State v. Colmenares–chavez

• Decision Date: 20 July 2011
• Docket Number: 071034868; A139539.
• Citation: 260 P.3d 667,244 Or.App. 339
• Parties: STATE of Oregon, Plaintiff–Respondent,v.Cesar David COLMENARES–CHAVEZ, aka Juan Hernandezgarcia, aka Juan Hernandez–Garcia, aka Cesar Colmenares–Chavez, aka Cesar David Colmemares–Chavez, Defendant–Appellant.
• Court: Oregon Court of Appeals

244 Or.App. 339

260 P.3d 667

STATE of Oregon, Plaintiff–Respondent,

v.Cesar David COLMENARES–CHAVEZ, aka Juan Hernandezgarcia, aka Juan Hernandez–Garcia, aka Cesar Colmenares–Chavez, aka Cesar David Colmemares–Chavez, Defendant–Appellant.

071034868; A139539.

Court of Appeals of Oregon.

Argued and Submitted Dec. 16, 2010.Decided July 20, 2011.

Meredith Allen, Senior Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Appellate Division, Office of Public Defense Services.Janet A. Klapstein, Assistant Attorney General, argued the cause for respondent. On the brief were John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Samuel A. Kubernick, Assistant Attorney General.Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and ROSENBLUM, Senior Judge.

WOLLHEIM, J.

A jury found defendant guilty of two counts of robbery in the second degree, ORS 164.405(1), and one count of robbery in the first degree, ORS 164.415. On appeal, defendant argues that the trial court erred in (1) failing to merge defendant's guilty verdicts for the two counts of robbery in the second degree and (2) failing to merge defendant's guilty verdict for robbery in the first degree with the second-degree robbery verdicts. Based on State v. White, 346 Or. 275, 211 P.3d 248 (2009), we agree with defendant that the trial court erred as a matter of law in failing to merge his guilty verdicts for second-degree robbery, but conclude that the trial court correctly declined to merge the verdict for first-degree robbery with the second-degree robbery verdicts.

The facts are undisputed. One afternoon in July 2007, Alejandro, a gas station employee, was working alone at a gas station in Gresham. Defendant drove up to the gas station with three other people in the car. Alejandro recognized defendant because their sisters are friends. Defendant told Alejandro that he was there to “give [him] a lesson” but he would go away if Alejandro gave him $10 worth of gas. Alejandro gave defendant $10 of gas, and defendant drove away. Alejandro paid for the gas out of his tips.

A few hours later, defendant returned to the gas station with the same three passengers in his car. Defendant told Alejandro to go to the cashier's station and give him $40 and he would leave; defendant said that Alejandro could call the police because he would have defendant on the surveillance tape. Alejandro walked to the cashier's station, and defendant followed. Then defendant pulled a gun out of his pocket, pointed the gun at Alejandro, and told Alejandro to give him the rest of the money. Another person from the car came in and pushed Alejandro against the wall of the cashier's station. Alejandro opened the cash register. Defendant and the other person took all of the money out of the register, approximately $900. After the two men left, Alejandro called the police. Alejandro later identified defendant in a photo lineup.

Defendant was charged with one count of robbery in the first degree and two counts of robbery in the second degree. During trial, the state argued that both counts of second-degree robbery and the count of first-degree robbery were based on the same incident: the confrontation between defendant and Alejandro when defendant went to the gas station the second time. A jury found defendant guilty as charged. At sentencing, the court stated that defendant's verdicts would merge.¹ However, the judgment states that defendant's verdicts do not merge.

On appeal, defendant raises two assignments of error, arguing that the trial court erred in (1) failing to merge defendant's guilty verdicts for the two counts of robbery in the second degree and (2) failing to merge defendant's guilty verdict for robbery in the first degree with the second-degree robbery verdicts. We review the trial court's rulings on merger issues for errors of law. State v. Sanders, 185 Or.App. 125, 129, 57 P.3d 963 (2002), modified on recons., 189 Or.App. 107, 74 P.3d 1105 (2003), rev. den., 336 Or. 657, 92 P.3d 122 (2004).

