State v. Morgan ( 2017 )

No. 8 February 16, 2017 47
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
RYLEY JEANNE MORGAN,
Petitioner on Review.
(CC 11CR0886; CA A152692; SC S063831)
En Banc
On review from the Court of Appeals.*
Argued and submitted September 23, 2016.
Marc D. Brown, Chief Deputy Defender, Salem, argued
the cause and filed the brief for petitioner on review. Also
on the brief was Ernest G. Lannet, Chief Defender, Office of
Public Defense Services.
Jamie K. Contreras, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on
review. Also on the brief were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
WALTERS, J.
The decision of the Court of Appeals is affirmed. The judg-
ment of the circuit court is affirmed in part and reversed in
part, and the case is remanded to the circuit court for entry
of judgment and resentencing as ordered by the Court of
Appeals.
______________
*  Appeal from Josephine County Circuit Court, Thomas M. Hull, Judge. 274
Or App 792, 364 P3d 690 (2015).
48 State v. Morgan
Case Summary: Defendant was convicted of second-degree robbery under
ORS 164.405(1)(b) on the theory that she had committed third-degree robbery
and had been “aided by another person actually present.” Defendant appealed
to the Court of Appeals and argued that, to convict her of second-degree rob-
bery, the state was required to prove that Thornton, the other “person actually
present,” was her accomplice — that he had acted with the specific intent to pro-
mote or facilitate the commission of the robbery. The Court of Appeals disagreed,
concluding that ORS 164.405(1)(b) does not require that the aider know that
the defendant is committing theft. In a unanimous opinion written by Justice
Martha L. Walters, the Oregon Supreme Court held that, to establish that defen-
dant was “aided by another person actually present” and therefore was guilty of
second-degree robbery under ORS 164.405(1)(b), the state was required to prove
that the person who aided defendant acted with the intent to facilitate the rob-
bery. The Court affirmed the decision of the Court of Appeals with respect to
defendant’s second-degree robbery conviction. The Court explained that, viewing
the evidence in the light most favorable to the state, the factfinder could have
found that Thornton, the other “person actually present,” was aware of the facts
that constituted the crime of third-degree robbery and acted with an intent to
promote or facilitate the robbery.
The Court affirmed the decision of the Court of Appeals. The Court affirmed
the judgment of the circuit court in part and reversed in part, consistent with
the Court of Appeals’ holding that the trial court erred in failing to merge defen-
dant’s third-degree robbery conviction with her second-degree robbery convic-
tion. The Court remanded the case to the circuit court for entry of judgment and
resentencing as ordered by the Court of Appeals.
Cite as 361 Or 47 (2017) 49
WALTERS, J.
In this case, we hold that, to establish that defen-
dant was “aided by another person actually present” and
therefore was guilty of second-degree robbery under ORS
164.405(1)(b), the state was required to prove that the per-
son who aided defendant acted with the intent to facilitate
the robbery. Because the state proffered evidence from which
a rational trier of fact could have reached that conclusion,
we affirm the judgment of the trial court and the decision of
the Court of Appeals. State v. Morgan, 274 Or App 792, 794,
364 P3d 690 (2015).
For reasons that we will explain, we summarize
the relevant facts in the light most favorable to the state.
Defendant’s boyfriend, Thornton, dropped off defendant and
the couple’s child at a department store. Defendant entered
the store and took clothing into a fitting room to try it on.
Recognizing suspicious behavior, security officers began to
monitor defendant’s actions and noticed that, after defen-
dant had left the fitting room, two items of clothing were
missing. Soon thereafter, Thornton returned to the store
and held the child while defendant continued to try on cloth-
ing. Defendant left the fitting room a second time, and the
security officers noted that two additional items were miss-
ing. Two officers—Marshall and Waltz—and the store man-
ager waited for defendant and Thornton to pass all points
of sale and leave the store, and then followed them to the
parking lot.
In the parking lot, Waltz approached defendant as
she walked to the car that Thornton was driving, showed
defendant his badge, and said, “Ma’am[,] I’m with store
security and we need to talk about some merchandise that
wasn’t paid for.” As Waltz approached defendant, he yelled,
“Store security. Stop.” Defendant responded, “You’re not tak-
ing me to jail,” and jumped into the car on the passenger’s
side. Waltz grabbed defendant’s right arm and told her to
get out of the car, but defendant refused and pulled her arm
back.
Thornton, who was seated on the driver’s side of the
vehicle, knew that the officers were loss prevention officers.
