39 P.3d 178 (Or. 2002), SC S45983, State v. Barnum

Docket Nº:CC 92CR0200, CA A96131, SC S45983, S46255
Citation:39 P.3d 178, 333 Or. 297
Opinion Judge:RIGGS, J.
Party Name:STATE of Oregon, Respondent on Review, v. Byron Franklin BARNUM, Petitioner on Review.
Attorney:Jesse Wm. Barton, Deputy Public Defender, Salem, argued the cause and filed the briefs for petitioner/respondent on review. With him on the briefs was David E. Groom, State Public Defender. Douglas F. Zier, Assistant Attorney General, Salem, argued the cause and filed the briefs for respondent/pe...
Case Date:February 07, 2002
Court:Supreme Court of Oregon
 
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Page 178

39 P.3d 178 (Or. 2002)

333 Or. 297

STATE of Oregon, Respondent on Review,

v.

Byron Franklin BARNUM, Petitioner on Review.

CC 92CR0200, CA A96131, SC S45983, S46255

Supreme Court of Oregon

February 7, 2002.

Argued and Submitted May 10, 2000.

Page 179

[333 Or. 298] On review from the Court of Appeals. *

Jesse Wm. Barton, Deputy Public Defender, Salem, argued the cause and filed the briefs for petitioner on review. With him on the briefs was David E. Groom, State Public Defender.

Douglas F. Zier, Assistant Attorney General, Salem, argued the cause and filed the briefs for respondent on review. With him on the briefs were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before CARSON, Chief Justice, and GILLETTE, DURHAM, LEESON, and RIGGS, Justices. **

[333 Or. 299] RIGGS, J.

This criminal proceeding, in which defendant was convicted of two counts of burglary and one count of arson after a trial to the court, presents three issues for review. The first is whether the trial court properly admitted evidence of defendant's prior crimes to prove that he committed the crimes charged in this matter. The second is whether the trial court erred in convicting defendant of two burglaries. The third is whether, assuming that defendant properly was convicted of two burglaries, the trial court erred in punishing him for each separately. The Court of Appeals held that the trial court did not err in admitting the evidence, but that it had erred bye convicting the defendant of and punishing him for two burglaries. State v. Barnum, 157 Or.App. 68, 970 P.2d 1214 (1998). For the reasons that follow, we affirm in part and reverse in part the decision of the Court of Appeals.

Given the trial court's finding of guilt, we view the evidence in the light most favorable to the state. See State v. Brown, 310 Or. 347, 350, 800 P.2d 259 (1990) (reviewing jury verdict).

The victim was a claims representative for an insurance company. Defendant had been

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involved in a traffic accident with a person whom the victim's company insured. While processing defendant's claim, the victim communicated with defendant solely by telephone and mail. At some point, defendant became angry with the victim, because of a disagreement concerning defendant's insurance claim.

In letters to and conversations with the victim, defendant mentioned information about numerous matters about which he should not have known, including details about the insured, the insurance business, and the victim herself. That information was contained in the victim's files, and she had not revealed it to defendant. At some point, the victim discovered evidence that someone had burglarized her office. 1 At the time of the burglary, she already had noted her vacation plans on her office calendar.

[333 Or. 300] A few months thereafter, while the victim was away on her scheduled vacation, an arsonist set fire to her home using gasoline and other substances taken from her garage. The arsonist had removed clothing from her dresser drawers, stuffed the drawers with paper, and lit the paper. In fact, several different fires had been started around the home. The victim had left her Social Security card, house keys, and a credit card (along with its PIN number) at home. The keys were missing and someone used the credit card to withdraw $400 cash during her...

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