State v. Bentley

                                       347

           Submitted December 21, 2017, affirmed December 18, 2019


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                  ZAMERE ASONTE BENTLEY,
                    aka Zimar Travon Bentley,
                   aka Zimear Bentley-Williams,
                       Defendant-Appellant.
                  Multnomah County Circuit Court
                       15CR17483; A162520
                                   

    Defendant appeals from a judgment of conviction for second-degree robbery
resulting from an incident in which he and an accomplice sought to steal marijuana by force and his accomplice shot the victim in the leg in the course of the
robbery. Defendant argues that the trial court erred (1) in denying his motion for
judgment of acquittal because he did not intend the degree of force used by his
accomplice, (2) in ruling that he did not qualify for a lesser sentence, and (3) in
ruling that the mandatory-minimum sentence for that crime was not unconstitutional, as applied to him. Held: (1) Defendant was not entitled to acquittal given
that he expressed an intention before the robbery to use sufficient force to support a second-degree robbery conviction; (2) defendant did not qualify for a lesser
sentence because, even though defendant did not personally inflict the physical
injury on the victim, that injury happened in the course of the crime of which
defendant was convicted; and (3) defendant’s sentence was not unconstitutionally
disproportionate.
    Affirmed.



    Gregory F. Silver, Judge.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Neil F. Byl, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Peenesh H. Shah, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Powers, Judge, and
Mooney, Judge.
348               State v. Bentley

  ORTEGA, P. J.
  Affirmed.
Cite as 

 (2019)                            349

        ORTEGA, P. J.
         Defendant appeals from a judgment of conviction for
second-degree robbery resulting from an incident in which
he and an accomplice sought to steal marijuana by force
and his accomplice shot the victim in the leg in the course
of the robbery. On appeal, defendant argues that the trial
court erred in denying his motion for judgment of acquittal
because he did not intend the degree of force used by his
accomplice. He further argues that the court erred in ruling that he did not qualify for a lesser sentence under ORS
137.712 because the significant personal injury suffered by
the victim was not a result of the crime of which he was
convicted. Finally, he asserts that the mandatory-minimum
sentence for that crime is unconstitutional, as applied to
him, under Article I, section 16, of the Oregon Constitution.
We conclude that defendant was not entitled to acquittal
given that he expressed an intention before the robbery to
use sufficient force to support a second-degree robbery conviction. We further conclude that defendant did not qualify
for a lesser sentence because, even though defendant did
not personally inflict the physical injury on the victim, that
injury happened in the course of the crime of which defendant was convicted. Finally, we conclude that his sentence
was not unconstitutionally disproportionate. Accordingly,
the trial court did not err, and we affirm.
         For purposes of reviewing the trial court’s denial of
the motion for judgment of acquittal, “we view the evidence
in the light most favorable to the state.” State v. Nickles,

, 

 (2019). With that view in
mind, the relevant facts are as follows.
         Heckler, the victim, was at a laundromat when
defendant, who Heckler did not know, approached and asked
if Heckler had marijuana to sell. Heckler said that he had
“an eighth” that he wanted to get rid of and agreed to sell
the marijuana to defendant for $25. They exchanged phone
numbers, and defendant contacted Heckler later that night
to send him an address. Defendant testified that, when he
did so, he intended to steal the marijuana from Heckler. On
his way to the meeting place, defendant ran into a man he
knew, J. C. After defendant told J. C. that he was on his way
350                                           State v. Bentley

to steal marijuana from Heckler, J. C. asked to come along.
Defendant agreed and told J.C. what he planned to do when
Heckler took out the marijuana: “[E]ither I snatch it or he
gives it to me, puts it in my hand to let me smell it and I run
off.” J. C. indicated his agreement with that plan.
        Heckler arrived at the address given to him by
defendant and waited outside of his car. Defendant and J. C.
then arrived, and they both approached the passenger’s side
of Heckler’s car. Heckler told them that “[o]nly the person
with the money can get in the car.” Defendant stepped back,
and both J. C. and defendant indicated that J. C. was the
one with the money. Heckler then got in his car and, as he
unlocked the passenger-side door, he could hear defendant
and J. C. talking to each other, but it was muffled, and one
of them dropped something that sounded hard when it hit
the ground. J. C. bent over and picked up what was dropped,
then got in the passenger’s side of Heckler’s car.
        As soon as J. C. got in the car, he pulled out a gun
and pointed it at Heckler’s chest and instructed Heckler to
give him the marijuana. Heckler said, “Whoa, whoa, whoa.
Hey stop,” but J. C. pointed the gun at Heckler’s leg and shot
him. Heckler saw defendant at the driver-side door of his
car when he was shot. J. C. tried to grab Heckler’s car keys,
but Heckler fought him off. J. C. then got out of the car, and
Heckler was able to drive away and get medical help.
         The state charged defendant with one count of
second-degree assault, two counts of first-degree robbery,
and two counts of second-degree robbery. Defendant waived
his right to a jury, and the charges were tried to the court.
At the close of the state’s case, defendant brought a motion
for judgment of acquittal on all the counts, which the court
denied. Defendant also argued in closing that the state
did not present sufficient evidence to convict him of any of
the charges under either a principal liability theory or an
accomplice liability theory.
        The trial court, in making its verdict, first addressed
the second-degree assault and first-degree robbery counts.
For those counts, the state’s theory depended on defendant
knowing that J. C. had a gun. The trial court found that it
Cite as 

