State v. Lister, A174679

CourtCourt of Appeals of Oregon
Writing for the CourtAOYAGI, J.
Citation321 Or.App. 518
PartiesSTATE OF OREGON, Plaintiff-Respondent, v. STEPHEN MATHEW LISTER, Defendant-Appellant.
Docket NumberA174679
Decision Date31 August 2022

321 Or.App. 518

STATE OF OREGON, Plaintiff-Respondent,
v.

STEPHEN MATHEW LISTER, Defendant-Appellant.

A174679

Court of Appeals of Oregon

August 31, 2022


This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

Submitted June 24, 2022.

Washington County Circuit Court 19CR55841 Theodore E. Sims, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Sara F. Werboff, Deputy Public Defender, Offce of Public Defense Services, fled the opening brief for appellant. Stephen Lister fled a supplemental brief pro se.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jennifer S. Lloyd, Assistant Attorney General, fled the brief for respondent.

Before James, Presiding Judge, and Aoyagi, Judge, and Joyce, Judge.

[321 Or.App. 519] AOYAGI, J.

1

For intentionally running his car into two people on a motorcycle and then leaving the scene, defendant was convicted of two counts of first-degree assault, ORS 163.185 (Counts 3 and 4); two counts of unlawful use of a weapon, ORS 166.220(lXa) (Counts 5 and 6); and two counts of failure to perform the duties of a driver to injured persons (FPDD), ORS 811.705 (Counts 7 and 8). On appeal, he raises four assignments of error regarding his sentencing. He also raises two pro se supplemental assignments of error. As explained below, we agree with the parties that the trial court plainly erred by imposing separate punitive and compensatory fines, and therefore reverse and remand for resentencing, but we reject defendant's other assignments of error.

FACTS

In August 2019, defendant and C had a physical and verbal altercation in a parking lot. A short time later, C was riding his motorcycle with his wife, J, when they passed defendant getting into his car. J threw a metal rod at defendant's car. Enraged, defendant pursued the motorcycle, fish-tailing as he made a turn and driving twice the posted limit of 25 miles per hour. As the motorcycle approached a stop sign, defendant accelerated, increasing his speed from 52 miles per hour to 66 miles per hour in the five seconds before impact, and struck the motorcycle at a speed of 66 miles per hour. Upon impact, one victim skidded across the asphalt, while the other flew 200 to 300 feet and landed in a field. Defendant never braked, before or after the collision, and left the scene without stopping. Bystanders saw a car with front-end damage speeding away.

C and J were seriously injured in the collision. J suffered a severe spinal injury, is paralyzed from the waist down, and can use her arms and wrists but not her fingers. C suffered a broken pelvis, a broken toe, a dislocated shoulder, dislocated fingers, lacerations, and a head injury. C also lost three inches of height due to four exploded vertebrae in his spine.

2

[321 Or.App. 520] Defendant was criminally charged as a result of the foregoing incident and ultimately convicted on the six counts previously described. Two attempted-murder charges were dismissed, on the state's motion, after the jury deadlocked on those charges.

CONSECUTIVE SENTENCING ON COUNTS 7 AND 8

In his first and second assignments of error, defendant contends that the trial court erred by ordering his sentences on Counts 7 and 8 to run consecutively to his sentences on Counts 3 and 4. "We review a trial court's decision to impose consecutive sentences for errors of law and to determine whether the trial court's predicate factual findings are supported by any evidence in the record." State v. Provancha, 293 Or.App. 169,173, 428 P.3d 916 (2018), rev den, 364 Or. 407 (2019) (internal quotation marks omitted).

The trial court sentenced defendant to 90 months on Count 3 (assault of J) and 90 months on Count 4 (assault of C), to be served consecutively to each other because they involved different victims. Defendant does not challenge those sentences, nor does he challenge his sentences on Counts 5 and 6. The court sentenced defendant to 24 months on Count 7 (FPDD as to J) and 24 months on Count 8 (FPDD as to C), to be served consecutively to each other because they involved different victims, and to be served consecutively to his sentences on Counts 3 and 4 for reasons to be discussed. Defendant challenges the latter aspect of his sentencing on Counts 7 and 8.

ORS 137.123(5) allows a trial court to impose consecutive sentences "for separate convictions arising out of a continuous and uninterrupted course of conduct" if the court finds either of two circumstances:

"(a) That the criminal offense for which a consecutive sentence is contemplated was not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious crime but rather was an indication of defendant's willingness to commit more than one criminal offense; or
"(b) The criminal offense for which a consecutive sentence is contemplated caused or created a risk of causing
3
[321 Or.App. 521] greater or qualitatively different loss, injury or harm to the victim or 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."

It is undisputed that defendant's convictions arose from a continuous and uninterrupted course of conduct.

We begin with ORS 137.123(5)(a). The trial court expressly found that defendant's conduct evinced his willingness to commit more than one offense-and thereby necessarily rejected defendant's argument that he had a singular intention (to injure the victims) and committed FPDD merely incidentally to the assaults. "[A] trial court's determination under ORS 137.123(5Xa) that, in committing a particular offense, a defendant showed 'a willingness to commit more than one criminal offense' is a factual determination that we review under the 'deferential standard of review' of whether there is any evidence in the record to support that finding." State v. Traylor, 267 Or.App. 613, 616, 341 P.3d 156 (2014) (quoting State v. Anderson, 208 Or.App. 409, 417, 422, 145 P.3d 245 (2006), rev den, 343 Or. 33 (2007)). We must consider "the relationship between the uncontroverted facts, with reasonable inferences necessarily viewed in the light most favorable to the trial court's findings and the predicate criminal statutes." State v. Byam, 284 Or.App. 402, 406, 393 P.3d 252 (2017).

A person commits first-degree assault (a Class A felony) when the person "[intentionally causes serious physical injury to another person by means of a deadly or dangerous weapon." ORS 163.185(1)(a). A person commits FPDD (a Class B felony in these circumstances) when the driver of a vehicle "knows or has reason to believe that the driver's vehicle was involved in a collision," the collision results in injury or death to a person, and...

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1 practice notes
  • State v. Lister, S069797
    • United States
    • Supreme Court of Oregon
    • November 3, 2022
    ...Or. 455 State v. Lister, Stephen Mathew S069797Supreme Court of OregonNovember 3, 2022 (A174679) (321 Or.App. 518) PETITION FOR REVIEW DENIED ...
1 cases
  • State v. Lister, S069797
    • United States
    • Supreme Court of Oregon
    • November 3, 2022
    ...Or. 455 State v. Lister, Stephen Mathew S069797Supreme Court of OregonNovember 3, 2022 (A174679) (321 Or.App. 518) PETITION FOR REVIEW DENIED ...

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