State v. Russell
| Decision Date | 03 March 2021 |
| Docket Number | A167702 |
| Citation | 482 P.3d 799,309 Or.App. 554 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Duane Darnelle RUSSELL, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Stephanie J. Hortsch, Deputy Public Defender, argued the cause for appellant. Also on the opening brief and a supplemental brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services. Duane Russell filed a supplemental brief pro se.
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 DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.
Defendant and his accomplice broke into an apartment and robbed its occupant at gunpoint. Their original plan was to commit both a burglary and a robbery, home-invasion style. They were targeting a particular individual from whom they had planned to steal $50,000 and cocaine in retaliation for a botched drug deal. When they realized that they had broken into the wrong apartment, they had already committed burglary. At that point, they decided to commit a different robbery than the one they had originally planned. As a result, defendant was convicted of both first-degree robbery with a firearm and first-degree burglary with a firearm. The trial court ordered defendant to serve the burglary sentence consecutively to the robbery sentence. On appeal, defendant contends in his first assignment of error that the trial court erred in imposing that sentence.1 He argues that the record does not support a finding that the burglary and robbery were sufficiently distinct to justify consecutive sentences under ORS 137.123(5)(a). Because the record supports a reasonable inference that defendant formed a willingness to commit each crime, independent of the other crime, we conclude that the court did not err in ordering the sentence on the burglary conviction to run consecutively to the sentence on the robbery conviction. We affirm.
"We review a trial court's decision to impose consecutive sentences for errors of law and to determine whether the trial court's predicate factual findings are supported by any evidence in the record." State v. Traylor , 267 Or. App. 613, 615-16, 341 P.3d 156 (2014). We review both the evidence presented and inferences reasonably derived from that evidence. State v. Anderson , 208 Or. App. 409, 417, 145 P.3d 245 (2006), rev. den. , 343 Or. 33, 161 P.3d 943 (2007) . We state the facts of this case consistently with our standard of review.
The victim, K, was alone in his Tualatin apartment one evening when a woman, Dubrie, knocked on his door and frantically shouted, "I need help." K opened the door, but Dubrie "barely finished the sentence before [K] saw the shotgun come through the door." At that point, "two masked men came in with guns and demanded drugs and money[.]" K fell to his knees and appeared to surrender himself by putting his hands up. While one of the men checked the apartment to make sure that no one else was home, the other kept his gun pointed at K. After they determined that the apartment was otherwise empty, one man held a shotgun and the other searched the master bedroom, telling K that they were looking for "50,000 and coke." The man who held the shotgun told K that he had "just been testing out his shotgun" and it felt "good to shoot." The two men were wearing ski masks, so K was not able to identify which of the men was defendant, and which was his accomplice, Williams.2
As the two men searched K's apartment for the $50,000 and cocaine, they found two safes in his closet. They forced K to open them. There was no money or cocaine in the safes. Instead, they found tax documents, two handguns, wedding bands, passports, and Social Security cards. They also found a handgun in K's nightstand and another in his wife's nightstand. At that point, they contacted Dubrie by walkie-talkie to ask for the name of the intended target. She did not know the name. K overheard one suspect ask his accomplice whether he knew the target's name and who lived in the apartment, but he did not know either. They asked K "if Boogie was lying," to which K responded that he had no idea what they were talking about. "Boogie" was Williams's nickname. Defendant and his accomplice decided to leave the apartment. As they left, they forced K out of the bedroom and into the hallway, still at gunpoint, where they filled a duffel bag with K's wallet and other items. They threatened to return if he called the police, and then they left.
K immediately called the police and provided them with the serial numbers of the stolen guns and information about the other stolen items. The police suspected a failed "drug rip."
Six days later, a Utah law enforcement officer stopped defendant for a window-tint violation. There were four passengers in the car that defendant was driving, including Williams and a man named Belaire. The officer searched defendant's car for evidence of crimes unrelated to the burglary and robbery, uncovering firearms, watches, jewelry, magazine clips, and bullets. The firearms were later determined to be those that had been stolen from K in Oregon. Belaire was found to have a bus pass with an Oregon destination. All of the occupants were arrested.
The Utah search accelerated the Oregon investigation. Between seizing phone records and gaining the cooperation of Belaire, as well as two other men connected to the incident—High and Oller3 —authorities began to piece together how these men were connected to the home invasion in Oregon. Oller had been angry with another man, Austin, about a failed drug transaction. He had contacted his friends in Kansas—defendant, Belaire, and Williams—and obtained their agreement to assist him in recovering the lost drugs and money from Austin in Oregon.
High and Belaire testified at trial and described the group's plan and its failed execution. On the morning of the robbery, Oller went to Austin's apartment to collect money that he believed Austin owed him, but no one answered the door. The apartment that Oller knocked at was number 60 in the same building as K. Later that evening, defendant, Oller, Belaire, Williams, and Dubrie drove to Austin's apartment building to rob him. Defendant, Williams, and Dubrie exited the car with their guns and ski masks. Several minutes later, Dubrie returned to the car and reported that they had knocked on the wrong door—unit 66, rather than 60. Defendant and Williams, however, remained inside the apartment and robbed K instead. The day after the armed robbery, Oller told High that they had "bad information" and that they had "hit the wrong house."
For his role in the incident, the state charged defendant with first-degree robbery with a firearm, ORS 164.415 ; ORS 161.610 (Count 1), second-degree robbery with a firearm, ORS 164.405 ; ORS 161.610 (Count 2), and first-degree burglary with a firearm in a dwelling, ORS 164.225 ; ORS 161.610 (Count 3). In Count 1, the state alleged:
In Count 3, the state alleged:
A jury found defendant guilty of all three counts. At sentencing, the trial court merged the guilty verdicts on Counts 1 and 2 and imposed the mandatory minimum sentence of 90 months’ imprisonment for first-degree robbery. ORS 137.700(2)(a)(R). The state argued that defendant's sentence on Count 3 should be run consecutive to defendant's sentence on Count 1. Relying on State v. Martinez , 270 Or. App. 423, 348 P.3d 285, rev. den. , 357 Or. 640, 360 P.3d 523 (2015), it argued that ORS 137.123(5)(a)4 authorized the court to run defendant's sentences consecutively because the commission of the burglary was "not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious crime, but rather of an indication of * * * defendant's willingness to commit more than one criminal offense." Defendant responded that the acts resulting in his convictions for both robbery and burglary were "not distinct either temporally or qualitatively." He argued that the burglary and the robbery were essentially the same acts because defendant entered K's apartment by force, threatened him, sought money and drugs, and ended up stealing various other items via threats of force.
The trial court agreed with the state and explained its conclusion that defendant intended to commit separate offenses, because the act of breaking into K's apartment with the intent to commit theft (burglary) was a separate and distinct act from the robbery that he committed while inside. The court sentenced defendant to 30 months’ imprisonment on Count 3,5 and ordered that defendant serve that sentence...
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