State v. Habibullah, 130632768

• Decision Date: 11 May 2016
• Docket Number: A157003.,130632768
• Citation: 278 Or.App. 239,373 P.3d 1259
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Mohdsidek HABIBULLAH, Defendant–Appellant.
• Court: Oregon Court of Appeals

278 Or.App. 239

373 P.3d 1259

STATE of Oregon, Plaintiff–Respondent

v.Mohdsidek HABIBULLAH, Defendant–Appellant.

130632768

A157003.

Court of Appeals of Oregon.

Submitted March 29, 2016.

Decided May 11, 2016.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Erica Herb, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Jeff J. Payne, Assistant Attorney General, filed the brief for respondent.

Before SERCOMBE, Presiding Judge, and TOOKEY, Judge, and DeHOOG, Judge.

SERCOMBE, P.J.

Following a trial to the court, defendant was convicted of attempted aggravated murder (Count 1), attempted murder (Count 4), solicitation to commit murder (Count 5), conspiracy to commit murder (Count 6), solicitation to commit fourth-degree assault (Count 7), conspiracy to commit fourth-degree assault (Count 8), and solicitation to commit third-degree robbery (Count 9). Defendant appeals the judgment of conviction, raising several assignments of error. As explained below, we reverse the convictions on Counts 7, 8, and 9, reverse and remand Counts 5 and 6 for entry of a single conviction, remand for resentencing, and otherwise affirm the judgment of the trial court.

The convictions in this case arose from the following circumstances. Defendant and his business partner, M, owned and operated a convenience store together in Portland. In 2013, defendant offered T, an acquaintance and regular customer at the convenience store, several hundred dollars to “[b]eat * * * up” a man defendant believed had impregnated his daughter. In addition, defendant instructed T to attempt to take the man's cell phone and to tell the man to leave town. Although T twice attempted to find the man, he was unable to do so.

Shortly thereafter, defendant changed his focus, telling T that he no longer needed him to carry out the assault because defendant “had a bigger problem.” Specifically, defendant wanted T to assist him in killing M. Defendant told T that M was stealing money from the business and, in May 2013, defendant agreed to pay T $60,000 to help with the killing.

Over the next several weeks, defendant and T discussed methods of killing M and, eventually, they settled on shooting M in the head. T advised defendant not to use his own gun and said that he would get a different gun that they would dispose of after the killing. Defendant planned that he would leave the back door of the convenience store unlocked so that T could enter the store. Defendant would hide in a storeroom while T held M at gunpoint. Defendant would then come out of hiding and kill M. Defendant paid T $300 for a gun that T purchased and $800 for a car that was to be used to dispose of the body.

In June 2013, T contacted M and informed him of defendant's plan to kill him. M was initially skeptical of T's story. After further conversation with T, M asked him to obtain proof of defendant's plan so that they could report it to the police. T agreed and, accordingly, brought a recording device to a meeting with defendant on June 11, 2013. During their recorded conversation, defendant said that he wanted to kill M the following day. He also made arrangements to get the gun and car from T.

T and M took the recording to the police. After reporting the murder plan, T agreed to wear a “police wire” the next day while meeting with defendant. During that meeting, on June 12, 2013, defendant confirmed the plan to kill M and stated that he planned to carry it out the following evening. Having monitored and recorded the conversation between defendant and T, police arrested defendant.

As noted, the case was tried to the court, which ultimately entered a judgment convicting defendant of attempted aggravated murder (Count 1), attempted murder (Count 4), solicitation to commit murder (Count 5), conspiracy to commit murder (Count 6), solicitation to commit fourth-degree assault (Count 7), conspiracy to commit fourth-degree assault (Count 8), and solicitation to commit third-degree robbery (Count 9).

Defendant contends that the trial court erred when it denied his motions for judgment of acquittal on Counts 7, 8, and 9.¹

Those three counts related to defendant's plan to have T beat up and steal the cell phone of the man whom defendant believed had impregnated his daughter. Defendant asserts that, under ORS 136.440, to obtain a conviction, the state had to present evidence, other than the testimony of an accomplice, that tended to connect defendant with the commission of the offense.² According to defendant, in support of those counts, the state offered only the testimony of T, who was an accomplice as a matter of law. The state agrees that T “was an ‘accomplice’ as that term is used in ORS 136.440 ” and that the record contains no evidence corroborating his testimony relating to Counts 7, 8, and 9. Accordingly, the state concedes that it failed to meet the requirements of ORS 136.440 and that defendant was entitled to an acquittal on Counts 7, 8, and 9. We agree and accept the state's concession. Thus, we reverse defendant's convictions on Counts 7, 8, and 9.³

Defendant also argues that the trial court erred in failing to merge the guilty verdicts for Counts 5 and 6, solicitation and conspiracy to commit murder, into the conviction for Count 1, attempted aggravated murder. In the alternative, defendant asserts that the trial court should have merged the guilty verdicts for Counts 5 and 6 “into a single conviction for either solicitation or conspiracy to commit murder.” Although he did not raise those issues before the trial court, he urges that we should address them as plain error. See ORAP 5.45(1) (“No matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court and is assigned as error in the opening brief in accordance with this rule, provided that the appellate court may consider an error of law apparent on the record.”).

The state responds, first, that the trial court did not plainly err in failing to merge Counts 5 and 6 into the conviction for Count 1. According to the state, ORS 161.485(2)⁴ does not compel merger of Counts 5 and 6 into Count 1 “because Count 1 represents a different commission of a crime than do Counts 5 and 6.” According to the state,

“[a]s to Count 1, the indictment alleged that ‘on or about May 11, 2013’ defendant committed the crime of attempted murder by intentionally soliciting and agreeing to pay [T] to murder [M]. [T] testified that, at that time, defendant approached him about murdering [M] and agreed to pay him $60,000 for

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