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Co-Defendants to Rob I and Proving the Firearm is Loaded

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by: Ryan • January 13, 2012 • no comments

I'm going to keep this short. I'm going to start with a list of things you probably already know, if you represent people charged with robbery in the first degree. And then one last observation that has the potential to significantly help the defense of co-defendants.

(1) If the theory of robbery in the first degree is "armed with a deadly weapon," then robbery II (representing that you had a deadly weapon) is not automatically a lesser-included offense.

(2) But rob II can be a lesser-included offense of rob I (armed with a deadly weapon) if the state has charged the gun minimum. See State v. Riehl, 188 Or App 1 (2003)(finding that robbery in the second degree based on representation of a deadly or dangerous weapon is not a lesser-included offense of robbery in the first degree based on being armed with a deadly weapon, unless the state has also alleged the sentence enhancement factor of "use or threatened use of a firearm").

(3) If your client is charged with rob I on a theory of "armed with a deadly weapon," there is a jury instruction you absolutely need to ask for and one you need to object to. Robbery I w/ a Firearm and Comments on the Evidence . Numerous Multnomah County attorneys have beaten Rob I counts using the arguments in that post.

(4) Assume multiple co-defendants involved in a robbery. All are charged with Rob I (armed with a deadly weapon) but only one actually had a firearm. Under current case law, it's not enough - in order to find a co-defendant guilty of rob I - to prove that he aided and abetted the robbery. The jury must find beyond a reasonable doubt that the firearm was loaded and that the co-defendant intended that the firearm was loaded.

And here's my final thought, which - unlike the above - I don't believe I've posted on before. If the state charges the gun minimum, Rob II is a lesser-included offense of Rob I. But the gun minimum is offender-specific. That means that it only - only - applies to the person who wielded the firearm. Therefore, my question is, can a co-defendant who didn't know (or more precisely, didn't intend) that the firearm was loaded be convicted of the lesser-included offense of robbery II if the "element/sentence enhancement" that makes that possible - by its own terms - only applies to the guy holding the gun?

If not, then the appropriate lesser-included offense to submit to the jury is robbery in the third degree. But only for those co-defendants who weren't waving around the firearm.