No. 8 February 16, 2017 47

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

RYLEY JEANNE MORGAN,

Petitioner on Review.

(CC 11CR0886; CA A152692; SC S063831)

En Banc

On review from the Court of Appeals.*

Argued and submitted September 23, 2016.

Marc D. Brown, Chief Deputy Defender, Salem, argued 

the cause and filed the brief for petitioner on review. Also 

on the brief was Ernest G. Lannet, Chief Defender, Office of 

Public Defense Services.

Jamie K. Contreras, Assistant Attorney General, Salem, 

argued the cause and filed the brief for respondent on 

review. Also on the brief were Ellen F. Rosenblum, Attorney 

General, and Benjamin Gutman, Solicitor General.

WALTERS, J.

The decision of the Court of Appeals is affirmed. The judgment of the circuit court is affirmed in part and reversed in 

part, and the case is remanded to the circuit court for entry 

of judgment and resentencing as ordered by the Court of 

Appeals.

______________

* Appeal from Josephine County Circuit Court, Thomas M. Hull, Judge. 274 

Or App 792, 364 P3d 690 (2015).
48 State v. Morgan

Case Summary: Defendant was convicted of second-degree robbery under 

ORS 164.405(1)(b) on the theory that she had committed third-degree robbery 

and had been “aided by another person actually present.” Defendant appealed 

to the Court of Appeals and argued that, to convict her of second-degree robbery, the state was required to prove that Thornton, the other “person actually 

present,” was her accomplice — that he had acted with the specific intent to promote or facilitate the commission of the robbery. The Court of Appeals disagreed, 

concluding that ORS 164.405(1)(b) does not require that the aider know that 

the defendant is committing theft. In a unanimous opinion written by Justice 

Martha L. Walters, the Oregon Supreme Court held that, to establish that defendant was “aided by another person actually present” and therefore was guilty of 

second-degree robbery under ORS 164.405(1)(b), the state was required to prove 

that the person who aided defendant acted with the intent to facilitate the robbery. The Court affirmed the decision of the Court of Appeals with respect to 

defendant’s second-degree robbery conviction. The Court explained that, viewing 

the evidence in the light most favorable to the state, the factfinder could have 

found that Thornton, the other “person actually present,” was aware of the facts 

that constituted the crime of third-degree robbery and acted with an intent to 

promote or facilitate the robbery.

The Court affirmed the decision of the Court of Appeals. The Court affirmed 

the judgment of the circuit court in part and reversed in part, consistent with 

the Court of Appeals’ holding that the trial court erred in failing to merge defendant’s third-degree robbery conviction with her second-degree robbery conviction. The Court remanded the case to the circuit court for entry of judgment and 

resentencing as ordered by the Court of Appeals.
Cite as 361 Or 47 (2017) 49

WALTERS, J.

In this case, we hold that, to establish that defendant was “aided by another person actually present” and 

therefore was guilty of second-degree robbery under ORS 

164.405(1)(b), the state was required to prove that the person who aided defendant acted with the intent to facilitate 

the robbery. Because the state proffered evidence from which 

a rational trier of fact could have reached that conclusion, 

we affirm the judgment of the trial court and the decision of 

the Court of Appeals. State v. Morgan, 274 Or App 792, 794, 

364 P3d 690 (2015).

For reasons that we will explain, we summarize 

the relevant facts in the light most favorable to the state. 

Defendant’s boyfriend, Thornton, dropped off defendant and 

the couple’s child at a department store. Defendant entered 

the store and took clothing into a fitting room to try it on. 

Recognizing suspicious behavior, security officers began to 

monitor defendant’s actions and noticed that, after defendant had left the fitting room, two items of clothing were 

missing. Soon thereafter, Thornton returned to the store 

and held the child while defendant continued to try on clothing. Defendant left the fitting room a second time, and the 

security officers noted that two additional items were missing. Two officers—Marshall and Waltz—and the store manager waited for defendant and Thornton to pass all points 

of sale and leave the store, and then followed them to the 

parking lot.

