State v. Jeffery

380 December 6, 2023 No. 636

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

MARTY ANWAR JEFFERY,

Defendant-Appellant.

Washington County Circuit Court

20CR31252; A176879

Janelle F. Wipper, Judge.

Argued and submitted April 26, 2023.

Sara F. Werboff, Deputy Public Defender, argued the

cause for appellant. Also on the briefs was Ernest G. Lannet,

Chief Defender, Criminal Appellate Section, Office of Public

Defense Services.

Doug M. Petrina, Assistant Attorney General, argued

the cause for respondent. Also on the brief were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Before Shorr, Presiding Judge, and Mooney, Judge, and

Pagán, Judge.

PAGÁN, J.

Affirmed.

Mooney, J., dissenting.

Cite as 329 Or App 380 (2023) 381

PAGÁN, J.

Defendant was convicted of first-degree robbery,

ORS 164.415, and sentenced to 90 months in prison, ORS

137.700(2)(a)(R). On appeal, defendant’s primary argument

is that the length of his sentence is constitutionally dis-

proportionate when compared to the gravity of his offense.

Applying State v. Rodriguez/Buck, 347 Or 46, 217 P3d 659

(2009), we conclude that defendant’s sentence, while severe,

does not constitute one of those rare circumstances that

requires reversal under Article I, section 16, of the Oregon

Constitution. At the sentencing hearing, defendant pre-

sented conflicting evidence regarding whether he suffered

from schizophrenia, but we do not read the Supreme Court’s

decision in State v. Ryan, 361 Or 602, 396 P3d 867 (2017)

as requiring the trial court to make findings regarding

that evidence. Instead, as we recently explained in State v.

Gonzalez, 326 Or App 587, 601, 534 P3d 289 (2023), “our

cases both before and after Ryan have restricted the con-

sideration of a defendant’s personal characteristics to those

affecting intellectual capacity.” Although there was some

evidence in the record that defendant may have suffered

from schizophrenia, there was also evidence suggesting he

did not, and we do not think that the trial court’s failure to

expressly discuss that evidence constitutes error. The more

significant mitigating factors in this case concerned defen-

dant’s specific conduct. Focusing on the circumstances of

defendant’s offense and comparing it to the range of conduct

described in the statute for first-degree robbery, we conclude

that defendant’s offense was sufficiently grave such that the

penalty imposed was not unconstitutional.

In his other two assignments of error, defendant

challenges the trial court’s failure to merge the verdicts on

various counts. As we explain below, one of those arguments

is moot, and we reject the other argument. We therefore

affirm.

I. FACTUAL BACKGROUND AND PROCEDURAL

HISTORY

On July 7, 2020, Weldon Shields and Kristian

Henriquez worked as asset protection specialists or loss

382 State v. Jeffery

prevention officers (LPOs) at a Fred Meyer store in Beaverton.

They were wearing plain clothes. Shields worked on the

floor, while Henriquez observed the store using cameras.

Shields noticed that defendant had many items in

his shopping cart, and Shields saw defendant picked up a

pair of “Skullcandy headphones” and put them in his cart

without looking at the price. Shields told Henriquez to look

on the cameras “for the individual that seems to be home-

less.” Shields observed defendant put some items into his

backpack and pockets. The items were primarily food, but

also the headphones and a lighter. Defendant “ditched the

cart,” put the backpack on, and exited the store without pay-

ing for the merchandise.

Shields followed defendant outside and notified

Henriquez to join them. It was windy outside. When Shields

was about seven or eight feet away from defendant, and

while Henriquez was approaching from a different part of

the store, Shields identified himself as part of Fred Meyer

Asset Protection, and said, “ ‘Hey. I need to talk to you about

the unpaid-for merchandise that you have on you.’ ”

Defendant turned around and looked at Shields.

Shields saw defendant pull something out of his right

pocket, reach over with his left hand, and then Shields saw

“a reflection.” Shields believed it was a blade or a knife.

Shields heard defendant say something like, “ ‘I’m not giving

you your stuff back,’ ” or “ ‘Don’t come near me.’ ” Henriquez

thought defendant said, “ ‘Don’t come near me.’ ”

Shields was concerned, and he told Henriquez to

“ ‘[b]ack up because he has a knife.’ ” Defendant did not ges-

ture with the knife or come towards Shields. Instead, defen-

dant simply displayed the knife and continued walking away

from the store. At first, Henriquez did not see the knife, but

he saw it in defendant’s right hand when Shields pointed it

out. Shields called 9-1-1.

