State v. Dasa, 031236658;

• Decision Date: 10 March 2010
• Docket Number: A133296.,031236658
• Citation: 234 Or. App. 219,227 P.3d 228
• Parties: STATE of Oregon, Plaintiff-Appellant Cross-Respondent, v. Satya Krishna DASA, Defendant-Respondent Cross-Appellant.
• Court: Oregon Court of Appeals

227 P.3d 228

234 Or. App. 219

STATE of Oregon, Plaintiff-Appellant Cross-Respondent, v. Satya Krishna DASA, Defendant-Respondent Cross-Appellant.

031236658;

A133296.

Court of Appeals of Oregon.

Argued and Submitted April 29, 2009.

Decided March 10, 2010.

David B. Thompson, Senior Assistant Attorney General, argued the cause for appellant-cross-respondent. On the opening brief were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Kaye E. McDonald, Senior Assistant Attorney General. With him on the answering brief were John R. Kroger, Attorney General, and Rolf C. Moan, Acting Solicitor General.

Meredith Allen, Deputy Public Defender, argued the cause for respondent-cross-appellant. With her on the brief was Peter Gartlan, Chief Defender, Legal Services Division, Office of Public Defense Services. Satya Krishna Dasa filed the supplemental brief pro se.

Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and ROSENBLUM, Judge.

HASELTON, P.J.

The state appeals the trial court's order granting defendant's motion in arrest of judgment for a single count of aggravated murder and resulting in entry of a judgment of conviction for murder rather than aggravated murder. ORS 138.060(1)(b) (allowing the state to appeal "[a]n order arresting the judgment"). Defendant cross-appeals the judgment, raising 20 assignments of error. ORS 138.040 (allowing defendant to appeal a judgment). We write to address (1) the interrelated assignments of error on appeal and cross-appeal that concern whether, as a matter of law, defendant could be convicted of aggravated felony murder based on the state's theory that he entered a dwelling with the intent of murdering the victim and then personally and intentionally murdered him; and (2) defendant's assignment of error on cross-appeal concerning the trial court's failure to merge defendant's attempted aggravated murder convictions. We reject all remaining assignments of error on cross-appeal without discussion. As explained below, we conclude that, as a matter of law, defendant could be convicted of aggravated murder based on the state's theory and that the trial court erred in failing to merge defendant's convictions for attempted aggravated murder. Accordingly, we reverse in part and affirm in part.

The issues on appeal are legal in nature. Consequently, we state only the material facts that are necessary to provide context. Because the jury found defendant guilty, we state those facts in the light most favorable to the state. State v. Maxwell, 165 Or.App. 467, 469, 998 P.2d 680 (2000), rev. den., 334 Or. 632, 54 P.3d 1042 (2002).

After defendant's wife entered into an intimate relationship with Bukshin, defendant indicated to others that he was going to kill Bukshin. In late December 2003, defendant entered Bukshin's home with the intent to murder him. Defendant then stabbed Bukshin, who died from blood loss. Defendant also repeatedly stabbed Bukshin's estranged wife, Webster, who was also in the house that night. Webster survived.

Based on those events, defendant was charged with aggravated murder for the death of Bukshin (Count 1), ORS 163.095. Specifically, the indictment alleged:

"Count 1

"AGGRAVATED MURDER

"The said Defendant(s), SATYA KRISHNA DASA, on or about December 20, 2003, in the county of Multnomah, State of Oregon, did unlawfully and intentionally and knowingly commit the crime of Burglary in the First Degree and in the course of and in furtherance of the crime the defendant was committing, defendant personally and intentionally caused the death of YURI BUKSHIN, a human being, who was not a participant in the crime, contrary to the statutes in such cases made and provided and against the peace and dignity of the State of Oregon[.]"

(Boldface and uppercase in original.) Defendant was also charged with (a) the attempted aggravated murder of Webster (Counts 2, 3, and 4), ORS 161.405; (b) first-degree burglary (Counts 5 and 6), ORS 164.225; and (c) the first-degree assault of Webster (Count 7), ORS 163.185.

At trial, at the close of the state's case-in-chief, defendant requested that the court compel the state to elect the factual theory underlying the aggravated murder charge in Count 1. The state responded that, because defendant committed first-degree burglary by entering Bukshin's home with the intent to commit his murder, defendant could also be convicted of aggravated felony murder.