In the parking lot, Waltz approached defendant as 

she walked to the car that Thornton was driving, showed 

defendant his badge, and said, “Ma’am[,] I’m with store 

security and we need to talk about some merchandise that 

wasn’t paid for.” As Waltz approached defendant, he yelled, 

“Store security. Stop.” Defendant responded, “You’re not taking me to jail,” and jumped into the car on the passenger’s 

side. Waltz grabbed defendant’s right arm and told her to 

get out of the car, but defendant refused and pulled her arm 

back.

Thornton, who was seated on the driver’s side of the 

vehicle, knew that the officers were loss prevention officers. 
50 State v. Morgan

He heard the officers state that they were security personnel, and he knew that they had come to the car to question 

defendant because of her having been in the store. Thornton 

was also aware of defendant’s history as a repeat property 

offender.1

 Nevertheless, Thornton started the car. Waltz 

continued to hold onto defendant’s arm, and, with defendant’s door still open, Thornton began to drive. Waltz let go 

of defendant, and Thornton drove forward toward Marshall 

and the store manager, who were standing in front of the 

car. Marshall avoided being hit by “push[ing] off the front of 

the car,” but the car hit the store manager, who was unable 

to get out of the way. Thornton sped away “extremely fast” 

and ran a red light as he and defendant left the store parking lot.

The state charged defendant with second-degree 

robbery under ORS 164.405(1)(b), based on allegations 

that she had committed third-degree robbery and had been 

“aided by” Thornton, “another person actually present.” 

During her bench trial, defendant raised questions about 

what was required to sustain a conviction for second-degree 

robbery and challenged the legal sufficiency of the state’s 

evidence. In her closing argument to the trial court, she 

argued that “aiding requires something more than merely 

driving off in the vehicle” and that “[Thornton] has to know 

what [defendant] did.” Defendant argued that Thornton 

did not have that knowledge and that the only evidence 

was that he drove the car out of the parking lot out of selfinterest, to avoid being caught in possession of drugs. The 

trial court disagreed with defendant’s statement of the law. 

The court explained that the person aiding defendant was 

not required to have any knowledge of the specific crime 

being committed: “All I have to *** find is that [Thornton] 

knew that [defendant] was being sought for something, it 

was nefarious, criminal, and that he was aiding her to leave 

and get out of there.” The court found that “there clearly was 

an intent * ** to aid the defendant.”

1 The following evidence was admitted without objection or limitation in the 

guilt phase of defendant’s trial. Defendant and Thornton had been in a romantic 

relationship since 2009. During their relationship, defendant had been admitted into a judicial program in Jackson County to rehabilitate repeat property 

offenders. Two convictions led to her admission into that program: first-degree 

burglary and first-degree theft.
Cite as 361 Or 47 (2017) 51

Defendant appealed to the Court of Appeals and 

argued that, to convict her of second-degree robbery, the 

state had to prove that Thornton was her accomplice—that 

he had acted with the specific intent to promote or facilitate the commission of the robbery. Morgan, 274 Or App at 

797.2

 The Court of Appeals disagreed, concluding that “ORS 

164.405(1)(b) does not require that ‘another person actually 

present’ who aids a defendant must know that the defendant 

is committing theft.” Id. at 794. In fact, the court explained 

in a footnote, ORS 164.405(1)(b) does not include a mental 

state requirement for the person who aids the defendant; 

that person need not know, the court opined, that the defendant is engaging in something “nefarious [and] criminal.” 

Id. at 801 n 3 (brackets in original). The court reasoned that 

“the focus of ORS 164.405(1)(b) is defendant’s mental state 

and defendant’s use of ‘another person actually present,’” 

rather than the mental state of the person providing the aid. 

Id.

