State v. Burns

• Citation: 159 P.3d 1208,213 Or. App. 38
• Decision Date: 23 May 2007
• Docket Number: A125879.,200410399.
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Robert Olen BURNS, whose true name is Robert Olen Scarborough, Defendant-Appellant.
• Court: Court of Appeals of Oregon

159 P.3d 1208

213 Or. App. 38

STATE of Oregon, Plaintiff-Respondent, v. Robert Olen BURNS, whose true name is Robert Olen Scarborough, Defendant-Appellant.

200410399.

A125879.

Court of Appeals of Oregon.

Submitted on Record and Briefs November 30, 2006.

Decided May 23, 2007.

Peter A. Ozanne, Executive Director, Peter Gartlan, Chief Defender, Legal Services Division, and Meredith Allen, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Kaye E. McDonald, Senior Assistant Attorney General, filed the brief for respondent.

Before LANDAU, Presiding Judge, and SCHUMAN and ORTEGA, Judges.

LANDAU, P.J.

Defendant appeals a judgment of conviction for one count of reckless driving, ORS 811.140, one count of second-degree criminal mischief, ORS 164.354, two counts of fourth-degree assault, ORS 163.160, one count of misdemeanor failure to perform the duties of a driver, ORS 811.700, and one count of felony failure to perform the duties of a driver, ORS 811.705. He assigns error to the trial court's denial of his motion in arrest of judgment on the charge of felony failure to perform the duties of a driver, arguing that the indictment with which he was charged failed to adequately allege all of the elements of the offense. He also assigns error to his sentence, arguing that, under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the trial court erred in imposing a durational departure sentence, imposing consecutive sentences, and calculating his criminal history score on the basis of facts not found by a jury or admitted by him. We reject defendant's challenge to the sufficiency of the indictment, but we agree that his sentencing was unlawful. We therefore vacate defendant's sentences and remand for resentencing, but otherwise affirm.

The relevant facts are not in dispute. Defendant was involved in an automobile accident while driving a van. Attempting to make a right-hand turn off a highway and onto a cross street, he failed to negotiate the turn and collided with a car that was stopped at the intersection. Two people, Tim and Deanna Ruge, were inside the car that defendant struck. They both sustained injuries in the accident. Immediately after the collision, defendant got out of his van and spoke briefly with the Ruges, but did not give his name and address to them. He then fled the scene on foot. Approximately 45 minutes after the accident, police officers found defendant hiding in a pile of logs in a nearby lumber yard. Defendant was arrested and charged in a six-count indictment with reckless driving, second-degree criminal mischief, second-degree assault, third-degree assault, misdemeanor and felony failure to perform the duties of a driver.

With respect to the charge of felony failure to perform the duties of a driver, Count 5 of the indictment alleged:

"The defendant, on or about April 16, 2004, in Lane County, Oregon, did drive a vehicle on a public highway or premises open to the public that was involved in an accident that resulted in physical injury to Deanna and Tim Ruge, and did unlawfully and knowingly fail to remain at the scene of the accident and give to Deanna or Tim Ruge, or a police officer at the scene the name and address of the said defendant; contrary to statute and against the peace and dignity of the State of Oregon."

Defendant's case was tried to a jury, which found defendant guilty on the charges of reckless driving and criminal mischief, and both charges of failure to perform the duties of a driver. On both of the assault charges, the jury found defendant guilty of the lesser included offense of fourth-degree assault.

Defendant then moved for an order in arrest of judgment for failure to allege an offense. He argued that Count 5 of the indictment failed to state facts constituting felony failure to perform the duties of a driver, because it did not allege that he knew there were injuries resulting from the accident, or even that he knew injuries were likely. The trial court concluded that Count 5 adequately alleged the required mental state and denied the motion.

The trial court sentenced defendant as follows: On the misdemeanor convictions for reckless driving, criminal mischief, and failure to perform the duties of a driver, the court imposed concurrent sentences of 60 months' probation. On each of the misdemeanor convictions for fourth-degree assault, the court imposed a sentence of one year in county jail, concurrent with one another but consecutive to the sentences for defendant's other misdemeanor convictions. Finally, on the conviction for felony failure to perform the duties of a driver, the court imposed an upward durational departure sentence of 36 months' imprisonment and 24 months' post-prison supervision, based on the court's finding that defendant was on post-prison supervision at the time of the offense.