Thereafter, defendant moved for a judgment of acquittal on Count 1. Defendant's motion was premised on his contention that the state's theory failed as a matter of law. More specifically, defendant contended that a burglary committed with the intent to murder could not support an aggravated felony murder conviction for two interrelated reasons. First, defendant contended, the murder did not occur in furtherance of the burglary. Second, defendant asserted that the state could not "`bootstrap[ ]' an aggravating factor on to what would otherwise be a plain intentional murder charge"—that is, the state could not rely on the intent to commit murder to prove both that defendant committed the burglary and that he killed Bukshin personally and intentionally. Defendant noted that, because "Count 1 was not demurrable" and because "facially [the indictment is] not defective," a motion for judgment of acquittal (MJOA) was the "first legal opportunity" after the state elected its factual theory for him to assert that the state's theory failed as a matter of law. The trial court reserved ruling on the MJOA.

At the close of defendant's case, and again after the state's rebuttal case, defendant renewed his MJOA on Count 1. The trial court denied the motion. The court noted that "this is really an attack on the sufficiency of the indictment" and told defendant that it was "going to allow [him] to re-raise the issue as a motion in arrest of judgment." At that point, albeit prematurely, the trial court allowed the parties to make their respective arguments concerning the merits of a motion for arrest of judgment.

Defendant's position remained constant— that is, he asserted that, as a matter of law, a burglary committed with the intent to murder could not support an aggravated felony murder conviction for either, or both, of two reasons: First, because felony murder requires that a death occur in the course of and in furtherance of the burglary, a murder cannot be in furtherance of the burglary unless the burglary is committed with an intent to commit a crime other than murder (e.g., theft). Second, the state cannot use defendant's "intent to commit murder" to prove an element of burglary (i.e., that he entered Bukshin's home with the intent to murder him) as well as the element that elevates the felony murder to aggravated felony murder (i.e., that he personally and intentionally committed the murder).

The state disagreed, contending that the text of the four pertinent statutes¹—viz., ORS 164.215 (burglary); ORS 164.225 (first-degree burglary); ORS 163.115(1)(b)(C) (felony murder); and ORS 163.095 (aggravated murder)—collectively and unambiguously demonstrate the following "Aggravated murder includes felony murder, and felony murder includes a killing committed in the course and in furtherance of a first degree burglary. Murder is obviously a crime, so entering someone's home with the intent to murder is first degree burglary."

The state also invoked State v. Reams, 292 Or. 1, 636 P.2d 913 (1981), in support of its position that an aggravated felony murder conviction can be based on a burglary with intent to kill a victim, coupled with the subsequent personal and intentional murder of that victim. Further, in that regard, the state asserted that, when the 1971 Legislative Assembly amended the felony murder statute, it did so with the intent of "codify[ing] existing case law" that established that "felony murder applied to killings committed during burglaries where the intent of the defendant upon entering the home was to commit assault or murder." (Emphasis in original.)

After the jury convicted defendant of aggravated murder (Count 1), as well as attempted aggravated murder (Counts 2, 3, and 4), first-degree burglary (Counts 5 and 6), and first-degree assault (Count 7), defendant filed a motion in arrest of judgment in which he asserted, as pertinent to this appeal, that the facts stated in Count 1 of the indictment did not constitute an offense. In their colloquy with the court, the parties essentially reiterated their arguments and discussed case law from various states addressing that legal issue.

The court granted defendant's motion, reasoning that

"the statutory scheme in Oregon does not allow for this particular theory presented by the State of aggravated murder, that every state that has dealt with this very issue with the same statutory framework of Oregon has ruled the same, they've ruled against the State. I realize there's only four states, but there's only a certain number of states that have a parallel statute to ours, but the states that have dealt with this in the capital arena have ruled one of two ways. They've ruled either that the `in furtherance' language prohibits the State from charging intentional murder in furtherance of the crime of burglary with the intent to commit the very same murder, or they've ruled that you cannot in a capital case have an intentional murder and aggravate it with the intent to murder as part of the burglary, that it has to be some other intent, such as a burglary with intent to rob, to commit theft, to commit rape, but it can't be the same intent as the intent to murder.

"I agree that, quite frankly, some of those states gave it very little thought in their opinion. I think California and New York ha[ve] given it more analysis, and I am mindful of the fact that we've relied on the New York cases when dealing in [Reams ] with our felony murder statute. New York did go on to distinguish felony murder analysis from...