We first address defendant's argument that the trial court erred in failing to merge his guilty verdicts for the two counts of second-degree robbery. The anti-merger statute, ORS 161.067(1), provides:

“When the same conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an element that the others do not, there are as many separately punishable offenses as there are separate statutory violations.”

Under ORS 164.405(1), a person commits robbery in the second degree if the person commits robbery as defined by ORS 164.395 ² and the person “(a) [r]epresents by word or conduct that the person is armed with what purports to be a dangerous or deadly weapon;” or “(b) [i]s aided by another person actually present.”

In this case, defendant was convicted of two separate counts of second-degree robbery for the same conduct toward the same victim, one for being armed with a weapon—the gun—and the other for being aided by another person actually present—the other person who came into the cashier's station. The allegations against defendant were that he committed theft while being aided by another person actually present (Count 2) and that he committed theft while representing that he was armed with what purported to be a deadly and dangerous weapon (Count 3). In White, the Supreme Court concluded that second-degree robbery verdicts under these circumstances should merge. 346 Or. at 291, 211 P.3d 248. The court explained:

“[T]he legislature created a single crime of second-degree robbery. The fact that the alternative circumstances that elevate third-degree robbery to second-degree robbery appear in two different paragraphs in ORS 164.405(1) does not make them (or the crime of second-degree robbery) ‘two * * * statutory provisions.’ Accordingly, ORS 161.067(1) does not apply here, and the trial court erred in failing to merge defendant's guilty verdicts on the two counts of second-degree robbery.”

Id. Accordingly, we conclude that the trial court erred in failing to merge defendant's guilty verdicts on the two counts of second-degree robbery in this case.

For the first time on appeal, the state makes an alternative argument—that defendant committed two separately punishable crimes of second-degree robbery against the same victim on the same day. The state contends that the record supports a conviction for second-degree robbery for defendant's actions the first time he stopped at the gas station and demanded $10 worth of gas. According to the state, because defendant had three others in the car with him at the time, defendant committed robbery while “aided by another person actually present,” ORS 164.405(1)(b). In addition, relying on ORS 161.067(3),³ the state asserts that there was a “sufficient pause” between the violations “to afford the defendant an opportunity to renounce the criminal intent.”

The state cannot raise this new theory for the first time on appeal. As the Supreme Court stated in Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or. 634, 660, 20 P.3d 180 (2001),

“even if the record contains evidence sufficient to support an alternative basis for affirmance, if the losing party might have created a different record below had the prevailing party raised that issue, and that record could affect the disposition of the issue, then we will not consider the alternative basis for affirmance.”

(Emphasis in original.) At trial, the state argued that both counts of second-degree robbery were based on the same incident: the confrontation between defendant and Alejandro when defendant returned to the gas station. Because the record might have developed differently had the state raised its theory below, we decline the state's invitation to affirm on alternative grounds and conclude that defendant's guilty verdicts on the two counts of second-degree robbery merge.

We next turn to defendant's argument that the trial court erred in failing to merge the two second-degree robbery verdicts with the first-degree robbery verdict. For a single criminal act to give rise to more than one statutory violation under ORS 161.067(1), “three requirements must be satisfied: (1) defendant must have engaged in acts that are ‘the same criminal conduct or episode’; (2) defendant's acts must have violated two or more ‘statutory provisions'; and (3) each ‘statutory provision’ must require ‘proof of an element that the others do not.’ “ State v. Parkins, 346 Or. 333, 348, 211 P.3d 262 (2009) (quoting State v. Crotsley, 308 Or. 272, 779 P.2d 600 (1989)). Defendant asserts that this case does not meet the second requirement: that his acts violated two or more statutory provisions. Defendant argues that the statutes defining the different degrees of robbery are all “directed at the same legislative concern: punishing offenders according to the likelihood that violence will occur as a consequence of the means the offender employs to take property that belongs to another.” Consequently, defendant asserts that the legislature intended to define a single crime of robbery when it enacted the statutes, and we should consider them the same statute for the purposes of merger. We disagree.

Although the issue in White was whether the verdicts for two second-degree robberies should merge, not whether the statute governing first-degree robbery, ORS 164.415, and the statute governing second-degree robbery, ORS 164.405(1), are separate “statutory provisions” for purposes of ORS...