State v. Traylor, 201217903A, 201221295

• Decision Date: 17 December 2014
• Docket Number: 201217903A, 201221295,A153362 Control,A153363.
• Citation: 267 Or.App. 613,341 P.3d 156
• Parties: STATE of Oregon, Plaintiff–Respondent, v. William Steven TRAYLOR, Defendant–Appellant.
• Court: Oregon Court of Appeals

267 Or.App. 613

341 P.3d 156

STATE of Oregon, Plaintiff–Respondent

v.William Steven TRAYLOR, Defendant–Appellant.

201217903A, 201221295

A153362 Control

A153363.

Court of Appeals of Oregon.

Argued and Submitted Oct. 31, 2014.

Decided Dec. 17, 2014.

Mary M. Reese, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Patrick M. Ebbett, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before LAGESEN, Presiding Judge, and ARMSTRONG, Judge, and WOLLHEIM, Senior Judge.

Opinion

LAGESEN, P.J.

On appeal from convictions for first-degree theft, second-degree burglary, first-degree criminal-mischief, and failure to appear, defendant challenges the trial court's decision to impose consecutive sentences on the burglary and criminal-mischief convictions. He also makes an unpreserved challenge to the amount of the restitution imposed by the trial court. We affirm.

On an early morning, defendant and Charles Stevenson cut a hole in the fence surrounding the premises of General Trailer, Inc., a trailer manufacturer in Springfield, and either passed through or over that fence. They then entered a shop building at the site by cutting and peeling back a metal door. They also cut several small holes in the metal wall of the building. Once inside the shop building, they cut the copper

wire leads off of five welding machines in the shop. Their activities were detected by General Trailer's video security service, which alerted police, who arrived at the premises in time to apprehend defendant and Stevenson.

Based on that conduct, defendant was charged with, and convicted by a jury of, second-degree burglary, first-degree theft, and first-degree criminal-mischief.¹ The burglary charge was predicated on defendant's act of breaking into the shop building with the intent to comment theft. The criminal-mischief charge was predicated on defendant and Stevenson's path of property destruction accompanying the other crimes:

“The defendant [ ], on or about August 27, 2012 in Lane County, Oregon did unlawfully and with intent to damage property, damage a fence, a building, welding leads and other property, in a total amount exceeding One Thousand Dollars ($1,000), the property of General Trailer Co. and James Fritz, defendant [ ] having no right to do so nor reasonable grounds to believe that defendant [ ] had such right[.]”

At sentencing, the trial court imposed consecutive sentences under ORS 137.123(5)(a)² on the burglary and criminal-mischief convictions. In accordance with that provision, the court found that defendant's criminal-mischief conviction did not represent “merely an incidental violation of” the criminal-mischief statute, ORS 164.365,³ in the course of the burglary but, instead, indicated defendant's willingness to commit a “whole separate offense.” The court found that defendant did not need to cause the extent of property destruction that he did in order to commit burglary; in particular, the court found that defendant did not need to cut a hole in the fence to accomplish his crimes because the evidence showed that the police officers that responded to the scene were able to “hop over the fence.” From those facts showing that, in committing criminal mischief, defendant caused more property damage than necessary to accomplish the burglary, the court inferred that, in committing criminal mischief, defendant showed “a willingness to commit more than one criminal offense.” ORS 137.123(5)(a). The trial court also awarded restitution in the amount of $2,350; defendant did not contest the amount of restitution before the trial court. Defendant timely appealed and, as noted, assigns error to the trial court's decision to impose consecutive sentences on the burglary and criminal-mischief charges and to the award of restitution.

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. Anderson, 208 Or.App. 409, 417, 145 P.3d 245 (2006), rev. den., 343 Or. 33, 161 P.3d 943 (2007) ; State v. Warren, 168 Or.App. 1, 5, 5 P.3d 1115, rev. den., 330 Or. 412, 8 P.3d 220 (2000). Pertinent to this appeal, a trial court's determination under ORS 137.123(5)(a) that, in committing a particular offense, a defendant showed “a willingness to commit more than one criminal offense” is a factual determination that we review under the “deferential standard of review” of whether there is any evidence in the record to support that finding. Anderson, 208 Or.App. at 417, 422, 145 P.3d 245 (determination under ORS 137.123(5)(a) is “a product of the discrete facts of each case and inferences reasonably derived from those facts” (internal quotation marks omitted)); see also Warren, 168 Or.App. at 5, 5 P.3d 1115 (reviewing trial court's findings under ORS 137.125(5)(a) under “any evidence” standard).

That standard of review disposes of defendant's challenge to the imposition of consecutive sentences. Here, the evidence is sufficient to support the trial court's finding that, in committing the conduct underlying the criminal-mischief conviction—cutting a hole in the fence, cutting holes in the shop building, peeling back the door of the shop building, and cutting the leads off of the welding machines—defendant indicated a willingness to commit more than the offense of burglary. That is because the record supports the trial court's factual finding that at least some of the property damage that defendant caused—primarily, the hole in the fence—was not necessary for the commission of the burglary. The fact that defendant was more destructive of property than h...