State v. Cloutier

Citation286 Or. 579,596 P.2d 1278
PartiesSTATE of Oregon, Respondent, v. Gaston CLOUTIER, Petitioner. TC 77-1620; CA 9175; SC 25731.
Decision Date12 June 1979
CourtSupreme Court of Oregon

Stephanie A. Smythe, Deputy Public Defender, Salem, argued the cause for petitioner. With her on the brief was Gary D. Babcock, Public Defender.

William F. Nessly, Jr., Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen.


LINDE, Justice.

Defendant was charged in two counts of an information with burglary in the first degree, ORS 164.205, 164.225, and with attempted theft in the second degree, ORS 164.015, 164.045. Count I charged that defendant entered a dwelling, described as the Balfour residence, with the intent to commit a crime therein. Count II charged that "as part of the same act and transaction set out in Count I," defendant attempted to commit theft of less than $200 in money from Helen Balfour. The evidence showed that defendant entered the Balfour residence without permission, took $10 from Mrs. Balfour's purse, and returned the money to Mrs. Balfour when he learned that she was calling the police.

A jury found defendant guilty on both counts. The trial court entered a single order, entitled ORDER ON SENTENCE, the operative paragraphs of which read as follows:

The defendant, GASTON CLOUTIER, having heretofore been duly convicted of the crime of "COUNT I: BURGLARY IN THE FIRST DEGREE and COUNT II: ATTEMPTED THEFT IN THE SECOND DEGREE," upon the verdict of a jury on August 18, 1977, and this being the time set for the imposition of sentence; the defendant upon being asked if he had anything to say why sentence should not now be imposed, answered, showing no good or sufficient cause;

It is hereby CONSIDERED, ORDERED and ADJUDGED that GASTON CLOUTIER is GUILTY of the crime of "COUNT I: BURGLARY IN THE FIRST DEGREE and COUNT II: ATTEMPTED THEFT IN THE SECOND DEGREE," and it is the judgment of the Court that he be sentenced to the OREGON STATE CORRECTIONS DIVISION for a period of FOUR (4) YEARS; . . .

On appeal, defendant argued that the court erred in convicting and sentencing defendant for both crimes arising out of the same criminal conduct and charged in the same indictment, relying on this court's decision in State v. Woolard, 259 Or. 232, 484 P.2d 314, 485 P.2d 1194 (1971), which held that a burglary and subsequent larceny could lead only to one conviction and sentence. The state, believing defendant Woolard's claim to be well taken, confessed error in the Court of Appeals. That court nevertheless proceeded to examine the claim in the light of State v. Gilbert, 281 Or. 101, 574 P.2d 313 (1978), which was decided after the state's confession of error. Gilbert held that when a defendant was accused of withholding the stolen property of six persons at the same time and place, a verdict on the trial of the first indictment only did not bar subsequent prosecutions for the others. The Court of Appeals concluded that this court's analysis in Gilbert of ORS 131.505, which was enacted in 1973, "is so inconsistent with Woolard that Woolard must be deemed to have been overruled by ORS 131.505." 33 Or.App. at 123, 575 P.2d at 997. The court therefore affirmed the conviction and sentence. We allowed review to reexamine the status of convictions on multiple charges arising from a single act, transaction, or episode after the 1973 statute. 1


Courts and commentators have long recognized the problem of attaching "multiple consequences" to a "single criminal act" or of dealing with the "multiple criminal offender" to be one of the most vexing in criminal law. See, e. g., Horack, The Multiple Consequences of a Single Criminal Act, 21 Minn.L.Rev. 805 (1937); Remington and Joseph, Charging, Convicting, and Sentencing the Multiple Criminal Offender, 1961 Wis.L.Rev. 528 (1961). It is necessary to recall the complexity of the problem so as to avoid reducing its solution to a simple but illusory formula. The difficulty reaches deep into the vocabulary of criminal law itself, for an analysis phrased in such apparent entities as a "crime" or an "act" risks being merely circular. Described from a layman's perspective, without regard to its legal consequences, a defendant's culpable behavior may appear as one continuous course of conduct, planned and executed through preparatory steps, false starts, repeated attempts and failures, to eventual completion; another's may appear as distinct events marked by breaks in the continuity of time and place, or by different victims, or by reflecting new choices to act or to refrain on the part of the defendant. The "singleness" of the defendant's act has been described in terms ranging from a single "muscular contraction," 2 through a single "transaction" or "episode," 3 to "unitary criminal conduct." 4 On the other hand, criminal codes define offenses so that a limited number of elements suffice to constitute one "crime"; moreover, statutes often address particular objectives by enacting special prohibitions that overlap more general offenses. As a result, many incidents that would appear as a single "act" or "crime" from a nonlegal perspective are also violations of several distinct criminal laws.

