State v. Link, (CC 01FE0371AB.

Decision Date07 May 2009
Docket Number(CC 01FE0371AB.,CA A123223;,SC S055516).
PartiesSTATE of Oregon, Respondent on Review, v. Justin Alan LINK, Petitioner on Review.
CourtOregon Supreme Court

Susan F. Drake, Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services, Legal Services Division.

Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

WALTERS, J.

Defendant was a teenager when he and four friends stole a car belonging to one friend's mother, killed her to conceal the robbery, and drove to Canada. Although defendant took part in the preparations to commit the murder and encouraged and directed the others to shoot the victim, he was not physically present when, after three of his friends either refused or were unable to shoot her, the fourth fired the fatal shot. Defendant was charged with five counts of aggravated murder. Counts 1 through 3 charged defendant with aggravated felony murder—specifically, that defendant had committed first-degree robbery by three different means and that, in the course of committing each of those felonies, he had committed the murder of the victim "personally and intentionally." See ORS 163.095(2)(d) (1999) (defining felony murder under those circumstances as aggravated murder).1 Counts 4 and 5 charged that defendant had killed the victim to conceal the commission of other crimes (Count 4) and the identity of the perpetrators of those crimes (Count 5). See ORS 163.095(2)(e) (defining murder under those circumstances as aggravated murder). After a bench trial, the trial court convicted defendant of aggravated murder on all five counts.

On appeal to the Court of Appeals, defendant challenged his convictions on Counts 1 through 3, contending that the evidence adduced at trial was insufficient to establish that he had committed the murder "personally" and that the trial court therefore had erred in denying his motion for judgment of acquittal on those three counts. Defendant did not challenge his aggravated murder convictions on Counts 4 or 5. The Court of Appeals concluded that defendant would stand convicted of aggravated murder and receive the same sentence regardless of whether his convictions on Counts 1 through 3 were reversed. The court therefore declined to reach the issue of the sufficiency of the evidence on those counts. State v. Link, 214 Or.App. 100, 162 P.3d 1038 (2007).

We allowed defendant's petition for review and now hold that (1) the Court of Appeals should have reached the merits of defendant's challenge to the sufficiency of the evidence on Counts 1 through 3; and (2) the trial court erred in denying defendant's motion for judgment of acquittal on Counts 1 through 3.

FACTS AND PROCEDURAL BACKGROUND

Because the parties do not contest the accuracy of the statement of facts by the Court of Appeals, we take the facts from its opinion.

"In March 2001, defendant and his friend * * * Thomas, the son of the victim in this case, were living in a motel in Deschutes County. Thomas had recently moved out of his mother's house because he was not getting along with her, due in part to her antipathy toward defendant. At some time during the morning of March 26, 2001, defendant, then 17 years old, along with Thomas and three other friends— Summers, age 15; Koch, age 15; and Karle, age 16—entered the victim's house while she was at work. The five friends had decided to drive Koch's mother's Cadillac (which Koch had taken from her and not returned) to Canada, and they had stopped at the victim's house to shower, get food, and steal valuables.

"Shortly after they arrived, defendant and two of his friends decided to make a trip to the store to buy cigarettes. As they were about to leave, defendant handed another one of his friends, Karle, a .308 rifle—stolen earlier from a shop owned by Thomas's father and later used to kill the victim—and told her to shoot anybody who might arrive during the errand. When Karle asked who that might be, defendant named the victim. However, the errand never took place; nobody could find the keys to the Cadillac in which the friends had arrived. At defendant's suggestion, they ransacked the house looking for the keys, but to no avail. At that point, they decided to wait for the victim to return, knock her out, and go to Canada in her other car.

"Defendant, however, told the others that merely knocking the victim unconscious and tying her up would not be sufficient; rather, they had to kill her so that she could not have them apprehended. As the discussion continued, the five friends suggested various ways to accomplish the murder: beating the victim to death with empty wine bottles injecting her with bleach, setting the house on fire with her inside, and electrocuting her by immersing her in the bathtub and then also immersing plugged-in appliances. Defendant told them, however, that, if all else failed, they should shoot her.

