ORS 164.395
Robbery in the third degree


(1)

A person commits the crime of robbery in the third degree if in the course of committing or attempting to commit theft or unauthorized use of a vehicle as defined in ORS 164.135 (Unauthorized use of a vehicle) 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 or unauthorized use of a vehicle.

(2)

Robbery in the third degree is a Class C felony. [1971 c.743 §148; 2003 c.357 §1]

Source: Section 164.395 — Robbery in the third degree, https://www.­oregonlegislature.­gov/bills_laws/ors/ors164.­html.

Notes of Decisions

Physical force employed by the defendant was sufficiently close in space and time to theft to be characterized as an attempt to prevent or overcome resistance to his retention of stolen property immediately after taking. State v. Rios, 24 Or App 393, 545 P2d 609 (1976); State v. Tolson, 24 Or App 657, 546 P2d 1115 (1976)

Where defendant pointed pistol at and obtained money from each of four bank tellers in succession there occurred four separate robbery offenses and defendant was properly sentenced on each conviction. State v. Dillman, 34 Or App 937, 580 P2d 567 (1978), Sup Ct review denied

Where defendant abandoned his attempt to commit theft prior to use of force against owner of property, acts did not come within definition of robbery in this section. State v. Jackson, 40 Or App 759, 596 P2d 600 (1979)

Under evidence that defendant used threats and force to disarm police officer and fled with officer’s gun, intent to permanently deprive owner of possession of property could be inferred and sufficient evidence of theft element of this section was present. State v. Skaggs, 42 Or App 763, 601 P2d 862 (1979)

Evidence that defendant discharged fire extinguisher at security officer, who was approximately nine feet from him, was sufficient to be submitted to jury on issue of use of physical force to prevent resistance to theft. State v. Clark, 47 Or App 557, 615 P2d 1044 (1980)

Where victim testified that defendant grabbed at her purse and told her to give it to him, evidence was sufficient to permit jury to find defendant used force with intention of preventing or overcoming victim’s resistance and such force was sufficient to constitute robbery in third degree under this section. State v. Williams, 58 Or App 398, 648 P2d 1354 (1982)

Where record contained evidence from which rational jury could infer that defendant threatened, expressly or impliedly, to use physical force against another, trial court did not err in denying defendant’s motion for acquittal. State v. Odoms, 117 Or App 1, 844 P2d 217 (1992), Sup Ct review denied

Threat is made implicitly where context of demand causes victim to reasonably infer that immediate physical force will be used if demand refused. State v. Hall, 327 Or 568, 966 P2d 208 (1998)

Whether person uses “physical force” depends on intent of person using force, not extent to which victim perceives use of force. State v. Johnson, 215 Or App 1, 168 P3d 312 (2007), Sup Ct review denied

To be victim of crime of robbery, person does not need to own property that is taken. State v. Williams, 229 Or App 79, 209 P3d 842 (2009), Sup Ct review denied; State v. Hamilton, 348 Or 371, 233 P3d 432 (2010)

When defendant fled from taxi cab without paying for taxi ride, defendant did not did not take “property” which is requirement to commit offense of third-degree robbery under this section. State v. Bartlett, 270 Or App 37, 346 P3d 1240 (2015)

When time and distance intervene between theft and defendant’s use of force without evidence that defendant was still in process of escape and defendant reacted with force only when located and apprehended in another location, evidence is insufficient to show that defendant used force immediately after theft. State v. Tolbert, 295 Or App 6, 433 P3d 501 (2018)

Because only minimal force is required for conviction of robbery in third degree, it is not categorical crime involving moral turpitude for purposes of removability analysis under Immigration and Nationality Act. Barbosa v. Barr, 926 F3d 1053 (9th Cir. 2019), modifying Barbosa v. Barr, 919 F3d 1169 (9th Cir. 2019)

Because this section does not require that defendant engage in nonconsensual taking, it is facially overbroad and indivisible and therefore does not qualify as categorical theft offense or count as aggravated felony for purposes of removal analysis under Immigration and Nationality Act. Lopez-Aguilar v. Barr, 948 F3d 1143 (9th Cir. 2020)

