FILED: October 23, 2002

STATE OF OREGON,

Respondent,

v.

TROY LATRELL RAMSEY,

Appellant.

Appeal from Circuit Court, Multnomah County.

Joseph F. Ceniceros, Judge.

Argued and submitted June 28, 2002.

David E. Groom, Acting Executive Director, argued the cause for appellant. With him on the briefs was Andy Simrin, Senior Deputy Public Defender.

Daniel J. Casey, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before Edmonds, Presiding Judge, and Armstrong* and Kistler, Judges.

KISTLER, J.

Convictions on counts 1, 2, 4, 5, 6, 7, 8, 10, 11, and 12 reversed and remanded for a new trial; sentence on count 3 vacated and remanded; count 13 remanded for resentencing; otherwise affirmed.

*Armstrong, J., vice Warren, S. J.

KISTLER, J.

Defendant was convicted of six counts of aggravated murder, three counts of first-degree burglary, three counts of first-degree robbery, and one count of being a felon in possession of a firearm. On appeal, he argues, among other things, that the trial court should have instructed the jury on his claim-of-right defense. We agree with that argument. We accordingly reverse and remand ten of defendant's convictions and reverse and remand the remaining convictions for resentencing.

Defendant's multiple convictions arose out of a single incident in an after-hours gambling club. Defendant was playing a version of craps known as "four, five, six" with Antoine Levier and James Mayes. Defendant decided that Mayes was cheating and, depending on whom the jury believed, either used a gun to recover "what was rightfully [his]" from Mayes or sought to rob both Mayes and Levier. While defendant was either attempting to recover his money from Mayes or seeking to rob Mayes and Levier, the owner of the club, James Robinson, came up behind defendant with a shotgun. In the ensuing fight, defendant shot and killed Robinson.

The state charged defendant with robbery, burglary, aggravated murder, and being a felon in possession of a firearm. Each of the three counts of first-degree robbery involved a different victim--Robinson, Mayes, and Levier. The three counts of first-degree burglary charged that defendant unlawfully remained in one of two locations with the intent to commit theft. Three of the six aggravated murder counts were based on a murder committed during the course of a robbery, and each count involved a different robbery victim. The three remaining aggravated murder charges alleged that defendant committed a murder during the course of a burglary and presumably corresponded with the three burglary counts. Finally, the state charged that defendant was a felon in possession of a firearm. The jury convicted defendant on all 13 counts and sentenced him to life without the possibility of parole for the aggravated murder convictions. The trial court merged each of the six robbery and burglary convictions into the six related aggravated murder convictions "for purposes of conviction." The court did not, however, merge the six aggravated murder convictions into a single conviction. It imposed concurrent life sentences without the possibility of parole on the six aggravated murder convictions and an 18-month concurrent sentence on the felon-in-possession conviction.

We begin with defendant's seventh assignment of error. (1) At trial, defendant requested an instruction that would have told the jury that it is a defense to theft if an individual acts under an honest claim of right regarding the specific property taken. See ORS 164.035(1). Although defendant had not been charged with theft, robbery requires proof of a theft or an attempted theft, and each of the three burglary counts was based on an intent to commit a theft. Additionally, the six aggravated murders counts alleged that defendant had killed Robinson in the course of committing either a burglary or a robbery.

The trial court ruled that a claim-of-right defense can be asserted against a charge of theft but held that it cannot be asserted against a charge of robbery. Because there was no question that defendant had used force to retake his property, the court concluded that the defense was not available to him. On appeal, defendant argues that the trial court interpreted the statutory defense too narrowly and that there was evidence to support the defense. The state, in response, does not defend the trial court's ruling on its own terms; that is, the state does not argue that the defense is not available if defendant used force to recover his property. Rather, it argues that there was no evidence that defendant was merely trying to retake his property. Specifically, the state contends that, because the jury could infer only that defendant was trying to retake more than was rightfully his, the defense was not available.

We agree with the state's implicit concession that the defendant's use of force did not preclude him from asserting a claim-of-right defense. ORS 164.035 provides, in part:

"(1) In a prosecution for theft it is a defense that the defendant acted under an honest claim of right, in that:

"* * * * *

"(b) [t]he defendant reasonably believed that the defendant was entitled to the property involved[.]"

Under ORS 164.395(1), a person commits robbery in the third degree if "in the course of committing or attempting to commit theft the person uses or threatens the immediate use of physical force upon another person." Robbery in the first degree is based on a violation of ORS 164.395. See ORS 164.415. By statute, a person cannot be guilty of robbery if he or she is not guilty of theft or attempted theft. It follows from the texts of those statutes that, if a person has a defense to theft, he or she also has a defense to robbery. Put another way, if a person lacks the intent to commit a theft because he or she has a claim of right to the property, he or she also lacks the intent to commit robbery.

ORS 164.035 was enacted in 1971 and was intended to codify existing case law. See Commentary to Criminal Law Commission Proposed Oregon Criminal Code, Final Draft and Report