State v. Kyles

• Decision Date: 08 February 1985
• Citation: 71 Or.App. 492,692 P.2d 706
• Parties: STATE of Oregon, Respondent, v. Calvin KYLES, Appellant. C 82-09-37174; CA A27387.
• Court: Oregon Court of Appeals

Page 706

692 P.2d 706

71 Or.App. 492

STATE of Oregon, Respondent, v. Calvin KYLES, Appellant.

C 82-09-37174; CA A27387.

Court of Appeals of Oregon In Banc.

Argued and Submitted Oct. 24, 1983.

Decided Dec. 19, 1984.

Reconsideration Denied Feb. 8, 1985.

J. Marvin Kuhn, Chief Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Christine L. Dickey, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

VAN HOOMISSEN, Judge.

Defendant appeals his jury convictions of burglary in the first degree and two counts of robbery in the first degree. He contends that the trial court erred in ruling that evidence of his prior convictions was admissible at trial for impeachment purposes, in imposing cumulative sentences for multiple convictions and in imposing a minimum sentence. We affirm.

Defendant's convictions stem from a nighttime break-in of the home of an elderly couple, the Olsons. After entering their home through a bathroom window, defendant first stole money from a wallet which he found in the living room. He proceeded to Mrs. Olson's bedroom, where he threatened her with a knife and mace and robbed her of jewelry and money. Then he took her to Mr. Olson's bedroom where, under threat of cutting Mrs. Olson with the knife, he robbed him of jewelry. Defendant wore a mask; the Olsons could not identify him. However, the police found his fingerprints in the home and a pawnbroker identified him as the person from whom he had purchased jewelry stolen from the Olsons.

Defendant timely moved for an order preventing the state from offering impeachment evidence at trial consisting of his prior convictions of burglary and robbery. He argued that its prejudicial effect outweighed its probative value. He contends that the trial court's denial of his motion was error. ¹ Defendant did not testify at trial.

OEC 609 provides, in pertinent part "(1) For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime in other than a justice's court or a municipal court shall be admitted if elicited from the witness or established by public record, but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved false statement."

In State v. Carden, 58 Or.App. 655, 650 P.2d 97, rev. den. 293 Or. 653, 653 P.2d 998 (1982), we held that the question whether the probative value of evidence outweighs its prejudicial effect is within the trial court's discretion. See State v. McClure, 298 Or. 336, 692 P.2d 579- (1984); State v. Madison, 290 Or. 573, 578, 624 P.2d 599 (1981).

The prior convictions here were for burglary and robbery. The dishonesty involved in those crimes weighs in favor of admissibility. The convictions were obtained 19 months prior to the present trial. The current crimes were committed while defendant was on parole for his prior convictions. Those factors weigh in favor of admissibility. See State v. Carden, supra, 58 Or.App. at 659, 650 P.2d 97. The convictions were for the same type of crime charged here. That factor weighs against admissibility. State v. Carden, supra, 58 Or.App. at 659-60, 650 P.2d 97. As to the importance of defendant's testimony at trial, we conclude that his testimony was of marginal importance. If anything, this factor weighs against admissibility. ² The state's evidence did not consist merely of different witnesses' versions of the event. It included fingerprint evidence and other circumstantial evidence. See State v. Carden, supra, 58 Or.App. at 661, 650 P.2d 97. In sum, the trial court applied the relevant criteria and concluded that the probative value of the prior-crimes evidence slightly outweighed the possibility of discouraging defendant from testifying. We find no abuse of discretion. State v. McClure, supra; State v. Carden, supra.

Defendant next contends that the trial court erred in imposing cumulative sentences for multiple convictions. ³ In State v. Cloutier, 286 Or. 579, 599, 596 P.2d 1278 (1979), the Supreme Court said that it is the duty of this court, in the first instance, to develop criteria for imposition of cumulative sentences. In State v. Kessler, 297 Or. 460, 465, 686 P.2d 345 (1984), the Supreme Court explained that the major element in assessing whether multiple statutory violations are meant to carry cumulative sentences is whether they were committed in the course of a single criminal episode joined in time, place and circumstances and directed toward a single criminal objective. ⁴