50 State v. Morgan
He heard the officers state that they were security person-
nel, and he knew that they had come to the car to question
defendant because of her having been in the store. Thornton
was also aware of defendant’s history as a repeat property
offender.1 Nevertheless, Thornton started the car. Waltz
continued to hold onto defendant’s arm, and, with defen-
dant’s door still open, Thornton began to drive. Waltz let go
of defendant, and Thornton drove forward toward Marshall
and the store manager, who were standing in front of the
car. Marshall avoided being hit by “push[ing] off the front of
the car,” but the car hit the store manager, who was unable
to get out of the way. Thornton sped away “extremely fast”
and ran a red light as he and defendant left the store park-
ing lot.
The state charged defendant with second-degree
robbery under ORS 164.405(1)(b), based on allegations
that she had committed third-degree robbery and had been
“aided by” Thornton, “another person actually present.”
During her bench trial, defendant raised questions about
what was required to sustain a conviction for second-degree
robbery and challenged the legal sufficiency of the state’s
evidence. In her closing argument to the trial court, she
argued that “aiding requires something more than merely
driving off in the vehicle” and that “[Thornton] has to know
what [defendant] did.” Defendant argued that Thornton
did not have that knowledge and that the only evidence
was that he drove the car out of the parking lot out of self-
interest, to avoid being caught in possession of drugs. The
trial court disagreed with defendant’s statement of the law.
The court explained that the person aiding defendant was
not required to have any knowledge of the specific crime
being committed: “All I have to * * * find is that [Thornton]
knew that [defendant] was being sought for something, it
was nefarious, criminal, and that he was aiding her to leave
and get out of there.” The court found that “there clearly was
an intent * * * to aid the defendant.”
1
The following evidence was admitted without objection or limitation in the
guilt phase of defendant’s trial. Defendant and Thornton had been in a romantic
relationship since 2009. During their relationship, defendant had been admit-
ted into a judicial program in Jackson County to rehabilitate repeat property
offenders. Two convictions led to her admission into that program: first-degree
burglary and first-degree theft.
Cite as 361 Or 47 (2017) 51
Defendant appealed to the Court of Appeals and
argued that, to convict her of second-degree robbery, the
state had to prove that Thornton was her accomplice—that
he had acted with the specific intent to promote or facili-
tate the commission of the robbery. Morgan, 274 Or App at
797.2 The Court of Appeals disagreed, concluding that “ORS
164.405(1)(b) does not require that ‘another person actually
present’ who aids a defendant must know that the defendant
is committing theft.” Id. at 794. In fact, the court explained
in a footnote, ORS 164.405(1)(b) does not include a mental
state requirement for the person who aids the defendant;
that person need not know, the court opined, that the defen-
dant is engaging in something “nefarious [and] criminal.”
Id. at 801 n 3 (brackets in original). The court reasoned that
“the focus of ORS 164.405(1)(b) is defendant’s mental state
and defendant’s use of ‘another person actually present,’ ”
rather than the mental state of the person providing the aid.
Id.
In reviewing whether the evidence was sufficient
to satisfy the legal requirements of ORS 164.405(1)(b), the
court deemed the relevant standard to be “whether, after
viewing the evidence in the light most favorable to the state,
any rational trier of fact could have found the essential ele-
ments of the crime proved beyond a reasonable doubt.” Id.
at 801. Because the court understood ORS 164.405(1)(b) to
require only that Thornton was in proximity to the victim,
it concluded that the evidence presented at trial met that
standard, and affirmed. Id. at 801-02.
Defendant sought review in this court, and we
allowed her petition. The standard of review that we should
apply depends on the nature of the objection that defen-
dant is pressing. In closing argument in a criminal case, a
defendant may make a number of arguments: for example,
a defendant may challenge the sufficiency of the evidence
2
Before the Court of Appeals, defendant also assigned error to the trial
court’s failure to merge defendant’s third-degree robbery conviction with her
second-degree robbery conviction. Morgan, 274 Or App at 802. The state conceded
that the trial court had erred, and the Court of Appeals reversed defendant’s
convictions for second-degree robbery and third-degree robbery and remanded to
the trial court for resentencing. Id. Accordingly, that issue is not before this court
on review.
52 State v. Morgan
or make an argument for the existence of an element that
the state must prove. We consider the former to be the func-
tional equivalent of a motion for judgment of acquittal and
the latter to be the functional equivalent of a challenge to
jury instructions. See State v. Gonzalez-Valenzuela, 358 Or
451, 454 n 1, 365 P3d 116 (2015) (explaining distinction).
