2015 ORS 164.405¹
Robbery in the second degree

(1) A person commits the crime of robbery in the second degree if the person violates ORS 164.395 (Robbery in the third degree) 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.

(2) Robbery in the second degree is a Class B felony. [1971 c.743 §149]

Notes of Decisions

It is for the jury to decide whether the sec­ond per­son present was close enough to aid the defendant. State v. Miller, 14 Or App 608, 513 P2d 1199 (1973)

The term "aided by an­oth­er per­son actually present" includes a per­son who is at hand, or within reach, sight or call, and who presents an added threat to the victim's safety. State v. Miller, 14 Or App 608, 513 P2d 1199 (1973); State v. Jackson, 212 Or App 51, 157 P3d 239 (2007), Sup Ct review denied

Evidence of the com­mis­sion of other crimes by a defendant is admissible if relevant to show motive, intent, absence of mis­take or accident, common scheme or plan, identity of the defendant, or any other relevant fact unless its probative value is outweighed by its prejudicial tendency to blacken the defendant's presumptively good character. State v. Williams, 16 Or App 361, 518 P2d 1049 (1974), Sup Ct review denied

Evidence of a sec­ond robbery was relevant as to the intent, plan and identifica­tion of defendant and its probative value outweighed the potential for prejudice so that it was properly admitted, whereas evidence of yet a third crime, not a robbery, was properly excluded. State v. Williams, 16 Or App 361, 518 P2d 1049 (1974), Sup Ct review denied

Two robberies, each involving a separate victim but arising out of the same transac­tion, are separate of­fenses and sen­ten­cing on each of them is proper. Hussick v. State, 19 Or App 915, 529 P2d 938 (1974), Sup Ct review denied

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

Convic­tions for first and sec­ond de­gree robbery were merged where charges involved same victim and con­duct at same time and place. State v. Fickes, 36 Or App 361, 584 P2d 770 (1978)

Evidence of shotgun found in getaway vehicle was irrelevant and inadmissible where weapon was not used in robbery. State v. Cox, 37 Or App 139, 586 P2d 390 (1978), Sup Ct review denied

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)

Assault in sec­ond de­gree is not lesser included of­fense of robbery in first or sec­ond de­gree. State v. Taylor, 97 Or App 261, 774 P2d 1121 (1989)

Ele­ments of sec­ond de­gree robbery are not necessarily included in ele­ments of first de­gree robbery. State v. Zimmerman, 170 Or App 329, 12 P3d 996 (2000)

Menacing is not lesser included of­fense of sec­ond de­gree robbery. State v. Lee, 174 Or App 119, 23 P3d 999 (2001), Sup Ct review denied

Representa­tion that per­son is armed with purported deadly weapon may include situa­tion in which per­son is actually armed. State v. Riehl, 188 Or App 1, 69 P3d 1252 (2003)

Only per­son who actually engages in active con­duct constituting third de­gree robbery may be directly culpable for viola­tion of this sec­tion. State v. Rennells, 213 Or App 423, 162 P3d 1006 (2007)

Person may represent that per­son is armed with what purports to be dangerous or deadly weapon regardless of whether victim believes representa­tion. State v. Oliver, 221 Or App 233, 189 P3d 1240 (2008), Sup Ct review denied

Person who does not actively engage in con­duct constituting third de­gree robbery may be culpable under aiding and abetting theory. State v. Smith, 229 Or App 243, 211 P3d 961 (2009), Sup Ct review denied

Robbery by representa­tion that per­son is armed with dangerous or deadly weapon does not constitute crime separate from robbery while aided by an­oth­er per­son actually present. State v. White, 346 Or 275, 211 P3d 248 (2009)

To be victim of crime of robbery, per­son does not need to own prop­erty that is taken. State v. Hamilton, 348 Or 371, 233 P3d 432 (2010)

Second de­gree robbery is not lesser included of­fense of first de­gree robbery. State v. Colmenares-Chavez, 244 Or App 339, 260 P3d 667 (2011), Sup Ct review denied

Where defendant was convicted of first-de­gree robbery under ORS 161.610 (Enhanced penalty for use of firearm during commission of felony) and 164.415 (Robbery in the first degree) and sec­ond-de­gree robbery under this sec­tion and ORS 161.610 (Enhanced penalty for use of firearm during commission of felony), and one count of sec­ond-de­gree robbery under this sec­tion included ele­ment that defendant was "aided by an­oth­er per­son present" that count does not merge into others under this sec­tion because "an­oth­er per­son" ele­ment is unique and requires proof that other ele­ments do not. State v. Burris, 270 Or App 512, 348 P3d 338 (2015)

This sec­tion does not require third party to have mental state of intent to facilitate or promote com­mis­sion of theft, so where third party accompanied defendant in store where defendant committed theft and then drove defendant from store and from pursuing security guards but did not know that defendant committed theft, third party was "an­oth­er per­son actually present" for purposes of this sec­tion. State v. Morgan, 274 Or App 792, 364 P3d 690 (2015), Sup Ct review allowed

Notes of Decisions

Trial court properly admitted two handguns found in defendant's pos­ses­sion shortly after alleged com­mis­sion of crimes of kidnapping and robbery, where crimes were committed with aid of a handgun. State v. Manning, 39 Or App 279, 591 P2d 1195 (1979)

Chapter 164

Law Review Cita­tions

51 OLR 427-637 (1972)


1 Legislative Counsel Committee, CHAPTER 164—Offenses Against Property, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors164.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 164, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano164.­html (2015) (last ac­cessed Jul. 16, 2016).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.