State v. Lewis , 62 Or. App. 849 ( 1983 )

PER CURIAM.

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 P2d 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.