State v. Lucio-Camargo

• Decision Date: 07 February 2001
• Citation: 172 Or. App. 298,18 P.3d 467
• Parties: STATE of Oregon, Respondent, v. Leopoldo Celos LUCIO-CAMARGO, Appellant.
• Court: Oregon Court of Appeals

18 P.3d 467

172 Or. App. 298

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

(9802 31380; CA A104767)

Court of Appeals of Oregon.

Argued and Submitted September 29, 2000.

Decided February 7, 2001.

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.

EDMONDS, Presiding Judge, and ARMSTRONG, Judge, and CENICEROS, Senior Judge.

EDMONDS, P.J.

Defendant appeals from two convictions for burglary in the first degree. ORS 164.225. He contends on appeal that, on the facts of this case, he can be convicted of only one burglary. We reverse.

We state the facts in the light most favorable to the state. State v. Cervantes, 319 Or. 121, 125, 873 P.2d 316 (1994). Late one afternoon, defendant went to an apartment where his girlfriend, Hernandez, her three minor children, her mother, Villa-Lopez, and another couple lived. Hernandez had petitioned for and had obtained a restraining order prohibiting defendant from contacting her or from coming to her residence. Defendant had allegedly threatened to kill Hernandez and himself in the weeks immediately preceding the visit, and he had been physically abusive in the past. Hernandez had talked with defendant on the telephone and had allowed him to come to her residence at times despite the restraining order. On the day in question, defendant knocked on the apartment door, and when Hernandez answered, he said either, "I'm going to do you a favor," or "I need you to do me a favor." He then reached under his coat, and removed an air chisel that resembled a pistol.¹ He pointed it in the direction of Hernandez. She immediately slammed the door closed, leaving defendant standing outside, and ran out of her apartment through another door, followed by her oldest child and Villa-Lopez. From another apartment, Hernandez and Villa-Lopez could see that defendant had entered their apartment and was standing at a window, looking out. Villa-Lopez then returned to the apartment because two children remained inside. She confronted defendant, who was then sitting on a chair in the apartment, and asked him why he had frightened Hernandez and what he was doing in the apartment. Defendant picked up the tool from the floor and told Villa-Lopez to "shut up." Villa-Lopez testified that defendant told her that she was the one he was going to kill. Defendant then left the apartment.

Subsequently, defendant was charged with two counts of burglary and two counts of menacing. The two burglary counts alleged that he had entered the apartment unlawfully, intending to assault Hernandez, and that he had remained there unlawfully, intending to menace Villa-Lopez.

On appeal, defendant argues that

"the number of burglaries for which he could properly be convicted depends upon the number of buildings entered, not the number of occupants in the building or the number of crimes committed by the burglar while within the building."

He relies on our holdings in State v. Barnum, 157 Or.App. 68, 970 P.2d 1214 (1998), rev. allowed 328 Or. 594, 987 P.2d 514 (1999), and State v. Sparks, 150 Or.App. 293, 946 P.2d 314 (1997), rev. den. 326 Or. 390, 952 P.2d 63 (1998). The state responds first that defendant did not raise the argument to the trial court that he makes on appeal and, second, that defendant was properly convicted twice for burglary.

We first address the issue of preservation under ORAP 5.45. Defense counsel told the trial court, "I suggest that these two counts [the burglary counts] merge for purposes of sentencing." That statement suggests that defendant was arguing that the court impose one sentence on both counts of burglary, as distinguished from requesting that only a single conviction for burglary be entered. As the Supreme Court cautioned in State v. Kessler, 297 Or. 460, 462-63, 686 P.2d 345 (1984),

"[t]he issue of multiple sentences differs from the issue of multiple statutory violations and * * * the issues are difficult to keep separate when the single word `merger' is used to describe both. `Merger,' of course, is not a statutory word but only a term of convenience, and it loses its convenience when it obscures more than it describes. One offense may be said to be `merged' in another in the sense in which a completed crime includes and `merges' with the attempt to commit it, or a murder includes and `merges' [with] the attempt to commit it, or a murder includes and merges [with] the assault that proved fatal or the felony that made an unintended homicide a murder. But when `merger' is carried into the context of sentencing, it misdirects attention to the point that defendant committed multiple offenses when that point is not at issue in the sentencing stage. * * * But the question of cumulative sentences cannot be decided by asking whether different crimes were committed. It is only when a defendant has validly been convicted of separate offenses, when there is no `merger,' that a question can arise whether the relevant laws contemplate a single sentence or cumulative sentences for such multiple offenses."² (Citations omitted.)

However, the remainder of counsel's statements to the court clarified that he was in fact requesting that the convictions merge.³ He argued:

"If you look at it statutorily, all it requires is that unlawful entry or remaining into a building or a dwelling, in this case, with the intent to commit the crime. And by pleading the separate crimes of assault and harassment or menacing—a quick look here. That's two counts, menacing being the second one in Count 2. That just alters the theory. But it's the same crime. It's the same building that is entered into."

The prosecutor argued in response that the two burglaries had different elements, because defendant had entered the premises unlawfully with the intent to assault Hernandez and had remained there unlawfully with the intent to menace Villa-Lopez. The court eventually asked defense counsel whether, if concurrent sentences were imposed for the burglaries, it would still matter whether the convictions merged. Defense counsel argued that it did matter, because his client would have a conviction for "a two-person felony, with one [person] for each burglary." The court then said,

"I'm inclined to agree with the state. I frankly don't know the answer. It is not going to make a difference to your client within the time that we will get a decision from the Court of Appeals. * * * They can reverse and remand for a technical resentencing if they have to, which will be done within 18 months if he's going to prison. So, let's assume that I'm going to reject your argument."

Defense counsel then said that he agreed with the state's recommendation that the sentences imposed on the burglary counts should be concurrent. Despite defense counsel's initial inartful statement, we are persuaded that the state and the trial court recognized that defendant was requesting that the convictions merge. We conclude that defendant has preserved the issue that he raises on appeal.

We turn to the issue of whether defendant could properly be convicted of two counts of burglary on these facts. The issue implicates several statutes: ORS 164.215, which defines burglary generally; ORS 164.205, which provides definitions of the terms of the burglary statute; ORS 164.225, which defines first-degree burglary; and ORS 161.067, which delineates the number of separate offenses for which a defendant can be convicted or punished.⁴

ORS 164.215 provides:

"Except as otherwise provided in ORS 164.255, a person commits the crime of burglary in the second degree if the person enters or remains unlawfully in a building with intent to commit a crime therein." (Emphasis added.)

ORS 164.225(1) provides, in relevant part:

"A person commits the crime of burglary in the first degree if the person violates ORS 164.215 and the building is a dwelling, or if in effecting entry or while in a building or in immediate flight therefrom the person:

"* * * * *

"(c) Uses or threatens to use a dangerous weapon."

The term "enter or remain unlawfully" is defined in ORS 164.205(3), which states, in part:

"`[to] enter or remain unlawfully' means:

"(a) To enter or remain in or upon premises when the premises, at the time of such entry or remaining, are not open to the public or when the entrant is not otherwise licensed or privileged to do so; [or]

"(b) To fail to leave premises that are open to the public after being lawfully directed to do so by the person in charge[.]"

Finally, ORS 161.067 provides, in part:

"(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

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