State v. Torres

• Decision Date: 02 May 2012
• Docket Number: 090632436,A144812.
• Citation: 277 P.3d 641,249 Or.App. 571
• Parties: STATE of Oregon, Plaintiff–Appellant Cross–Respondent, v. Gilbert Andrew TORRES, aka Gilbert Torre, Defendant–Respondent Cross–Appellant.
• Court: Oregon Court of Appeals

249 Or.App. 571

277 P.3d 641

STATE of Oregon, Plaintiff–Appellant Cross–Respondent,

v.Gilbert Andrew TORRES, aka Gilbert Torre, Defendant–Respondent Cross–Appellant.

090632436; A144812.

Court of Appeals of Oregon.

Argued and Submitted Sept. 14, 2011.

Decided May 2, 2012.

Timothy A. Sylwester, Attorney–in–Charge, Capital Cases, argued the cause for appellant-cross-respondent. With him on the opening brief were John R. Kroger, Attorney General, and David B. Thompson, Interim Solicitor General. With him on the answering brief on cross-appeal were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.

Anne Fujita Munsey, Senior Deputy Public Defender, argued the cause for respondent-cross-appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Before BREWER, Presiding Judge, and HASELTON, Chief Judge, and GILLETTE, Senior Judge.^*

BREWER, P.J.

The state appeals from a judgment merging into a single conviction defendant's convictions on 21 counts of felon in possession of a firearm. ORS 166.270. On appeal, the state argues that the trial court erred in merging defendant's convictions because the charged offenses are “victimless crimes,” and ORS 161.067(3), the statute upon which the court relied in merging the convictions, applies only to crimes having a “personal” victim. For the reasons that follow, we conclude that the trial court properly merged defendant's convictions. Defendant cross-appeals, and we reject his contentions on cross-appeal without further discussion in light of State v. Rainoldi, 351 Or. 486, 268 P.3d 568 (2011) (prosecution not required to prove defendant acted with culpable mental state in prosecution for violation of ORS 166.270). Accordingly, we affirm on appeal and cross-appeal.

Defendant was convicted of felony possession of marijuana in 2006. On June 4, 2009, police arrived at defendant's wife's residence, where defendant had been periodically staying in the basement, in response to a call for emergency assistance. Defendant met the responding officers outside the house. An officer went into the basement and found a partially open gun safe; inside were 21 firearms. When questioned, defendant admitted to being a felon, and he told an officer that he knew that he was not “supposed to be in possession of firearms.” Defendant also admitted that he knew the combination to the gun safe, that it usually was left unlocked, and that he had been living in the basement. Defendant also told the officer that the firearms “belonged to the family.” Defendant was taken into custody and subsequently indicted on 21 counts of felon in possession of a firearm. A jury convicted defendant of all 21 charged counts.

At his sentencing hearing, defendant asked the court to merge all of the offenses into a single conviction under ORS 161.067(3), on the ground that he had committed all of the offenses at the same time and place. The prosecutor urged the court to follow this court's decisions in State v. Ott, 96 Or.App. 511, 773 P.2d 19,rev. den.,308 Or. 382, 780 P.2d 735 (1989), and State v. Collins, 100 Or.App. 311, 785 P.2d 1084 (1990), and to decline to merge the convictions because the victim in this case was not a person and, thus, ORS 161.067(3) did not apply. The court agreed with defendant and merged the convictions.

The state renews its argument on appeal that the trial court erred in merging defendant's convictions under ORS 161.067(3) because that statute is inapplicable where the victim is not a person. The state relies on this court's decision in Collins, where we held, following Ott, that formerORS 161.062, the statutory predecessor of ORS 161.067(3), did not apply to convictions for unlawful possession of a firearm under ORS 166.250 because (1) the victim of a defendant's violation of that statute was “the state” and (2) formerORS 161.062 applied only to crimes having a “personal” victim. Collins, 100 Or.App. at 314, 785 P.2d 1084.See also Ott, 96 Or.App. at 514, 773 P.2d 19 (holding formerORS 161.062 inapplicable to convictions for possession of controlled substances because the victim of a defendant's act of possession was the state). The state argues that the definition of “victim” set out in ORS 131.007 applies to ORS 161.067(3) and, thus, the term “victim” in ORS 161.067(3) encompasses only “personal” victims.¹ In response, defendant, among other things, contends that the definition of “victim” in Article I, section 44, of the Oregon Constitution, applies here, so that the term “victim” in ORS 161.067(3) must encompass nonperson victims such as the state.²

The parties' arguments present a question of the proper interpretation of ORS 161.067(3) and ORS 166.270. That is a question of law, governed by the principles set out in PGE v. Bureau of Labor and Industries, 317 Or. 606, 610–12, 859 P.2d 1143 (1993), and State v. Gaines, 346 Or. 160, 171–73, 206 P.3d 1042 (2009). Our goal is to determine the intended meaning of the statute by examining its text in context along with relevant legislative history and, if necessary, other aids to construction. Gaines, 346 Or. at 171–73, 206 P.3d 1042.