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could not make that inference from the evidence and, thus,
found defendant not guilty of those counts.
         With respect to the two counts of second-degree
robbery, the trial court focused on defendant’s expression
of intention before the robbery, that, “[w]hen he takes it out
either I snatch it or he gives it to me and puts it in my hand
to let me smell it, and I run off.” The court found that defendant’s expression of intention to “snatch” the marijuana
“certainly indicates a willingness to forcefully take something from somebody.” The court further explained:
       “So what we have here is [defendant] intending to, if
   necessary, use force or threaten force to take the marijuana
   from Mr. Heckler, and then along the way asked another
   person if they wanted to get involved. When he intended
   to use or threatened the use of force if necessary to get the
   marijuana from Mr. Heckler, that turned the Theft in the
   Third Degree into a Robbery in the Third Degree. And
   when he asked another person to assist him in doing that,
   that turned Robbery in the Third Degree into Robbery in
   the Second Degree by being aided by another person actually present.”
Accordingly, the trial court found defendant guilty of the
two counts of second-degree robbery. The court merged the
two guilty verdicts for a single conviction of second-degree
robbery.
          For that conviction, defendant was subject to a
mandatory-minimum sentence of 70 months. ORS 137.700
(2)(a)(R). At sentencing, defendant argued that he was eligible for a lesser sentence under ORS 137.712. The trial court
ruled, however, that defendant was not eligible because
the victim had suffered a “significant physical injury” as a
result of the robbery. ORS 137.712(2)(d)(A). Defendant also
argued that imposing the mandatory-minimum sentence in
his case was unconstitutional under Article I, section 16.
The trial court rejected that argument and, as a result, the
trial court imposed a sentence of the mandatory minimum
of 70 months. Defendant appeals the resulting judgment of
conviction.
        On appeal, defendant first argues that the trial
court erred in denying his motion for judgment of acquittal
352                                             State v. Bentley

on the second-degree robbery counts at the close of evidence.
See State v. Habibullah, 

, 242 n 1, 

 (2016) (a sufficiency of the evidence argument made
in closing in a bench trial is “the functional equivalent of
a motion for judgment of acquittal”). Specifically, defendant argues that the trial court erred when it convicted
him of second-degree robbery based on accomplice liability,
because such a conviction required defendant to have the
specific intent to promote the specific crime committed by
J. C., which involved using a gun. Because the court found
that the state failed to present evidence from which it could
be inferred that defendant knew that J. C. had the gun,
defendant argues, the court should have entered judgments
of acquittal on the second-degree robbery counts.
         “On review of a challenge to a denial of a motion for
acquittal, we view the facts in the light most favorable to
the state and consider whether a rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” State v. Zweigart, 

, 

 (2008), cert den, 

 (2009). For second-degree
robbery, as charged in this case, the essential elements of
the crime are that the person commits third-degree robbery
and “[i]s aided by another person actually present.” ORS
164.405(1)(b). A person commits third-degree robbery 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 or unauthorized use of a vehicle.”
ORS 164.395(1). For accomplice liability, “[a] person is criminally liable for the conduct of another person constituting
a crime if: … [w]ith the intent to promote or facilitate the
commission of the crime the person: … [a]ids or abets or
agrees or attempts to aid or abet such other person in planning or committing the crime.” ORS 161.155(2)(b).
Cite as 

