State v. Brown, CR1301939

• Decision Date: 24 February 2016
• Docket Number: CR1301939,A157702.
• Citation: 368 P.3d 79,276 Or.App. 578
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Harlan Earl BROWN, Defendant–Appellant.
• Court: Oregon Court of Appeals

276 Or.App. 578
368 P.3d 79

STATE of Oregon, Plaintiff–Respondent,
v.
Harlan Earl BROWN, Defendant–Appellant.

CR1301939
A157702.

Court of Appeals of Oregon.

Submitted Jan. 8, 2016.
Decided Feb. 24, 2016.

368 P.3d 80

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and David O. Ferry, 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 Greg Rios, Assistant Attorney General, filed the brief for respondent.

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

SERCOMBE, P.J.

276 Or.App. 580

In this criminal case, following a bench trial, defendant was found guilty of two counts of second-degree burglary, ORS 164.215, and three counts of first-degree theft, ORS 164.055. One of the burglary counts and two of the theft counts related to defendant's burglary of Willamette Valley Books and Bullion, a shop in Oregon City. During the burglary, defendant stole a safe from the shop; the safe contained a gun belonging to the business's owner, as well as other items, such as jewelry and coins, that people had brought into the business to sell on consignment. Defendant was charged with one count of first-degree theft, Count 4, related to the theft of the gun. See ORS 164.055(1)(d). A second first-degree theft charge, Count 5, related to the theft of jewelry and coins worth $1,000 or more. See ORS 164.055(1)(a). At sentencing, defendant argued that the guilty verdicts on those two theft charges—Counts 4 and 5—should merge. However, the trial court concluded that it was appropriate to enter separate convictions on those charges, stating that there "is a qualitative difference between thefts of safe, coins and jewelry [and] the theft of a firearm." In other words, the court concluded that ORS 161.067(1) precluded merger.

On appeal, defendant asserts that the trial court erred in failing to merge the guilty verdicts on Counts 4 and 5 into a single conviction. In support of his contention, defendant cites State v. Slatton, 268 Or.App. 556, 558, 343 P.3d 253 (2015), in which we held that ORS 161.067(1)¹ did not preclude merger of two guilty verdicts for first-degree theft, one based on theft of property worth more than $1,000 and the other based on theft of a firearm. In that case, we stated

368 P.3d 81

that first-degree theft is a single statutory provision, and "the alternative ways to commit the crime set out in ORS 164.055(1)(a) and (d)" are not "separate statutory provisions for merger purposes." Id. at 576, 343 P.3d 253. Likewise, here, defendant asserts that...