affirming convic- tions for second-degree robbery because “the jury could rea- sonably have inferred that [the] defendant’s display of the weapon while in close proximity to the [victim] constituted an implicit threat”
How later courts described this case
- affirming convic- tions for second-degree robbery because “the jury could rea- sonably have inferred that [the] defendant’s display of the weapon while in close proximity to the [victim] constituted an implicit threat”
Written by the judges who cited it.
The opinion
284
Submitted May 26, 2020; conviction on Count 1 reversed and remanded,
remanded for resentencing, otherwise affirmed October 20; petition for review
denied December 23, 2021 (369 Or 110)
STATE OF OREGON,
Plaintiff-Respondent,
v.
AARON MICHAEL BROWN,
aka Aaron Brown, aka Aaron M. Brown,
aka Aaron Brown-Andreson,
Defendant-Appellant.
Jackson County Circuit Court
18CR48312; A168908
498 P3d 826
Timothy Barnack, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Emily P. Seltzer, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Beth Andrews, Assistant Attorney
General, filed the brief for respondent.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
PER CURIAM
Conviction on Count 1 reversed and remanded; remanded
for resentencing; otherwise affirmed.
Cite as 315 Or App 284 (2021) 285
PER CURIAM
In this criminal appeal, defendant seeks reversal
of his convictions for three counts of robbery in the second
degree, ORS 164.405. The jury returned a nonunanimous
verdict on Count 1 and unanimous verdicts on the remain-
ing counts. Defendant appeals, raising five assignments of
error. We briefly address defendant’s first, third, fourth, and
fifth assignments of error below. We reject defendant’s sec-
ond assignment of error without discussion.
A detailed discussion of the facts would be of little
benefit to the bench, bar, or public. The charges arose out
of a single incident in which defendant was alleged to have
displayed a firearm while taking merchandise from a retail
store. In his first assignment of error, defendant contends
that the trial court erred in denying his motion for judgment
of acquittal on Count 2. In particular, defendant contends
that the state’s evidence was insufficient to permit the jury
to find, beyond a reasonable doubt, that, in the course of
committing the theft, he “threaten[ed] the immediate use
of physical force” upon the assistant manager of the store,
as required for second-degree robbery. See ORS 164.395(1)
(defining third-degree robbery); ORS 164.405 (defining
second-degree robbery).
Having reviewed the briefing, the relevant portions
of the record, and the applicable law, we reject defendant’s
argument as to his conviction on Count 2. Viewed in the light
most favorable to the state, the evidence is sufficient under
State v. Hall, 327 Or 568, 966 P2d 208 (1998), for the jury to
find that defendant implicitly threatened the immediate use
of physical force upon the assistant manager. During defen-
dant’s encounter with the assistant manager there were
arguably two instances of conduct from which the jury could
have drawn the requisite inference that defendant intended
to threaten that person with an immediate use of force. We
address only the second instance. There, in the presence of
the assistant manager, defendant gathered the goods that
he was stealing, removed a firearm from his pocket, and
held it under the goods as he exited the store. Under those
circumstances, the jury could reasonably have inferred that
defendant’s display of the weapon while in close proximity
286 State v. Brown
to the assistant manager constituted an implicit threat.
Accordingly, the trial court did not err in denying defen-
dant’s motion for judgment of acquittal.
In his third, fourth, and fifth assignments of error,
defendant contends that the trial court erred in instructing
the jury that it need not reach unanimous verdicts, publish-
ing improper verdict forms, and accepting a nonunanimous
verdict on Count 1. The state concedes that the trial court’s
acceptance of a nonunanimous verdict on Count 1 consti-
tutes plain error and that the conviction must be reversed
in light of Ramos v. Louisiana, 590 US ___, 140 S Ct 1390,
206 L Ed 2d 583 (2020). We agree and accept the concession,
and we exercise our discretion to correct the error for the
reasons set forth in State v. Ulery, 366 Or 500, 504-05, 464
P3d 1123 (2020).
With respect to the convictions based on unanimous
verdicts, we reject defendant’s structural-error and non-
harmless error arguments for the reasons stated in State v.
Flores Ramos, 367 Or 292, 478 P3d 515 (2020), and State v.
Kincheloe, 367 Or 335, 478 P3d 507 (2020), cert den, ___ US
___, 141 S Ct 2837 (2021).
Conviction on Count 1 reversed and remanded;
remanded for resentencing; otherwise affirmed.