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         Here, defendant only challenges the “use of physical force” element of the crime, arguing that a trier of fact
could not have found that he intended for J. C. to “use[ ] or
threaten[ ] the immediate use of physical force upon another
person” because the only force used or threatened during
the robbery was J. C.’s use of the gun, which defendant was
not aware he had. We reject that argument because, viewing the evidence in the light most favorable to the state, a
rational trier of fact could have found, at a minimum, that
defendant had the intent to aid J. C. in using some kind of
force against Heckler to overcome any resistance to and to
aid in the commission of the theft of the marijuana.
         Before meeting with Heckler, defendant shared
with J. C. his plan to either trick Heckler into letting him
hold the marijuana or “snatch” the marijuana from Heckler.
J. C. agreed with this plan to use force to steal the marijuana and, after meeting Heckler, defendant stepped back
so that J. C. could get in the car with Heckler and steal the
marijuana. Defendant’s level of intended force was sufficient
to meet the essential element of the crime, that the defendant “uses or threatens the immediate use of physical force
upon another person.” See, e.g., State v. Johnson, 

, 

, rev den, 

 (2007) (the amount of
force was sufficient to constitute third-degree robbery when
the defendant removed the victim’s purse from her arm in
such a manner that she did not immediately notice, because
the evidence permitted the jury “to infer that [the] defendant intended to use force sufficient to overcome any resistance that the victim may have offered”). That J. C. instead
ultimately used a greater level of force to accomplish the
crime than defendant intended does not negate that the evidence was sufficient for a rational trier of fact to find beyond
a reasonable doubt that defendant aided and abetted in the
commission of second-degree robbery.1
     1
       Defendant cites State v. Lopez-Minjarez, 

, 

 (2011),
in support of his argument. In that case, the Supreme Court held that a person
who aids and abets the commission of a crime cannot be held liable for other
crimes that are the natural and probable consequence of the intended crime.

. Rather, the person must have had the specific intent to aid in the commission of those other crimes to be guilty of them based on accomplice liability.

 Here, as explained above, there was sufficient evidence from which a rational
trier of fact could find that defendant intended to aid in the commission of second-degree robbery.
354                                           State v. Bentley

         We also note that defendant’s argument on appeal
appears to be premised on his assertion that the trial court
made inconsistent factual findings when it found him not
guilty of the gun-related charges, but guilty of second-degree robbery. That argument, however, is inappropriate
for a motion for judgment of acquittal, which is assessed at
the point before the factfinder makes its findings. In addition, defendant did not preserve an argument below that the
trial court’s verdict was inconsistent, and, thus, we do not
address it. State v. Smith, 

, 

(1990).
         Defendant next argues that the trial court erred
in concluding that defendant was ineligible for a downward
departure sentence under ORS 137.712 because Heckler
suffered a “significant physical injury,” as that phrase is
used in ORS 137.712(2)(d)(A). Defendant frames the issue as
whether Heckler’s injury—a gunshot wound—was a result
of the crime of which defendant was convicted and argues
that Heckler’s injury was a result only of the gun-related
crimes committed by J. C., and of which defendant was
acquitted, and was not a result of the crime of which defendant was convicted. Defendant argues that the trial court
erred in considering injuries that were unrelated to the
crime of which he was convicted in determining whether he
was eligible for a lesser sentence.
         The state agrees with the framing of the issue presented by defendant but responds that Heckler’s injury was
a circumstance that resulted from the offense committed by
defendant because Heckler suffered that injury during the
course of that offense. That is, explains the state, Heckler
suffered his significant physical injury during the single
course of conduct that made up the second-degree robbery.
The state argues that defendant’s lack of knowledge about
J. C.’s gun—which was the basis for his acquittal of the
gun-related charges—does not break the connection between
defendant’s crime and Heckler’s injury.
        We first look at the text of the statute. ORS 137.712
provides, in relevant part:
     “(1)(a) Notwithstanding ORS 137.700 and 137.707,
   when a person is convicted of … robbery in the second
Cite as 

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   degree as defined in ORS 164.405, the court may impose
   a sentence according to the rules of the Oregon Criminal
   Justice Commission that is less than the minimum sentence that otherwise may be required by ORS 137.700 or
   137.707 if the court, on the record at sentencing, makes the
   findings set forth in subsection (2) of this section and finds
   that a substantial and compelling reason under the rules
   of the Oregon Criminal Justice Commission justifies the
   lesser sentence. When the court imposes a sentence under
   this subsection, the person is eligible for a reduction in the
   sentence as provided in ORS 421.121 and any other statute.
      “…
       “(2) A conviction is subject to subsection (1) of this section only if the sentencing court finds on the record by a
   preponderance of the evidence:
      “…
      “(d) If the conviction is for robbery in the second
   degree:
       “(A) That the victim did not suffer a significant physical injury[.]”
       We have previously discussed the application of
ORS 137.712(2)(d) in State v. Arnold, 

, 

 (2007). In that case, we explained:
   “The factors listed in ORS 137.712 that are determinative
   of whether a defendant may be considered for a lesser sentence fall into either of the two categories described in Lark,
   viz., ‘conduct of the offender’ and ‘circumstances attendant
   on, or resulting from, the commission of the offense.’ [State
   v. Lark, 

