Caseflicks

Court of Appeals of Oregon • 1979

State v. Skaggs

42 Or. App. 763 | 601 P.2d 862 | 1979 Ore. App. LEXIS 3318

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Takeaway

In short, this case shows that a jury may infer theft intent from a violent taking and flight with property, but Oregon merger rules still required the robbery and assault convictions to be combined while permitting a separate conviction for unauthorized use of the patrol car.

Background

Late on October 25, 1976, a Clackamas County deputy sheriff confronted the defendant and another person while they appeared to be stealing a vehicle. The other person struggled with the deputy for the deputy’s service revolver. During that struggle, the defendant stabbed the deputy twice, threatened to cut or slit his throat if he did not release the gun, and struck him again. The deputy lost control of the revolver. The two men fled in the deputy’s patrol car with the gun.

A witness later saw the defendant and his codefendant trying to operate the revolver after it had jammed. The next morning, the witness turned the gun over to police and helped with the defendant’s arrest.

The defendant was convicted by a jury of first-degree theft, second-degree assault, third-degree robbery, and unauthorized use of a vehicle. Although the trial court merged the robbery, assault, and unauthorized-use convictions for sentencing on the assault charge, it entered separate convictions. The defendant appealed, challenging the sufficiency of the evidence for robbery and arguing that the robbery, assault, and vehicle-use convictions should have been merged.

Issues

Issue #1

Whether the evidence was sufficient to permit the jury to find that the defendant intended to commit theft of the deputy’s revolver, as required for third-degree robbery.

Holding

Yes. The circumstances permitted a reasonable jury to infer an intent to deprive the deputy of the revolver, so the robbery charge was properly submitted to the jury.

Reasoning

Third-degree robbery requires force or threatened force in the course of committing or attempting to commit theft. The offense does not require a completed taking; an intent to commit theft is enough because robbery law principally seeks to suppress violence used in connection with theft.

The defendant argued that he meant only to disarm the deputy so that he and his companion could escape, not to steal the revolver. But theft includes disposing of property under circumstances making its recovery by the owner unlikely. Intent to permanently deprive, or to make recovery unlikely, may be inferred from the circumstances.

Here, the men violently took control of the deputy’s revolver, fled with it rather than leaving it at the scene, and were later seen trying to make the jammed gun work. Those facts supported a reasonable inference that the deputy was unlikely to recover the weapon. On review, the question was whether sufficient evidence allowed the jury to find the requisite intent, not whether the appellate court itself was persuaded beyond a reasonable doubt.

Issue #2

Whether the robbery and second-degree assault convictions should have been entered separately.

Holding

No. The robbery and assault convictions had to merge, and the state conceded that the trial court erred by entering them separately.

Reasoning

Under the controlling Oregon authority, the assault conviction was subject to merger with the robbery conviction. Although the trial court merged the offenses for sentencing, it still entered separate convictions, which was error. The case therefore had to be remanded for entry of a judgment merging the robbery and assault convictions.

Issue #3

Whether the unauthorized-use-of-a-vehicle conviction had to merge with the robbery or assault conviction.

Holding

No. The unauthorized-use conviction could remain separate because it was not encompassed within the robbery or assault charges and did not arise from a single criminal objective with either offense.

Reasoning

Unauthorized use of the patrol car was not an offense included within robbery of the revolver or assault on the deputy. Thus, it was not subject to merger merely because the crimes occurred close together in time.

The offenses also were not one criminal episode directed toward a single criminal objective. The violence and taking of the revolver were not directed to accomplishing unauthorized use of the patrol car, and the vehicle use was not directed to accomplishing the robbery or assault. The court therefore upheld the separate unauthorized-use conviction.