Robbery in the third degree
Source:
Section 164.395 — Robbery in the third degree, https://www.oregonlegislature.gov/bills_laws/ors/ors164.html.
Notes of Decisions
Physical force employed by the defendant was sufficiently close in space and time to theft to be characterized as an attempt to prevent or overcome resistance to his retention of stolen property immediately after taking. State v. Rios, 24 Or App 393, 545 P2d 609 (1976); State v. Tolson, 24 Or App 657, 546 P2d 1115 (1976)
Where defendant pointed pistol at and obtained money from each of four bank tellers in succession there occurred four separate robbery offenses and defendant was properly sentenced on each conviction. State v. Dillman, 34 Or App 937, 580 P2d 567 (1978), Sup Ct review denied
Where defendant abandoned his attempt to commit theft prior to use of force against owner of property, acts did not come within definition of robbery in this section. State v. Jackson, 40 Or App 759, 596 P2d 600 (1979)
Under evidence that defendant used threats and force to disarm police officer and fled with officer’s gun, intent to permanently deprive owner of possession of property could be inferred and sufficient evidence of theft element of this section was present. State v. Skaggs, 42 Or App 763, 601 P2d 862 (1979)
Evidence that defendant discharged fire extinguisher at security officer, who was approximately nine feet from him, was sufficient to be submitted to jury on issue of use of physical force to prevent resistance to theft. State v. Clark, 47 Or App 557, 615 P2d 1044 (1980)
Where victim testified that defendant grabbed at her purse and told her to give it to him, evidence was sufficient to permit jury to find defendant used force with intention of preventing or overcoming victim’s resistance and such force was sufficient to constitute robbery in third degree under this section. State v. Williams, 58 Or App 398, 648 P2d 1354 (1982)
Where record contained evidence from which rational jury could infer that defendant threatened, expressly or impliedly, to use physical force against another, trial court did not err in denying defendant’s motion for acquittal. State v. Odoms, 117 Or App 1, 844 P2d 217 (1992), Sup Ct review denied
Threat is made implicitly where context of demand causes victim to reasonably infer that immediate physical force will be used if demand refused. State v. Hall, 327 Or 568, 966 P2d 208 (1998)
Whether person uses “physical force” depends on intent of person using force, not extent to which victim perceives use of force. State v. Johnson, 215 Or App 1, 168 P3d 312 (2007), Sup Ct review denied
To be victim of crime of robbery, person does not need to own property that is taken. State v. Williams, 229 Or App 79, 209 P3d 842 (2009), Sup Ct review denied; State v. Hamilton, 348 Or 371, 233 P3d 432 (2010)
When defendant fled from taxi cab without paying for taxi ride, defendant did not did not take “property” which is requirement to commit offense of third-degree robbery under this section. State v. Bartlett, 270 Or App 37, 346 P3d 1240 (2015)
When time and distance intervene between theft and defendant’s use of force without evidence that defendant was still in process of escape and defendant reacted with force only when located and apprehended in another location, evidence is insufficient to show that defendant used force immediately after theft. State v. Tolbert, 295 Or App 6, 433 P3d 501 (2018)
Because only minimal force is required for conviction of robbery in third degree, it is not categorical crime involving moral turpitude for purposes of removability analysis under Immigration and Nationality Act. Barbosa v. Barr, 926 F3d 1053 (9th Cir. 2019), modifying Barbosa v. Barr, 919 F3d 1169 (9th Cir. 2019)
Because this section does not require that defendant engage in nonconsensual taking, it is facially overbroad and indivisible and therefore does not qualify as categorical theft offense or count as aggravated felony for purposes of removal analysis under Immigration and Nationality Act. Lopez-Aguilar v. Barr, 948 F3d 1143 (9th Cir. 2020)
Law Review Citations
87 OLR 783 (2008)
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