State v. Torres

• Decision Date: 12 June 2002
• Parties: STATE of Oregon, Respondent, v. Jose TORRES, Appellant.
• Court: Oregon Court of Appeals

48 P.3d 170

182 Or.App. 156

STATE of Oregon, Respondent, v. Jose TORRES, Appellant.

CR96-0081; A110729.

Court of Appeals of Oregon.

Argued and Submitted February 26, 2002.

Decided June 12, 2002.

Jay W. Frank, Eugene, filed the brief for appellant. With him on the briefs was Moule & Frank.

Doug M. Petrina, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before EDMONDS, Presiding Judge, and LINDER and WOLLHEIM, Judges.

EDMONDS, P.J.

Defendant appeals from a judgment convicting him of assault in the second degree. ORS 163.175(1). He was sentenced to 90 months' imprisonment. He argues that the trial court erred in entering a conviction for second-degree assault under an indictment that did not charge that crime and that the trial court erred in imposing sentence. We affirm the conviction but remand for resentencing.

Defendant participated in a bar fight in Hermiston. During the fight, he drew a semiautomatic pistol from under his jacket and fired it several times, hitting the victim three times. As a result, the victim is paralyzed. Defendant fled from the scene. Later, he was arrested and charged with the crimes of attempted murder, ORS 163.115, and first-degree assault, ORS 163.185. The indictment alleges:

"COUNT 1 The defendant * * * did unlawfully and intentionally attempt to cause the death of another human being * * * by shooting [the victim] with a .38 caliber semi-automatic pistol, and during the commission of this felony, the defendant used a firearm, to-wit: a .38 caliber semi-automatic pistol.

"COUNT 2 Further, the defendant * * * did unlawfully and intentionally cause serious physical injury to [the victim] by means of a deadly weapon, to-wit: a .38 caliber semi-automatic pistol, by shooting [the victim] with said pistol, and during the commission of this felony, the defendant used a firearm, to-wit: a .38 caliber semi-automatic pistol[.]"

The charges were tried to the court without a jury. In closing argument, the following dialogue occurred:

"The Court: [Defense counsel], believe me, I've read and reread the indictment but, while you're there, if this were a jury trial, I've been looking at the jury instructions, as you noted, among the things I would have probably considered is lesser-included instructions.

"Homicide goes from the worst you could commit, is obviously, aggravated murder, which is the death penalty and the least is criminally negligent homicide and then there's homicide which isn't a crime. Did you want the court to consider the lesser-includeds?

"[Defense counsel]: I want the court to consider the lesser-included offenses. I want the court, though, to make specific findings about the elements of the charge because I argue to the court on the Attempted Murder case, on the first count."

Counsel for defendant and the state then continued a dialogue about the intent elements of the varying degrees of homicide. After argument, the court found defendant "not guilty" on the count of attempted murder and guilty on the other count of the lesser-included offense of second-degree assault. The matter was continued for sentencing.

Between trial and sentencing, defendant procured new counsel. At the sentencing hearing, defense counsel submitted a memorandum to the court and argued that the court should change its verdict from second-degree assault to third-degree assault. He argued that, under State v. Cook, 163 Or. App. 578, 989 P.2d 474 (1999), second-degree assault is not a lesser-included offense of first-degree assault. The state responded that defendant was precluded from objecting because his previous counsel had specifically agreed to the court's consideration of lesser-included offenses and, alternatively, that the conviction for second-degree assault was proper under State v. Moses, 165 Or.App. 317, 997 P.2d 251,rev. den. 331 Or. 334, 23 P.3d 986 (2000). Ultimately, the court agreed with the state's arguments. In imposing sentence, the court noted that the presumptive guideline sentencing range was 41 to 45 months' incarceration and that there were multiple aggravating factors under OAR 213-008-0002(1)(b), including permanent injury to the victim, the use of a weapon, deliberate cruelty, an actual threat of violence, and a vulnerable victim. The court imposed an upward departure sentence of 90 months.

On appeal, defendant first challenges the court's entry of judgment for second-degree assault because, according to defendant, that crime was not charged in the indictment and it is not a lesser-included offense of first-degree assault. Initially, the state argues that defendant invited the trial court's consideration of second-degree assault as a lesser-included offense. However, we agree with defendant that his counsel's statement, when read in the context of the colloquy with the court, had as its reference the attempted homicide count and not the assault count.

