S057583, Opinion — State v. Hamilton

371
Argued and submitted March 4, at Willamette University College of Law, Salem,
Oregon, decision of Court of Appeals and judgment of circuit court affirmed
.June 10, 2010
STATE OF OREGON,
Respondent on Review,
v.
ALBERT LEWIS HAMILTON,
Petitioner on Review.
(CC001239970; CA A135407; SC S057583)
233 P3d432

372 	State v. Hamilton
CJS, Criminal Law § 16.
On review from the Court of Appeals.*
Robin A. Jones, Senior Deputy Public Defender, Office of
Public Defense Services, Salem, argued the cause for peti-
tioner on review. With her on the brief was Peter Gartlan,
Chief Defender.
Janet A. Klapstein, Assistant Attorney General, Salem,
argued the cause for respondent on review. With her on the
brief were John R. Kroger, Attorney General, and Jerome
Lidz, Solicitor General.
Before De Muniz, Chief Justice, and Gillette, Durham,
Balmer, Kistler, and Walters, Justices.**
DE MUNIZ, C. J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
* 	Appeal from Multnomah County Circuit Court, Jerry B. Hodson, Judge.
229 Or App 94, 209 P3d 851 (2009).
** Linder, J., did not participate in the consideration or decision of this case.

Cite as 348 Or 371 	373
DE MUNIZ, C. J.
Defendant petitions for review of a Court of Appeals
decision affirming his convictions and sentences for, among
other crimes, multiple counts of robbery in the first and sec-
ond degrees. The Court of Appeals affirmed, citing its deci-
sion in State v. Williams, 229 Or App 79, 209 P3d 842, rev
den, 347 Or 44 (2009) in which it concluded that robbery is a
crime against a person and that those against whom a defen-
dant uses physical force or whom a defendant threatens in
the course of a robbery are "victims" of that robbery, justify-
ing multiple convictions and sentences. State v. Hamilton,
229 Or App 94, 209 P3d 851 (2009). We allowed defendant's
petition for review and, for the reasons set out below, we
affirm the Court of Appeals decision.
We take the facts that we consider relevant from a
previous Court of Appeals opinion describing the factual con-
text of the underlying charges against defendant:
"On the night of December 22, 2000, Terry Weaver, the
owner of the Spare Room Lounge in northeast Portland,
was tending bar. The Spare Room is divided into two sepa-
rate areas known as the 'front bar' and the 'back bar.'
[Approximately 200 customers were in the back bar.]
Weaver was behind the front bar along with two employees,
Anna Higgins and Patricia Alcorn. Alcorn was standing
near the entrance to the kitchen. Two customers, Lori
Owens and Joyce Hansen, were sitting on bar stools at the
front bar, and Ernest Brumitt and William Lambert, also
customers, were in the back bar.
"At approximately 10:45 p.m., [defendant and another
man wearing masks] walked through the front door into the
front bar. The men fired two shots into the ceiling of the
lounge and ordered everyone to get down. As that occurred,
Alcorn slipped into the kitchen to call 9-1-1. One of the men
then ran towards the bar, pointed a gun at Higgins's chest,
and demanded money. That same man then approached
Weaver, pointed the gun at his head, and again demanded
money. Weaver complied with the demand and began hand-
ing over money, first from the lounge's cash register and
then from the lottery till. Owens and Hansen got down on
the floor***. Alcorn*** was put on hold by a 9-1-1 oper-
ator and watched through a small cook's window in the