Officer Kartchner, who worked as a patrol offi-

cer for the Beaverton Police Department, responded to

the call and arrived about three minutes later. Kartchner

located defendant near a restaurant across the street from

the store. When Kartchner made contact with defendant,

Cite as 329 Or App 380 (2023) 383

defendant was wearing earphones,1 but defendant did not

have a problem hearing the officer or responding to the offi-

cer’s commands.

The officer located the pocketknife. Defendant

described it as a can opener. Defendant admitted display-

ing it while in the parking lot of the store, but he said that

he took it out as protection because he did not know who

the LPOs were, and he had been assaulted three times.

When asked by the officer whether he had opened the blade

of the pocketknife, defendant stated, “I probably did, yeah.”

Defendant added that the persons were far behind him, and

he “had no intention of getting closer to them with it.” The

merchandise that defendant took from the store had a value

of $41.78.

Defendant was charged with first-degree robbery,

ORS 164.415 (Count 1), second-degree robbery, ORS 164.405

(Count 2), unlawful use of a weapon (UUW), ORS 166.220

(Count 3), and third-degree theft, ORS 164.043 (Count 4).

After the charges were filed, defendant was eval-

uated by three different psychologists. James Andretta,

Ph.D., diagnosed defendant as suffering from schizophrenia

based on defendant’s “disconnection and distancing from

social relationships, his mumbling to himself in a way that

was in keeping with the experience of internal stimuli, his

assertion of fixed false beliefs, and his mildly disorganized

speech.” Dr. Andretta acknowledged that defendant had a

history of using methamphetamine, but he did not think

that defendant’s drug use explained his symptoms because

they manifested earlier in defendant’s life. Based on his

diagnosis, Dr. Andretta did not believe that defendant could

aid and assist in his defense.

At the state hospital, a second psychologist evalu-

ated defendant for the purpose of determining whether he

could proceed to trial. Kordell Kennemer, Psy. D., observed

that the defendant “did not appear distracted during the

evaluation and did not appear to be responding to internal

stimuli.” In his view, defendant’s symptoms were “less severe

than what was observed by Dr. Andretta. It is possible that

1

They were not the same headphones that defendant took from the store.

384 State v. Jeffery

his symptoms may be remitting over time and that they

were substance-induced.” Dr. Kennemer diagnosed defen-

dant with “[s]chizophrenia spectrum and other psychotic

disorder” and substance use disorders. Dr. Kennemer con-

cluded that defendant could proceed to trial.

A third psychologist, Alexander Millkey, Psy. D.,

evaluated defendant to determine whether he suffered from

a qualifying mental disorder that impacted his ability to

form the intent to commit the charged crimes. Dr. Millkey

noted that, by the time of his evaluation, defendant’s “symp-

toms appear to have entirely abated without treatment with

psychotropic medications.” Dr. Millkey opined that defen-

dant experienced “an unusually protracted methamphet-

amine-induced psychotic state,” and “it is more parsimonious

to attribute the symptoms he experienced to amphetamine

use rather than to [s]chizophrenia or another chronic mental

illness.” According to Dr. Millkey, defendant did not have a

qualifying mental disorder. Before trial, defendant raised a

“disordered mental state defense,” but he withdrew it at the

beginning of trial.

Defendant waived his right to a jury trial. The

trial judge heard testimony from the LPOs, Kartchner, and

defendant. The judge also watched body camera footage of

Kartchner’s contact with defendant. A photograph of the

pocketknife was received into evidence. At trial, Kartchner

testified that the blade of the pocketknife was about two to

three inches long. Defendant testified that he was listening

to music on his earphones when he left the store, and he did

not hear Shields announcing himself as an LPO.

The trial judge found defendant guilty of the

charges. Before his sentencing hearing, defendant filed a

sentencing memorandum arguing, among other things, that

a 90-month sentence for defendant’s offense would be consti-

tutionally disproportionate. Defendant’s memorandum dis-

cussed the three psychological evaluations. At the hearing,

the trial court imposed the mandatory minimum sentence.

The trial judge stated:

“[T]he only way for me to come off of the 90 months is to

make certain findings.

Cite as 329 Or App 380 (2023) 385

“And, given my experience and the particulars of this

case, unfortunately for you, it doesn’t qualify. These are the

same types of cases that the Court imposes similar sen-

tences to.

