dissenting.
I agree with the majority’s conclusion regarding defendant’s argument relating to waiver of counsel as well as its disposition of the arguments in defendant’s supplemental brief. I disagree, however, with the majority’s holding that the trial court should have granted defendant’s motion for judgment of acquittal on the charge of robbery in the third degree. The majority concludes that the evidence in this case *368cannot support the jury’s conclusion that defendant used or threatened the immediate use of physical force on another person. In my view, when the entire circumstances here are considered, as they should be, there clearly is evidence from which a rational jury could infer that defendant impliedly threatened to use physical force against the victim. Accordingly, I dissent.
In order for a jury to convict a defendant of robbery in the third degree, the state must prove that the defendant used or threatened the immediate use of physical force against a person while attempting to commit a theft. ORS 164.395. As we held in State v. Odoms, 117 Or App 1, 5, 844 P2d 217 (1992), rev den 316 Or 529 (1993), the “threat” may be proven by evidence that the defendant expressly or impliedly placed the victim in fear of use of physical force. As the majority points out, the applicable standard is one of objective reasonableness: “Would a person in the victim’s position reasonably regard the defendant’s words or conduct as communicating the requisite threat?”
The trial court here denied defendant’s motion for judgment of acquittal, concluding that there was evidence in the record from which a rational jury could infer that defendant threatened to use physical force against the victim. If there is any evidence supporting that ruling, we will not disturb it. Odoms, 117 Or App at 5-6. The majority concludes that there was no evidence here from which the jury could draw that inference, stating that “[t]here is no evidence that defendant made verbal threats or engaged in conduct that indicated that he would, in fact, immediately resort to physical force unless his demand was met.” 149 Or App at 365. I believe that there is evidence here from which the requisite threat may be inferred and, accordingly, that the trial court did not err in denying the motion for judgment of acquittal.
Although the majority does not explicitly reject the premise that a threat of physical force may be implied, that conclusion essentially underlies its holding here. The majority seems to require that in order to prove the requisite threat, there must be proof of a statement or act that directly indicates that physical force will be used if the person’s *369demands are not met. I believe that there are some circumstances in which no words or acts are used that directly indicate that physical force will be used if the victim does not comply, yet which allow an inference of such a threat.1 As noted above, we have previously so held. Odoms, 117 Or App at 5.
In Odoms, a woman who was kidnaped and later forced to sell her car and give the money to the defendant and to engage in prostitution over a period of three or four days testified that she was too “scared” to leave. 117 Or App at 4. In that case, although the defendant did hit the victim once at some point during the incident, there was no evidence that the defendant hit the victim or told her that he would hit her contemporaneously to demanding that she sell her car and give him the money, which was the conduct on which the third-degree robbery charge was predicated.2 We concluded that, in those circumstances, there was sufficient evidence from which a jury could infer that the defendant threatened to use physical force against the victim and upheld the robbery conviction. Id. at 5-6.
The majority asserts that Odoms is factually distinguishable, which it is. Nonetheless, I agree with the trial court that there are sufficient facts here to allow the jury to evaluate whether the requisite threat could be inferred. Defendant came into the restaurant, late at night, just before closing, wearing dark glasses, dark clothing and a bandanna that completely covered his hair. The victim, Ahyek, referred to defendant’s apparel as a “disguise.”3 She testified that *370defendant motioned to her and told her to come to where he was standing at the end of the counter. She said that at that point, she “knew what he wanted” because she had been in “that situation before.”4 Defendant then told her to “[p]ut all the money into this bag,” while handing her a paper bag. After she put the money in the drawer of the cash register in front of her into the bag and handed it to defendant, he ordered her to get the money from underneath the drawer. Ahyek testified that defendant did not leave until she had placed all the cash register drawers on the counter to show him that there was no money in them. When defendant demanded the money in the cash register from Ahyek, he was directly across the counter from her. No one else was at the counter or close enough to hear defendant’s demands. Ahyek testified that she had been trained to cooperate in these kind of circumstances, which she described as “robbery situations.” As defendant was leaving, Ahyek began yelling.
The evidence here clearly shows that defendant did not simply request that she give him the money — he demanded the money from her, while he was close enough to hand her a bag and while she was, essentially, alone. Ahyek had to make a decision: refuse defendant’s demands and risk harm not only to herself but also to other persons in the restaurant, or accede to his demands as she had been trained to do. She chose not to take the risk. It does not follow from that fact that she did not feel threatened or that an objectively reasonable person in her position would not feel threatened.5 Indeed, Ahyek’s testimony that she regarded the circumstances in which she found herself as a “robbery situation [ ]” may reasonably be understood to indicate that she felt threatened.
The majority states that the fact that defendant was close to Ahyek during the “encounter” and his “insistence” that Ahyek produce all the available cash are facts that are “present in virtually every face-to-face theft.” 149 Or App at 366. However, my opinion that the evidence here would allow *371a jury to have found that the essential elements of robbery were proved beyond a reasonable doubt does not depend on those two facts alone. Rather, as I discussed above, it is based on all of the circumstances here. Moreover, while I agree that most face-to-face confrontational thefts do involve a person standing close to a victim and “insisting,” or, as I view it in this case, demanding, money, I disagree with the majority’s apparent view that because so many thefts today involve a face-to-face confrontation, that it follows that, as a matter of law, this type of behavior may not constitute a threat sufficient to transform a simple theft into a robbery. Simply because a particular type of behavior has become typical or routine does not mean that that behavior can never be evidence of a threat.