374 	State v. Hamilton
kitchen as one of the perpetrators ran past the bar. She
then hid behind a walk-in refrigerator for protection.
"Lambert and Brumitt, the patrons who were in the
back bar, heard the gunshots and went to the front bar to
see what was happening. As they watched the first man
point the gun at Weaver, they tried to approach. However,
the second man saw them and fired two more shots into the
ceiling. Lambert and Brumitt * * * got down on the floor.
The man who took the money then ran around the bar, fired
several shots into the ceiling, and, after meeting up with his
cohort, ran out the door. Shortly thereafter, Portland police
arrived on the scene and, after an extended pursuit during
which one of the assailants shot at two of the officers, defen-
dant[ and a codefendant] were apprehended."
State v. Davis I Hamilton, 194 Or App 382, 385-86, 95 P3d
230 (2004), adh'd to as modified on recons, 197 Or App 1, 104
P3d 602 (2004), rev den, 339 Or 230 (2005).
Among other crimes, defendant was charged with
two counts of attempted aggravated murder and two counts
of attempted first-degree assault for firing at the officers, and
seven counts each of first-degree robbery with a firearm and
second-degree robbery with a firearm for his conduct involv-
ing the owner, employees, and certain customers at the bar.
At trial, after the state presented its case, defendant moved
for judgment of acquittal on each of the robbery charges relat-
ing to the bar customers and Alcorn, asserting that those per-
sons were merely witnesses. The trial court denied the
motion, reasoning that the gravamen of the offense of rob-
bery was the threat associated with the crime, and that all
seven people named in the counts had felt threatened. The
jury subsequently convicted defendant of all 14 robbery
counts.
Defendant appealed, asserting that the trial court
had erred when it denied his motion for judgment of acquit-
tal, and that his first-degree robbery convictions for crimes
against the "witnesses" in the bar should merge with his rob-
bery convictions for crimes against Weaver and Higgins. The
Court of Appeals rejected defendant's arguments regarding
the motion for judgment of acquittal, concluding that the
state had presented evidence sufficient to permit the jury to
decide whether defendant was guilty of the multiple robbery

Cite as 348 Or 371
charges. That court also declined to address defendant's
argument that various of the robbery charges should merge,
reasoning that defendant should have raised that argument
in a post-verdict motion. Davis I Hamilton, 194 Or App at 392.
Defendant petitioned for reconsideration, and the Court of
Appeals held that a Sixth Amendment Blakely v. Washington,
542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004) error had
occurred at sentencing and remanded the case to the trial
court for resentencing. State v. Davis I Hamilton, 197 Or App
1, 104 P3d 602 (2004), rev den, 339 Or 230 (2005).
On remand to the trial court, and before sentencing,
defendant again sought merger with regard to his robbery
convictions; the trial court denied that motion. Defendant
appealed and, as noted, the Court of Appeals affirmed, citing
its decision in Williams. 1 In Williams, the Court of Appeals
had concluded that the focus of the robbery statutes is the
threat that the defendant made against a person and, there-
fore, all those persons that a defendant threatens in the
course of a robbery are victims of the crime. 229 Or App at 84-
85. Based on its reasoning in Williams, the Court of Appeals
concluded here that robbery crimes committed against more
than one victim were not subject to merger. Hamilton, 229 Or
Appat95.
On review, defendant argues that the legislature
intended the robbery statutes, set out below, to provide
increasing degrees of seriousness for proving a single sub-
stantive offense, which defendant argues is "the use or
threatened * * * use of force in the course of committing a
theft or attempted theft." (Emphasis by defendant.) Defen-
dant contends that, because the robbery statutes do not use
the word "victim," and because theft or attempted theft is a
necessary element of the crime of robbery, the definition of
"victim" must come from the theft statute, ORS 164.015, 2
1 Defendant also filed a pro se supplemental brief challenging the consecutive
sentences that were imposed without jury findings. The Court of Appeals rejected
that argument under Oregon v. Ice, 555 US 160, 129 S Ct 711, 172 L Ed 2d 517
(2009), and defendant did not seek review of that decision in this court.
ORS 164.015 provides, in part:
"A person commits theft when, with intent to deprive another of property
or to appropriate property to the person or to a third person, the person:
"(l) Takes, appropriates, obtains or withholds such property from an
owner thereofI.]"

