State v. Hall

• Decision Date: 08 October 1998
• Citation: 966 P.2d 208,327 Or. 568
• Court: Oregon Supreme Court
• Parties: STATE of Oregon, Petitioner on Review, v. Teddy HALL, Respondent on Review. CC C9406-34332; CA A87453; SC S44712.

Page 208

966 P.2d 208

327 Or. 568

STATE of Oregon, Petitioner on Review, v. Teddy HALL, Respondent on Review.

CC C9406-34332; CA A87453; SC S44712.

Supreme Court of Oregon.

Argued and Submitted May 5, 1998.

Decided Oct. 8, 1998.

Erika L. Hadlock, Assistant Attorney General, Salem, argued the cause for petitioner on review. David B. Thompson, Assistant Attorney General, filed the petition. With him on the petition were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Steven V. Humber, Deputy Public Defender, Salem, argued the cause and filed the brief for respondent on review. With him on the brief was Sally L. Avera, Public Defender.

Before CARSON, C.J., and GILLETTE, VAN HOOMISSEN, DURHAM and LEESON, JJ. ^* LEESON, Justice.

In this criminal case involving multiple charges, a jury convicted defendant of two counts of robbery in the first degree, ORS 164.415, one count of robbery in the third degree, ORS 164.395, and one count of felon in possession of a firearm, ORS 166.270. The Court of Appeals reversed defendant's conviction for robbery in the third degree and affirmed his other convictions. State v. Hall, 149 Or.App. 358, 942 P.2d 882, modified on recons. 149 Or.App. 757, 944 P.2d 1000 (1997). We allowed review to determine whether the trial court erred in denying defendant's motion for judgment of acquittal on the count of third-degree robbery. For the reasons that follow, we conclude that the trial court did not err. The Court of Appeals' contrary holding on that count is reversed, and its decision otherwise is affirmed.

We view 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. Cunningham, 320 Or. 47, 63, 880 P.2d 431 (1994). The issue is not whether we believe defendant is guilty beyond a reasonable doubt, but whether there was sufficient evidence for a jury to so find. State v. Rose, 311 Or. 274, 281, 810 P.2d 839 (1991). When analyzing the sufficiency of the evidence, we make no distinction between direct and circumstantial evidence as to the degree of proof required. State v. Lerch, 296 Or. 377, 396, 677 P.2d 678 (1984).

Defendant walked into the McDonald's restaurant at Jantzen Beach on June 21, 1994, at about 10:40 p.m., twenty minutes before the restaurant closed for the night. He wore a leather jacket over his clothing and a bandana on his head that covered his hair completely. Although it was late at night, he also had on sunglasses.

Defendant went to the counter near a cash register. He saw Ahyek, an employee, standing at the end of the counter. He made a motion to her with his hand and told her to "Come here." Ahyek walked toward defendant and stood directly across the counter from him near the cash register. As she stood across from him, defendant said to Ahyek, "Put all of the money into this bag. I want all of your money." He held out a small paper bag that he had brought into the restaurant with him. Ahyek opened the top drawer of a cash register and gave defendant all the money in it. Defendant told her, "No, I want what is underneath." Ahyek reached beneath the drawer and gave defendant the money that was there. Defendant still was not satisfied that Ahyek had given him all the money. He told her, "No. I want what is in the other drawers." Ahyek pulled the cash drawers out of the other cash registers and set them on the counter to show defendant that she "didn't have anything else." Defendant took the money and left the restaurant. On his way out, defendant told Atkinson, a maintenance worker, not to follow him. Ahyek called the police, who arrested defendant several days later. He was indicted for robbery in the third degree.

Defendant represented himself at trial. Just before instructing the jury, the court sua sponte raised the issue of whether the state had presented sufficient evidence to support a conviction for robbery in the third degree. ORS 164.395(1) defines robbery in the third degree:

"(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." (Emphasis added.)