It is an unfortunate fact that, because so many thefts today involve a face-to-face confrontation in which force is used or threatened, that tellers and other employees are instructed to submit to a person’s demands for money in order to decrease the potential for escalating threats and harm. It makes no sense to me to conclude that, because of that fact, immediate submission is evidence that a defendant has not threatened a victim. It is the immediate submission, borne of a victim’s reasonable expectation that harm will occur, that makes it possible for a person to successfully take money from a restaurant with no more than a demand for money in a face-to-face confrontation without the need of an overt threat. See United States v. Robinson, 527 F2d 1170, 1172 (6th Cir 1975) (“Especially in an era characterized by a dramatic increase in crime generally * * * and by increased violence, such circumstances [defendant wore baggy clothes that could conceal a weapon, acted ‘somewhat nervously in line’ and told the teller to “ ‘Give me all your money’ ”] could well ‘produce in the ordinary person fear of bodily harm.’ ”). (Citations omitted.)
The evolving change in the “reasonable person’s” perspective of what constitutes a threat may explain the outcomes in the two cases from other states to which the majority cites. Parnell v. State, 389 P2d 370, 374 (Okla Crim App 1964), quotes from a 1900 case to support its conclusion that a demand for money made in a rough voice is not a robbery because the menace is not sufficient to “ ‘ “excite reasonable *372apprehension of danger.” ’ ”6 How the reasonable person responded to such a demand in 1900 or even 1964 is likely quite different from how a reasonable person would react to such a demand today. Similarly, State v. Peebles, 138 Tex Crim 55, 134 SW2d 298, 299 (1939), the second case the majority cites, was written in 1939.71 believe that the court’s decision in Robinson and other more recent cases underscore this changing perspective of what constitutes a threat.8 See, e.g., United States v. Graham, 931 F2d 1442, 1443 (11th Cir), cert den 502 US 948 (1991) (intimidation found where defendant leaned toward the victim, used “glares and stares” and where the victim could not see whether the defendant had a gun); United States v. Higdon, 832 F2d 312, 315 (5th cir 1987) cert den 484 US 1075 (1988), (intimidation found based on the defendant’s posture and “terse and pointed orders”); United States v. Slater, 692 F2d 107, 109 (10th Cir 1982) (the defendant entered the tellers’ area and began to take money but said nothing until the bank manager asked him what he was doing, to which he replied, “Shut up.” The court concluded that the jury could have found that defendant’s “aggressive behavior” intimidated the tellers, stating that “[a]n incident of this kind obviously creat[es] a dangerous situation” and that “an expectation of injury was reasonable in the context of an incident of this kind where a weapon and a willingness to use it are not uncommon.”).
*373It is not my position that any time a person takes money from another person while in their presence that a robbery has occurred. I simply believe that there was evidence here from which a jury could have inferred from defendant’s words and conduct that a reasonable person in Ahyek’s position would have felt threatened and would have thought that, had she not acquiesced to his demands, she would have been at risk of physical injury. For all of the above reasons, I agree with the trial court that defendant’s motion for acquittal should have been denied and, accordingly, I respectfiilly dissent.
A defendant’s nonverbal communication may speak more to the situation than does his or her actual words or purposeful gestures. See Mark L. Knapp, Nonverbal Communication in Human Interaction (1978) (stating that people constantly analyze nonverbal cues to predict future behavior and that 35 percent of the social meaning of a communication is transmitted through words and paralinguistics, or nonsemantic verbal communication, while 65 percent of the social meaning is derived through kinesics, or the nonverbal component of the communication).
Making the victim sell her car and give him the money was the act on which the third-degree robbery charge was predicated. State v. Odoms, 313 Or 76, 78, 829 P2d 690 (1992), on remand 117 Or App 1, 844 P2d 217, rev den 316 Or 529 (1993).
The majority views the fact that defendant was attempting to conceal his identity as meaningless. While not decisive, it is certainly part of the totality of the circumstances that may be evaluated to decide if defendant’s behavior was sufficiently threatening.
Ahyek had worked at McDonald’s for 14 years.
I agree with the majority that Ahyek’s subjective reaction or lack of reaction is not dispositive but that it may be probative of how an objectively reasonable person in victim’s position might regard defendant’s behavior. 149 Or App at 365 n 5.
Parnell involved a case in which a repair person asked an elderly woman to pay him $600 for a job that he had said would cost her $25. The woman testified that she was afraid, but the evidence showed that the repair person and the boy with him were polite and that, although the repairman asked for an amount of money that seemed to be too high for the amount of work done, he never demanded immediate payment.
I might note, also, that this case, as the majority points out, involves a demand made on a busy sidewalk. Whether a reasonable person would feel threatened that someone would inflict harm with many people around to witness and prevent the harm is a distinctly different circumstance from the one with which we are concerned here.
The majority asserts that the term “intimidation,” which is an element of 18 USC § 2113(a) of the Bank Robbery Act, “is considerably less precise than ‘threatens the immediate use of physical force’ ” found in ORS 164.395(1). 149 Or App at 367 n 8. Although I agree with the majority that the term “intimidation” does not have the exact same meaning, I do note that “intimidation” as used in 18 USC § 2113(a) is synonymous with the phrase “to make fearful or to put into fear” and that the victim’s fear is of “bodily harm from the defendant’s acts.” United States v. Higdon, 832 F2d 312, 315 (5th Cir 1987), cert den 484 US 1075 (1988).