Here, the precise nature of defendant’s trial court
argument is somewhat unclear. In this court, however,
defendant’s argument is best understood as a challenge to
the sufficiency of the evidence. First, defendant does not
assign error to the standard of review applied by the Court
of Appeals—a standard that applies when a defendant chal-
lenges the sufficiency of the evidence. Second, in this court,
defendant does not explicitly contend that her argument in
the trial court was the functional equivalent of a challenge
to a jury instruction. Instead, she primarily frames her
argument as a challenge to the sufficiency of the evidence.
Accordingly, we limit our review to determining whether,
viewing the evidence in the light most favorable to the state,
a rational trier of fact could have found that the state had
proved the essential elements of the crime beyond a reason-
able doubt. See State v. Rose, 311 Or 274, 281, 810 P2d 839
(1991) (reviewing challenge to sufficiency of the evidence
to determine whether any rational trier of fact could have
found essential elements of crime proved beyond a reason-
able doubt).
To make that determination in this case, we first con-
sider the essential elements of the crime of second-degree rob-
bery. The second-degree robbery statute, ORS 164.405(1)(b),
provides, in part:
“(1)  A person commits the crime of robbery in the
second degree if the person violates ORS 164.395 and the
person:
“* * * * *
“(b)  Is aided by another person actually present.”
ORS 164.395 defines the crime of third-degree robbery:
“(1)  A person commits the crime of robbery in the
third degree if in the course of committing or attempting to
Cite as 361 Or 47 (2017) 53
commit theft * * * the person uses or threatens the imme-
diate 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[.]”
Thus, to prove that a defendant committed second-degree
robbery under ORS 164.405(1)(b), the state must establish
that the defendant committed third-degree robbery and
that the defendant was “aided by another person actually
present.”
The issue in this case is what evidence is neces-
sary to prove that a defendant was “aided by another per-
son actually present.” Defendant contends that the state is
required to present evidence that the person who was pres-
ent and who provided aid acted as an accomplice—someone
with the specific intent to promote or facilitate the commis-
sion of the acts constituting third-degree robbery. The state
responds that it is not required to present evidence that the
person who provided aid acted with a specific mental state.
According to the state, a defendant is “aided by another per-
son” if that person engages in conduct that in fact facilitates
the commission of the robbery, even if the person does so
without knowing that the person is providing aid. Thus, the
state argues, a person who unwittingly opens the door for a
robber fleeing a store with stolen merchandise provides suf-
ficient aid to elevate third-degree robbery to second-degree
robbery.3
Before considering those opposing positions, we
think it important to observe that the issue that the parties
raise is not the requisite mental state of a defendant who is
3
The state’s position on review is different from its position before the trial
court. At trial, the court asked the prosecutor if Thornton, as the getaway driver,
had to “know anything about what’s been going on.” The prosecutor responded,
“The driver is going to have to intentionally aid and abet the criminal con-
duct. * * * His act was driving away, knowing she had committed the crime of
theft. That is when he becomes an aider and abettor.”
The court then clarified, “Does he have to know that it’s theft conduct, or can he
just know that he’s aiding somebody in something nefarious?” The prosecutor
shifted her position, explaining,
“All * * * that he has to know [is] that there is a crime being, that he’s aiding.
The type of crime? No, * * * it doesn’t require that.”
54 State v. Morgan
charged with second-degree robbery. The parties acknowl-
edge that, to be convicted of a crime, a defendant must have
acted with the requisite mental state for every “material
element” of the offense, and that the material elements of
second-degree robbery include the fact that the defendant
was “aided by another person actually present.” See ORS
161.095(2) (person not guilty of offense unless person acts
with culpable mental state with respect to each material ele-
ment that necessarily requires culpable mental state); State
v. Simonov, 358 Or 531, 539-40, 368 P3d 11 (2016) (mini-
mum culpable mental state for a conduct element is knowl-
edge, and minimum culpable mental state for a result or cir-
cumstance element is criminal negligence). The parties also
do not ask this court to determine the mental state that a
defendant must have with regard to that element. The par-
ties do not ask whether a defendant must know that he or
she is receiving aid, or whether some other mental state is
required, and we do not consider that question. We raise it
only to point out the distinction: Although defendant is the
person who is accused of the crime of second-degree robbery,
it is not defendant’s mental state—but rather the mental
state of another person who was present at the time of the
robbery—that is the subject of this appeal.