State v. Hamilton
which defines the victim of theft as the owner of the property,
and ORS 164.005(4), 3 which defines "owner." Defendant
argues that, by incorporating theft as the "root element" of
the crime ofrobbery, the legislature made clear that the "vic-
tim" of the crime is the person from whom property is taken
or demanded, and not bystanders, observers, or other per-
sons who might suffer collateral harm. Therefore, defendant
asserts, the guilty verdicts for robbery against the bar cus-
tomers (counts 5 through 8 on verdict form) and Alcorn (count
9 on verdict form) should merge into the convictions for rob-
bery committed against Weaver (count 3 on verdict form) and
Higgins (count 4 on verdict form).4 We turn to the question
whether merger applies in this case. 5
The state maintains that the seven guilty verdicts
are separately punishable and should result in separate
judgments of conviction under ORS 161.067(2). That statute
provides, in part:
"When the same conduct or criminal episode, though
violating only one statutory provision involves two or more
victims, there are as many separately punishable offenses
as there are victims."
In analyzing whether a crime involves "two or more
victims" within the meaning of ORS 161.067(2), this court
determines who qualifies as a "victim" by interpreting the
substantive statute defining the relevant crime. See State v.
Glaspey, 337 Or 558, 561-63, 100 P3d 730 (2004) ("We con-
clude that ORS 161.067(2) uses the term 'victims' to describe
3 ORS 164.005(4) defines "owner of property taken, obtained or withheld" or
"owner" as "any person who has a right to possession thereof superior to that of the
taker, obtainer, or withholder."
Defendant also argues that the guilty verdicts for robbery in the second
degree against the bar customers (counts 12 through 15 on verdict form) and
Alcorn (count 16 on verdict form) should merge into the convictions for robbery in
the second degree committed against Weaver (count 10 on verdict form) and
Higgins (count 13 on verdict form). However, he did not raise that issue in the
Court of Appeals. Sentences on all of the second-degree robbery counts were
ordered to be served concurrently, and appear to have now been completed. That
question is therefore not properly before us.
5 Defendant advances the same legal arguments regarding merger that he
made with regard to his motions for judgment of acquittal. However, defendant's
post-verdict arguments no longer pertain to the sufficiency of the state's proof, but
instead to questions regarding the proper construction of ORS 164.395, and to the
proper application of ORS 161.067 to the entry of his multiple robbery convictions.

Cite as 348 Or 371 (2010) 	377
the category of persons who are victims within the meaning
of the specific substantive statute defining the relevant
offense."). To do so, we examine the text of the pertinent stat-
ute in context, and then, to the extent we find it helpful, we
consider legislative history proffered by the parties. See State
v. Gaines, 346Or160, 171-72, 206P3d1042 (2009) (after con-
sidering text and context, court considers any pertinent leg-
islative history, giving it appropriate weight).
Like many criminal statutes, the robbery statutes
reflect an escalating order of seriousness, beginning with rob-
bery in the third degree. ORS 164.395 provides, in part:
"(1) 	A person commits the crime ofrobbery 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[.]"
The second-degree robbery statute, ORS 164.405, provides,
in part:
"( 1) 	A person commits the crime of robbery in the sec-
ond degree if the person violates ORS 164.395 and the
person:
"(a) 	Represents by word or conduct that the person is
armed with what purports to be a dangerous or deadly
weapon; or
"(b) 	Is aided by another person actually present."
Finally, the first-degree robbery statute, ORS 164.415, pro-
vides, in part:
"(1) 	A person commits the crime ofrobbery 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

