State v. Martin
| Docket Number | A173823 |
| Decision Date | 05 October 2022 |
| Citation | 322 Or.App. 266,519 P.3d 132 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Robert Ray MARTIN, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Ryan Scott argued the cause and filed the briefs for appellant.
Doug M. Petrina, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before James, Presiding Judge, and Lagesen, Chief Judge, and Kamins, Judge.
Defendant appeals from a second sentencing judgment, obtained after receiving post-conviction relief, which reimposed his original sentence. He raises seven assignments of error, all but one of which stem from the trial court's conclusion that some of the offenses did not arise out of the same criminal episode.1 Because each offense constituted a separate criminal episode, his sentence was lawful and the verdicts do not merge. We therefore affirm.
Defendant was convicted of eight counts of felony public indecency, ORS 163.465(1)(c) (2013), amended by Or Laws 2017, ch. 318, § 10; Or Laws 2019, ch. 65, § 1. ("A person commits the crime of public indecency if while in, or in view of, a public place the person *** expos[es] the genitals of the person with the intent of arousing the sexual desire of the person or another person."). He committed five of the offenses at different locations on the same night, between approximately 6:00 p.m. and 1:00 a.m. In each offense, defendant pulled up to a drive-through service window where a woman was working and stared at her without speaking while masturbating with his penis exposed. In some of the instances, the employee did not realize what he was doing until he drew her attention downward with his eyes. There were no other cars in line when he approached each window, and he took steps to conceal his identity, such as removing the license plates from his car.
At the original trial, defendant did not argue that those incidents arose out of a single criminal episode, an argument that, if successful, would have reduced his sentence. See OAR 213-012-0020(2) (). Defendant sought and obtained the post-conviction relief of resentencing on the basis that his trial counsel was ineffective for failing to make that argument.2 On remand, the trial court held a hearing to consider the issue, concluded that each offense was a separate criminal episode, and reimposed the original sentence. On appeal, we must determine whether any of defendant's visits to five different restaurants’ drive-through windows took place during a single criminal episode.
Whether conduct constitutes a single criminal episode "is a question of law that, in turn, may depend on predicate findings of historical fact." State v. Potter , 236 Or App 74, 82, 234 P.3d 1073 (2010). We defer to the trial court's explicit and implicit findings of fact if there is evidence to support them and review its application of the law to those facts for legal error. State v. Burns , 259 Or App 410, 421, 314 P.3d 288 (2013). "The state bears the burden of proving by a preponderance of evidence" that each offense was a separate criminal episode. State v. Nesbit , 274 Or App 694, 695, 361 P.3d 649 (2015).
The term "criminal episode" is defined as "continuous and uninterrupted conduct that *** is so joined in time, place and circumstances that such conduct is directed to the accomplishment of a single criminal objective." ORS 131.505(4). A criminal objective, in turn, "refers to the pursuit of some object or attainment of some goal beyond the successful commission of the acts constituting the offense charged." State v. Cloutier , 286 Or. 579, 599 n. 21, 596 P.2d 1278 (1979).
That definition is grounded in the statutes addressing former jeopardy. State v. Dulfu , 363 Or. 647, 668-69, 426 P.3d 641 (2018) (). The principal requirement of those statutes is that "[n]o person shall be separately prosecuted for two or more offenses based upon the same criminal episode." ORS 131.515(2). Hence, the animating principle of the definition of "criminal episode" "is to identify the conduct (of a person) which may only be prosecuted once." Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Procedure Code, Final Draft and Report § 26, 16 (Nov. 1972).
Defendant argues that the five incidents arose out of a single criminal episode because all of his conduct was directed toward the single criminal objective of "exposing himself for the purposes of sexual arousal." He further argues that, because indecent exposure does not depend on the existence of a "victim" who observes the exposure, and there is no evidence that he covered up or left public property between each incident, his conduct was essentially akin to streaking through downtown Portland for five hours. See State v. Gialloreto , 301 Or App 585, 595, 457 P.3d 1105 (2019), rev. den. , 366 Or. 827, 470 P.3d 366 (2020) (). The state, on the other hand, contends that defendant achieved his criminal objective at each drive-through, then undertook it again at the next, such that, while his objective may have been the same, it was not a single one. We agree with the state.
"[O]ur analysis of whether conduct is directed to the accomplishment of a single criminal objective is ‘an objective determination.’ " Welsh v. Taylor , 284 Or App 387, 394, 392 P.3d 366, rev. den. , 361 Or. 886, 403 P.3d 773 (2017) (citing Commentary § 26 at 17). The inquiry is informed by "the degree to which the conduct is joined in time, place and circumstances." State v. Taylor , 293 Or App 460, 465, 428 P.3d 939 (2018) (internal quotation marks omitted). "[T]he standard is not whether there is any difference in time and space at all, but whether there is enough of a difference in time, place, and circumstances surrounding the different acts to show that defendant's conduct was directed toward separate criminal objectives." Burns , 259 Or App at 430, 314 P.3d 288 ; see also State v. Wilder , 305 Or App 618, 627, 471 P.3d 798 (2020), rev. den. , 367 Or. 535, 479 P.3d 1055 (2021) .
The Commentary provides examples that reinforce the focus on the time, place, and circumstance of each offense. For instance, "[i]f a person burglarizes a number of homes during an evening, each burglary would be a separate criminal episode because there is a difference of time and place," but "a close question would develop if several apartments in the same building were burglarized in succession in one evening." Commentary § 26 at 17. The difference between those two examples is that the apartment burglaries would be closer together in time and location than the house burglaries. In the drug context, "[t]he simultaneous possession and sale of narcotics would constitute a criminal episode" but "sales of narcotics by one defendant to different people at different times on the same day would constitute separate criminal episodes because of a difference in time." Id.
The time, place, and circumstances of defendant's conduct support the trial court's conclusion that defendant achieved his objective—as defendant puts it, "exposing himself for the purposes of sexual arousal"—separately at each drive-through. Each count in the indictment identified a different "public place" where defendant exposed himself, and the jury found that he exposed himself at each of those places. ORS 163.465(1) (2013) (). Defendant committed each exposure at a different time, and those locations were miles apart—more like burglarizing different houses than apartments in the same building. Commentary § 26 at 17.
The circumstances of defendant's conduct also support the trial court's conclusion that each offense was a separate episode. Defendant was convicted of exposing his genitals "with the intent of arousing the sexual desire of the person or another person ." ORS 163.465(1)(c) (2013) (emphasis added). The evidence that defendant sought to draw the attention of the women to what he was doing indicated that the women were not incidental witnesses, rather, their presence was an essential part of defendant's intent. The trial court could reasonably have determined that defendant, however misguidedly, took such elaborate measures to approach separate drive-through employees for the purpose of arousing those witnesses’ sexual desire, in addition to his own. Additionally, the women had no discernible connection to each other, other than happening to have similar jobs, reinforcing the inference that the offenses were not joined in circumstances. Cf. State v. Thornsberry , 315 Or App 287, 296, 501 P.3d 1 (2021) (). A sufficient difference in the time, place, and circumstances of each exposure supported an inference that each incident was a separate episode.
Our decision in Welsh is instructive. 284 Or App 387, 392 P.3d 366. There, the petitioner sought post-conviction relief based on his trial counsel's failure to argue that multiple drug and firearm-related offenses were part of a single criminal episode, positing that they were aimed at achieving the single objective of "running a drug-dealing enterprise." Id. at 395, 392 P.3d 366. We rejected that argument, concluding that, although the petitioner may...
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