State v. Lucio-Camargo

• Decision Date: 05 February 2003
• Parties: STATE of Oregon, Respondent, v. Leopoldo Celos LUCIO-CAMARGO, Appellant.
• Court: Oregon Court of Appeals

62 P.3d 811

186 Or. App. 144

STATE of Oregon, Respondent, v. Leopoldo Celos LUCIO-CAMARGO, Appellant.

(9802-31380; CA A104767).

Court of Appeals of Oregon.

Submitted on Remand September 17, 2002.

Decided February 5, 2003.

Peter Gartlan, Chief Deputy Public Defender, argued the cause for appellant. With him on the brief was David E. Groom, Public Defender.

Douglas F. Zier, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before EDMONDS, Presiding Judge, and DEITS, Chief Judge,¹ and ARMSTRONG, Judge.

EDMONDS, P.J.

Defendant appeals from two convictions for burglary in the first degree, ORS 164.225, arguing that he can be convicted of only one burglary. When the case was originally before us, we agreed and reversed and remanded the judgment for the entry of a single conviction of burglary. State v. Lucio-Camargo, 172 Or.App. 298, 18 P.3d 467 (2001). The Supreme Court thereafter allowed review, vacated our decision, and remanded for reconsideration in light of State v. Barnum, 333 Or. 297, 39 P.3d 178 (2002). State v. Lucio-Camargo, 334 Or. 491, 52 P.3d 1056 (2002). On reconsideration, we again reverse.

We described the facts in our previous decision and therefore summarize them here. Late one afternoon, defendant went to an apartment where his girlfriend Hernandez, her three children, her mother Villa-Lopez, and a married couple lived. Defendant had previously threatened Hernandez, who had obtained a restraining order but continued to communicate with him at times. When Hernandez opened the door, defendant removed an air chisel, which resembled a pistol, from under his coat and pointed it in her direction. She slammed the door and ran out of the apartment, accompanied by one child and Villa-Lopez. Defendant then entered the apartment. Because the other children were still inside, Villa-Lopez returned and confronted defendant. He threatened her verbally and with the air chisel. As a result of his actions, defendant was indicted for, and convicted of, two counts of first-degree burglary, ORS 164.225, and two counts of menacing, ORS 163.190. The first burglary count alleges that he unlawfully and knowingly entered and remained in the apartment with the intent of committing the crime of assault and that he caused or threatened physical injury to Villa-Lopez. The second count alleges that he entered and remained unlawfully in the apartment with the intent of committing the crime of menacing and that he caused or threatened physical injury to Hernandez.² One count of menacing involved defendant's actions towards Hernandez, while the other involved his actions toward Villa-Lopez; the menacing convictions are not at issue on appeal. The court ordered that the sentences on the second burglary count and on the two menacing counts be concurrent with the sentence on the first burglary count.

The issue on appeal is whether the two burglary counts are separately punishable offenses under ORS 161.067 and, if they are not, whether separate convictions on each count are proper. ORS 161.067 is the controlling statute, providing when multiple convictions and punishments arising out of the conduct or criminal episode are permissible. It provides:

"(1) 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.

"(2) When the same conduct or criminal episode, though violating only one statutory provision involves two or more victims, there are as many separately punishable offenses as there are victims. However, two or more persons owning joint interests in real or personal property shall be considered a single victim for purposes of determining the number of separately punishable offenses if the property is the subject of one of the following crimes:

"* * * * *

"(d) Burglary as defined in ORS 164.215 or 164.225.

"* * * * *

"(3) When the same conduct or criminal episode violates only one statutory provision and involves only one victim, but nevertheless involves repeated violations of the same statutory provision against the same victim, there are as many separately punishable offenses as there are violations, except that each violation, to be separately punishable under this subsection, must be separated from other such violations by a sufficient pause in the defendant's criminal conduct to afford the defendant an opportunity to renounce the criminal intent. Each method of engaging in deviate sexual intercourse as defined in ORS 163.305, and each method of engaging in unlawful sexual penetration as defined in ORS 163.408 and 163.411 shall constitute separate violations of their respective statutory provisions for purposes of determining the number of statutory violations."

