State v. Ventris

• Decision Date: 19 August 2004
• Citation: 337 Or. 283,96 P.3d 815
• Parties: STATE of Oregon, Respondent on Review, v. Joseph R. VENTRIS, Petitioner on Review.
• Court: Oregon Supreme Court

96 P.3d 815

337 Or. 283

STATE of Oregon, Respondent on Review, v. Joseph R. VENTRIS, Petitioner on Review.

(CC 96-1155; CA A110810; SC S49981).

Supreme Court of Oregon.

Argued and Submitted March 3, 2004.

Decided August 19, 2004.

Marc D. Blackman, Portland, and Kendra M. Matthews, of Ransom Blackman LLP, Portland, argued the cause and filed the brief for petitioner on review.

Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause for respondent on review. Janet A. Metcalf filed the brief for respondent on review. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before CARSON, Chief Justice, and GILLETTE, DURHAM, RIGGS, and BALMER, Justices.¹

BALMER, J.

In this criminal matter, we are asked to decide whether a finding under the aggravated murder statute, ORS 163.095(2)(d), that defendant personally and intentionally killed the victim requires us to conclude as a matter of law that a conviction for "murder" based on the same event necessarily is a conviction for intentional murder, ORS 163.115(1)(a), rather than for felony murder, ORS 163.115(1)(b). The question matters in this case, because defendant faces the possibility of a longer sentence if his conviction was for intentional murder.

Following a bench trial, the trial court convicted defendant of robbery, murder, and two counts of aggravated murder. By concluding that defendant had committed aggravated murder, the trial court implicitly found that defendant had committed the murder personally and intentionally in the course of a robbery. On appeal, the Court of Appeals reversed the aggravated murder convictions based on an evidentiary ruling, affirmed the convictions for murder and robbery, and remanded. State v. Ventris, 164 Or.App. 220, 991 P.2d 54 (1999) (Ventris I). On remand, the state dropped the aggravated murder charges, and the trial court sentenced defendant solely for felony murder and robbery. The state appealed defendant's sentence, and the Court of Appeals again reversed, concluding that the trial court's previous finding of intentionality required, as a matter of law, that the murder conviction be treated as a conviction for intentional murder rather than felony murder. State v. Ventris, 183 Or.App. 99, 50 P.3d 1274 (2002) (Ventris II). We allowed defendant's petition for review. We now conclude that, under the applicable murder statutes, a finding of intentional conduct as an element of an aggravated murder conviction does not require that a separate conviction for murder be treated as intentional murder and that, in this case, the trial court's findings and the evidence demonstrate a conviction for felony murder rather than intentional murder.

The Court of Appeals recounted the facts as follows:

"This case arises from the murder of Vergil Crist in Scappoose during the early morning hours of August 10, 1996. Crist's apartment had been burglarized, and the autopsy showed that he had been beaten on the head and chest with a rod and stabbed 13 times. Crist died as a result of the stab wounds. Circumstantial evidence suggested that defendant had been involved in the crime, and, ultimately, investigating officers recovered a pair of defendant's pants that bore traces of Crist's blood. Thereafter, defendant confessed that he and two unnamed accomplices had entered Crist's apartment; that, when Crist surprised them, he had hit Crist in the head with the metal rod; that he had run away from the apartment, leaving his cohorts behind; and that, when he returned 20-30 minutes later, he did not see Crist but that his accomplices gave him a knife with some blood on it, which he discarded, and a wallet with cash. Defendant insisted that he did not stab Crist and was not present when Crist was stabbed."

Id. at 101-02, 50 P.3d 1274 (internal citations omitted).

The indictment charged defendant with six counts of aggravated murder, including two counts alleging that he personally and intentionally had committed homicide in the course of committing first-degree burglary and first-degree robbery. See ORS 163.095(2)(d) (defining one kind of aggravated murder). The indictment also charged defendant with one count of "murder" under ORS 163.115,² one count of first-degree robbery under ORS 164.415, and one count of first-degree burglary under ORS 164.225. The murder count in the indictment stated that defendant "unlawfully and intentionally cause[d] the death of another human being," thus suggesting that it alleged intentional murder under ORS 163.115(1)(a), rather than felony murder under ORS 163.115(1)(b). However, the indictment cited only ORS 163.115 and did not refer to a specific subsection or paragraph.