“And so, legally, based on the statute and the cases that

both the attorneys have talked about, that is not something

that allows me to find that your case is constitutionally dis-

proportionate to other cases. Obviously, you are an individ-

ual, but, in terms of what I can do for you, given that it’s a

Measure 11 Robbery in the First Degree, I don’t think that

that applies in your case.”

The trial court entered a judgment, which was later

amended. Defendant was sentenced to 90 months in prison

on Count 1 (first-degree robbery), a concurrent 70-months

in prison on Count 2 (second-degree robbery), a concurrent

6-month jail term on Count 3 (UUW), and the trial court

merged the verdicts on Count 4 (third-degree theft) and

Count 1 (first-degree robbery). Defendant appeals.

II. ANALYSIS

A. Defendant’s 90-month sentence for first-degree robbery is

not constitutionally disproportionate.

We focus on defendant’s third assignment of error in

which he argues that the mandatory minimum sentence of

90 months for first-degree robbery is constitutionally dispro-

portionate as applied to him. “We review for legal error the

trial court’s conclusion that defendant’s sentence was consti-

tutional under Article I, section 16.” Ryan, 361 Or at 614-15.

Article I, section 16, provides, in part, that “all

penalties shall be proportioned to the offense.” In consider-

ing that proportionality requirement, we ask whether the

length of the sentence would “shock the moral sense of rea-

sonable people.” Ryan, 361 Or at 612. That standard will be

satisfied rarely because it is the province of the legislature

(or the people, when acting in their legislative capacity) to

determine the appropriate penalty for a crime, and it is “not

the role of this court to second-guess the legislature’s deter-

mination of the penalty or range of penalties for a crime.”

Rodriguez/Buck, 347 Or at 58. Nevertheless, we do play a

role in ensuring that sentences conform to the requirements

386 State v. Jeffery

of our state constitution. See, e.g., State v. Davidson, 360 Or

370, 372, 380 P3d 963 (2016) (concluding that life imprison-

ment without the possibility of parole was unconstitutionally

disproportionate as applied to the defendant, who had two

prior felony convictions for public indecency, and who was con-

victed of two counts of public indecency for exposing himself

in a park).

When considering an as-applied constitutional

challenge to a sentence, the Supreme Court has identified

three nonexclusive factors for courts to consider: “(1) a com-

parison 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 defen-

dant.” Rodriguez/Buck, 347 Or at 58.

Under the first Rodriguez/Buck factor, the amount

of time is the “primary determinant” of the severity of the

penalty. Id. at 60. When comparing the offense and the

sentence, the offense is not limited to the description of the

prohibited conduct in the statute. Id. at 61. It includes “the

specific defendant’s particular conduct toward the victim

that constituted the crime.” Id. at 62. In determining the

gravity of the offense, we consider the circumstances of the

defendant’s specific conduct and place it on the range of pro-

hibited conduct. Id. at 62, 69-70.

“An as-applied proportionality analysis that considers the

facts of an individual defendant’s specific criminal conduct

is particularly significant when the criminal statute at issue

covers a broad range of activity, criminalizing a variety of

forms and intensity of conduct. In such a case, a harsh pen-

alty might not, on its face, be disproportionate, because of

the fact that the statute dealt, inter alia, with some extreme

form of that conduct. However, when a defendant is con-

victed for engaging in only more minor conduct encompassed

within the statute, the defendant may plausibly argue that

the mandatory sentence, as applied to the particular facts of

his or her case, is unconstitutionally disproportionate.”

Id. at 61. When assessing whether a penalty is

disproportionate,

“a court may consider, among other things, the specific cir-

cumstances and facts of the defendant’s conduct that come

Cite as 329 Or App 380 (2023) 387

within the statutory definition of the offense, as well as

other case-specific factors, such as characteristics of the

defendant and the victim, the harm to the victim, and the

relationship between the defendant and the victim.”

Id. at 62.

Under the second Rodriguez/Buck factor, we com-

pare the imposed penalty to penalties for related offenses.

Id. at 63. And under the third Rodriguez/Buck factor, we

consider the defendant’s criminal history, which is relevant

“because a defendant who previously has been convicted of

and served sentences for other crimes has demonstrated, by

committing additional crimes, that the previously imposed

sentences were insufficient to prevent the defendant from

returning to his or her criminal behavior.” Id. at 77.