Under ORS 164.215(1), a person commits the crime of burglary if the person "enters or remains unlawfully in a building with intent to commit a crime therein." The crime is burglary in the first degree if the building is a dwelling, ORS 164.225(1), or if the person, while effecting entry, while in the building, or while in immediate flight from the building, causes or attempts to cause physical injury to any person. ORS 164.225(1)(b).

In our previous opinion, and in light of the evidence, we treated Count I as alleging an unlawful entry into the premises with the intent to assault Hernandez and Count II as alleging an unlawful remaining on the premises with the intent to menace Villa-Lopez. Lucio-Camargo, 172 Or.App. at 301,18 P.3d 467.³ The issue was whether under ORS 161.067 the evidence supported separate convictions for Count I and Count II.

In our previous opinion, we first considered the wording and legislative history of ORS 161.067 and the burglary statutes and concluded that the two burglary counts did not allege separately punishable offenses. We reasoned that ORS 164.225 constitutes a single statutory provision that could be violated in two different ways. We began our analysis by taking our cue from State v. Barrett, 331 Or. 27, 33, 10 P.3d 901 (2000), and observing that the relevant wording of former ORS 161.062(1), repealed by Or. Laws 1999, ch. 136, § 1, is identical to ORS 161.067(1). We inquired whether the legislature intended the "unlawfully entering" portion of ORS 164.215 and ORS 164.225 to address a discrete concern from the "unlawfully remaining" portion of ORS 164.215 and ORS 164.225. Ultimately, we determined that ORS 164.225 is a single statutory provision that can be violated in two different ways. Lucio-Camargo, 172 Or.App. at 308, 18 P.3d 467. That inquiry led us to determine that ORS 161.067(2) was also inapplicable. We observed that, for the purpose of determining whether the burglary counts were separately punishable offenses, burglary has only one victim, even though there may be more than one occupant of the invaded property. Id. We then considered whether defendant's conduct constituted repeated violations of the same statutory provision under ORS 161.067(3). The evidence showed that defendant's conduct directed at Villa-Lopez continued without interruption after his unlawful entry and his threats made against Hernandez. Id. at 309-10, 18 P.3d 467. Because the facts did not support multiple convictions under ORS 161.067, we remanded the case for the trial court to enter a single burglary conviction. Id. at 310, 18 P.3d 467.

The Supreme Court has now instructed us to reconsider our previous decision in light of Barnum. However, applying the rule of Barnum to these facts presents a difficulty. To explain that difficulty, we trace the development of the law to its current state. Former ORS 161.062 was enacted in 1985, followed by ORS 161.067 in 1986. In State v. Crotsley, 308 Or. 272, 276-77, 779 P.2d 600 (1989), the court explained the import of those statutes:

"Prior to the enactment of ORS 161.062, and in the absence of clear statutory guidance, the courts fashioned judicial rules to address circumstances in which a single criminal episode provides grounds for multiple convictions and sentences. These include situations where a single criminal episode involves violations of more than one statute; single criminal episode involves multiple crimes against the same victim; and where a single criminal episode involves multiple victims. Where no clear legislative intent could be discerned concerning multiple convictions and sentencing for crimes committed during a single criminal episode, this court had to speculate whether the legislature would have expected an offender to be sentenced for more than the most serious felony. See State v. Cloutier, 286 Or. 579, 596 P.2d 1278 (1979).

"After several attempts to enact legislation that would address judicial concerns about the lack of statutory guidance in this complex area, in 1985, the legislature enacted ORS 161.062 * * *. The proponents of ORS 161.062 clearly intended that criminal records accurately reflect all crimes actually committed and that a person who commits multiple crimes by the same conduct or during the same criminal episode should have a criminal record reflecting each crime committed rather than only a single conviction which would not accurately portray the nature and extent of that person's conduct."

(Footnotes omitted.)

The issue in Crotsley was whether the defendant could be convicted and sentenced for both first-degree and third-degree rape for an act of forcible sexual intercourse with a 14-year-old victim. The court defined the issue as whether "separate first and third degree convictions and sentences could be imposed for a single act of rape or sodomy." Crotsley, 308 Or. at 274,779 P.2d 600. The court concluded that ORS 161.062 required separate convictions, even though the defendant had committed only a single act. It reasoned,

"In raping a

...