378 	State v. Hamilton
"(c) 	Causes or attempts to cause serious physical
injury to any person."
As defendant notes, the term "victim" is not used in
any of the robbery statutes. However, the statutes generally
only describe the person against whom force must be used as
"any person" or "another person." For example, under ORS
164.395, a person is guilty of robbery in the third degree if the
person commits or attempts to commit theft and the person
"uses or threatens the immediate use of physical force upon
another person." (Emphasis added.) Likewise, under ORS
164.415(l)(c), a person is guilty of robbery in the first degree
if the person violates ORS 164.395 and the person "[c]auses
or attempts to cause serious physical injury to any person."
(Emphasis added.) The text of ORS 164.395(1)(b)-which
refers to "[c]ompelling the owner of such property or another
person" (emphasis added)-accentuates the importance of
the generic words "any person" or "another person"; it dem-
onstrates that the legislature deliberately chose not to limit
the reach of the robbery statutes to the use of force against
the owner.
Moreover, the robbery statutes demonstrate that the
theft need not be successful. It is the additional factor of
actual or threatened violence that transforms the conduct
from theft, which requires only the intent to deprive, into a
substantively different crime, robbery. This court has noted
that
"[r]obbery is the taking of property using threats of violence
or otherwise creating a sense of fear in the victim, thus forc-
ing the victim to hand over property. It is the concept of fear
or threat of violence that separates robbery from mere theft.
***The use or threat of violence is what causes the victim
to part with property, and that coercive effect is what each
of the robbery statutes addresses."
State v. White, 346 Or 275, 290, 211 P3d 248 (2009) (empha-
sis added). It follows that a "victim" ofrobbery includes a per-
son against whom a defendant uses or threatens violence in
the course of committing or attempting to commit theft,
which can, but does not have to, be the owner or possessor of
the property.

Cite as 348 Or 371
An examination of the legislative history pertinent
to the robbery statutes confirms the foregoing conclusion.
The robbery statutes are a product of the comprehensive revi-
sion of the state criminal code in 1971. The text of ORS
164.395 "contains the basic statement of the crime," with the
texts of ORS 164.405 and ORS 164.415 "adding one or more
of certain aggravating factors to the crime." Commentary to
Criminal 	Law 	Revision 	Commission 	Proposed 	Oregon
Criminal Code, Final Draft and Report §§ 150, 154 (July
1970). The Commentary states that the intent of the robbery
statutes is not only to retain the underlying principle in past
statutes of prohibiting the forcible taking of property from
another, but also to adopt the view that "repression of vio-
lence is the principal reason for being guilty ofrobbery." Id. at
155. The statutes also made it "immaterial whether property
is or is not obtained," and removed the requirement that rob-
bery "[could] only be consummated through an assault plus a
taking of property from the person assaulted." Id. at 156.
"The language 'use or threatens the immediate use of physi-
cal force upon another person' encompasses the type of case
in which the force or threat is directed at someone other than
the owner of the property." Id. The legislative subcommittee
that reviewed the proposed robbery statutes noted that "the
use or threat of force would not need to be directed at the
owner of the property; it could be directed toward a member
of the owner's family or one of his employees and still fall
within the purview of the robbery statute." Minutes, Oregon
Criminal Law Commission, Subcommittee No 1, June 22,
1968, 5. The subcommittee also noted that the purpose of the
revision was to shift the focus of attention from the taking of
property to the risk of injury and violence to the victim. Id.
That commentary confirms the wording of the stat-
utes and this court's case law: the legislature intended that a
"victim" of robbery includes a person against whom a defen-
dant uses or threatens violence in the course of committing or
attempting to commit theft. Here, in the course of committing
theft of the bar's property, defendant directly threatened
seven people with force to prevent their resistance to the tak-
ing of that property. Defendant and his codefendant fired
multiple shots into the ceiling of the lounge, ordered the bar

380 	State v. Hamilton
customers to get down onto the floor, and aimed their weap-
ons at Weaver and Higgins. Each of the seven people sub-
jected to threats of violence in the course of the robbery was a
victim for purposes of the robbery statutes. Thus, the trial
court properly denied defendant's motion to merge his rob-
bery convictions under ORS 161.067(2), and the Court of
Appeals correctly affirmed that ruling.
The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.