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24 Or. App. 657

State v. Tolson

Court of Appeals of Oregon

Decided March 8, 1976

Court of Appeals of Oregon · decided 1976-03-08

Key passage — most relied on by later courts

“in the course of committing or attempting to commit”

quoted by 2 later decisions, including Lopez-Aguilar v. Barr, 295 Or. App. 6 - State v. Tolbert

“[i]t is not stretching the meaning of the word to hold that, where hot pursuit continues for 455 feet with overtaking and use of force at that point, the entire action was 'immediate.'”

quoted by 1 later decision, including Lopez-Aguilar v. Barr

Applies OR 164 § 164.395 · OR 164 § 164.405

Good law ✅— No negative treatment on recordhow we know

Decided 1976-03-08

How this case has been cited

Cited by 13 later decisions — most recently April 2019

8 state decisions

5019761980199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

LANGTRY, J.

¶1Defendant appeals from a court conviction, after she waived jury trial, of robbery in the second degree under ORS 164.405(1)(b) which provides:

"(1) A person commits the crime of robbery in the second degree if he violates ORS 164.395 and he:
"(b) Is aided by another person actually present.”

¶2ORS 164.395(1)(a) provides:

"(1) A person commits the crime of robbery in the third degree if in the course of committing or attempting to commit theft he uses or threatens the immediate use of physical force upon another person with the intent of:
"(a) Preventing or overcoming resistance to his taking of the property or to his retention thereof immediately after the taking .”

¶3In State v. Rios, 24 Or App 393, 545 P2d 609 (1976), we held that a shoplifter with stolen goods in his possession, pursued by the storekeeper owner of the goods to prevent his escaping with the goods, who turned immediately in front of the store and threw at the owner bottles which were part of the goods was guilty of third degree robbery under the part of ORS 164.395 quoted above.

¶4This case adds two distinctive features to the facts of Rios: First, the defendant here was aided by other persons actually present, which has the effect of making the crime, if otherwise proven, second degree robbery under ORS 164.405(1)(b) quoted above; and second, in the course of the defendant’s flight at the point where the force was used, the shoplifted goods had been taken considerably further from the store than in Rios.

¶5The defendant put on no evidence. The state’s case which the court believed proved that defendant and another young woman shoplifted from Nordstrom’s store in the Portland Lloyd Center three pair of slacks. Two security officers, a man and a woman, observed *660the theft and followed them from the store. Defendant and the other young woman realized they were followed, walked fast and ran 220 feet easterly past the fronts of four adjoining shops, 130 feet southerly through the fourth shop, and 105 feet easterly where the male officer caught defendant and told her he was a security officer and she was under arrest. Defendant fought him, using a shopping bag, fists and one of her shoes as weapons. A man stepped from among the onlookers and struck the male officer with his fists and then disappeared. In the meantime the female officer caught up and sought to arrest the other shoplifter, who had stopped. She also met resistance and her subject broke loose and escaped. She then turned her attention to defendant, who had by then been partially subdued by the male officer. Seeing this, the female officer stooped to recover the stolen slacks, which had fallen from a shopping bag onto the walkway. As she was stooping, back turned, defendant broke loose, leaped upon her back and fastened onto her hair. From this position the male officer and another who arrived effected defendant’s capture.

¶6In Rios, we made particular note of the fact that the statutory scheme makes robbery out of what is otherwise theft " ' if force or fear is used to retain possession of the stolen property .’ ” That is, the words of ORS 164.395(1)(a) are, if the force is used "with the intent of” " [overcoming resistance to the] retention thereof immediately after the taking,” it is robbery in the appropriate degree. (Emphasis supplied.)

¶7The trial judge, while making his decision, commented, " [W]hat other explanation is there she jumped on the other security officer when [that] officer started to pick up the stolen property? That was certainly not to facilitate escape We accept as a found fact that the defendant’s intent was to use force in order to retain the stolen goods.

¶8 It is obvious that the legislature’s intent was to *661make theft of and escape with property by use of force a more serious crime than theft without force. The force must come "immediately” after the taking at the latest. It is not stretching the meaning of the word to hold that, where hot pursuit continues for 455 feet with overtaking and use of force at that point, the entire action was "immediate.” One of the dictionary definitions of the word is "having nothing coming between not separated in time .” Webster’s New Twentieth Century Dictionary 909 (unabridged 2d ed 1964).

¶9Affirmed.

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