, 

 (1993)].”
Arnold, 

. We went on to explain that factor
(2)(d)(A), “[t]hat the victim did not suffer a significant physical injury,”
   “describes a ‘circumstance[ ] … resulting from[ ] the commission’ of the offense (or, more aptly, the absence of such
   a circumstance). Lark, 

. Thus, a sentencing
   court could conclude that a defendant was disqualified
   from receiving a lesser sentence under ORS 137.712 if the
   victim suffered a significant physical injury in the course
   of a crime, regardless of whether or not the defendant being
   sentenced had personally inflicted that injury.”
Arnold, 

 (alterations in Arnold).
356                                                     State v. Bentley

         The argument raised by defendant here is foreclosed
by that explanation in Arnold. Here, Heckler suffered the
gunshot wound “in the course of the crime” of second-degree
robbery, of which defendant was convicted. It is not possible
to parse out Heckler’s injury from the course of conduct that
constitutes the second-degree robbery, and defendant does
not provide a means to do so. Because that factor describes
a circumstance resulting from the commission of the crime,
it does not matter that defendant did not personally inflict
that injury upon Heckler. Accordingly, the trial court did not
err in concluding that defendant was ineligible for a lesser
sentence under ORS 137.712.
        Finally, defendant argues that the mandatory-minimum sentence of 70 months, as applied to him, is
unconstitutional under Article I, section 16.2 Defendant
argues that his sentence is disproportionate under that section because he had no criminal history; at most, defendant
was prepared only to “snatch” $25 worth of marijuana; and
defendant’s sentence for third-degree robbery would have
been presumptive probation.
         The state responds that defendant’s sentence is not
constitutionally disproportionate because it does not “shock
the moral sense” of reasonable people, under the standard
set forth in State v. Rodriguez/Buck, 

, 

(2009). In addition, the state argues that defendant’s conduct was no less serious than in other cases in which we
have determined that the 70-month mandatory-minimum
sentence for second-degree robbery was not constitutionally disproportionate. See State v. Johnson, 

, 

 (2011) (the 70-month minimum sentence for second-degree robbery was not disproportionate
where the defendant robbed a store holding a gun, even
though the defendant was 17 years old and suffered from an
undiagnosed mental illness at the time of the offense, had no
criminal history, and had returned to productive and good
behavior after receiving treatment); State v. Shoemaker, 155
    2
      Defendant also argues that his sentence is unconstitutional under the
Eighth Amendment to the United States Constitution. However, defendant does
not sufficiently develop a separate argument under that provision, nor does it
appear that he preserved an Eighth Amendment challenge below. Thus, we do
not address it.
Cite as 

 (2019)                             

, 418-19, 

, rev den, 

 (1998)
(the 70-month minimum sentence for second-degree robbery
was not disproportionate where the defendant brandished
a knife and demanded the victim give him his money, $10,
even though the defendant was 17 years old at the time of
the offense and had no criminal history).
         Under Rodriguez/Buck, we consider three nonexclusive factors to determine whether a sentence is disproportionate, under Article I, section 16: “(1) a comparison
of the severity of the penalty and the gravity of the crime;
(2) a comparison of the penalties imposed for other, related
crimes; and (3) the criminal history of the defendant.” 

. In applying the first factor, we weigh the gravity of
the offense, using both the statutory definition of the offense
and the defendant’s conduct. 

. In applying the
second factor, we compare penalties imposed for related
crimes and, “if the penalties for more ‘serious’ crimes than
the crime at issue result in less severe sentences, that is
an indication that the challenged penalty may be disproportionate.” 

. However, “[i]t is not the role of this
court to second-guess the legislature’s determination of the
penalty or range of penalties for a crime,” and, it will be
in “rare circumstances” that a sentence requires reversal
under Article I, section 16. 

.
         Under those considerations, we conclude that the
70-month penalty for defendant’s conduct in committing
second-degree robbery is not constitutionally disproportionate. Here, defendant planned on robbing Heckler of
his marijuana, using force if necessary, and employed the
help of J. C. to do so. In the course of the robbery, Heckler
was shot by J. C., resulting in a significant leg wound. The
more serious, related crime of first-degree robbery carries a
mandatory-minimum sentence that is greater—90 months.
ORS 137.700(2)(a)(Q). Finally, although defendant had no
criminal history, “the lack of prior convictions alone has
never been sufficient to render an otherwise constitutional
penalty disproportionate.” State v. Shaw, 

, 

, rev den, 

 (2010). Accordingly,
we affirm.
        Affirmed.