbery is the use or attempted use of a dangerous weapon, then the elements of second degree assault are included by definition in first degree robbery. A reading of the two statutes shows that this is not the case.

In order for second degree assault to be expressly included in the statutory definition of first degree robbery, the latter crime must include each and every element of second degree assault, plus some additional element or elements. State v. Cummings, 33 Or.App. 265, 576 P.2d 36 (1978). Each of the possible means of committing second degree assault under the above-quoted definition calls for the causing of physical injury to another, whereas one could conceivably commit first degree robbery under either ORS 164.415(1)(a) or (b) by merely being armed with or using a dangerous weapon without actually causing physical injury. Therefore, every element of second degree assault is not necessarily included in first degree robbery. Since attempted second degree assault consists of behavior constituting a substantial step...