We turn to the merits of defendant's arguments. ORS 136.465 provides:

"In all cases, the defendant may be found guilty of any crime the commission of which is necessarily included in that with which the defendant is charged in the accusatory instrument or of an attempt to commit such crime."

Although the general rule is that "a court does not have jurisdiction to convict on a charge for which the defendant was not indicted," Cook, 163 Or.App. at 581, 989 P.2d 474, "jurisdiction does exist to enter a conviction for an offense not expressly charged if that offense is one that is lesser included within the offense charged in the indictment." Id.; see also State v. Washington, 273 Or. 829, 835, 543 P.2d 1058 (1975)

. Whether an offense is a lesser included of a charged crime depends on whether (1) one offense is necessarily included within the other because the elements of the former are subsumed in the latter or (2) whether the facts alleged in the charging instrument expressly include conduct that describes the elements of the lesser-included offense. State v. Moroney, 289 Or. 597, 600, 616 P.2d 471 (1980); ORS 163.185(1), (see also State v. Guzman, 140 Or.App. 347, 351, 914 P.2d 1120 (1996)) describing the elements of first-degree assault, provides:

"A person commits the crime of assault in the first degree if the person intentionally causes serious physical injury to another by means of a deadly or dangerous weapon."

As to second-degree assault, ORS 163.175(1) provides:

"A person commits the crime of assault in the second degree if the person:

"(a) Intentionally or knowingly causes serious physical injury to another;

"(b) Intentionally or knowingly causes physical injury to another by means of a deadly or dangerous weapon;

"(c) Recklessly causes serious physical injury to another by means of a deadly or dangerous weapon under circumstances manifesting extreme indifference to the value of human life."

The elements of the two types of second-degree intentional assault, described by ORS 163.175(1)(a) and (b), are completely subsumed in the statutory elements of first-degree assault. On the other hand, the elements of second-degree reckless assault, committed in the manner described by ORS 163.175(1)(c), are not subsumed in the statutory definition of first-degree assault. There is no parallel in the first-degree assault statute for the second-degree reckless assault element of "circumstances manifesting an extreme indifference to the value of human life." Thus, a defendant may commit assault in the first degree without necessarily committing assault in the second degree under ORS 163.175(1)(c), as we held in Cook.

The trial court did not explain in this case whether it found defendant guilty under ORS 163.175(1)(a), (b), or (c). The state urges that it follows that defendant cannot show any reversible error, because it is possible that the trial court found defendant guilty of second-degree intentional assault under subsection (a) or (b). If his conviction was for second-degree intentional assault, the elements were subsumed in the first-degree assault charge. Alternatively, it relies on our holding in Moses for the proposition that "the issue is not whether the conduct alleged in the indictment, as a matter of law, constitutes the lesser-included offense, but instead whether the alleged conduct could constitute the lesser-included offense." (Emphasis added.) The state points to the language in the indictment asserting that defendant caused serious physical injury by means of a deadly weapon "by shooting [the victim] with said pistol" as an allegation that describes a reckless act "showing extreme indifference to the value of human life."¹

In Moses, the question was whether the language "by firing shots into a van occupied by said victim," was an allegation of conduct that constituted the element of recklessly endangering another person under ORS 163.195.² We concluded:

"The indictment * * * alleges conduct that constitutes the elements of recklessly endangering another person under ORS 163.195, i.e., the firing of shots into a van loaded with occupants." Moses, 165 Or. App. at 323, 997 P.2d 251.

We explained, "the alleged conduct * * * could describe a reckless act by defendant that created a substantial risk of serious physical injury to the driver but did not injure him." Id. at 322, 997 P.2d 251. Under those facts, while not every instance of "firing * * * shots into a van loaded with occupants" will constitute recklessness, as distinguished from intentional conduct, we held the language of the indictment in that case sufficient to allege the crime of reckless endangerment. Id. at 323, 997 P.2d 251.

The language in the indictment in this case is similar. Specifically, the language "by shooting [the victim] with [a] pistol" is sufficient to allege that defendant "recklessly caus[ed] serious physical injury to another by means of a deadly or dangerous weapon under circumstances manifesting an...