We begin our analysis of that issue with the text
of ORS 164.405(1)(b) and the state’s argument that the
requirement that a defendant be “aided” by a person present
is a requirement that the person present engage in certain
conduct, and that proof of an accompanying mental state is
unnecessary. Because the statute does not define the term
“aided,” we consider its plain meaning. Comcast Corp. v.
Dept. of Rev., 356 Or 282, 295, 337 P3d 768 (2014). When
the Criminal Law Revision Commission drafted the statute,
“aid” was defined as “to give help or support to,” or “contrib-
ute to.” Webster’s Third New Int’l Dictionary 44 (unabridged
ed 1961). Black’s Law Dictionary similarly defined “aid” as
“[t]o support, help, assist or strengthen”; “[a]ct in coopera-
tion with”; “[s]upplement the efforts of another.” Black’s at
91 (rev 4th ed 1968). The state contends that those defini-
tions focus on the aider’s conduct and suggests that an aid-
er’s mental state is irrelevant to the question whether aid
was provided.
Cite as 361 Or 47 (2017) 55
We read those definitions differently. Those defini-
tions are replete with verbs—“help,” “support,” “assist,” “con-
tribute,” and “cooperat[e]”—that typically connote an intent
to facilitate an outcome. If one were to describe a person
as “assisting” another, the listener would immediately won-
der what outcome the individual was trying to achieve. A
common use of the word “assist” would be in a phrase such
as, “He is assisting his elderly father in eating,” or “She is
assisting her partner in her run for office.” Those uses con-
note an intent to facilitate the outcome—eating or election
to office. To connote assistance without the intent to facil-
itate the outcome, one generally would use an additional
modifying adverb, such as “unintentionally” or “unwit-
tingly.” Without such a modifier, the typical understanding
of, for example, the statement, “Sally assisted the criminal,”
would be that Sally acted with the intent to facilitate the
criminal outcome. The words “help,” “support,” “contribute,”
and “cooperat[e]” also connote an intent to facilitate a par-
ticular outcome. The legislature’s use of the word “aided”
without specifying that the aider act with a particular men-
tal state does not convince us that the state is correct that
the legislature intended to make conduct alone the relevant
consideration.
We turn therefore to the next argument that the
state makes—a contextual argument. The state points to
the accomplice liability statute, ORS 161.155, and argues
that, when the legislature intends to require that a per-
son who provides aid act with a culpable mental state, it
expressly imposes that requirement. ORS 161.155 provides,
in part:
“A person is criminally liable for the conduct of another
person constituting a crime if:
“* * * * *
“(2)  With the intent to promote or facilitate the com-
mission of the crime the person:
“* * * * *
“(b)  Aids or abets or agrees or attempts to aid or abet
such other person in planning or committing the crime[.]”
56 State v. Morgan
The state argues that the accomplice liability statute does
not merely rely on the plain meaning of the term “aids or
abets” to impose a requirement of criminal intent, but, in
addition, requires that the person providing aid must have
“the intent to promote or facilitate the commission of the
crime.” ORS 161.155(2). Thus, the state suggests, when the
legislature used only the word “aided” in ORS 164.405(1)(b)
and failed to include the additional requirement that the
person acted with the intent to promote or facilitate the
crime of robbery, the legislature required conduct that pro-
vides assistance but did not require an accompanying men-
tal state.
That is not the only way that the legislature has
described accomplice liability, however. ORS 163.165 defines
assault in the third degree and provides that fourth-degree
assault is elevated to third-degree assault when the defen-
dant, while being “aided by another person actually present,”
causes physical injury to the victim.4 ORS 163.165(1)(e).
We interpreted ORS 163.165(1)(e) in State v. Pine, 336 Or
194, 82 P3d 130 (2003), and State v. Phillips, 354 Or 598, 317
P3d 236 (2013). In those cases, the question was whether the
person who provided aid to the principal in the assault also
could be convicted of third-degree assault. Pine, 336 Or at
196; Phillips, 354 Or at 602. We explained that the answer
turned on whether, in aiding in the assault, the third per-
son “caused” the victim’s physical injury. Pine, 336 Or at
207; Phillips, 354 Or at 603. We held that, if the act that
aided the assault also can be said to have caused it, then
both the third person and the principal can be held liable for
third-degree assault. Pine, 336 Or at 207; Phillips, 354 Or
at 603. Although not expressly discussed in those cases, our
holdings rested on the premise that, to be guilty of third-
degree assault under ORS 163.165(1)(e), the person who
aided in causing the physical injury must have acted
intentionally.
