State v. Gatewood
| Decision Date | 16 October 2019 |
| Docket Number | A165081 |
| Citation | 300 Or.App. 21,452 P.3d 1046 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Alexander Dean GATEWOOD, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Marc D. Brown, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Doug M. Petrina, Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Powers, Judge, and Kistler, Senior Judge.
Defendant—who was convicted of one count of first-degree theft, ORS 164.055, and one count of felon in possession of a firearm (FIP), ORS 166.270 —appeals, assigning error to the trial court’s imposition of consecutive sentences. Defendant argues that, for consecutive-sentencing purposes under ORS 137.123(5)(b),1 the state was not a "victim" of the FIP offense, nor does Article I, section 44(3), of the Oregon Constitution2 support such a proposition. We conclude that, for consecutive-sentencing purposes, the identity of the "victim" is determined by the substantive statute defining the relevant criminal offense and that, under the substantive statute defining the offense of FIP, the state is the victim.3 Accordingly, we affirm.
The pertinent facts are few and undisputed. Based on evidence that he had taken JC’s gun without permission, defendant—who had a felony conviction—was convicted of one count of first-degree theft, ORS 164.055,4 and one count of FIP, ORS 166.270.5 At sentencing, defendant preemptively argued for concurrent sentences, reasoning that "the same facts were being used for each count—same incident." Over defendant’s objection, the trial court ordered that the sentence on the theft count run consecutively to the sentence on the FIP count, stating that "[t]here’s an identified victim" on the theft count: JC. Defendant appealed, asserting that the trial court erred by imposing the consecutive sentences.
Although the trial court did not precisely state the authority pursuant to which it imposed the consecutive sentences, it is reasonably clear from the record—and both parties recognize—that the court relied on ORS 137.123(5)(b). See State v. Edwards , 286 Or. App. 99, 102, 399 P.3d 463, rev. den. , 362 Or. 175, 406 P.3d 609 (2017) (). ORS 137.123 (5)(b) provides:
(Emphasis added.) Neither party disputes that JC was the victim of the theft offense. At issue is whether the state was the victim of "the other offense" of FIP, such that there was a "different victim" to authorize imposing the consecutive sentences.
On appeal, on both statutory and constitutional grounds, defendant challenges the proposition that the state was the victim of the FIP offense. First, defendant argues that the term "victim" in ORS 137.123(5)(b) is statutorily defined by ORS 131.007, which imbues "victim" with a generic, omnibus meaning. That is so, defendant posits, because both those statutory provisions were proposed by initiative petition and enacted by voters together as part of Ballot Measure 10 (the Crime Victims’ Bill of Rights) in 1986. In defendant’s view, that contemporaneity evinces the voters’ intent for the definition of "victim" set out in ORS 131.007 to apply to the term "victim" as it is used in ORS 137.123. Defendant further contends that, under that construct, the state was not a "victim" of the FIP offense for consecutive-sentencing purposes.
Additionally, defendant argues that the definition of "victim" set out in Article I, section 44(3), does not support the consecutive sentences imposed here, because the victim of the theft offense—JC—was also part of "the people of Oregon" and therefore was not a "wholly different" victim from the victim of the FIP offense, assuming that the FIP victim was the state or the people of Oregon. Furthermore, according to defendant, the definition of "victim" set out in Article I, section 44(3), was not the definition that the voters had considered in Measure 10 (1986) when they approved the statutory scheme at issue in this case.
The state disputes defendant’s assertion that the applicable definition of "victim" for consecutive-sentencing purposes is the one set out in ORS 131.007. The state argues instead that the term "victim" under ORS 137.123 (5)(b) refers to the victim of the underlying crime of conviction, as determined by the substantive provision defining the crime. According to the state, under the statute that defines the offense of FIP, ORS 166.270, the state is the victim. Furthermore, the state contends that the consecutive sentence was authorized for the additional reason that defendant’s offenses caused or created the risk of causing different harms. Finally, the state asserts that, in light of the trial court’s statutory authority to impose the consecutive sentences, we need not additionally consider whether that authority derived from the constitution. But in any event, the state argues, the constitutional analysis would yield the same result—that the trial court had authority to impose the consecutive sentences.