In reviewing whether the evidence was sufficient 

to satisfy the legal requirements of ORS 164.405(1)(b), the 

court deemed the relevant standard to be “whether, after 

viewing the evidence in the light most favorable to the state, 

any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt.” Id. 

at 801. Because the court understood ORS 164.405(1)(b) to 

require only that Thornton was in proximity to the victim, 

it concluded that the evidence presented at trial met that 

standard, and affirmed. Id. at 801-02.

Defendant sought review in this court, and we 

allowed her petition. The standard of review that we should 

apply depends on the nature of the objection that defendant is pressing. In closing argument in a criminal case, a 

defendant may make a number of arguments: for example, 

a defendant may challenge the sufficiency of the evidence 

2 Before the Court of Appeals, defendant also assigned error to the trial 

court’s failure to merge defendant’s third-degree robbery conviction with her 

second-degree robbery conviction. Morgan, 274 Or App at 802. The state conceded 

that the trial court had erred, and the Court of Appeals reversed defendant’s 

convictions for second-degree robbery and third-degree robbery and remanded to 

the trial court for resentencing. Id. Accordingly, that issue is not before this court 

on review.
52 State v. Morgan

or make an argument for the existence of an element that 

the state must prove. We consider the former to be the functional equivalent of a motion for judgment of acquittal and 

the latter to be the functional equivalent of a challenge to 

jury instructions. See State v. Gonzalez-Valenzuela, 358 Or 

451, 454 n 1, 365 P3d 116 (2015) (explaining distinction).

Here, the precise nature of defendant’s trial court 

argument is somewhat unclear. In this court, however, 

defendant’s argument is best understood as a challenge to 

the sufficiency of the evidence. First, defendant does not 

assign error to the standard of review applied by the Court 

of Appeals—a standard that applies when a defendant challenges the sufficiency of the evidence. Second, in this court, 

defendant does not explicitly contend that her argument in 

the trial court was the functional equivalent of a challenge 

to a jury instruction. Instead, she primarily frames her 

argument as a challenge to the sufficiency of the evidence. 

Accordingly, we limit our review to determining whether, 

viewing the evidence in the light most favorable to the state, 

a rational trier of fact could have found that the state had 

proved the essential elements of the crime beyond a reasonable doubt. See State v. Rose, 311 Or 274, 281, 810 P2d 839 

(1991) (reviewing challenge to sufficiency of the evidence 

to determine whether any rational trier of fact could have 

found essential elements of crime proved beyond a reasonable doubt).

To make that determination in this case, we first consider the essential elements of the crime of second-degree robbery. The second-degree robbery statute, ORS 164.405(1)(b),

provides, in part:

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

second degree if the person violates ORS 164.395 and the 

person:

“*****

“(b) Is aided by another person actually present.”

ORS 164.395 defines the crime of third-degree robbery:

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

third degree if in the course of committing or attempting to 
Cite as 361 Or 47 (2017) 53

commit 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[.]”

Thus, to prove that a defendant committed second-degree 

robbery under ORS 164.405(1)(b), the state must establish 

that the defendant committed third-degree robbery and 

that the defendant was “aided by another person actually 

present.”

The issue in this case is what evidence is necessary to prove that a defendant was “aided by another person actually present.” Defendant contends that the state is 

required to present evidence that the person who was present and who provided aid acted as an accomplice—someone 

with the specific intent to promote or facilitate the commission of the acts constituting third-degree robbery. The state 

responds that it is not required to present evidence that the 

person who provided aid acted with a specific mental state. 

