State v. Anderson

Decision Date04 October 2006
Docket Number04FE0629MA.,A125668.
Citation145 P.3d 245,208 Or. App. 409
PartiesSTATE of Oregon, Respondent, v. Stuart Ross ANDERSON, III, Appellant.
CourtOregon Court of Appeals

Joshua B. Crowther, Deputy Public Defender, argued the cause for appellant. With him on the brief were Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Defender, Legal Services Division, Office of Public Defense Services.

Douglas F. Zier, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before HASELTON, Presiding Judge, and BREWER, Chief Judge, and ROSENBLUM, Judge.

HASELTON, P.J.

Defendant appeals from a judgment of conviction on two counts of first-degree robbery, ORS 164.415, two counts of second-degree robbery, ORS 164.405, one count of second-degree kidnapping, ORS 163.225, one count of attempted second-degree kidnapping, ORS 163.225; ORS 161.405, one count of second-degree assault, ORS 163.175, and one count of unlawful use of a weapon, ORS 166.220. Defendant raises an unpreserved constitutional challenge, under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to the imposition of consecutive sentences for some of his crimes. We reject that challenge without further discussion. See State v. Fuerte-Coria, 196 Or. App. 170, 100 P.3d 773 (2004), rev. den., 338 Or. 16, 107 P.3d 26 (2005). Defendant also assigns error, on statutory grounds, to the trial court's imposition of a consecutive sentence on the second-degree assault conviction. In particular, defendant contends that the consecutive sentence on that conviction was unlawful because his commission of assault was merely incidental to his commission of robbery and did not indicate a "willingness to commit more than one criminal offense[.]" ORS 137.123(5)(a). For the reasons that follow, we reject that contention and, consequently, affirm.

The material facts are not in dispute. On August 10, 2003, defendant entered a fabric store in Bend. After wandering around for a few minutes, defendant approached a cashier, Jennifer McInnes, and, under his breath, mumbled, "Put the money * * * in the bag. Do it quickly, or I'll hurt you." He proceeded to tell her several times that he had a gun and that he would kill her if she gave him a "hard time."

After McInnes gave defendant the money he had demanded, defendant left the store and walked across the parking lot toward Timber's Tavern. One of the tavern's employees, Nichols, was outside talking with a friend. Nichols's truck was parked close to where he was standing. Defendant attempted to enter Nichols's truck through the passenger side door and began demanding that Nichols give him a ride. Nichols refused and physically dragged defendant out of the truck.

Defendant started to walk away from Nichols and, as he did so, one of the employees at the fabric store yelled to Nichols, asking him to stop defendant because he had just robbed their store. Nichols began walking after defendant, and, just as he reached defendant, one of the store employees called out, "[H]e said he had a gun." Nichols, in response, paused and turned his head—and, when he did so, defendant pulled a heavy "rubber mallet" from his bag, swung at Nichols, and hit him in the head. Nichols fell to the ground unconscious. Defendant then continued walking away from the area. Shortly thereafter, the police apprehended defendant.

As pertinent to this appeal, the indictment charged defendant as follows:

"(Count 3 — [first-degree robbery])[1] That the said defendant, on or about the 10th day of August 2003, in Deschutes County, Oregon, did unlawfully and knowingly commit theft of United States currency, and in the course of committing the theft used physical force on [Nichols], with the intent of preventing resistance to the said defendant's taking of the property, and attempted to cause serious physical injury to [Nichols],

"(Count 4 — [first-degree robbery]) That the said defendant, on or about the 10th day of August 2003, in Deschutes County, Oregon, did unlawfully and knowingly commit theft of United States currency and in the course of committing the theft the said defendant used physical force on [Nichols], with the intent of preventing resistance to his taking of the property and he used a dangerous weapon, to wit: a mallet,

"* * * * *

"(Count 9 — [second-degree assault])[2] That the said defendant, on or about the 10th day of August 2003, in Deschutes County, Oregon, did unlawfully and intentionally cause physical injury to [Nichols] by means of a dangerous weapon, to-wit: a mallet[.]"

