State v. Davis/Hamilton

• Decision Date: 04 August 2004
• Citation: 95 P.3d 230,194 Or.App. 382
• Parties: STATE of Oregon, Respondent, v. James Ivy DAVIS, IV, aka James Ivey Davis, Appellant. State of Oregon, Respondent, v. Albert Lewis Hamilton, aka Albert Lewis Goldsby, Appellant.
• Court: Oregon Court of Appeals

95 P.3d 230

194 Or.App. 382

STATE of Oregon, Respondent, v. James Ivy DAVIS, IV, aka James Ivey Davis, Appellant.

State of Oregon, Respondent, v. Albert Lewis Hamilton, aka Albert Lewis Goldsby, Appellant.

00-12-39969, 00-12-39970; A116035 (Control), A116439.

Court of Appeals of Oregon.

Argued and Submitted January 29, 2004.

Decided August 4, 2004.

Robin A. Jones, Senior Deputy Public Defender, argued the cause for appellants. With her on the opening brief was David E. Groom, Acting Executive Director, Office of Public Defense Services. Robin A. Jones, Senior Deputy Public Defender, filed a supplemental brief on behalf of appellant James Ivy Davis, IV, pro se.

Janet A. Klapstein, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before HASELTON, Presiding Judge, and LINDER and ORTEGA, Judges.

HASELTON, P.J.

Defendants, who were jointly tried as coperpetrators, appeal, raising 23 assignments of error. Twenty of those assignments — 10 by each defendant — challenge the trial court's denial of motions for judgment of acquittal on various counts charging robbery in the first degree with a firearm, ORS 164.415, and robbery in the second degree with a firearm, ORS 164.405. As described below, we conclude that the trial court properly denied defendants' motions for judgment of acquittal in that (1) the state presented legally sufficient evidence on each challenged count; and (2) assuming, without deciding, the validity of defendants' arguments pertaining to the construction and operation of the robbery statutes, and particularly ORS 164.395, those arguments were immaterial to the determination of the motions for judgments of acquittal and were cognizable only through a post-verdict motion pursuant to ORS 161.067, relating to merger.¹ The remaining three assignments of error, which pertain to Davis only, lack merit, and we reject them without discussion. Accordingly, we affirm.

In reviewing the denial of motions for judgment of acquittal, "[w]e view the evidence in the light most favorable to the state, accepting reasonable inferences and reasonable credibility choices that the factfinder could have made." State v. Presley, 175 Or.App. 439, 443, 28 P.3d 1238 (2001) (citation omitted). So viewed, the record establishes the following material facts:

On the night of December 22, 2000, Terry Weaver, the owner of the Spare Room Lounge in northeast Portland, was tending bar. The spare room is divided into two separate areas known as the "front bar" and the "back bar." Weaver was behind the front bar along with two employees, Anna Higgins and Patricia Alcorn. Alcorn was standing near the entrance to the kitchen. Two customers, Lori Owens and Joyce Hansen, were sitting on bar stools at the front bar, and Ernest Brumitt and William Lambert, also customers, were in the back bar.

At approximately 10:45 p.m., two masked men walked through the front door into the front bar. The men fired two shots into the ceiling of the lounge and ordered everyone to get down. As that occurred, Alcorn slipped into the kitchen to call 9-1-1. One of the men then ran towards the bar, pointed a gun at Higgins's chest, and demanded money. That same man then approached Weaver, pointed the gun at his head, and again demanded money. Weaver complied with the demand and began handing over money, first from the lounge's cash register and then from the lottery till. Owens and Hansen got down on the floor, and both felt threatened and intimidated by the gun shots and the perpetrators' actions. Alcorn, who was frightened by the gunfire, was put on hold by a 9-1-1 operator and watched through a small cook's window in the kitchen as one of the perpetrators ran past the bar. She then hid behind a walk-in refrigerator for protection.

Lambert and Brumitt, the patrons who were in the back bar, heard the gunshots and went to the front bar to see what was happening. As they watched the first man point the gun at Weaver, they tried to approach. However, the second man saw them and fired two more shots into the ceiling. Lambert and Brumitt, who felt threatened and scared, got down on the floor. The man who took the money then ran around the bar, fired several shots into the ceiling, and, after meeting up with his cohort, ran out the door. Shortly thereafter, Portland police arrived on the scene and, after an extended pursuit during which one of the assailants shot at two of the officers, defendants were apprehended.