"As the late morning and afternoon passed, defendant instructed his friends how they should go about setting up the house for the planned murder. Wine bottles were emptied; a hypodermic needle was filled with bleach; the bathtub was filled and electrical cords brought into the bathroom and connected to a hair dryer and radio. Shortly before the victim's expected return, two of the codefendants stationed themselves as lookouts so they could alert the others to the victim's approach; two stationed themselves where they could hit her when she entered; and defendant, telling the others that he could not be seen in the house, stationed himself outside, where he stayed in contact with the others by cellphone. At one point, he telephoned Koch and delivered what Koch later described as a `pep talk,' encouraging him to carry out their plans.

"When the victim arrived, Thomas and Koch hit her between four and six times with the empty wine bottles and, when she fell to the ground, kicked her. Despite the attack, however, she was able to stand and get to the back porch. From his vantage point outside, defendant saw her, and asked Thomas and Koch, who by now were also on the porch, `Why isn't she dead yet? Get her back in the house. Shoot her. Get the gun.' As Koch went to retrieve the rifle, defendant told Thomas that the victim looked `really bad' and that they should put her out of her misery. After Thomas, Summers, and Karle either refused or were unable to shoot the victim, Koch did so himself. Defendant remained outside.

"After the murder, the five young people took a cordless phone, alcohol, guns, jewelry, and money from the residence, transferred their belongings from the Cadillac to the victim's Honda, and drove away."

214 Or.App. at 102-04, 162 P.3d 1038.

Defendant and his cohorts were captured as they attempted to enter Canada. They were each indicted on 22 criminal counts, including the five counts of aggravated murder previously described and five counts of conspiracy to commit aggravated murder.2

Defendant was tried separately from the others and waived his right to a jury trial. At the close of the state's evidence, defendant moved for a judgment of acquittal on all counts. As to Counts 1 through 3, the three counts charging aggravated felony murder, defendant contended that there was no evidence from which a rational factfinder could conclude that he had "personally * * * committed" the murder, as is required by ORS 163.095(2)(d) (felony murder is aggravated murder if defendant "personally and intentionally committed the homicide").3 Defendant asserted that, under that subsection of the statute, only the person who fired the fatal shot could be convicted.

The state disagreed. It contended that, under State v. Nefstad, 309 Or. 523, 789 P.2d 1326 (1990), the requirement that a defendant act "personally" could be met by other active involvement in the murder. The evidence, the state argued, was sufficient to permit a factfinder to conclude that defendant's actions constituted active involvement in the victim's murder.

The trial court agreed with the state, denied the motion for judgment of acquittal, and convicted defendant on all 22 counts.4 Conviction of aggravated murder requires one of three sentences: death, life imprisonment without the possibility of release or parole, or life imprisonment. ORS 163.105(1)(a). Defendant was not eligible for the death penalty by virtue of ORS 137.707(2) (prohibiting death penalty for defendant who was under 18 years of age when crime was committed). The trial court sentenced him to life imprisonment without the possibility of release or parole.

During the sentencing phase of the trial, defendant argued that the five aggravated murder counts (plus other counts) should be merged into a single conviction for aggravated murder. Defendant relied on this court's decision in State v. Barrett, 331 Or. 27, 10 P.3d 901 (2000). The state did not argue to the contrary. In fact, the state specifically "agree[d] that all five counts of Aggravated Murder [should] merge for sentencing purposes."

Because the exact nature of the "merger" that the law requires is relevant to our disposition here, we pause to consider Barrett and its application of the "anti-merger statute" in some detail. That statute, currently codified as ORS 161.067(1), but discussed in Barrett as also codified in former ORS 161.062(1) (1997), 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."5

In Barrett, the defendant had...

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