Applying those factors here, we begin by comparing

the severity of the penalty to the gravity of the offense. As a

result of the passage of Ballot Measure 11 in 1994, the penalty

for first-degree robbery is a mandatory term of 90 months

in prison. ORS 137.700(2)(a)(R). “[A] 90-month sentence

unquestionably results in a substantial deprivation of lib-

erty; it is a long time to be separated from society, family

and friends, and a long time to be separated from employ-

ment and educational opportunities available to people who

are not incarcerated. It is a severe sentence.” Gonzalez, 326

Or App at 603.

Turning to the gravity of the offense, the statute for

first-degree robbery, ORS 164.415, describes a broad range

of conduct. It provides, in part:

“(1) A person commits the crime of robbery in the first

degree if the person violates ORS 164.395 and the person:

“(a) Is armed with a deadly weapon;

“(b) Uses or attempts to use a dangerous weapon; or

“(c) Causes or attempts to cause serious physical injury

to any person.”

ORS 164.397, the statute for third-degree robbery, provides,

in part:

388 State v. Jeffery

“(1) A person commits the crime of robbery in the third

degree if in the course of committing or attempting to com-

mit 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 * * *.”

As the Supreme Court has explained it,

“Third-degree robbery is the least serious and describes

the basic crime of robbery: taking or attempting to take

property from another, while preventing or overcoming the

victim’s resistance to giving up the property by using or

threatening to use physical force. The crimes of second-

and first-degree robbery then use third-degree robbery

as a foundation and build on its elements by identifying

additional elements that, if present, make the crime a more

serious one. The highest level of robbery, first-degree rob-

bery, is a robbery in which the robber is armed or actually

causes or attempts to cause the victim serious injury.”

State v. White, 346 Or 275, 285-86, 211 P3d 248 (2009) (cita-

tions and footnotes omitted).

Clearly, ORS 164.415 describes a wide range of cir-

cumstances that can elevate a theft to first-degree robbery,

including when there are threats of the use of force, and

when the conduct does or does not result in serious physi-

cal injury to others. See, e.g., Martinez v. Cain, 366 Or 136,

138, 458 P3d 670 (2020) (defendant shot the victim while

attempting to steal the victim’s wallet and car); State v.

Osborne, 242 Or App 85, 87, 255 P3d 513 (2011) (defendant,

while holding a folding knife with a short blade, told a store

clerk to give him the money in the cash register, he apolo-

gized to her as she did so, and he then fled the store); State

v. Melillo, 160 Or App 332, 336, 982 P2d 12, rev den, 329 Or

438 (1999) (defendant was the “wheel man” for his armed

co-defendant and the crime involved the use of a gun).

Here, although defendant’s conduct was relatively

minor when considered in the context of the range of activity

Cite as 329 Or App 380 (2023) 389

encompassed by ORS 164.415(1), there are some circum-

stances that make his offense more serious. On the one

hand, defendant’s conduct did not result in physical harm,

defendant did not target an individual for robbery, he did not

move toward the LPOs after displaying the pocketknife, or

otherwise brandish it, the pocketknife consisted of a small

blade, and the items stolen for the store, which consisted

primarily of food, were valued at a little over $40. But, on

the other hand, when confronted by the LPOs, defendant

took the pocketknife out of his pocket and opened the blade,

he told the LPOs that he would not return the items or not

to come near him, and Shields testified that he was con-

cerned for their safety. That second set of circumstances cre-

ated the potential for violence, and they move defendant’s

conduct closer to the midrange of activity encompassed by

the first-degree robbery statute. See White, 346 Or at 287

(“What the statutes and the legislative history indicate is

an incremental classification, not of levels of actual vio-

lence during the commission of a robbery, but of levels of the

potential for violence, including its potential extent.”).

The circumstances, of course, also include the defen-

dant’s personal characteristics, and, in Ryan, the Supreme

Court held that an offender’s personal characteristics may,

in some cases, be relevant to the assessment of the gravity

of an offense. 361 Or at 616. Defendant suggests that, at

the time of the offense, he suffered from schizophrenia, and

that his mental condition should be considered as part of the

Rodriguez/Buck analysis. Indeed, defendant argues that the

trial court was required to consider his mental condition,

and it “may have reduced his culpability for the offense.”

