State v. Luers, 200106676.

CourtCourt of Appeals of Oregon
Citation211 Or. App. 34,153 P.3d 688
Docket Number200106676.,A115208.
PartiesSTATE of Oregon, Respondent, v. Jeffrey Michael LUERS, Appellant.
Decision Date14 February 2007
153 P.3d 688
211 Or. App. 34
STATE of Oregon, Respondent,
v.
Jeffrey Michael LUERS, Appellant.
200106676.
A115208.
Court of Appeals of Oregon.
Argued and Submitted November 30, 2005.
Decided February 14, 2007.

[153 P.3d 691]

Shawn Wiley, Deputy Public Defender, argued the cause for appellant. With him on the briefs were Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Defender, Office of Public Defense Services.

Janet A. Klapstein, Assistant Attorney General, argued the cause for respondent. With her on the briefs were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before LANDAU, Presiding Judge, and SCHUMAN and ORTEGA, Judges.

ORTEGA, J.


211 Or. App. 36

Defendant was convicted of three counts of arson in the first degree, ORS 164.325; two counts of attempted arson in the first degree, ORS 161.405, ORS 164.325; two counts of unlawful possession of a destructive device, ORS 166.382; two counts of unlawful manufacture of a destructive device, ORS 166.384; one count of criminal mischief in the first degree, ORS 164.365; and one count of attempted criminal mischief in the first degree, ORS 161.405, ORS 164.365.1 The trial court sentenced him to a total prison sentence of 266 months followed by 36 months of post-prison supervision. On appeal, defendant assigns error to the trial court's denial of his motions to sever certain charges and to suppress certain evidence, to its denial of his motions for judgments of acquittal as to certain counts, to its failure to merge specified convictions, and to various aspects of the sentences imposed. We agree that the trial court erred in failing to merge defendant's three convictions for first-degree arson and in failing to merge his two convictions for attempted first-degree arson. We either reject or do not reach his other assignments of error. We therefore reverse and remand for merger of the relevant convictions and for resentencing, vacate his remaining sentences and remand for resentencing, and otherwise affirm.

I. HISTORICAL AND PROCEDURAL BACKGROUND

Because defendant was convicted, we view the evidence in the light most favorable to the state, giving the state the benefit of all reasonable inferences. State v. Cervantes, 319 Or. 121, 125, 873 P.2d 316 (1994). Tyree Oil is a petroleum product supplier for gas stations in Lane County. On the morning of May 27, 2000, a truck driver for Tyree Oil was refueling his truck when he discovered a device that had been placed on the running board of his tractor trailer, next to the gas tank. The device consisted of a one-gallon plastic milk jug that had been painted black and had a yellow sponge inserted

211 Or. App. 37

under the handle; protruding from the sponge was an incense stick with wooden matches (which had been burned) attached to it with thread. The jug was filled with gasoline, was taped shut, and had a piece of fabric extending from the mouth of the jug to the gas tank of the truck cab, the cap of which had been removed. The driver then discovered a similar device near where he had parked the night before; the device had been crushed under the wheels of the tractor-trailer. There were at least five other tankers and an office building in the vicinity of the devices. The office building ordinarily was locked at night but was accessible to drivers 24 hours a day for the purpose of obtaining dispatch orders. Two weeks after the driver found the devices, Tyree employees discovered a hole in the chain link fence surrounding the truck yard, near where the truck had been parked.

153 P.3d 692

On June 16, 2000, Eugene Police Officer Harvey and two other officers were patrolling in an unmarked police car, looking for information relating to a gathering of protesters. Harvey previously had observed people of interest in that regard near a storage unit facility—specifically, unit 14 of the facility. Shortly after midnight, Harvey saw a 1993 Ford station wagon leaving the facility; he recognized the passenger as defendant. The driver was later identified as Marshall, defendant's codefendant in his first trial.2 Harvey followed the vehicle, which drove near the Romania car dealership lot and parked on Garden Way. Defendant and Marshall then got out and began walking. Harvey lost sight of them around 12:45 a.m. when they turned onto a footpath near the car dealership. At 12:56 a.m., Officer Willis saw the two men running toward their vehicle, watched them enter the vehicle, and began following them as they drove away.

Around the same time, a security guard at the Romania dealership saw flames coming from vehicles in the truck lot. At approximately 1:04 a.m., he called emergency personnel from the truck lot office.

211 Or. App. 38

Willis continued to follow defendant and Marshall. As the vehicles reached Main Street in Springfield, Willis heard police dispatch report a fire at the Romania dealership. The vehicle in which defendant was a passenger had a malfunctioning headlight, and Eugene officers asked Springfield police to stop the vehicle on that basis. Springfield Police Officer Smith did so at 1:11 a.m. Smith proceeded to investigate the traffic infraction as well as Marshall's subsequent failure to present a driver's license. Smith then questioned defendant and Marshall regarding their whereabouts earlier in the evening and about what appeared to be marijuana in the car. A Eugene police officer who had arrived on the scene instructed Smith to "wait" until the fire was investigated. Eventually Eugene Police Officer Calef arrived. Approximately one-half hour after the stop was initiated, the officers learned that fire investigators believed that the Romania fire had been set intentionally. After giving Miranda warnings, Calef then questioned defendant, who denied having been in the area of the Romania dealership. Police arrested defendant and Marshall and searched the vehicle, where they found gloves that were later admitted into evidence at defendant's trial.

