ORS 164.405
Robbery in the second degree


(1)

A person commits the crime of robbery in the second degree if the person violates ORS 164.395 (Robbery in the third degree) and the person:

(a)

Represents by word or conduct that the person is armed with what purports to be a dangerous or deadly weapon; or

(b)

Is aided by another person actually present.

(2)

Robbery in the second degree is a Class B felony. [1971 c.743 §149]

Notes of Decisions

It is for the jury to decide whether the second person present was close enough to aid the defendant. State v. Miller, 14 Or App 608, 513 P2d 1199 (1973)

The term “aided by another person actually present” includes a person who is at hand, or within reach, sight or call, and who presents an added threat to the victim’s safety. State v. Miller, 14 Or App 608, 513 P2d 1199 (1973); State v. Jackson, 212 Or App 51, 157 P3d 239 (2007), Sup Ct review denied

Evidence of the commission of other crimes by a defendant is admissible if relevant to show motive, intent, absence of mistake or accident, common scheme or plan, identity of the defendant, or any other relevant fact unless its probative value is outweighed by its prejudicial tendency to blacken the defendant’s presumptively good character. State v. Williams, 16 Or App 361, 518 P2d 1049 (1974), Sup Ct review denied

Evidence of a second robbery was relevant as to the intent, plan and identification of defendant and its probative value outweighed the potential for prejudice so that it was properly admitted, whereas evidence of yet a third crime, not a robbery, was properly excluded. State v. Williams, 16 Or App 361, 518 P2d 1049 (1974), Sup Ct review denied

Two robberies, each involving a separate victim but arising out of the same transaction, are separate offenses and sentencing on each of them is proper. Hussick v. State, 19 Or App 915, 529 P2d 938 (1974), Sup Ct review denied

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

Convictions for first and second degree robbery were merged where charges involved same victim and conduct at same time and place. State v. Fickes, 36 Or App 361, 584 P2d 770 (1978)

Evidence of shotgun found in getaway vehicle was irrelevant and inadmissible where weapon was not used in robbery. State v. Cox, 37 Or App 139, 586 P2d 390 (1978), Sup Ct review denied

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)

Assault in second degree is not lesser included offense of robbery in first or second degree. State v. Taylor, 97 Or App 261, 774 P2d 1121 (1989)

Elements of second degree robbery are not necessarily included in elements of first degree robbery. State v. Zimmerman, 170 Or App 329, 12 P3d 996 (2000)

Menacing is not lesser included offense of second degree robbery. State v. Lee, 174 Or App 119, 23 P3d 999 (2001), Sup Ct review denied

Representation that person is armed with purported deadly weapon may include situation in which person is actually armed. State v. Riehl, 188 Or App 1, 69 P3d 1252 (2003)

Only person who actually engages in active conduct constituting third degree robbery may be directly culpable for violation of this section. State v. Rennells, 213 Or App 423, 162 P3d 1006 (2007)

Person may represent that person is armed with what purports to be dangerous or deadly weapon regardless of whether victim believes representation. State v. Oliver, 221 Or App 233, 189 P3d 1240 (2008), Sup Ct review denied

Person who does not actively engage in conduct constituting third degree robbery may be culpable under aiding and abetting theory. State v. Smith, 229 Or App 243, 211 P3d 961 (2009), Sup Ct review denied

Robbery by representation that person is armed with dangerous or deadly weapon does not constitute crime separate from robbery while aided by another person actually present. State v. White, 346 Or 275, 211 P3d 248 (2009)

To be victim of crime of robbery, person does not need to own property that is taken. State v. Hamilton, 348 Or 371, 233 P3d 432 (2010)

Second degree robbery is not lesser included offense of first degree robbery. State v. Colmenares-Chavez, 244 Or App 339, 260 P3d 667 (2011), Sup Ct review denied

Where defendant was convicted of first-degree robbery under ORS 161.610 and 164.415 and second-degree robbery under this section and ORS 161.610, and one count of second-degree robbery under this section included element that defendant was “aided by another person present” that count does not merge into others under this section because “another person” element is unique and requires proof that other elements do not. State v. Burris, 270 Or App 512, 348 P3d 338 (2015)

Where person knew defendant tried on clothing in store and security officers attempted to stop defendant from leaving, then person drove car with passenger defendant away from officers, trier of fact could reach conclusion that person aided defendant with intent to facilitate robbery and that defendant was therefore “aided by another person actually present” as used in this section. State v. Morgan, 361 Or 47, 388 P3d 1085 (2017)

§§ 164.395 to 164.415

Notes of Decisions

Trial court properly admitted two handguns found in defendant’s possession shortly after alleged commission of crimes of kidnapping and robbery, where crimes were committed with aid of a handgun. State v. Manning, 39 Or App 279, 591 P2d 1195 (1979)

Chapter 164

Law Review Citations

51 OLR 427-637 (1972)


Source
Last accessed
May. 15, 2020