State v. Morgan

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 801-802.

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

consider the essential elements of the crime of second-

degree robbery. 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

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

raise is not the requisite mental state of a defendant who is

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

element that necessarily requires culpable mental state);

State v. Simonov, 358 Or 531, 539-40, 368 P3d 11 (2016)

(minimum culpable mental state for a conduct element

is knowledge, and minimum culpable mental state for a

result or circumstance 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 parties 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 cooper-

ation with”; “[s]upplement the efforts of another.” Black’s

at 91 (rev 4th ed 1968). The state contends that those defi-

nitions focus on the aider’s conduct and suggests that an

Cite as 361 Or 47 (2017) 55

aider’s mental state is irrelevant to the question whether aid

was provided.

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:

“* * * * *

56 State v. Morgan

“(b)  Aids or abets or agrees or attempts to aid or abet

such other person in planning or committing the crime[.]”

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 require-

ment that the person acted with the intent to promote or

facilitate the crime of robbery, the legislature required

conduct that provides assistance but did not require an

accompanying mental 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 defendant, 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, 356 Or at 196; Phillips, 354 Or at 602.

We explained that the answer turned on whether, in aiding

in the assault, the third person “caused” the victim’s phys-

ical 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 prin-

cipal 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 prem-

ise that, to be guilty of third-degree assault under ORS

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

163.165(1)(e), the person who aided in causing the physical

injury must have acted intentionally.

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

requirement for liability as a principal in the second degree.

See id. at 610 (“If the person caused the injury because that

person’s conduct was extensively intertwined with the inju-

ry’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

58 State v. Morgan

second-degree robbery statute refers to the third person

whose aid elevates the crime of third-degree robbery to the

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

Cite as 361 Or 47 (2017) 59

argues, this court should respect that choice and decline to

“draw a line that the legislature itself declined to draw” by

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 present 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 legislature required the presence of a third per-

son 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

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

reasonably would have been aware that the security officers

believed that defendant had committed theft. And there was

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

Cite as 361 Or 47 (2017) 61

that Thornton had aided defendant’s theft. Focusing on that

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.