In response to the trial court's having raised the issue, defendant moved for judgment of acquittal, on the ground that he had not said any threatening words to Ahyek or made any threatening gestures towards her. The trial court denied the motion, concluding that "[t]he circumstances may give rise to the threat." In a unanimous verdict, the jury found defendant guilty of robbery in the third degree. ¹

On appeal, defendant assigned error to the trial court's denial of his motion for judgment of acquittal, arguing that the state had presented insufficient evidence to convict him of third-degree robbery, because he did not use actual force or threaten the immediate use of physical force against Ahyek. The state responded that an implied threat is sufficient to establish robbery in the third degree and that a rational trier of fact could find that defendant's demand to Ahyek to give him all the money carried with it an implied threat that defendant would use physical force if Ahyek refused to comply.

A two-judge majority of the Court of Appeals agreed with defendant. The majority concluded that the trial court erred in denying defendant's motion for judgment of acquittal, because "[t]here is no evidence that defendant made verbal threats or engaged in conduct that indicated that he would, in fact, immediately resort to physical force unless his demand was met." Hall, 149 Or.App. at 365, 942 P.2d 882 (emphasis added). Chief Judge Deits dissented, arguing that, considering the entire circumstances, there was sufficient evidence from which a rational jury could infer that defendant implicitly had threatened to use immediate physical force against Ahyek if she did not comply with his demands. Id. at 368, 942 P.2d 882.

On review, the questions are what the legislature intended by the phrase, "threatens the immediate use of physical force upon another person," in ORS 164.395(1), and whether the trial court erred in denying defendant's motion for judgment of acquittal on the charge of robbery in the third degree, because the state failed to present sufficient evidence to permit the jury to find that defendant had threatened the immediate use of physical force on Ahyek if she did not comply with his demands.

The first inquiry is a matter of statutory construction. In construing a statute, our task is to discern the intent of the legislature. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993). We begin with the statute's text and context and give words of common usage their "plain, natural, and ordinary meaning." Id. at 610-11, 859 P.2d 1143.

The criminal code does not define the word "threatens" as used in ORS 164.395(1). However, the dictionary defines the word "threaten" as follows:

"1: to utter threats against: promise punishment, reprisal, or other distress to * * * 2 * * *: to charge under pain of punishment: WARN * * * 3: to promise as a threat: hold out by way of menace or warning * * * 4a: to give signs of the approach of (something evil or unpleasant): indicate as impending: PORTEND * * * b: to hang over as a threat: MENACE * * * 5: to announce as intended or possible * * *." Webster's Third New Int'l Dictionary, 2382 (unabridged ed. 1993).

The dictionary definition indicates that the act of threatening another person can be explicit (such as uttering threats) or implicit (such as giving signs of the approach of something evil or unpleasant). That conclusion is supported by examining the dictionary definition of the noun "threat," which is used repeatedly in the definition of the verb threaten. A "threat" is:

"1: an indication of something impending and usu. undesirable or unpleasant * * * as a: an expression of an intention to inflict evil, injury, or damage on another usu. as retribution or punishment for something done or left undone * * * b: expression of an intention to inflict loss or harm on another by illegal means and esp. by means involving coercion or duress of the person threatened ( [threats] inducing fear of bodily harm are often cause of legal action even in the absence of overt violence) 2: something that by its very nature or relation to another threatens the welfare of the latter * * *." Id.

Like the act of threatening, a threat can be explicit (an expression of an intention to inflict harm or loss on another) or implicit (something that by its nature or relation to another announces that a person's welfare is in danger). Whether a person implicitly threatens another in the course of an encounter depends on the reasonable inferences that the fact finder can draw from that encounter.

ORS 164.395(1) requires that, in the course of committing or attempting to commit theft, a defendant use or threaten to use immediate physical force on another person with the intent of preventing or overcoming resistance to the taking of property or compelling the person to deliver property. Having concluded that the act of threatening can be explicit or implicit, the next inquiry is whether, under ORS 164.395(1), a person who demands that the victim deliver property, or not resist the taking of property, implicitly can threaten the immediate use of physical force if the victim does not comply. The answer to that question is yes. If the context in which the demands were made supports a reasonable inference that...