4
ORS 163.165(1) provides, in part:
“A person commits the crime of assault in the third degree if the person:
“* * * * *
“(e)  While being aided by another person actually present, intentionally
or knowingly causes physical injury to another[.]”
Cite as 361 Or 47 (2017) 57
In reaching our decision in Phillips, we traced the
phrase “aided by another person actually present” to its
common law origins. We explained that
“[t]he common law divided persons charged with felonies
into three classes: principals in the first degree; principals
in the second degree; and accessories before the fact. See
Wayne R. LaFave, 2 Substantive Criminal Law § 13.1(b)
(2d ed 2003). ‘[A] principal of the first degree is one who
does the act, either himself directly, or by means of an inno-
cent agent.’ Joel Prentiss Bishop, 1 Commentaries on the
Criminal Law § 456 (2d ed 1858). ‘A principal of the sec-
ond degree is one who is present lending his countenance
and encouragement, or otherwise aiding, while another
does it.’ Id.; accord James Fitzjames Stephen, 2 A History
of the Criminal Law of England 230 (1883). At common law,
a principal in the second degree could be actually or con-
structively present. Bishop, Criminal Law § 460; LaFave, 2
Substantive Criminal Law § 13.1(b). Finally, a person who
aided and abetted the commission of a crime but who was
not actually or constructively present was an accessory
before the fact. Bishop, 1 Criminal Law §§ 473-74.”
Phillips, 354 Or at 609-10. Thus, the phrase “aided by another
person actually present” mirrors the common-law require-
ment for liability as a principal in the second degree. See id.
at 610 (“If the person caused the injury because that per-
son’s conduct was extensively intertwined with the injury’s
infliction, that person would be a principal in the second
degree; that is, he or she would be a person who, while actu-
ally present, aided the infliction of physical injury.”). Thus,
when the legislature used the phrase “aided by another per-
son actually present” in the third-degree assault statute, it
used that phrase to refer to a person who acts intentionally
and who could be held liable as an accomplice. The legisla-
ture may have intended to do the same when it used that
same phrase in ORS 164.405(1)(b).
The legislative history of ORS 164.405(1)(b) con-
firms that hypothesis. See State v. Walker, 356 Or 4, 17, 333
P3d 316 (2014) (if appropriate, court considers legislative
history in interpreting a statute). The commentary to the
second-degree robbery statute refers to the third person
whose aid elevates the crime of third-degree robbery to the
58 State v. Morgan
crime of second-degree robbery as a “criminal” or an “accom-
plice,” and to the principal and the aider together as “profes-
sional criminals”:
“The primary rationale behind paragraph (b) of sub-
section (1) of § 149 [robbery in the second degree] is the
increased danger of an assault on the victim when the
robber is reinforced by another criminal who is actually
present. Furthermore, when two or more persons commit
the crime, it indicates greater planning and more likeli-
hood that they are professional criminals. * * * However, the
Commission was of the opinion that the accomplice circum-
stances, while aggravating the crime, are less serious than
those specified in § 150 [robbery in the first degree].”
Commentary to Criminal Law Revision Commission Proposed
Oregon Criminal Code, Final Draft and Report §§ 148-50
(July 1970) (emphases added).
Furthermore, during the Criminal Law Revision
Commission subcommittee meetings, Paillette, the com-
mission’s Project Director, explained that the purpose of the
new robbery statutes was to “shift[ ] the focus of attention
from the taking of property to the risk of injury and violence
to the victim.” Audio Recording, Criminal Law Revision
Commission, Subcommittee No. 1, June 22, 1968, Tape 7,
Side 2. He continued, “What we’re trying to prevent [and]
punish is physical danger to the victim.” Id. Addressing spe-
cifically the second-degree robbery statute, Paillette com-
mented that the presence of “two or more robbers” increases
the danger to the victim, and added that, when “multi-
ple robbers” are involved, the type of injury that could be
inflicted on the victim is serious enough to make the crime
punishable to a greater extent than if only one “robber” is
present. Id.
The state contends that, although the legislative
history indicates that the legislature may have envisioned
that the other “person actually present” who aids in a rob-
bery would be a criminal or an accomplice, it did not so limit
the scope of the second-degree robbery statute. The legis-
lature settled on the general terms “person” and “aided”
rather than selecting narrower terms; accordingly, the state
argues, this court should respect that choice and decline to
“draw a line that the legislature itself declined to draw” by
Cite as 361 Or 47 (2017) 59
reading the statute to require a mental state on the part of
the aider. See Walker, 356 Or at 22 (“For us to interpret the
statute more restrictively than it was consciously drafted
would require us to draw a line that the legislature itself
declined to draw.”).5
The state is correct in that observation, but, here, we
do not use that legislative history to vary statutory terms;
instead, we use it to help us to determine what the legislature
meant by those terms. The drafters of ORS 164.405(1)(b)
discussed their intent to elevate third-degree robbery to
second-degree robbery when another person actually pres-
ent is acting as a “criminal,” an “accomplice,” or a “robber.”
