State v. Kuester, 13CR1822FE

• Citation: 364 P.3d 685,275 Or.App. 414
• Decision Date: 09 December 2015
• Docket Number: A155543.,13CR1822FE
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Henry John KUESTER, Defendant–Appellant.
• Court: Court of Appeals of Oregon

275 Or.App. 414

364 P.3d 685

STATE of Oregon, Plaintiff–Respondent,

v.Henry John KUESTER, Defendant–Appellant.

13CR1822FE

A155543.

Court of Appeals of Oregon.

Submitted Sept. 30, 2015.

Dec. 9, 2015.

Peter Gartlan, Chief Defender, and Eric Johansen, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Jamie K. Contreras, Assistant Attorney General, filed the brief for respondent.

Before ARMSTRONG, Presiding Judge, and HADLOCK, Judge, and EGAN, Judge.

HADLOCK, J.

Defendant was convicted of multiple crimes, including unlawful use of a weapon (UUW) with a firearm, ORS 166.220 and ORS 161.610, and pointing a firearm at another, ORS 166.190. On appeal, defendant assigns error to the trial court's failure to merge the guilty verdicts for UUW with a firearm and pointing a firearm; he also challenges the sentence that the trial court imposed on the conviction for UUW with a firearm. We reject defendant's merger argument, but the state concedes, and we agree, that the trial court plainly erred by imposing a sentence on the conviction for UUW with a firearm that includes an indefinite term of post-prison supervision. Accordingly, we remand for resentencing and otherwise affirm.

We describe defendant's criminal activity to provide context for those facts that are significant to the issues that he raises on appeal. We outline the pertinent facts in the light most favorable to the state. State v. Rhee, 271 Or.App. 746, 749, 353 P.3d 38 (2015).

One day in the summer of 2013, deputies and two sergeants from the Douglas County Sheriff's Office went to defendant's home, intending to evict him pursuant to a court order. That order authorized sheriff's office personnel to use reasonable force if necessary to accomplish the eviction. To reach the home, Sergeant Bean cut a padlock on a gate; Bean and another sergeant, Frieze, then drove their patrol cars up a driveway toward the house. The two sergeants tried to hail defendant over a public address system for about 15 minutes, announcing the eviction and asking defendant to come out of the residence. Getting no response, the sergeants and other deputies approached the house cautiously, using a shield and continually announcing their presence. Bean cut a lock on the door and Frieze called inside, asking defendant to come out if he was there. Frieze looked into the house, yelling, "Sheriff's Office." Frieze did not immediately spot defendant but, after he looked in a different direction, he saw defendant pointing a handgun at him. Frieze yelled "gun," and the deputies retreated.

A deputy again hailed defendant over the public address system, directing him to call the sheriff's office dispatch, which he eventually did. During subsequent conversations with two deputies, defendant said that "he wasn't going to come out" and that, if deputies entered the house, defendant would "have to kill them."

Bean eventually deployed a "flashbang" and then used gas to drive defendant from the house. Bean went inside the house after the gas cleared and found a handgun in the kitchen with a fully loaded magazine and a round chambered.

Defendant was indicted on five counts: UUW with a firearm, menacing, pointing a firearm at another, obstructing governmental or judicial administration, and unlawful possession of a silencer. The case was tried to a jury and the state's witnesses gave testimony consistent with the facts as described above. Defendant testified in his own behalf and asserted, among other things, that the gun he had been holding was not loaded when Frieze looked into the house. The jury convicted defendant of all crimes charged.

The trial court sentenced defendant on the conviction for UUW with a firearm as follows:

"Incarceration

"Defendant is sentenced to the custody of Oregon Department of Corrections for a period of 60 month(s). * * *

"Defendant may receive credit for time served. * * * Except as provided in ORS 144.122 and 144.126, the defendant shall not be eligible for work release, parole, temporary leave or terminal leave until the minimum term of imprisonment is served, less a period of time equivalent to any reduction of imprisonment granted for good time served or time credits earned under ORS 421.121.

"Post–Prison Supervision

"The term of Post–Prison Supervision is 36 month(s) minus time actually served. * * * "

(Boldface in original; emphasis added.) The court imposed shorter concurrent sentences on the other convictions.