Pursuant to an agreement with the state, defendant waived a jury trial. After a bench trial, the trial court announced its findings of the facts of the crime. The court concluded that defendant had entered the victim's apartment to steal his belongings. At the time of the entry, defendant was intoxicated. Defendant encountered the victim in the apartment, the two struggled, and defendant stabbed the victim multiple times. Tests revealed that the blood on defendant's pants was the victim's. The trial court rejected defendant's claim that he had entered the apartment with any accomplices and that the accomplice or accomplices had killed the victim.

The trial court found defendant guilty of two counts of aggravated murder, one count of murder, and one count of first-degree robbery. The trial court explained its reasoning in oral findings:

"It does not make sense to me that [defendant] would fail to name [accomplices] when his statement to Detective McBride simply amounts to a confession to a charge of Felony Murder. * * * I don't believe there were two friends with [defendant]. I believe that [defendant] was the sole intruder into Mr. Crist's apartment and I believe that [defendant] killed Mr. Crist.

"* * * * *

"In summary, I believe that [defendant] entered Mr. Crist's apartment for the purpose of committing theft which amounts to Burglary in the First Degree. When he encountered Mr. Crist he overcame Mr. Crist's resistance to that theft by killing Mr. Crist. The commission of a killing during the commission of both the burglary and then a robbery.

"I do not believe, based on the evidence, that [defendant] killed Mr. Crist either for the purpose of concealing his identity or to conceal the commission of burglary or the robbery. Count One, Aggravated Murder. Short version, a killing committed in the course of committing Robbery in the First Degree, guilty.

"Count Two, Aggravated Murder, killing committed in the course of committing Burglary in the First Degree, guilty.

"* * * * *

"Count Seven, Murder, guilty.

"Count Eight, Robbery in the First Degree, guilty."

The resulting judgment of conviction merged the robbery count into the aggravated-murder count that was based on the first-degree robbery and merged the murder count into the aggravated-murder count that was based on the first-degree burglary. The trial court sentenced defendant to a term of imprisonment for a minimum of 30 years.

Defendant appealed, arguing that the trial court had erred in denying a motion to suppress certain evidence seized from defendant and also had erred in excluding evidence that would have pointed to another perpetrator's role in the murder and thus would have undermined the trial court's implicit finding that defendant committed the aggravated murder personally and intentionally. The Court of Appeals affirmed in part and reversed in part. Specifically, the Court of Appeals affirmed the trial court's decision to deny defendant's motion to suppress, but it reversed the convictions for aggravated murder, holding that the trial court had erred in excluding evidence that might have tended to suggest that another perpetrator was responsible for the murder. Ventris I, 164 Or.App. at 231-32, 234, 991 P.2d 54. The Court of Appeals noted that defendant did not challenge the convictions for robbery or murder, id. at 222 n. 2, 991 P.2d 54, and reversed the convictions for aggravated murder, affirmed the convictions for murder and robbery, and remanded for further proceedings, id. at 234, 991 P.2d 54.

On remand, the state did not seek to retry defendant on the aggravated murder charges; instead, the state requested that the trial court sentence defendant on the murder and robbery convictions because the Court of Appeals had affirmed those convictions. The state and defendant, however, differed as to whether the resulting robbery and murder sentences would run concurrently or consecutively. The state argued that the court had convicted defendant of intentional murder, ORS 163.115(1)(a), and that the murder and robbery sentences should run consecutively. See ORS 137.123 (explaining circumstances under which trial court may impose sentences consecutively). In contrast, defendant argued that the trial court had convicted him of felony murder, ORS 163.115(1)(b), based on a lesser-included offense of robbery and that, as a result, the robbery conviction would merge into the felony murder conviction, and the trial court should sentence him solely on that conviction. See former ORS 161.062(1) (1997), repealed by Or Laws 1999, ch 136, § 1 (setting out general rules of merger). See also State v. Crotsley, 308 Or. 272, 278-80, 779 P.2d 600 (1989)

(describing how lesser-included offense merges into greater offense).

The judge who had presided over the bench trial also acted as the sentencing judge on remand. At sentencing, he remarked that his understanding of the nature of the murder conviction had been consistent. "I believe it was felony murder, * * * felony aggravated murder," according to the trial court:

"I firmly believe, beyond a reasonable doubt, that this fact scenario started off its terrible life as a burglary, that precipitated into a robbery, that precipitated into a homicide. * * * I did find, and I

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