According to the state, a defendant is “aided by another person” if that person engages in conduct that in fact facilitates 

the commission of the robbery, even if the person does so 

without knowing that the person is providing aid. Thus, the 

state argues, a person who unwittingly opens the door for a 

robber fleeing a store with stolen merchandise provides sufficient aid to elevate third-degree robbery to second-degree 

robbery.3

Before considering those opposing positions, we 

think it important to observe that the issue that the parties 

raise is not the requisite mental state of a defendant who is 

3 The state’s position on review is different from its position before the trial 

court. At trial, the court asked the prosecutor if Thornton, as the getaway driver, 

had to “know anything about what’s been going on.” The prosecutor responded,

“The driver is going to have to intentionally aid and abet the criminal conduct. * ** His act was driving away, knowing she had committed the crime of 

theft. That is when he becomes an aider and abettor.”

The court then clarified, “Does he have to know that it’s theft conduct, or can he 

just know that he’s aiding somebody in something nefarious?” The prosecutor 

shifted her position, explaining,

“All *** that he has to know [is] that there is a crime being, that he’s aiding. 

The type of crime? No, *** it doesn’t require that.”
54 State v. Morgan

charged with second-degree robbery. The parties acknowledge that, to be convicted of a crime, a defendant must have 

acted with the requisite mental state for every “material 

element” of the offense, and that the material elements of 

second-degree robbery include the fact that the defendant 

was “aided by another person actually present.” See ORS 

161.095(2) (person not guilty of offense unless person acts 

with culpable mental state with respect to each material element that necessarily requires culpable mental state); State 

v. Simonov, 358 Or 531, 539-40, 368 P3d 11 (2016) (minimum culpable mental state for a conduct element is knowledge, and minimum culpable mental state for a result or circumstance element is criminal negligence). The parties also 

do not ask this court to determine the mental state that a 

defendant must have with regard to that element. The parties do not ask whether a defendant must know that he or 

she is receiving aid, or whether some other mental state is 

required, and we do not consider that question. We raise it 

only to point out the distinction: Although defendant is the 

person who is accused of the crime of second-degree robbery, 

it is not defendant’s mental state—but rather the mental 

state of another person who was present at the time of the 

robbery—that is the subject of this appeal.

We begin our analysis of that issue with the text 

of ORS 164.405(1)(b) and the state’s argument that the 

requirement that a defendant be “aided” by a person present 

is a requirement that the person present engage in certain 

conduct, and that proof of an accompanying mental state is 

unnecessary. Because the statute does not define the term 

“aided,” we consider its plain meaning. Comcast Corp. v. 

Dept. of Rev., 356 Or 282, 295, 337 P3d 768 (2014). When 

the Criminal Law Revision Commission drafted the statute, 

“aid” was defined as “to give help or support to,” or “contribute to.” Webster’s Third New Int’l Dictionary 44 (unabridged 

ed 1961). Black’s Law Dictionary similarly defined “aid” as 

“[t]o support, help, assist or strengthen”; “[a]ct in cooperation with”; “[s]upplement the efforts of another.” Black’s at

91 (rev 4th ed 1968). The state contends that those definitions focus on the aider’s conduct and suggests that an aider’s mental state is irrelevant to the question whether aid 

was provided.
Cite as 361 Or 47 (2017) 55

We read those definitions differently. Those definitions are replete with verbs—“help,” “support,” “assist,” “contribute,” and “cooperat[e]”—that typically connote an intent 

to facilitate an outcome. If one were to describe a person 

as “assisting” another, the listener would immediately wonder what outcome the individual was trying to achieve. A 

common use of the word “assist” would be in a phrase such 

as, “He is assisting his elderly father in eating,” or “She is 

assisting her partner in her run for office.” Those uses connote an intent to facilitate the outcome—eating or election 

to office. To connote assistance without the intent to facilitate the outcome, one generally would use an additional 

modifying adverb, such as “unintentionally” or “unwittingly.” Without such a modifier, the typical understanding 

of, for example, the statement, “Sally assisted the criminal,” 

would be that Sally acted with the intent to facilitate the 

criminal outcome. The words “help,” “support,” “contribute,” 

and “cooperat[e]” also connote an intent to facilitate a particular outcome. The legislature’s use of the word “aided” 

without specifying that the aider act with a particular mental state does not convince us that the state is correct that 

the legislature intended to make conduct alone the relevant 

consideration.

