Opinion
C-82-05-35345; CA A25940
Argued and submitted March 14, 1983 kidnapping conviction affirmed, robbery
Conviction reversed and case remanded for new trial May 4, 1983 Lewis' reconsideration denied June 10, 1983 State's reconsideration denied June 24, 1983 Lewis' petition for review denied July 6, 1983 ( 295 Or. 297), state's Petition for review denied July 26, 1983 ( 295 Or. 447)
Appeal from Circuit Court, Multnomah County, William M. Dale, Judge.
Ernest E. Estes, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Terry R. Leggert, Special Assistant Attorney General, Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Attorney General, and William F. Gary, Solicitor General, Salem.
Before Buttler, Presiding Judge, and Warren and Rossman, Judges.
PER CURIAM.
Kidnapping conviction affirmed; robbery conviction reversed and remanded for a new trial.
Defendant's conviction of robbery in the first degree must be reversed. It was error for the trial court not to have instructed the jury on the lesser included offense of theft in the second degree, as requested by defendant. The jury could have found that defendant took money from the victim without putting the victim in fear and, therefore, the offense would have been theft. State v. Noble, 26 Or. App. 921, 554 P.2d 533 (1976).
Because this case must be remanded for a new trial, we have reviewed defendant's second assignment of error regarding the trial court's refusal to merge, for conviction and sentencing, robbery in the first degree with kidnapping in the second degree, and find no error.
Kidnapping conviction affirmed; robbery conviction reversed and remanded for a new trial.