State v. Barnum

• Decision Date: 07 February 2002
• Citation: 39 P.3d 178,333 Or. 297
• Parties: STATE of Oregon, Respondent on Review, v. Byron Franklin BARNUM, Petitioner on Review.
• Court: Oregon Supreme Court

39 P.3d 178

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.

Argued and Submitted May 10, 2000.

Decided February 7, 2002.

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.²

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 by 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 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.³ At the time of the burglary, she already had noted her vacation plans on her office calendar.

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 vacation.

On the same day as the fire, the victim's fire insurance company received an anonymous letter on hand-trimmed stationery suggesting that the victim was planning to set fire to her own home. The letter mentioned the victim's middle name, her Social Security Number, and referred to information contained in personal letters that she had kept at her home. She had not revealed any of that information to defendant. The victim's fire insurance policy, which contained the identity of her insurer, was among private papers at her home. The local fire department also received a letter on hand-trimmed stationery, which contained the victim's house key and stated that the she had hired the anonymous author of the letter to set fire to her home.

Following an investigation, a grand jury indicted defendant for one count of arson, ORS 164.325, and two counts of first-degree burglary, ORS 164.225.⁴ In particular, count two charged that defendant had entered and remained in the victim's home on the date of the fire with the intent to commit arson. Count three charged that defendant had entered and remained in the victim's home on the date of the fire with the intent to commit theft.

At defendant's bench trial, the state adduced evidence of his 1979 California conviction for the attempted murder of his college professor, in which defendant had sent accusatory letters on hand-trimmed stationery both before and after the crime. The state argued that the accusatory letters proved defendant's identity as the perpetrator in this case and, thus, that they were admissible as a signature crime under OEC 404(3).⁵ The trial court admitted the evidence.

The trial court convicted defendant of the two burglary counts and the arson count based on the fires at the victim's home. After concluding that the two burglary counts were separately punishable under ORS 161.067, the trial court sentenced defendant to a term of 16 years' imprisonment.

On appeal, the Court of Appeals held that the trial court did not abuse its discretion in admitting the evidence of the prior signature crime involving the attempted murder, but that the trial court had erred as a matter of law when it failed to "merge" defendant's two burglary convictions for sentencing.⁶Barnum, 157 Or.App. at 78,970 P.2d 1214. The Court of Appeals affirmed the conviction of arson and remanded the case with instructions to enter judgment of conviction on one count of burglary and to resentence defendant.⁷ We allowed review.

We first address whether the trial court properly admitted evidence relating to defendant's 1979 conviction for attempted murder under OEC 404(3). We have reviewed the record and the arguments of counsel and conclude that the Court of Appeals correctly held that the trial court properly admitted evidence of the circumstances surrounding defendant's 1979 conviction as proof of defendant's identity. A fact-specific discussion of this assignment of error would not benefit the public, bench, or bar, because the jurisprudence surrounding OEC 404(3) is well developed.⁸

Next, to resolve the second issue presented by this case, we must determine if the trial court properly convicted defendant of two counts of burglary. We review the trial court's ruling for errors of law, viewing the evidence in the light most favorable to the state. See State v. Boone, 327 Or. 307, 309, 959 P.2d 76 (1998)

(stating that reviewing court's function is to decide whether trial court applied legal principles correctly to facts).

ORS 164.225(1) provides that a person commits burglary when he or she "enters or remains unlawfully" in a dwelling with the intent to commit a crime therein. Defendant did not challenge the form or degree of specificity of the indictment charging counts two and three. If the trier of fact found that each element of each count had been proved beyond a reasonable doubt, then defendant properly could be convicted of both counts of burglary, regardless of whether the two violations were separately punishable. See State v. Barrett, 331 Or. 27, 36-37, 10 P.3d 901 (2000)

("If the trial court were to enter a conviction on only one count [of aggravated murder], and dismiss the other * * *, it always would be possible that an appeal would result in a reversal, for insufficient evidence, of the count that was selected to serve as the basis for...