In sum, the state alleged two theories of first-degree robbery: (1) Defendant attempted to prevent resistance to theft by attempting, but failing, to inflict "serious physical injury" upon Nichols, ORS 164.415(1)(c); and (2) defendant attempted to prevent resistance to theft by using a "dangerous weapon" (the mallet) against Nichols, ORS 164.415(1)(b). The state also alleged that, by intentionally causing Nichols to suffer physical injury by means of a dangerous weapon, defendant committed second-degree assault under ORS 163.175(1)(b).

Defendant pleaded not guilty and, after a jury trial, he was convicted on eight of the 10 charged counts.3 The trial court sentenced defendant to concurrent terms on both of the first-degree robbery convictions.4 The state argued that the sentence for second-degree assault (Count 9) should be imposed consecutively to all other counts pursuant to ORS 137.123(5)(a).5 As explained more fully below, that statute allows a trial court to impose a consecutive sentence if the crime was "not merely an incidental violation" committed during the course of another offense, but, instead, indicates the "defendant's willingness to commit more than one criminal offense[.]" In particular, the state contended:

"Assault II is not a lesser-included of Robbery I, and it shows the defendant's willingness to engage in more than one crime. It's just—they're not part and parcel to each other. He could commit the Robbery I without committing the Assault II."

Ultimately, the trial court agreed with the state: "You can commit a robbery without assaulting the victim. It's a separate and distinct and more serious criminal act. It will be a consecutive sentence."

On appeal, defendant contends that, given the circumstances of his crimes, ORS 137.123(5)(a) does not authorize the imposition of a consecutive sentence for second-degree assault. In particular, defendant contends that "[t]he record does not contain discrete facts that support a finding that defendant willingly committed assault in the second degree beyond incidentally completing robbery in the first degree[.]" That is, as we understand it, defendant posits that, because his conduct in hitting Nichols with the rubber mallet was undertaken with the intent of "preventing resistance" to defendant's theft of property from the fabric store, that assault was "merely incidental" to the robbery and did not evince a willingness to commit a separate crime. As support for that proposition, defendant invokes State v. Warren, 168 Or.App. 1, 5 P.3d 1115, rev. den., 330 Or. 412, 8 P.3d 220 (2000).

The success of defendant's argument depends on the proper application of ORS 137.123(5)(a), a provision that is frequently invoked but rarely construed. ORS 137.123 provides, in pertinent part:

"(4) When a defendant has been found guilty of more than one criminal offense arising out of a continuous and uninterrupted course of conduct, the sentences imposed for each resulting conviction shall be concurrent unless the court complies with the procedures set forth in subsection (5) of this section.

"(5) The court has discretion to impose consecutive terms of imprisonment for separate convictions arising out of a continuous and uninterrupted course of conduct only if the court finds:

"(a) That the criminal offense for which a consecutive sentence is contemplated was not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious crime but rather was an indication of defendant's willingness to commit more than one criminal offense[.]"

Paragraph (5)(a) is, in many ways, amorphous — and perhaps inscrutable. What does it mean to say that one offense was "not merely an incidental violation" committed in the course of another, more serious crime? What is the proper relationship between the phrases "not merely an incidental violation" and "but rather was an indication of defendant's willingness to commit more than one criminal offense"? (Emphasis added.) Is one merely the obverse of the other—and, if so, why include both? If not, what is the difference? The statute's history and evolution suggest at least partial answers to some of those questions.

Before 1985, the law of consecutive sentencing in Oregon was largely judge made. State v. Jones, 250 Or. 59, 61, 440 P.2d 371 (1968) ("It is an inherent power of the court to impose sentences, including the choice of concurrent or consecutive terms when the occasion demands it."); State v. Linthwaite, 52 Or.App. 511, 525, 628 P.2d 1250 (1981), rev'd, 295 Or. 162, 665 P.2d 863 (1983) ("[L]egislative intent in these cases is, at best, unclear, and, at worst, non-existent. Trial and appellate courts have been struggling with these questions for a decade or more."). In every legislative session between 1979 and 1983, bills prescribing standards for the imposition of consecutive sentences were proposed but failed. See generally Testimony, House Judiciary Committee, HB 2331, May 27, 1985, Ex. A (statement of Deputy Attorney General William F. Gary).

Finally, in 1985, three alternatives were proposed: a Senate bill, Senate Bill (SB) 257 (1985), a House bill, House Bill (HB) 2331 (1...

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