24 Or. App. at 396, 545 P.2d 609. Consequently, case law does not yet determine how the term “immediately” applies to the use of force after “more elapsed time.” Id.

Our reading of ORS 164.395 and its legislative history is consistent with New York's treatment of their nearly identical statute, upon which Oregon's statute was modeled.6 Commentary § 148 at 155; N.Y. Penal Law § 160.00 (McKinney 2018). See State v. Walker, 356 Or. 4, 24, 333 P.3d 316 (2014) (cases from other jurisdictions that came after the Oregon statute's enactment “may be consulted for their persuasive value”). Under similar factual circumstances, the New York appellate court applied comparable principles, reaching the same result. It identified the following factors for determining whether force occurred “immediately after the taking” for the purposes of robbery:

“the distance between the crime and the use of force or a dangerous instrument, the elapsed time since the actual taking of the property, whether the culprit is in possession of the fruits of the crime, whether he or she had reached a place of temporary safety and whether police, security guards or citizens were in close pursuit.”

People v. Robertson, 53 A.D.3d 791, 792, 861 N.Y.S.2d 492, 493 (2008) (citation omitted).

In Robertson, the defendant stole pants from a department store in a mall. Id. at 791, 861 N.Y.S.2d at 492. Security guards surreptitiously followed and surveilled him for 30 minutes as he walked through the mall, entering and reentering stores, exiting and reentering the building, and then exiting the building again. Id. When security guards approached the defendant in the parking lot, he (among other things) swung a belt and punched a guard in the face. Id. at 791-92, 861 N.Y.S.2d at 492. The defendant was charged with and convicted of robbery. Id. at 792, 861 N.Y.S.2d at 492. On appeal, the appellate court observed:

“While defendant encountered the security guards near the store, he had walked around in and out of the mall for approximately 30 minutes after taking the pants before the guards approached him and demanded return of the store's property. They had surreptitiously followed him, not making any effort to apprehend him during that time; there was no indication that defendant was aware that he was being followed or that he attempted to evade pursuit. Defendant appeared to believe that he had reached a point of temporary safety when he left the store with the stolen merchandise and continued through the mall without apprehension.”

Id. at 792-93, 861 N.Y.S.2d at 493 (citation omitted). The court determined that continuous surreptitious surveillance—to which the defendant is oblivious—does not amount to fresh pursuit. Accordingly, the court modified the defendant's judgment, reducing the conviction from robbery to petit larceny, noting it “was not a case where police or the victim confronted the culprit or gave chase directly following the culprit's taking of the property.” Id. at 792-93, 861 N.Y.S.2d at 493 (citations omitted).

New York's example parallels our understanding of Oregon's statute on third-degree robbery. Absent evidence of “close pursuit,” such as an “indication that defendant was aware that he was being followed or that he attempted to evade pursuit,” intervening time, distance, and events may well break the link between the theft and the subsequent use of force. Id. at 792-93, 861 N.Y.S.2d at 493.



Footnotes of Oregon Case STATE v. TOLBERT (2018) | FindLaw