ORS 161.067(3) provides, in pertinent part:

“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 the defendant's criminal conduct to afford the defendant an opportunity to renounce the criminal intent.”

As an initial matter, we note that both the state and defendant propose differing constructions of the term “victim” in ORS 161.067(3) based on various definitional statutes and constitutional provisions. As those varying definitions demonstrate, the meaning of “victim” is not fixed; rather, it is context specific. Depending on the legislature's intent, it can refer, among other variations, to persons, the state, or the public at large. Thus, determining the identity of the pertinent victim, for purposes of merger under ORS 161.067, requires an examination of the specific substantive statute defining the relevant offense—here, ORS 166.270. See State v. Glaspey, 337 Or. 558, 563, 100 P.3d 730 (2004) (so holding with regard to the defendant's convictions for fourth-degree assault, ORS 163.160). In Glaspey, the Supreme Court held that, because ORS 161.067(2) appliedsolely where a defendant's conduct violated “only one statutory provision,” ORS 161.067(2) “invest[ed] the term ‘victim’ with the same meaning that it has for the relevant substantive statutory provision that defines the offense.” Id. at 567, 100 P.3d 730;see also State v. Mullen, 245 Or.App. 671, 675, 263 P.3d 1146 (2011) (“In determining whether defendant's conduct involved ‘two or more victims' under ORS 161.067(2) we look to the substantive statute that defines the crime.”); State v. Sanchez–Alfonso, 224 Or.App. 556, 198 P.3d 946 (2008), rev. den.,346 Or. 258, 210 P.3d 906 (2009) (same).³

The limitation of ORS 161.067(3) to circumstances where a defendant's conduct violates “only one statutory provision” is identical to the text of 161.067(2) that the Supreme Court construed in Glaspey. Accordingly, we apply the reasoning of Glaspey to determine the meaning of “victim” in ORS 161.067(3). Doing so requires a determination of who is the “victim” of a defendant's violation of ORS 166.270.

Applying the reasoning of Glaspey to ORS 161.067(3) demonstrates our analytical error in Collins. In that case, we concluded that the victim of the defendant's violation of ORS 166.250 was “the state.” Because the state was not a “personal victim,” we concluded that there had been no victim at all for purposes of merger under formerORS 161.062(4). Collins, 100 Or.App. at 314, 785 P.2d 1084. The source of the “personal victim” notion in Collins was our reliance in Ott on the definition of “victim” set out in ORS 131.007. Ott, 96 Or.App. at 514, 773 P.2d 19. Viewed in light of Glaspey, our equation of “victims” with “personal victims” in Ott and Collins was untenable because nothing in the underlying criminal statutes at issue in those cases distinguished between person victims and nonperson victims. SeeORS 166.250; formerORS 475.992(4); see also Ott, 96 Or.App. at 514, 773 P.2d 19. Accordingly, we overrule that untenable construct ⁴ and apply the Supreme Court's controlling analysis to the problem at hand.⁵

Again, we construe ORS 166.270(1) under the familiar framework set out in PGE and Gaines.ORS 166.270(1) provides:

“Any person who has been convicted of a felony under the law of this state or any other state, or who has been convicted of a felony under the laws of the Government of the United States, who owns or has in the person's possession or under the person's custody or control any firearm commits the crime of felon in possession of a firearm.”

The statute does not expressly identify the victim of a violation of the prohibition on being a felon in possession of a firearm. Neither do any of the related statutes that also prohibit the possession of firearms in certain circumstances, or by certain persons, ORS 166.250 (unlawful possession of a firearm), or the carrying of concealed weapons, ORS 166.240, or the possession of particular kinds of firearms, ORS 166.272 (unlawful possession of a machine gun). Where a statute does not “expressly identify the person who qualifies as a ‘victim,’ [we] examine[ ] the statute to identify the gravamen of the crime and determine the class of persons whom the legislature intended to directly protect by way of the criminal proscription.”

State v. Moncada, 241 Or.App. 202, 212, 250 P.3d 31 (2011), rev. den.,351 Or. 545, 274 P.3d 184 (2012).

The gravamen of the crime of...