The state charged both defendants with, inter alia, seven counts of first-degree robbery with a firearm, ORS 164.415, and seven counts of second-degree robbery with a firearm, ORS 164.405. Each of the seven first-degree robbery counts (Counts 3-9) was identical in form, alleging:

"The said DEFENDANTS, on or about December 22, 2000, in the County of Multnomah, State of Oregon, did unlawfully and knowingly use and threaten the immediate use of physical force upon [NAMES], and during the commission of this felony, the defendants used and threatened the use of a firearm, to-wit: a handgun, a deadly weapon, while in the course of committing theft of property, to-wit: lawful currency of the United States of America, with the intent of preventing and overcoming resistance to the said defendants' taking and retention immediately after the taking of the said property, contrary to the statutes in such cases made and provided and against the peace and dignity of the State of Oregon[.]"

The only variation in those counts was the identity of the person against whom defendants had "unlawfully and knowingly use[d] and threaten[ed] the immediate use of physical force" during the commission of the theft of property. Thus, Count 3 related to Weaver; Count 4 related to Higgins; and the remaining counts related to Owens, Hansen, Lambert, Brumitt, and Alcorn, respectively.

The same format was used for the seven counts (Counts 12-18) that alleged second-degree robbery. Each of those counts alleged:

"The said DEFENDANTS, on or about December 22, 2000, in the County of Multnomah, State of Oregon, did unlawfully and knowingly use and threaten the immediate use of physical force upon [NAMES], being aided by another person actually present, while in the course of committing and attempting to commit theft of property, to-wit: lawful currency of the United States of America, with the intent of preventing and overcoming resistance to the said defendants' taking and retention immediately after the taking of the said property, and during the commission of this felony the defendants did use and threaten the use of a firearm, contrary to the statutes in such cases made and provided and against the peace and dignity of the State of Oregon[.]"²

The charges against both defendants were jointly tried before a jury. After presentation of the state's case, both defendants moved for judgments of acquittal against various counts. As pertinent to our consideration of the joint assignments of error, defendants moved for judgments of acquittal against first-degree robbery Counts 5-9-the first-degree robbery counts pertaining to Owens, Hansen, Lambert, Brumitt, and Alcorn, respectively-and against the second-degree robbery Counts 14-18 pertaining to the same individuals. The essence of defense counsels' argument was as follows:

"[T]he state has also failed to prove that those individuals were robbed by any individual.

"The evidence in the record is simply that they were present and witnesses to the robbery of Mr. Weaver and Miss Higgins, that they were frightened and intimidated by the process, and felt unable to — they didn't feel free to do what they may have wished to do.

"Under those circumstances, Judge, * * * there is nothing to suggest that those individuals were robbed. Their property wasn't taken, their property wasn't requested or demanded, none of them engaged in any conduct that could have constituted an attempt to resist the taking of the property of another, and so under these circumstances, it's our position that no counts of robbery with regards to Lori Owens, Joyce Hansen, Mr. Lambert, Mr. Brumitt, or Miss Alcorn have been proven."

The trial judge denied the motions, and the jury returned a verdict finding each defendant guilty on all 14 robbery counts.

On appeal, defendants assign error to the denial of their motions for judgments of acquittal on the robbery counts. Their argument, as before the trial court, is grounded in the language of ORS 164.395. That statute provides, in part:

"(1) 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 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 * * *."³

Defendants reason as follows: (1) Under ORS 164.395, the gravamen of the crime of robbery is the taking or attempted taking of a person's property through the threatened or actual use of force against that person or another person. (2) Given that premise, the number of robberies for which a defendant is criminally liable cannot exceed the number of "owners" of the property that is the subject of the underlying theft or attempted theft. That is, if the defendant, in the course of taking A's property, threatens B, C, D, E, and F with the intent of overcoming their resistance to the taking of A's property, the defendant committed only one robbery, with A as the victim. The defendant might well be convicted of separate counts of, for example, assault involving B, C, D, E, and F, but there was only one robbery. (3) By extension, here, Owens, Hansen, Lambert,...