We turn therefore to the next argument that the 

state makes—a contextual argument. The state points to 

the accomplice liability statute, ORS 161.155, and argues 

that, when the legislature intends to require that a person who provides aid act with a culpable mental state, it 

expressly imposes that requirement. ORS 161.155 provides, 

in part:

“A person is criminally liable for the conduct of another 

person constituting a crime if:

“*****

“(2) With the intent to promote or facilitate the commission of the crime the person:

“* ****

“(b) Aids or abets or agrees or attempts to aid or abet 

such other person in planning or committing the crime[.]”
56 State v. Morgan

The state argues that the accomplice liability statute does 

not merely rely on the plain meaning of the term “aids or 

abets” to impose a requirement of criminal intent, but, in 

addition, requires that the person providing aid must have 

“the intent to promote or facilitate the commission of the 

crime.” ORS 161.155(2). Thus, the state suggests, when the 

legislature used only the word “aided” in ORS 164.405(1)(b)

and failed to include the additional requirement that the 

person acted with the intent to promote or facilitate the 

crime of robbery, the legislature required conduct that provides assistance but did not require an accompanying mental state.

That is not the only way that the legislature has 

described accomplice liability, however. ORS 163.165 defines 

assault in the third degree and provides that fourth-degree 

assault is elevated to third-degree assault when the defendant, while being “aided by another person actually present,” 

causes physical injury to the victim.4

 ORS 163.165(1)(e).

We interpreted ORS 163.165(1)(e) in State v. Pine, 336 Or 

194, 82 P3d 130 (2003), and State v. Phillips, 354 Or 598, 317 

P3d 236 (2013). In those cases, the question was whether the 

person who provided aid to the principal in the assault also 

could be convicted of third-degree assault. Pine, 336 Or at 

196; Phillips, 354 Or at 602. We explained that the answer 

turned on whether, in aiding in the assault, the third person “caused” the victim’s physical injury. Pine, 336 Or at 

207; Phillips, 354 Or at 603. We held that, if the act that 

aided the assault also can be said to have caused it, then 

both the third person and the principal can be held liable for 

third-degree assault. Pine, 336 Or at 207; Phillips, 354 Or 

at 603. Although not expressly discussed in those cases, our

holdings rested on the premise that, to be guilty of thirddegree assault under ORS 163.165(1)(e), the person who 

aided in causing the physical injury must have acted 

intentionally.

4 ORS 163.165(1) provides, in part:

“A person commits the crime of assault in the third degree if the person:

“*****

“(e) While being aided by another person actually present, intentionally 

or knowingly causes physical injury to another[.]” 
Cite as 361 Or 47 (2017) 57

In reaching our decision in Phillips, we traced the 

phrase “aided by another person actually present” to its 

common law origins. We explained that

“[t]he common law divided persons charged with felonies 

into three classes: principals in the first degree; principals 

in the second degree; and accessories before the fact. See

Wayne R. LaFave, 2 Substantive Criminal Law § 13.1(b) 

(2d ed 2003). ‘[A] principal of the first degree is one who 

does the act, either himself directly, or by means of an innocent agent.’ Joel Prentiss Bishop, 1 Commentaries on the 

Criminal Law § 456 (2d ed 1858). ‘A principal of the second degree is one who is present lending his countenance 

and encouragement, or otherwise aiding, while another 

does it.’ Id.; accord James Fitzjames Stephen, 2 A History 

of the Criminal Law of England 230 (1883). At common law, 

a principal in the second degree could be actually or constructively present. Bishop, Criminal Law § 460; LaFave, 2 

Substantive Criminal Law § 13.1(b). Finally, a person who 

aided and abetted the commission of a crime but who was 

not actually or constructively present was an accessory 

before the fact. Bishop, 1 Criminal Law §§ 473-74.”