At the sentencing hearing, the trial judge made no

express findings regarding defendant’s mental condition,

but there is nothing in Ryan that indicates that the trial

judge was required to do so. In Ryan, the Supreme Court

determined that when there is evidence of an intellectual

disability, then the trial court must address that evidence

in comparing the gravity of an offense with the severity of

a Measure 11 sentence. 361 Or at 624-25. Evidence of an

intellectual disability is significant because it may mean

that an offender is operating with the intellectual capacity

390 State v. Jeffery

of a child, and there are laws establishing that children

should be treated more leniently than adults. Id. at 623-26.

But here, there was no argument or evidence that defendant

suffers from an intellectual disability. “The court’s recog-

nition that an offender’s intellectual disability is relevant

to the proportionality analysis does not equate to a general

rule that an offender’s other individual characteristics are

relevant to the analysis.” Gonzalez, 326 Or App at 592.

As we further explained in Gonzalez,

“[T]he law accounts for how mental health conditions

may affect culpability by allowing the introduction of evi-

dence of mental health conditions for the purpose of demon-

strating diminished capacity, insanity, or that the mental

health condition ‘is relevant to the issue of whether the

actor did or did not have the intent which is an element

of the crime,’ ORS 161.300. See generally ORS 161.295 -

161.309. Because such conditions—and their relationship

to criminal culpability—are taken into account in the

determination of guilt in the first instance, it is difficult

to see how such conditions might then also be relevant, in

the context of proportionality analysis under Ryan, to show

that a defendant should be viewed as less culpable than

other defendants found to have acted with the same culpa-

ble mental state, absent the same sort of legislatively rec-

ognized societal standard on which the Ryan court relied.”

Id. at 602. Based on our analysis in Gonzalez, we disagree

with defendant’s claim that the trial judge, in sentencing

defendant, was required to make findings based on the con-

flicting evidence in the record regarding defendant’s mental

health.

Clearly, the court considered that evidence because

defendant relied on it at the sentencing hearing. However,

in this case, the more significant mitigating circumstances

concerned the nature of defendant’s conduct, including the

fact that defendant caused no harm, defendant did not tar-

get a specific individual, he did not brandish the pocketknife

or advance toward the LPOs, and the items taken from the

store were valued at only about $40. Here, those circum-

stances, not his mental condition, are the weighty factors

when considering the gravity of defendant’s offense.

Cite as 329 Or App 380 (2023) 391

Given those circumstances, we recognize that the

penalty required by the statute is harsh. It may be desirable

for trial judges to have more discretion in cases like this one.

As explained in the concurring opinion in Ryan,

“Appropriate legislation would give the courts discretion

to impose a sentence more tailored to a particular defen-

dant and crime, rather than imposing the current manda-

tory minimum sentence; and perhaps also could provide

additional guidance as to the kinds of personal character-

istics that may affect a defendant’s legal culpability and, if

reduced culpability is found, the relationship between that

reduced culpability and the kind of sentence that would be

proportionate to the defendant’s offense.

“But that is not the sentencing law that the people and

the legislature have put in place for Measure 11 offenses

* * *. Oregon’s statutory sentencing provisions for Measure

11 offenses permit only the most limited consideration of

personal characteristics, degree of culpability, mitigating

facts, or the impact of the Measure 11 sentence on a partic-

ular defendant.”

361 Or at 628 (Balmer, C.J., concurring). We agree with that

assessment.

Nevertheless, in the instant case, defendant used a

dangerous weapon during the robbery. By unfolding and dis-

playing the blade of his pocketknife when confronted by the

LPOs, defendant created a circumstance that was “fraught

with the potential for causing fear in the victim and promot-

ing violence.” Melillo, 160 Or App at 336. Although there are

other circumstances that lessen the seriousness of defen-

dant’s offense, it was sufficiently grave such that we cannot

conclude that the legislatively prescribed sentence for the

offense contravenes Article I, section 16.

In arguing otherwise, defendant relies on second-

degree robbery cases in which the defendants received

70-month sentences. See, e.g., State v. Bentley, 301 Or App

347, 350-51, 456 P3d 651 (2019) (trial court acquitted defen-

dant of first-degree robbery because trial court could not

infer that defendant knew his accomplice had a gun); see

also State v. George, 146 Or App 449, 451, 934 P2d 474 (1997)

(in a robbery that involved accomplices, defendant did not

392 State v. Jeffery

use a dangerous weapon). Those cases are not helpful in

assessing the proportionality of a sentence for a conviction

of first-degree robbery, because, under the first Rodriguez/

Buck factor, we must focus on the range of conduct prohib-

ited by the statute for first-degree robbery and where defen-

dant’s particular conduct and circumstances fall on that

range. See Rodriguez/Buck, 347 Or at 60-62.