However, the administration of criminal law does not consist of the abstract analysis of a factual occurrence. It involves a series of decisions by different persons and institutions charged with different functions. Thus Remington and Joseph, Supra, identified five "basic issues" that often arise in dealing with a single offender:

(1) For how many offenses should a suspect be prosecuted?

(2) Of these offenses charged, which should be submitted to the jury for its consideration?

(3) Where more than one offense is submitted to the jury, for how many offenses may the jury properly convict the defendant?

(4) Where there is conviction for more than one offense, for how many offenses is it proper to sentence the defendant?

(5) Under what circumstances may an accused be subjected to separate, successive prosecutions instead of adjudicating his liability in a single proceeding?

Remington and Joseph, Supra, at 529.

The proper answers to these questions and others that could be added are of obvious importance in public policy and in the practical administration of criminal justice; yet traditionally only a few have been addressed by express legislative directives beyond the definitions of the different offenses themselves. This court, like others, has sometimes answered questions like the above by stating a conclusion whether the defendant's conduct constituted one or more than one offense. See, e. g., State v. McCormack, 8 Or. 236 (1880) (larceny of a horse and tack at the same time and place held "but one crime" for purposes of double jeopardy); State v. Clark, 46 Or. 140, 80 P. 101 (1905) (theft of property of several persons at one time and place held but one offense for purposes of charge in a single indictment); State v. Gratz, 254 Or. 474, 461 P.2d 829 (1969) (armed robbery of two persons at the same time and place held to constitute two offenses for purposes of indictment). But the mere fact that a defendant's acts have violated more than one criminal statute or have violated one statute more than once does not in itself provide the answer to each of the operational issues identified above. It does not follow, merely because a defendant can be charged with more than one violation of a statute, that the legislature also meant each violation to be the basis for a separate conviction or sentence, or that an objecting defendant may be tried for each in a separate proceeding. Thus this court in recent cases has treated these as posing separate issues of the governing policies beyond the determination whether one or several offenses were involved. See, e. g., State v. Welch, 264 Or. 388, 505 P.2d 910 (1973) (simultaneous bank deposit of two false checks held subject to only one sentence); State v. Boyd, 271 Or. 558, 533 P.2d 795 (1975) (simultaneous illegal possession of drugs and of a stolen television set held "single criminal episode" for purposes of requiring a single prosecution, ORS 131.515(2)).

In short, we have recognized that the answers to the foregoing operational issues must be sought, first, in such legislative directives as do exist; second, in the intentions and policies that may plausibly be attributed to the legislature in the light of legislative history, of the overall statutory framework, and of constitutional principles, See State v. Boyd, supra, at 565-566, n. 4, 533 P.2d 795; and finally in the state and federal double jeopardy clauses and other applicable constitutional limitations. See, e. g., Simpson v. United States, 435 U.S. 6, 11 and n. 5, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978); Brown v. Ohio, 432 U.S. 161, 165-166, 97 S.Ct. 2221, 53 L.Ed.2d 187, 194 (1977).


In State v. Woolard, supra, as in the present case, defendant was charged with one count of burglary by breaking and entering a dwelling with the intent to steal and a second count of stealing property in the dwelling. She was convicted on both counts and sentenced to concurrent six-year terms in the penitentiary. This court reversed, but the several opinions in the case showed the different possible approaches to the problem.

All members of the court agreed that a defendant could properly be charged separately with the burglary and the theft or other substantive offense committed after the entry. Although such charges arising out of a single transaction or episode are joined in one prosecution, See State v. Boyd, supra, State v. Brown, 262 Or. 442, 497 P.2d 1191 (1972), they do not charge the "same crime" twice. Nor did the decision in Woolard suggest that both charges could not be submitted to the jury, or that the...

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