State v. Perkins
Decision Date | 10 March 1980 |
Docket Number | No. J78-2357,J78-2357 |
Citation | 45 Or.App. 91,607 P.2d 1202 |
Parties | STATE of Oregon, Respondent, v. Jeff C. PERKINS, Appellant. ; CA 15188. |
Court | Oregon Court of Appeals |
Marianne Bottini, Deputy Public Defender, Salem, argued the cause for appellant. With her on the brief was Gary D. Babcock, Public Defender, Salem.
John C. Bradley, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.
Before SCHWAB, C. J., and THORNTON and CAMPBELL, JJ.
Defendant appeals entry of a judgment of conviction and sentencing on two counts of robbery in the first degree on the ground that, under principles set forth in State v. Cloutier, 286 Or. 579, 596 P.2d 1278 (1979), the crime in question was one for sentencing purposes.
Resolution of the question requires application of Cloutier principles to a situation expressly left open in that opinion, namely, where the crime is perpetrated against more than one person. 286 Or. at 598, 596 P.2d 1278.
The essential facts are not in dispute:
Defendant and an accomplice entered a restaurant during the early morning hours of September 29, 1978, before it opened for business. At that time, only a cook and a waitress were present. The accomplice had entered via the back door and surprised the cook by leaping out from behind a doorway and threatening her with a knife. She screamed several times and he again brandished the knife and told her to be quiet. When a waitress, who was in the dining room, heard the cook scream, she hesitated a moment, then went toward the back to investigate. At that point, defendant, wielding a club, came out from the back and ordered her to remain silent and go into the kitchen area. Defendant stood guard over the two women, swinging the club, while the accomplice emptied the cash from a file cabinet in the office, The entire episode lasted from three to five minutes, then both men ran out the back.
Defendant was charged with, and verdicts of guilty were returned on, one count of theft, two counts of robbery in the second degree (ORS 164.405(1)(b)): (robbery with the aid of another present), and two counts of robbery in the first degree. The trial court "merged" the theft and robbery in the second degree charges and, over defendant's objection, entered judgments of conviction and sentence on the robbery in the first degree charges.
ORS 131.505(3) provides:
"When the same conduct or criminal episode, though violating only one statutory provision, results in death, injury, loss or other consequences of (sic) two or more victims, and the result is an element of the offense defined, there are as many offenses as there are victims."
In State v. Dillman, 34 Or.App. 937, 580 P.2d 567 (1978), rev. den. 285 Or. 195 (1979) defendant, in the course of holding up a bank, pointed his gun at four separate tellers and ordered each to deliver the money in his respective till. We concluded that each teller was a victim of robbery and there were four separate offenses. 34 Or.App. at 941-42, 580 P.2d 567. 1 Dillman then stated:
34 Or.App. at 942, 580 P.2d at 569.
Since then, our Supreme Court has decided State v. Cloutier, supra, in which it rejected the proposition that because there are multiple victims (within the meaning of ORS 131.505(3)) for the purpose of determining the number of offenses for which a defendant may be charged, it necessarily follows that defendant may be convicted and sentenced for each offense. 286 Or. at 589-90, 596 P.2d 1278. 2 While apparently agreeing that the central inquiry is who are victims of the crime, 286 Or. at 598-99, note 19, 596 P.2d 1278, the court said that such a determination must take into account other expressions of legislative intent, in particular, that the sentence be proportionate to the offense (ORS 161.025(1)(g)) and in line with defendant's "criminal objective." 286 Or. at 595, 596 P.2d 1278. 3
In Dillman, we noted that the 1971 changes in the criminal code indicated "that the gravamen of the robbery offense is the threat of harm to persons." 34 Or.App. at 941, 580 P.2d at 568. Statutory evidence of this shift in emphasis is found in the fact that it is no longer necessary that a completed theft occur for conduct to be chargeable as robbery and the degree of the crime no longer depends on the value of the property taken, but on the presence of aggravating factors which increase the apprehension of harm.
The state contends that because a threat of force was made against each of the two restaurant employes in this case, there were two robberies. While the revision undoubtedly made a wider spectrum of conduct chargeable as robbery, we do not believe the change manifests a legislative intent that a defendant may be sentenced for as many crimes as there are persons present. 4 Such a result loses sight of the fact that the ultimate criminal objective here was theft from the restaurant safe. By the same reasoning, if there had been 30 patrons present in addition to the two employes, a defendant could be convicted and sentenced for 32 robberies. 5
The legislative intent with respect to sentencing in this and similar cases is not clear. Faced with a similar ambiguity in State v. Welch, 264 Or. 388, 505 P.2d 910 (1973) ( ), our Supreme Court adopted language from Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955) ( ):
" * * * ' 264 Or. at 393, 505 P.2d at 912.
We hold, therefore, that only one sentence may be imposed in this case. In determining the severity of the sentence to be imposed, it is appropriate for the sentencing court to consider the fact that more than one person was threatened and the degree of such threats. Compare State v. Garcia, 288 Or. 413, 427-29, 605 P.2d 670 (1980) ( ). 6
Reversed and remanded for resentencing.
I concur in the majority opinion. I would note, however, that I do not think that State v. Dillman, 34 Or.App. 937, 580 P.2d 567 (1978), rev. den. 285 Or. 195 (1979), can be reconciled with the principles enunciated in State v. Cloutier, 286 Or. 579, 596 P.2d 1278 (1979), and State v. Garcia, 288 Or. 413, 605 P.2d 670 (1980).
1 Dillman relied principally on State v. Gilbert, 281 Or. 101, 474 P.2d 313 (1978), where the court construed ORS 131.505(3) to permit prosecution on six separate indictments for theft because each person whose property was wrongfully withheld was a "victim" for purposes of determining the number of offenses. The court, however, specifically left open...
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