Regarding the second Rodriguez/Buck factor, “[i]f

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.” Rodriguez/

Buck, 347 Or at 63. In the instant case, defendant makes

no argument comparing the imposed penalty to penalties

for related offenses—he expressly disavows reliance on the

second Rodriguez/Buck factor—and we thus do not address

it.

With regard to the third factor, defendant claims

that his criminal history weighs in favor of departing from

the mandatory minimum sentence. We disagree. The record

indicates that defendant has prior misdemeanor convictions

from Massachusetts for indecent exposure and for walking

on a railroad track, and he also has some arrests that did

not result in criminal prosecutions. Although his crimi-

nal history is minimal, it certainly does not weigh in his

favor in determining whether his sentence is disproportion-

ate. Instead, it is a factor that weighs against him, albeit

slightly, because it has some tendency to show that his prior

convictions “were insufficient to prevent the defendant from

returning to his or her criminal behavior.” Rodriguez/Buck,

347 Or at 77.

In arguing otherwise, the dissent is shocked by

the length of the sentence in this case. 329 Or App at 396

(Mooney, J., dissenting). For the reasons explained, we agree

that the sentence is severe. But to the extent that the dis-

sent focuses on the value of the property stolen, it is stray-

ing from the concern underlying robbery statutes. Oregon’s

robbery statutes do not depend on the value of the goods

stolen to determine the severity of the crime, but rather the

gravity of the threat of violence. See White, 346 Or at 290

(“It is the concept of fear or threat of violence that separates

Cite as 329 Or App 380 (2023) 393

robbery from mere theft.”). The dissent suggests that defen-

dant’s conduct amounted to mere theft, but defendant does

not challenge his conviction for first-degree robbery.

Having reviewed the arguments regarding the

Rodriguez/Buck factors, we conclude that defendant’s

90-month sentence for first-degree robbery does not contra-

vene Article I, section 16. We therefore reject defendant’s

third assignment of error.

B. Defendant’s Merger Arguments

We summarily address defendant’s first two assign-

ments. Defendant’s first assignment of error is moot because

the trial court issued an amended judgment merging the

verdicts on Count 4 (third-degree theft) and Count 1 (first-

degree robbery). Regarding defendant’s second assignment,

as explained below, we are not persuaded that the trial

court should have merged the verdicts on Count 3 (UUW)

and Count 1 (first-degree robbery).

We review the trial court’s merger rulings for legal

error. State v. Ortiz-Rico, 303 Or App 78, 84, 462 P3d 741,

rev den, 366 Or 827 (2020). The anti-merger statute provides,

in relevant part, that guilty verdicts may not merge when

“the same conduct or criminal episode violates two or more

statutory provisions and each provision requires proof of an

element that the others do not * * *.” ORS 161.067(1). “It is

not enough to show that one offense has an element that the

other does not; the other offense also must have an element

that the first does not.” Martinez, 366 Or at 145. “[W]hen

a statute contains alternative forms of a single crime * * *,

we will look to the indictment to determine which form is

charged, and we use the elements of the charged version in

the merger analysis.” State v. Pass, 264 Or App 583, 587, 333

P3d 1139 (2014).

Here, in Count 1 of the indictment, which charged

defendant with first-degree robbery, the state alleged that

defendant “use[d] or attempt[ed] to use a dangerous weapon.”

In Count 3 of the indictment, which charged defendant with

UUW, the state alleged that defendant carried or possessed

a dangerous or deadly weapon.

394 State v. Jeffery

Defendant’s merger argument is based on the

premise that the state cannot prove that a defendant used

or attempted to use a dangerous weapon without also prov-

ing that the defendant carried or possessed the weapon

with the intent to use it unlawfully. We disagree. In State

v. Reed, 101 Or App 277, 279, 790 P2d 551, rev den, 310 Or

195 (1990), focusing on the broad definition of a dangerous

weapon in ORS 161.015(1), we determined that the sidewalk

was a dangerous weapon for purposes of the assault statute.

Thus, “[i]t is possible to inflict serious physical injury with

a dangerous or deadly weapon without either possessing or

carrying it.” State v. Alvarez, 240 Or App 167, 173, 246 P3d

26 (2010), rev den, 350 Or 408 (2011).