That legislative history supports defendant’s textual and
contextual arguments, and we conclude that, when the leg-
islature required the presence of a third person providing
“aid” to a defendant, it intended to require the state to prove
that that person acted with an intent to promote or facilitate
the defendant’s acts.
We also conclude that, viewing the evidence in the
record in the light most favorable to the state, the trial court
could have found that Thornton was aware of facts that con-
stituted the crime of third-degree robbery and acted with
an intent to promote or facilitate the robbery. As an initial
matter, the trial court could have found that Thornton was
aware that defendant had taken merchandise from the store
without paying. Thornton knew that defendant had been try-
ing on clothes in the store and that, after they left the store,
security officers were trying, both verbally and physically,
to prevent defendant from leaving. Because the security offi-
cers did not try to stop defendant until after she had left
the store, as is typical with suspected shoplifters, Thornton
reasonably would have been aware that the security officers
believed that defendant had committed theft. And there was
5
The state also argues that the legislature could not have intended to
require that the third person be an accomplice because a person who aids or abets
a criminal act under the accomplice liability statute, ORS 161.155(2)(b), need not
be “actually present” to be criminally liable. That argument is not well-taken.
In ORS 164.405(1)(b), the legislature selected a narrower form of common-law
accomplice liability that does require actual presence and that thus advances the
legislature’s concern that an accomplice who is actually present at the commis-
sion of a robbery increases the risk of harm to the victim.
60 State v. Morgan
evidence from which the trier of fact could have found that
Thornton credited those theft claims. Defendant’s resistance
permitted a reasonable inference that the security officers’
claims of theft were valid, as did Thornton’s knowledge of
defendant’s history as a repeat property offender. Finally,
a rational trier of fact could have inferred from Thornton’s
reaction—speeding away from the store—that he believed
that defendant had stolen property from the store. Although
Thornton testified that he drove the car out of the parking
lot out of self-interest, to avoid being caught in possession of
drugs, a rational trier of fact would not have been required
to accept that testimony.
Furthermore, because Thornton watched defendant
physically resist the security officers’ efforts to detain her,
the court could have inferred that Thornton was aware that
defendant had committed acts (theft plus the use of force to
retain the stolen property) that constitute robbery. Finally,
a rational trier of fact could have found that Thornton inten-
tionally aided defendant in retaining the property that she
had shoplifted. He drove the car away, nearly hitting one
employee (Marshall), hitting a second employee (the store
manager), and separating defendant and the stolen property
from the third employee (Waltz) who was trying to hold on
to her. Not only could the court have found that Thornton
intentionally promoted defendant’s commission of the rob-
bery, but it also could have found that Thornton’s use of the
car to separate defendant and the property from the store
employees was sufficient in and of itself to constitute the
force necessary to elevate defendant’s theft to a robbery. The
trial court correctly denied defendant’s motion for judgment
of acquittal.
Defendant’s contrary argument is based not on
findings that the trial court could have made, but on a
finding that the trial court did in fact make. As defendant
notes, the trial court did not find that Thornton knew that
defendant had committed theft; rather, the court found that
Thornton knew only that defendant had been engaged in
“some sort of nefarious activity, a crime at the least.” The
court explained that that mental state was sufficient to say
that Thornton had aided defendant’s theft. Focusing on that
Cite as 361 Or 47 (2017) 61
factual finding, defendant argues that the trial court should
have granted her motion for judgment of acquittal.
The problem with defendant’s argument is that it is
contrary to the standard of review that we have determined
applies here. As we have explained, our task is to determine
whether there is evidence from which a reasonable trier of
fact could find the elements of the crime. That the trial court
did not find those elements does not mean that it reasonably
could not have found them. Given the particular procedural
posture in which this case comes to us, we will not disturb
the trial court’s judgment.
The decision of the Court of Appeals is affirmed.
The judgment of the circuit court is affirmed in part and
reversed in part, and the case is remanded to the circuit
court for entry of judgment and resentencing as ordered by
the Court of Appeals.