The fire took 20 minutes to contain and showed features of the presence of flammable liquids. No firefighters were injured. Three trucks were damaged, resulting in a $50,000 loss. Investigators found the charred remains of a one-gallon plastic jug and two sponges near the fire; there were petroleum distillate and gasoline residue on the jug and one of the sponge pieces. An Oregon Department of Transportation (ODOT) road maintenance building was located next to the Romania dealership. One wall of the building was approximately four feet from the burned trucks; in addition, there was a natural gas meter between the ODOT building and one of the trucks. Although no ODOT work crews happened to be in the building on the night of the fire, emergency repair crews regularly went in and out of the building 24 hours a day.

Later that same day, Harvey went to the location of the storage unit leased by defendant and another person. On the ground outside the unit Harvey observed a burned incense stick. In an affidavit supporting a request for a

211 Or. App. 39

search warrant, Harvey recited his observations of defendant on the night of the fire as well as his belief, based on his training and experience, that the fire was started using a time-delay incendiary device and that such devices commonly involve the use of incense sticks and other items. The trial court issued the warrant and, on searching the unit, police discovered, among other items, a bed, sleeping mats, gas cans, Coleman fuel containers, sponges, spools of thread, and incense sticks. The unit also contained several time-delay ignition devices constructed of wooden matches tied to incense sticks with thread; some of the devices had been ignited. In a loft area believed to

153 P.3d 693

be defendant's sleeping quarters, police discovered a bolt cutter that matched the cuts in the fence at Tyree Oil.

Defendant was indicted on three counts of arson in the first degree, two counts of attempted arson in the first degree, two counts of unlawful manufacture of a destructive device, two counts of unlawful possession of a destructive device, one count of criminal mischief in the first degree, and one count of attempted criminal mischief in the first degree.3 He moved to sever the counts relating to the fire at the Romania dealership (three arson counts, one criminal mischief count, and one count each of unlawful manufacture and unlawful possession of a destructive device) from the counts relating to the incident at Tyree Oil (two attempted arson counts, one attempted criminal mischief count, and one count each of unlawful manufacture and possession of a destructive device). The trial court denied the motion. Defendant then attempted to waive jury trial as to only the counts relating to the fire at the Romania dealership, but the trial court did not allow him to do so. Defendant ultimately waived jury trial as to all counts.

Also before trial, defendant moved to suppress evidence discovered during the warrantless searches of his person and the vehicle in which he was a passenger on the night that he was stopped by Springfield police, as well as evidence discovered during the warrant search of the storage unit. The trial court denied the motion.

211 Or. App. 40

Defendant was tried to the court. At the close of the state's case, defendant moved for a judgment of acquittal on the factor elevating the offense of arson in the first degree to a Ballot Measure 11 offense. See ORS 137.700(2)(b)(A) (mandatory minimum sentence applies to arson in the first degree as defined in ORS 164.325 "when the offense represented a threat of serious physical injury"). The trial court denied that motion as well.

The trial court found defendant guilty of the counts set out above. On the convictions for unlawful manufacture and possession of a destructive device relating to the incident at Tyree Oil, the court sentenced defendant to 90 days in the county jail. On the first of the two...

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  • State v. Ramos
    • United States
    • Court of Appeals of Oregon
    • November 26, 2014
    ...statutes).8 The adjective “incendiary” means “of, relating to, or involving a deliberate burning of property.” State v. Luers, 211 Or.App. 34, 54, 153 P.3d 688, adh'd to as modified on recons., 213 Or.App. 389, 160 P.3d 1013 (2007) (citing Webster's Third New Int'l Dictionary 1141 (unabridg......
  • Green v. Franke
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    ...the use of impeaching evidence would reduce any prejudice below the statutory standard of substantial prejudice”); State v. Luers, 211 Or.App. 34, 43–44, 153 P.3d 688,adh'd to as modified on recons,213 Or.App. 389, 160 P.3d 1013 (2007) (in assessing whether a defendant was prejudiced by try......
  • State v. White
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    ...... Id. at 335, 338-39, 147 P.3d 936. We concluded that they did and upheld the defendant's separate convictions. Id. at 339, 147 P.3d 936. .         However, we determined that ORS 161.067(1) did not preclude the merger of separate convictions in State v. Luers, 211 Or.App. 34, 64, 153 P.3d 688, adh'd to as modified on recons., 213 Or.App. 389, 160 P.3d 1013 (2007). In that case, we concluded that the defendant's two convictions for first-degree arson—one for recklessly placing another person in danger of physical injury and the other for recklessly ......
  • State v. Dewhitt
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    • February 3, 2016
    ...P.3d 35prejudice exists, at least in the abstract, in virtually every situation in which charges are joined for trial. State v. Luers, 211 Or.App. 34, 43–44, 153 P.3d 688, adh'd to as modified on recons.,276 Or.App. 387213 Or.App. 389, 160 P.3d 1013 (2007). Accordingly, a defendant must ide......
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