Similarly, here, it is possible that a defendant could

commit a theft using a dangerous weapon without carry-

ing or possessing it—for example, using force to strike a

victim against a sharp or hard stationary object. Thus, the

UUW count contains an element—carrying or possessing a

dangerous weapon—that is not one of the elements of first-

degree robbery. And the crime of first-degree robbery con-

tains elements that are not contained in the crime of UUW,

such as using or threatening the immediate use of physi-

cal force upon a person with the intent of preventing and

overcoming resistance to the defendant’s taking of property.

Accordingly, the trial court did not err when it did not merge

the verdict on Count 3 (UUW) with the verdict on Count 1

(first-degree robbery). We reject defendant’s second assign-

ment of error.

Affirmed.

MOONEY, J., dissenting.

The statutory 90-month prison sentence imposed by

the trial court and upheld today by my colleagues is con-

stitutionally disproportionate to the gravity of the crimi-

nal offense that defendant committed. The majority cor-

rectly recites existing case law, but it misapplies that law

to the facts of this case. I would reverse and remand for

resentencing.

Defendant shoplifted approximately $40 worth of

merchandise from a Fred Meyer store, including food, a pair

Cite as 329 Or App 380 (2023) 395

of earbuds, and a lighter. He, thus, committed the crime of

theft in the third-degree, ORS 164.043, a class C misde-

meanor, punishable by up to thirty (30) days in jail and a

fine of up to $1,250.

Two Fred Meyer employees, dressed in plain clothes

and working in “loss prevention,” observed defendant place

merchandise into his backpack and leave the store without

paying. The employees followed defendant, who appeared to

them to be homeless, out of the store and pursued him on

foot. It was not apparent from their clothing that the employ-

ees worked for Fred Meyer, and they were not wearing store

badges or other store insignia. It was a windy day, and defen-

dant was wearing earbuds, listening to music. When they

asked defendant to stop and return the items that he had not

paid for, the loss prevention employees were separated from

him by a distance of eight feet. After hearing the approach-

ing individuals yell at him, defendant pulled a pocketknife

out of his pocket and, although he opened it, defendant did

not raise or otherwise brandish the pocketknife. In fact,

only one of the employees even noticed it. Defendant did not

threaten the employees or anyone else with the pocketknife.

At most, he declined to return the merchandise that he had

taken and told the pursuing employees not to approach him.

Defendant did not target any individual for rob-

bery, and he did not cause physical harm. He did not at any

point move toward the Fred Meyer employees. Instead, he

walked away from them. Defendant retrieved his pocket-

knife and opened the small blade when he was approached

by the employees, but he did not posture, speak, or move

in any way that suggested impending violence. He moved

away from them, signaling his plan to avoid contact, not to

cause it. Defendant was shoplifting. For that, he was con-

victed of robbery in the first-degree, ORS 164.415, a class A

felony, and the court imposed a sentence of ninety months in

prison. ORS 137.700(2)(a)(R).

Article I, section 16, of the Oregon Constitution

declares that “[c]ruel and unusual punishments shall not

be inflicted, but all penalties shall be proportioned to the

offense.” The policy choice of what penalty to assign to a par-

ticular crime is a legislative decision made by Oregonians

396 State v. Jeffery

or their elected representatives. Our role is to subject such

choices to constitutional scrutiny when they are applied to

a particular individual in a particular case. In testing the

proportionality of a sentence to a crime we ask whether the

sentence would “shock the moral sense of reasonable peo-

ple.” State v. Ryan, 361 Or 602, 612, 396 P3d 867 (2017).

The 90-month prison sentence imposed on this

defendant fails the test of proportionality. Seven and one-

half years in prison for stealing bread and a pair of cheap

earbuds without even the threat of violence would, and cer-

tainly should, shock the moral sense of reasonable people.

This is especially so given that defendant’s criminal history

consists solely of two misdemeanor convictions: (1) walk-

ing on a railroad track and (2) indecent exposure. Neither

of those offenses involved violence or physical harm. Not

unlike shoplifting small amounts of food or carrying a

pocketknife, defendant’s past convictions were for conduct

much more likely to be associated with homelessness than

violence. Defendant was suddenly approached by strangers

dressed in street clothing, who were yelling at him. That

he responded by holding onto his pocketknife as he walked

away from them does not render the 90-month sentence

constitutional.

I would hold that defendant’s 90-month prison sen-

tence violates Article I, section 16, of the Oregon Constitution.

I respectfully dissent.