State v. Tolbert

Under ORS 164.395, “immediate use of physical force” is required to establish robbery, which is interpreted as “hot pursuit in which the thief uses force against his pursuer,” without an “interruption of a cognizable interval of time, space, or incident.” State v. Rios, 24 Or App 393(1976), State v. Gaines, 346 Or 160 (2009).

Defendant appealed a judgment of conviction for third-degree robbery under ORS 164.395. Defendant assigned error to the trial court’s denial of his motion for judgment of acquittal. On appeal, Defendant argued that the state’s evidence failed to prove that he used force in retaining the stolen item “immediately after the taking” such that his theft constituted a robbery. In response, the State argued that a rational factfinder could have concluded otherwise and that nothing intervened between the theft and the force. Under ORS 164.395, “immediate use of physical force” is required to establish robbery, which is interpreted as “hot pursuit in which the thief uses force against his pursuer,” without an “interruption of a cognizable interval of time, space, or incident.”  State v. Rios, 24 Or App 393(1976), State v. Gaines, 346 Or 160 (2009). The Court held that the State’s evidence was insufficient to prove Defendant used force “immediately” as there was a 10-15 minute time difference between the theft and Defendant’s struggle with the police, during which Defendant walked around the mall and walked nearly a block away. Reversed and remanded.