Defendant first assigns error to the denial of his motion in arrest of judgment, renewing the argument that he made below that Count 5 of the indictment fails to state an offense. Defendant acknowledges that the indictment does allege that he left the scene "knowingly." He argues it is nonetheless inadequate because it does not specifically allege that defendant had a culpable mental state with respect to the fact that people were injured in the accident. Defendant argues that an accusatory instrument is required to state all the elements of an offense, including the culpable mental state, "so that defendant has a fair opportunity to meet the charge." The state responds that the trial court correctly denied his motion in arrest of judgment because the indictment adequately alleges that he fled the scene of the accident with the required mental state. We agree with the state.

An indictment fails to state facts constituting an offense when it fails to allege each of the essential elements of the offense. State v. Wimber, 315 Or. 103, 109, 843 P.2d 424 (1992). An indictment is not required to repeat verbatim the language of the relevant statute, ORS 132.540(3) ("Words used in a statute to define a crime need not be strictly pursued in the indictment, but other words conveying the same meaning may be used."); State v. Burnett, 185 Or.App. 409, 60 P.3d 547 (2002), but is required to state, in ordinary and concise language, the elements of an offense "in such manner as to enable a person of common understanding to know what is intended[.]" Wimber, 315 Or. at 109, 843 P.2d 424 (quoting ORS 132.550(7)). That requirement is in keeping with the purposes of an indictment, which this court has identified as:

"(1) to provide notice so as to enable the defendant to prepare a defense; (2) to identify the crime so as to provide protection against additional prosecution for the same crime; (3) to inform the court as to what charges are being brought against the defendant; and (4) to ensure that the defendant is tried only for an offense that is based on facts found by the grand jury."

Burnett, 185 Or.App. at 415, 60 P.3d 547.

Consistent with those same purposes, Oregon courts do not require an indictment to charge a criminal offense with great specificity, relying instead on discovery "to inform the defendant of the details of the alleged crime that are necessary to be able to defend against the charge." State v. Watson, 193 Or.App. 757, 761, 91 P.3d 765, rev. den., 337 Or. 476, 99 P.3d 1235 (2004); see also State v. Wright, 167 Or.App. 297, 307, 999 P.2d 1220, adh'd to as modified on recons., 169 Or.App. 78, 7 P.3d 738, rev. den., 331 Or. 334, 23 P.3d 986 (2000) (holding that the availability of pretrial criminal discovery is generally sufficient to cure imprecision in charging instruments).

When the sufficiency of an indictment is challenged by way of a demurrer, it is strictly construed against the state, but when the sufficiency of an indictment is challenged after a verdict, the language of the indictment is held to a less exacting standard and is given a "more liberal construction." State of Oregon v. Monk, 193 Or. 450, 457, 238 P.2d 1110 (1951). When the language of an indictment is challenged after the verdict, the challenge will only be successful if the indictment wholly fails to state "`any crime known to the law.'" State v. Brewer, 7 Or.App. 158, 160-61, 490 P.2d 202 (1971) (quoting Monk, 193 Or. at 456-57, 238 P.2d 1110). For example, in Brewer, we held that an indictment that charged that the defendant "did * * * unlawfully and willfully embezzle and fraudulently convert * * * to his own use" was adequate despite the fact that it did not specifically allege that the defendant had acted with "felonious intent." Id. at 161, 490 P.2d 202. In finding that language sufficient, we emphasized that the defendant had challenged the indictment's language after the verdict had been reached, and we noted that the language of the indictment closely paralleled the language of the statute. Id.

In light of the foregoing principles, defendant's challenge to the sufficiency of the indictment must be rejected. Under ORS 811.705(1), a person commits the offense of failure to perform the duties of a driver to injured persons if he or she "is the driver of any vehicle involved in an accident that results in injury or death to any person" and does not, among other things, stop the vehicle, remain at the scene, exchange information, and render assistance to injured persons. Although the statute itself does not specify any particular mental state, we have held that the state must establish that the defendant acted knowing that he had been in an accident that was "likely to have resulted in injury or death." State v. Van Walchren, 112 Or.App. 240, 245, 828 P.2d 1044, rev. den., 314 Or. 574, 840 P.2d 1296 (1992); see also State v. Hval, 174 Or.App. 164 171, 25 P.3d 958 (2001) (citing Van Walchren for the proposition that state must prove defenda...