State v. Dasa, 031236658;
Decision Date | 10 March 2010 |
Docket Number | A133296.,031236658; |
Citation | 234 Or. App. 219,227 P.3d 228 |
Parties | STATE of Oregon, Plaintiff-Appellant Cross-Respondent, v. Satya Krishna DASA, Defendant-Respondent Cross-Appellant. |
Court | Oregon Court of Appeals |
David B. Thompson, Senior Assistant Attorney General, argued the cause for appellant-cross-respondent. On the opening brief were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Kaye E. McDonald, Senior Assistant Attorney General. With him on the answering brief were John R. Kroger, Attorney General, and Rolf C. Moan, Acting Solicitor General.
Meredith Allen, Deputy Public Defender, argued the cause for respondent-cross-appellant. With her on the brief was Peter Gartlan, Chief Defender, Legal Services Division, Office of Public Defense Services. Satya Krishna Dasa filed the supplemental brief pro se.
Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and ROSENBLUM, Judge.
The state appeals the trial court's order granting defendant's motion in arrest of judgment for a single count of aggravated murder and resulting in entry of a judgment of conviction for murder rather than aggravated murder. ORS 138.060(1)(b) ( ). Defendant cross-appeals the judgment, raising 20 assignments of error. ORS 138.040 ( ). We write to address (1) the interrelated assignments of error on appeal and cross-appeal that concern whether, as a matter of law, defendant could be convicted of aggravated felony murder based on the state's theory that he entered a dwelling with the intent of murdering the victim and then personally and intentionally murdered him; and (2) defendant's assignment of error on cross-appeal concerning the trial court's failure to merge defendant's attempted aggravated murder convictions. We reject all remaining assignments of error on cross-appeal without discussion. As explained below, we conclude that, as a matter of law, defendant could be convicted of aggravated murder based on the state's theory and that the trial court erred in failing to merge defendant's convictions for attempted aggravated murder. Accordingly, we reverse in part and affirm in part.
The issues on appeal are legal in nature. Consequently, we state only the material facts that are necessary to provide context. Because the jury found defendant guilty, we state those facts in the light most favorable to the state. State v. Maxwell, 165 Or.App. 467, 469, 998 P.2d 680 (2000), rev. den., 334 Or. 632, 54 P.3d 1042 (2002).
After defendant's wife entered into an intimate relationship with Bukshin, defendant indicated to others that he was going to kill Bukshin. In late December 2003, defendant entered Bukshin's home with the intent to murder him. Defendant then stabbed Bukshin, who died from blood loss. Defendant also repeatedly stabbed Bukshin's estranged wife, Webster, who was also in the house that night. Webster survived.
Based on those events, defendant was charged with aggravated murder for the death of Bukshin (Count 1), ORS 163.095. Specifically, the indictment alleged:
(Boldface and uppercase in original.) Defendant was also charged with (a) the attempted aggravated murder of Webster (Counts 2, 3, and 4), ORS 161.405; (b) first-degree burglary (Counts 5 and 6), ORS 164.225; and (c) the first-degree assault of Webster (Count 7), ORS 163.185.
At trial, at the close of the state's case-in-chief, defendant requested that the court compel the state to elect the factual theory underlying the aggravated murder charge in Count 1. The state responded that, because defendant committed first-degree burglary by entering Bukshin's home with the intent to commit his murder, defendant could also be convicted of aggravated felony murder.
Thereafter, defendant moved for a judgment of acquittal on Count 1. Defendant's motion was premised on his contention that the state's theory failed as a matter of law. More specifically, defendant contended that a burglary committed with the intent to murder could not support an aggravated felony murder conviction for two interrelated reasons. First, defendant contended, the murder did not occur in furtherance of the burglary. Second, defendant asserted that the state could not "`bootstrap[ ]' an aggravating factor on to what would otherwise be a plain intentional murder charge"—that is, the state could not rely on the intent to commit murder to prove both that defendant committed the burglary and that he killed Bukshin personally and intentionally. Defendant noted that, because "Count 1 was not demurrable" and because "facially [the indictment is] not defective," a motion for judgment of acquittal (MJOA) was the "first legal opportunity" after the state elected its factual theory for him to assert that the state's theory failed as a matter of law. The trial court reserved ruling on the MJOA.
At the close of defendant's case, and again after the state's rebuttal case, defendant renewed his MJOA on Count 1. The trial court denied the motion. The court noted that "this is really an attack on the sufficiency of the indictment" and told defendant that it was "going to allow [him] to re-raise the issue as a motion in arrest of judgment." At that point, albeit prematurely, the trial court allowed the parties to make their respective arguments concerning the merits of a motion for arrest of judgment.
Defendant's position remained constant— that is, he asserted that, as a matter of law, a burglary committed with the intent to murder could not support an aggravated felony murder conviction for either, or both, of two reasons: First, because felony murder requires that a death occur in the course of and in furtherance of the burglary, a murder cannot be in furtherance of the burglary unless the burglary is committed with an intent to commit a crime other than murder (e.g., theft). Second, the state cannot use defendant's "intent to commit murder" to prove an element of burglary (i.e., that he entered Bukshin's home with the intent to murder him) as well as the element that elevates the felony murder to aggravated felony murder (i.e., that he personally and intentionally committed the murder).
The state disagreed, contending that the text of the four pertinent statutes1—viz., ORS 164.215 (burglary); ORS 164.225 (first-degree burglary); ORS 163.115(1)(b)(C) (felony murder); and ORS 163.095 (aggravated murder)—collectively and unambiguously demonstrate the following
The state also invoked State v. Reams, 292 Or. 1, 636 P.2d 913 (1981), in support of its position that an aggravated felony murder conviction can be based on a burglary with intent to kill a victim, coupled with the subsequent personal and intentional murder of that victim. Further, in that regard, the state asserted that, when the 1971 Legislative Assembly amended the felony murder statute, it did so with the intent of "codify[ing] existing case law" that established that "felony murder applied to killings committed during burglaries where the intent of the defendant upon entering the home was to commit assault or murder." (Emphasis in original.)
After the jury convicted defendant of aggravated murder (Count 1), as well as attempted aggravated murder (Counts 2, 3, and 4), first-degree burglary (Counts 5 and 6), and first-degree assault (Count 7), defendant filed a motion in arrest of judgment in which he asserted, as pertinent to this appeal, that the facts stated in Count 1 of the indictment did not constitute an offense. In their colloquy with the court, the parties essentially reiterated their arguments and discussed case law from various states addressing that legal issue.
To continue reading
Request your trial-
People v. Medina
...260 P.3d 42The PEOPLE of the State of Colorado, PlaintiffAppellee,v.Alarico MEDINA, DefendantAppellant.No. 05CA1605.Colorado Court of ... Contreras, 118 Nev. 332, 46 P.3d 661, 664 (2002); State v. Dasa, 234 Or.App. 219, 227 P.3d 228, 239 (2010); see also United States v. Loonsfoot, 905 F.2d 116, 118 ... ...
- State v. Allen
-
State v. Davis
... ... See State v. Dasa , 234 Or.App. 219, 23031, 227 P.3d 228, rev. den. , 349 Or. 173, 243 P.3d 468 (2010) ("[T]he threshold of ambiguity is a low one. It does not ... ...
-
State v. Mills
... ... State v. Dasa, 234 Or.App. 219, 221, 227 P.3d 228, rev. den., 349 Or. 173, 243 P.3d 468 (2010). Defendant's ex-girlfriend, Weeks, and her new boyfriend, Jacob, ... ...