Phillips, 354 Or at 609-10. Thus, the phrase “aided by another 

person actually present” mirrors the common-law requirement for liability as a principal in the second degree. See id. 

at 610 (“If the person caused the injury because that person’s conduct was extensively intertwined with the injury’s

infliction, that person would be a principal in the second 

degree; that is, he or she would be a person who, while actually present, aided the infliction of physical injury.”). Thus, 

when the legislature used the phrase “aided by another person actually present” in the third-degree assault statute, it 

used that phrase to refer to a person who acts intentionally 

and who could be held liable as an accomplice. The legislature may have intended to do the same when it used that 

same phrase in ORS 164.405(1)(b).

The legislative history of ORS 164.405(1)(b) confirms that hypothesis. See State v. Walker, 356 Or 4, 17, 333 

P3d 316 (2014) (if appropriate, court considers legislative 

history in interpreting a statute). The commentary to the 

second-degree robbery statute refers to the third person 

whose aid elevates the crime of third-degree robbery to the 
58 State v. Morgan

crime of second-degree robbery as a “criminal” or an “accomplice,” and to the principal and the aider together as “professional criminals”:

“The primary rationale behind paragraph (b) of subsection (1) of § 149 [robbery in the second degree] is the 

increased danger of an assault on the victim when the 

robber is reinforced by another criminal who is actually 

present. Furthermore, when two or more persons commit 

the crime, it indicates greater planning and more likelihood that they are professional criminals. * * * However, the 

Commission was of the opinion that the accomplice circumstances, while aggravating the crime, are less serious than 

those specified in § 150 [robbery in the first degree].”

Commentary to Criminal Law Revision Commission Proposed

Oregon Criminal Code, Final Draft and Report §§ 148-50 

(July 1970) (emphases added).

Furthermore, during the Criminal Law Revision 

Commission subcommittee meetings, Paillette, the commission’s Project Director, explained that the purpose of the 

new robbery statutes was to “shift[] the focus of attention 

from the taking of property to the risk of injury and violence 

to the victim.” Audio Recording, Criminal Law Revision 

Commission, Subcommittee No. 1, June 22, 1968, Tape 7, 

Side 2. He continued, “What we’re trying to prevent [and] 

punish is physical danger to the victim.” Id. Addressing specifically the second-degree robbery statute, Paillette commented that the presence of “two or more robbers” increases 

the danger to the victim, and added that, when “multiple robbers” are involved, the type of injury that could be 

inflicted on the victim is serious enough to make the crime 

punishable to a greater extent than if only one “robber” is 

present. Id.

The state contends that, although the legislative 

history indicates that the legislature may have envisioned 

that the other “person actually present” who aids in a robbery would be a criminal or an accomplice, it did not so limit 

the scope of the second-degree robbery statute. The legislature settled on the general terms “person” and “aided” 

rather than selecting narrower terms; accordingly, the state 

argues, this court should respect that choice and decline to 

“draw a line that the legislature itself declined to draw” by 
Cite as 361 Or 47 (2017) 59

reading the statute to require a mental state on the part of 

the aider. See Walker, 356 Or at 22 (“For us to interpret the 

statute more restrictively than it was consciously drafted 

would require us to draw a line that the legislature itself 

declined to draw.”).5

The state is correct in that observation, but, here, we 

do not use that legislative history to vary statutory terms; 

instead, we use it to help us to determine what the legislature 

meant by those terms. The drafters of ORS 164.405(1)(b)

discussed their intent to elevate third-degree robbery to 

second-degree robbery when another person actually present is acting as a “criminal,” an “accomplice,” or a “robber.” 

That legislative history supports defendant’s textual and 

contextual arguments, and we conclude that, when the legislature required the presence of a third person providing 

“aid” to a defendant, it intended to require the state to prove 

that that person acted with an intent to promote or facilitate 

the defendant’s acts.