We review the imposition of consecutive sentences for errors of law, State v. Sumerlin , 139 Or. App. 579, 588, 913 P.2d 340 (1996), and view reasonable inferences in the light most favorable to the trial court’s findings, State v. Byam , 284 Or. App. 402, 406, 393 P.3d 252 (2017).
Again, ORS 137.123(5)(b) authorizes a court to impose consecutive sentences for separate convictions arising out of a continuous and uninterrupted course of conduct if, as applicable here:
"The criminal offense for which a consecutive sentence is contemplated *** caused or created a risk of causing loss, injury or harm to a different victim than was caused or threatened by the other offense or offenses committed during a continuous and uninterrupted course of conduct."
(Emphasis added.) The meaning of "victim" as the term is used in that statutory provision is the focus of our analysis. As we have previously recognized, "[t]he word ‘victim’ appears throughout our statutes, and *** it has different meanings in different statutes." State v. Zuniga , 288 Or. App. 742, 745 n. 1, 407 P.3d 961 (2017) (citation omitted); see also State v. Lykins , 357 Or. 145, 156-57, 348 P.3d 231 (2015) (); State v. Torres , 249 Or. App. 571, 575, 277 P.3d 641, rev. den. , 352 Or. 378, 290 P.3d 814 (2012) (). In State v. Moncada , 241 Or. App. 202, 250 P.3d 31 (2011), rev. den. , 351 Or. 546, 274 P.3d 185 (2012), we had occasion to consider the meaning of "victim" in the context of consecutive sentencing.
In Moncada , the defendant was convicted of two counts of felony hit-and-run, ORS 811.705, for injuring two individuals in a single car accident, and the trial court imposed consecutive sentences on those two counts. Id. at 204-05, 250 P.3d 31. On appeal, the defendant asserted that the court erred by failing to merge the two counts and by imposing consecutive sentences. Id. Underlying both assertions was the defendant’s legal theory that each of the two injured individuals was not a separate "victim" as the term is used in the statute governing merger, ORS 161.067,6 and in the statute governing consecutive sentencing, ORS 137.123. Because we reached the opposite conclusion, we rejected both assignments of error and affirmed.
Addressing first the merger issue, we discussed that, in State v. Glaspey , 337 Or. 558, 100 P.3d 730 (2004), the Supreme Court had stated that ORS 161.067(2) "uses the term ‘victims’ to describe the category of persons who are victims within the meaning of the specific substantive statute defining the relevant offense." Moncada , 241 Or. App. at 206-07, 250 P.3d 31 (citation and quotation marks omitted). Applying that controlling principle from Glaspey , we focused our analysis on ORS 811.705, the statute defining the offense of felony hit-and-run, to determine whether each of the injured individuals was a separate, qualifying "victim" for merger purposes. Id. at 212, 250 P.3d 31. We concluded that each injured individual was a separate victim and that, therefore, ORS 167.067(2) precluded merger of the two felony hit-and-run counts. Id.
Turning next to the consecutive-sentencing issue, we stated that "our interpretation of ORS 811.705 controls the determination whether the trial court properly imposed consecutive sentences." Id. In other words, we tacitly recognized that the Glaspey analysis that applied to determining the "victim" for merger purposes under ORS 161.067 also applied to determining the "victim" for consecutive-sentencing purposes under ORS 137.123. In both instances, the identity of the pertinent victim is determined by reference to the substantive statute defining the relevant criminal offense. Having determined that each injured individual qualified as a separate victim, we concluded that the trial court properly imposed the consecutive sentences. Id.
We see no persuasive reason—and defendant has given us none—to deviate from our approach in Moncada : To determine the identity of the "vic...
To continue reading
Request your trial
- State v. Worth
-
State v. Brass
..."different victims" for purposes of ORS 137.123(5)(b), because the named victim was also a member of the public.In State v. Gatewood , 300 Or. App. 21, 452 P.3d 1046 (2019), rev. den. , 366 Or. 257, 458 P.3d 1128 (2020), which we decided after briefing in this case was complete, the defenda......