Defendant raises two assignments of error on appeal, one related to merger of guilty verdicts and one related to sentencing. Both of the arguments are unpreserved. As defendant acknowledges, an unpreserved argument can present a basis for reversal only if it establishes that the trial court committed error that is "plain," that is,

"if (1) the error is one of law, (2) the error is ‘obvious, not reasonably in dispute,’ and (3) the error ‘appears on the face of the record,’ so that we need not ‘go outside the record to identify the error or choose between competing inferences, and the facts constituting the error are irrefutable.’ "

State v. Corkill, 262 Or.App. 543, 551, 325 P.3d 796, rev. den., 355 Or. 751, 331 P.3d 1010 (2014) (quoting State v. Reyes–Camarena, 330 Or. 431, 435, 7 P.3d 522 (2000) ). Thus, in addressing defendant's two arguments, we are limited to determining whether those arguments establish obvious error that is apparent on the face of the record.

Because "merger" relates to the number of convictions that should have been included in the judgment—an issue that logically precedes sentencing questions—we address defendant's unpreserved merger argument first. Cf. State v. Davis, 265 Or.App. 425, 433, 335 P.3d 322 (2014), rev. den., 356 Or. 837, 346 P.3d 496 (2015) (" ‘merger’ is a concept that applies to the merger of multiple guilty verdicts into a single conviction" and "[s]entences themselves do not ‘merge’; they are either concurrent or consecutive").

In that regard, defendant contends that the trial court plainly erred when it did not merge the guilty verdicts for UUW with a firearm (Count 1) and pointing a firearm at another (Count 3). That argument is based on ORS 161.067(1), which 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. "

Thus, if each of two crimes includes an element that is not shared by the other crime, then the guilty verdicts do not merge. See State v. Dentel, 272 Or.App. 130, 136, 354 P.3d 753 (2015) (discussing the "element-by-element comparison contemplated by ORS 161.067").

In this case, the parties at least implicitly agree that defendant's crimes all occurred within a single criminal episode. Nonetheless, defendant argues, his convictions for UUW with a firearm and pointing a weapon at another should merge because it is not true (according to defendant) that each of those crimes requires proof of an element that the other does not.

We recently summarized the legal principles that govern the "elements" question in merger cases, like this one, where one of the crimes involves an allegation under ORS 161.610 that the crime was committed with a firearm:

"For purposes of the merger analysis, ‘[t]he elements of proof of a criminal offense are controlled by the statute defining the offense, not by the factual circumstances recited in the indictment.’ However, when a statute sets out alternative forms of a single crime, we look to the indictment (and, if necessary, to jury instructions) to determine which form is charged, and we use the elements of the crime as charged in conducting the merger analysis. Finally, and as pertinent here, when the state charges a defendant with an aggravated form of a felony based on an allegation that the defendant used or threatened to use a firearm during the commission of that crime, the ‘with a firearm’ allegation is an element of the crime for merger purposes. That is, ORS 161.610 —the ‘gun minimum’ statute—not only requires the trial court to impose a particular minimum sentence on a defendant who is convicted of having used or threatened to use a firearm during the commission of a felony, it creates a new, aggravated form of the underlying felony, one element of which is the use or threatened use of a firearm.

Dentel, 272 Or.App. at 133, 354 P.3d 753 (internal citations omitted).

Applying those principles here, we first consider the elements of both crimes as charged by the state and explained in the jury instructions. In this case, the elements of UUW with a firearm were (omitting venue):¹

1) the act occurred on or about August 7th, 2013;

(2) defendant possessed a dangerous or deadly weapon;

(3) defendant intended to unlawfully use a weapon against Frieze;

(4) defendant personally used or threatened to use a firearm during the commission of this felony.

See ORS 166.220 (defining UUW);² ORS 161.610 (defining the "with a firearm" aggravating element).³

The elements of pointing a firearm at another, as charged by the state and explained in the jury instructions, were (again omitting venue):

(1) the act occurred on or about August 7th, 2013;

(2) at the time of the offense, defendant was over twelve years old;

(3) defendant intentionally pointed or aimed a loaded or empty gun at or toward Frieze;

(4) Frieze was within range of the firearm.

See ORS 166.190.⁴

The parties agree that the crime of pointing a firearm at another includes an element—the pointing—that is not also an element of the crime of UUW with a firearm.

The remaining question is whether UUW with a firearm includes an element that pointing a firearm at another does not. The state asserts that it does, because a person can commit the crime of pointing a firearm at another with an unloaded gun and, the state contends, an unloaded gun is not a ...