The District of Columbia Circuit Court of Appeals considered this problem in Irby v. United States, 390 F.2d 432 (D.C.Cir.1967), a case cited in State v. Cloutier, supra. After pointing out that housebreaking violates the security of the home, while robbery violates the security of the person, the court considered Congress' purpose in forbidding each:

"One who wrongfully goes into a house to pilfer what he can find may or may not start out with a purpose to rob, if necessary. If he consciously entertains both purposes from the beginning, it can be said that he sets out with an intent to commit both larceny and robbery, or crimes against both property and person, if the opportunity presents itself. In such circumstances, he will be guilty of housebreaking in either event once he crosses the threshold, but, if he retires upon finding the house unoccupied and without robbing the occupant, he has made the decision which saves him from punishment for robbery. The point is, of course, that his invasion of the premises to steal does not irrevocably commit him to rob from the person of anyone he finds there. The choice is still his up to the moment of confrontation. If he decided to rob, consecutive punishments are not made available solely as a means of exacting greater retribution. Congress could well have conceived them as a deterent to compromising the safety of the person as well as the security of the premises. They illuminate the differing dangers to society inherent in stealing what one finds in a vacant house, and robbing the occupant as well when he proves to be at home. We cannot, at any rate, say with confidence that Congress did not contemplate some additional disincentive for the latter." 390 F.2d at 433. (Footnotes omitted.)

We, too, cannot say with confidence that the legislature did not contemplate additional disincentives for the robberies proved here. The legislature could not have intended that, having already committed burglary and theft, defendant then would have carte blanche to commit robbery without risk of additional sanctions. It would be irrational to construe the relevant statutes to provide no disincentive for those subsequent violent crimes. Defendant achieved a separate criminal objective when he committed the robberies and that he thereby subjected himself to cumulative sentences. We conclude that the trial court did not err in imposing cumulative sentences. See State v. Kessler, supra; State v. Cloutier, supra; State v. Goldsby, 59 Or.App. 66, 650 P.2d 952 (1982); Rolin v. Cupp, 57 Or.App. 64, 643 P.2d 1310, rev. den. 293 Or. 373, 648 P.2d 854 (1982); State v. Dillman, 34 Or.App. 937, 580 P.2d 567 (1978), rev. den. 285 Or. 195 (1979). ⁵

Defendant attacks the legality of the minimum sentences imposed by the trial court pursuant to ORS 144.110(1). We find no error. State v. Turner, 296 Or. 451, 676 P.2d 873 (1984); State v. Brown, 296 Or. 461, 676 P.2d 877 (1984).

Affirmed.

RICHARDSON, Judge, dissenting.

I agree with the majority that the court did not err in ruling that evidence of defendant's prior conviction was admissible. I also agree that the minimum sentence imposed was lawful. However, I disagree with the majority that separate sentences were lawfully imposed for each conviction. I therefore dissent from the affirmance of the judgment.

The analysis begins with certain settled principles. An indictment for burglary must include a specific allegation of the crime the accused intended to commit upon entry of the building. The accused may also be indicted for commission or attempted commission of the intended crime. The allegations of the burglary charge and the intended crime may be submitted to the jury, and the jury may properly find the accused guilty of both charges. State v. Cloutier, 286 Or. 579, 596 P.2d 1278 (1979). However, the court may not enter a judgment of conviction, nor sentence the accused, on both the burglary and the crime he intended to commit. State v. Cloutier, supra.

A problem of multiple sentences arises when the accused is convicted of more than one crime after the unlawful entry or a crime different from that originally intended. The problem becomes more intense because of the nature of burglary and the proof of the requisite intent element.

The crime of burglary is complete when the accused trespasses with the concurrent intent to commit a crime. If he does nothing else after the unlawful entry, he is subject to the maximum penalty for burglary. If he commits the intended crime, he is still subject only to the maximum penalty for burglary or the penalty for the crime committed if that penalty is greater than that for burglary.

The gravamen of burglary is not just the breaking and entering but the trespass coupled with the probability, based on the intent of the burglar, of a more serious crime than unlawful entry. As Cloutier holds, the legislature could not have intended that an accused be punished for burglary and the intended crime. The penalty for burglary was designed to punish the probability as well as the actual crime accomplished. The analysis must...