We also conclude that, viewing the evidence in the 

record in the light most favorable to the state, the trial court 

could have found that Thornton was aware of facts that constituted the crime of third-degree robbery and acted with 

an intent to promote or facilitate the robbery. As an initial 

matter, the trial court could have found that Thornton was 

aware that defendant had taken merchandise from the store 

without paying. Thornton knew that defendant had been trying on clothes in the store and that, after they left the store, 

security officers were trying, both verbally and physically, 

to prevent defendant from leaving. Because the security officers did not try to stop defendant until after she had left 

the store, as is typical with suspected shoplifters, Thornton 

reasonably would have been aware that the security officers 

believed that defendant had committed theft. And there was 

5 The state also argues that the legislature could not have intended to 

require that the third person be an accomplice because a person who aids or abets 

a criminal act under the accomplice liability statute, ORS 161.155(2)(b), need not 

be “actually present” to be criminally liable. That argument is not well-taken. 

In ORS 164.405(1)(b), the legislature selected a narrower form of common-law 

accomplice liability that does require actual presence and that thus advances the 

legislature’s concern that an accomplice who is actually present at the commission of a robbery increases the risk of harm to the victim. 
60 State v. Morgan

evidence from which the trier of fact could have found that 

Thornton credited those theft claims. Defendant’s resistance 

permitted a reasonable inference that the security officers’ 

claims of theft were valid, as did Thornton’s knowledge of 

defendant’s history as a repeat property offender. Finally, 

a rational trier of fact could have inferred from Thornton’s 

reaction—speeding away from the store—that he believed 

that defendant had stolen property from the store. Although 

Thornton testified that he drove the car out of the parking 

lot out of self-interest, to avoid being caught in possession of 

drugs, a rational trier of fact would not have been required 

to accept that testimony.

Furthermore, because Thornton watched defendant 

physically resist the security officers’ efforts to detain her, 

the court could have inferred that Thornton was aware that 

defendant had committed acts (theft plus the use of force to 

retain the stolen property) that constitute robbery. Finally, 

a rational trier of fact could have found that Thornton intentionally aided defendant in retaining the property that she 

had shoplifted. He drove the car away, nearly hitting one 

employee (Marshall), hitting a second employee (the store 

manager), and separating defendant and the stolen property 

from the third employee (Waltz) who was trying to hold on 

to her. Not only could the court have found that Thornton 

intentionally promoted defendant’s commission of the robbery, but it also could have found that Thornton’s use of the 

car to separate defendant and the property from the store 

employees was sufficient in and of itself to constitute the 

force necessary to elevate defendant’s theft to a robbery. The 

trial court correctly denied defendant’s motion for judgment 

of acquittal.

Defendant’s contrary argument is based not on 

findings that the trial court could have made, but on a 

finding that the trial court did in fact make. As defendant 

notes, the trial court did not find that Thornton knew that 

defendant had committed theft; rather, the court found that 

Thornton knew only that defendant had been engaged in 

“some sort of nefarious activity, a crime at the least.” The 

court explained that that mental state was sufficient to say 

that Thornton had aided defendant’s theft. Focusing on that 
Cite as 361 Or 47 (2017) 61

factual finding, defendant argues that the trial court should 

have granted her motion for judgment of acquittal.

The problem with defendant’s argument is that it is 

contrary to the standard of review that we have determined 

applies here. As we have explained, our task is to determine 

whether there is evidence from which a reasonable trier of 

fact could find the elements of the crime. That the trial court 

did not find those elements does not mean that it reasonably 

could not have found them. Given the particular procedural 

posture in which this case comes to us, we will not disturb 

the trial court’s judgment.

The decision of the Court of Appeals is affirmed. 

The judgment of the circuit court is affirmed in part and 

reversed in part, and the case is remanded to the circuit 

court for entry of judgment and resentencing as ordered by 

the Court of Appeals.