State v. Atkinson, C-21930
| Decision Date | 09 August 1989 |
| Docket Number | C-21930 |
| Citation | 98 Or.App. 48,777 P.2d 1010 |
| Parties | STATE of Oregon, Respondent, v. David Lee ATKINSON, Appellant. 87; CA A49699. |
| Court | Oregon Court of Appeals |
Mary M. Reese, Salem, argued the cause for appellant. With her on the brief was Gary D. Babcock, Public Defender, Salem.
Katherine H. Waldo, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.
Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.
Defendant appeals from the entry of separate convictions and sentences after a trial on stipulated facts in which he was found guilty of attempted assault, ORS 163.185; ORS 161.405, and possession of a weapon by an inmate. ORS 166.275. We affirm.
Defendant first argues that the trial court erred in refusing to merge his convictions. ORS 161.062(1) 1 and ORS 161.067 2 establish when convictions merge. Defendant concedes that, normally, the convictions here would not merge, because attempted assault and possession of a weapon by an inmate do not require proof of identical elements. However, he contends that, because of the unusual facts and the wording of the indictment, merger is appropriate.
The indictment alleged that defendant, "confined in the Oregon State Penitentiary," attempted to cause physical injury to a corrections officer by stabbing him with a home-made knife. Defendant argues that, in order to prove the attempted assault, the state had to prove that he possessed a dangerous weapon. Proof of that fact would constitute proof of possession of a weapon by an inmate because of his status as an inmate. Thus, defendant argues, this case constitutes a situation where the completion of one offense, the assault, necessarily includes commission of the acts sufficient to constitute the other offense, possession of a weapon by an inmate.
We disagree. The elements of proof of a criminal offense are controlled by the statute defining the offense, not by the factual circumstances recited in the indictment. Under ORS 161.062(1) and ORS 161.067, offenses cannot be merged if proof of one offense requires proof of an element that the other does not. Here, the only element shared by both offenses is possession of a dangerous weapon.
The state must prove that defendant is an inmate in order for him to be found guilty of the offense of possession of a weapon by an inmate. In turn, attempted assault does not require proof that defendant is an inmate. The court did not err in refusing to merge the convictions.
The facts show that the requirements of both subsections were met. Stabbing a person in the chest is not "incidental" to possessing a weapon, and the stabbing indicates that defendant was willing to commit an offense beyond the possession of the weapon. Furthermore, an inmate in possession of a weapon creates risks of qualitatively different harms and risks to different victims...
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...161.067(1) a court looks to the statutory elements, not to the factual circumstances recited in the indictment. State v. Atkinson , 98 Or. App. 48, 50, 777 P.2d 1010 (1989). However, when a statute contains alternative forms for commission of a single crime, we look to the indictment to det......
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...637, 816 P.2d 1175 (1991); State v. Owens, 102 Or.App. 448, 795 P.2d 569, rev. den. 311 Or. 13, 803 P.2d 731 (1990); State v. Atkinson, 98 Or.App. 48, 777 P.2d 1010 (1989). For example, we recently held that possession, ORS 475.992(4), and manufacture of a controlled substance, ORS 475.992(......
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State v. Burris, 110431520
...are controlled by the statute defining the offense, not by the factual circumstances recited in the indictment.” State v. Atkinson, 98 Or.App. 48, 50, 777 P.2d 1010 (1989) ; see also State v. Wright, 150 Or.App. 159, 162, 945 P.2d 1083 (1997), rev. den., 326 Or. 390, 952 P.2d 63 (1998) (cit......
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