Law Review Citations

87 OLR 783 (2008)

164.005
Definitions
164.015
“Theft” described
164.025
Consolidation of theft offenses
164.035
Defenses
164.043
Theft in the third degree
164.045
Theft in the second degree
164.055
Theft in the first degree
164.057
Aggravated theft in the first degree
164.061
Sentence for aggravated theft in the first degree when victim 65 years of age or older
164.063
Disproportionate impact
164.065
Theft of lost, mislaid property
164.075
Extortion
164.085
Theft by deception
164.095
Theft by receiving
164.098
Organized retail theft
164.105
Right of possession
164.115
Value of property
164.125
Theft of services
164.130
Application of ORS 164.125 to telephone or telegraph services
164.132
Unlawful distribution of cable television equipment
164.135
Unauthorized use of a vehicle
164.138
Criminal possession of a rented or leased motor vehicle
164.140
Criminal possession of rented or leased personal property
164.160
Definitions
164.162
Mail theft or receipt of stolen mail
164.164
Defense in prosecution under ORS 164.162
164.170
Laundering a monetary instrument
164.172
Engaging in a financial transaction in property derived from unlawful activity
164.174
Exceptions
164.205
Definitions for ORS 164.205 to 164.270
164.215
Burglary in the second degree
164.225
Burglary in the first degree
164.235
Possession of a burglary tool or theft device
164.243
Criminal trespass in the second degree by a guest
164.245
Criminal trespass in the second degree
164.255
Criminal trespass in the first degree
164.265
Criminal trespass while in possession of a firearm
164.270
Closure of premises to motor-propelled vehicles
164.272
Unlawful entry into a motor vehicle
164.274
Definitions for ORS 164.276 and 164.278
164.276
Authority of sports official to expel persons from sports event
164.278
Criminal trespass at a sports event
164.305
Definitions for ORS 164.305 to 164.377
164.315
Arson in the second degree
164.325
Arson in the first degree
164.335
Reckless burning
164.338
Arson incident to the manufacture of a controlled substance in the second degree
164.342
Arson incident to the manufacture of a controlled substance in the first degree
164.345
Criminal mischief in the third degree
164.354
Criminal mischief in the second degree
164.365
Criminal mischief in the first degree
164.367
Determining value of damage
164.373
Tampering with cable television equipment
164.377
Computer crime
164.381
Definitions
164.383
Unlawfully applying graffiti
164.386
Unlawfully possessing a graffiti implement
164.388
Preemption
164.395
Robbery in the third degree
164.405
Robbery in the second degree
164.415
Robbery in the first degree
164.775
Deposit of trash within 100 yards of waters or in waters
164.785
Placing offensive substances in waters, on highways or other property
164.805
Offensive littering
164.813
Unlawful cutting and transport of special forest products
164.814
State Forester required to develop forms for special forest products
164.825
Cutting and transport of coniferous trees without permit or bill of sale
164.828
Ownership as affirmative defense under ORS 164.813 and 164.825
164.835
Investigation to prevent violations of ORS 164.813 and 164.825
164.845
Arrest, summons for cutting or transport of trees or special forest products
164.855
Seizure of trees or special forest products cut or transported in violation of ORS 164.813 or 164.825
164.857
Unlawfully transporting metal property
164.863
Unlawful transport of meat animal carcasses
164.864
Definitions for ORS 164.864 to 164.882
164.865
Unlawful sound recording
164.866
Civil action for injuries caused by criminal acts
164.867
Applicability of ORS 164.868, 164.869 and 164.872
164.868
Unlawful labeling of a sound recording
164.869
Unlawful recording of a live performance
164.872
Unlawful labeling of a videotape recording
164.873
Exemptions from ORS 164.865, 164.868, 164.869, 164.872 and 164.875
164.875
Unlawful videotape recording
164.882
Unlawful operation of an audiovisual device
164.885
Endangering aircraft
164.886
Unlawful tree spiking
164.887
Interference with agricultural operations
164.889
Interference with agricultural research
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