State v. Webber

• Citation: 14 Or.App. 352,513 P.2d 496,97 Adv.Sh. 1236
• Parties: STATE of Oregon, Respondent, v. Gerald WEBBER, Appellant.
• Decision Date: 27 August 1973
• Court: Oregon Court of Appeals

Page 496

513 P.2d 496

14 Or.App. 352

STATE of Oregon, Respondent, v. Gerald WEBBER, Appellant.

Court of Appeals of Oregon.

Argued and Submitted July 24, 1973.

Decided Aug. 27, 1973.

J. Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

John W. Osburn, Sol. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and John H. Clough, Asst. Atty. Gen., Salem.

Before SCHWAB, C.J., and LANGTRY and THORNTON, JJ.

SCHWAB, Chief Judge.

Defendant was convicted on charges of burglary in a dwelling, former ORS 164.230, armed robbery, former ORS 163.280, and larceny, former ORS 164.310. He was sentenced to ten years on the burglary charge, fifteen years on the armed robbery charge, and ten years on the larceny charge, the sentences to run concurrently. On appeal defendant contends it was error: (1) to enter judgments of conviction and impose sentences on all crimes charged; and (2) to overrule his objections on the grounds of materiality to two exhibits introduced at trial.

The burglary count of the indictment alleged defendant entered the victim's home 'with the intent to commit the crime of larceny.' The armed robbery count alleged defendant 'did feloniously assault and rob, steal and take an automobile registration from' the victim. The larceny count alleged defendant 'did feloniously wilfully steal and drive away a 1969 Ford automobile.'

The state's evidence established that while the victim was asleep in his Portland residence, somebody struck him from the rear, put a pillowcase over his head and tied him up. The assailant then spent two to three hours in the victim's home, collecting everything of value. The assailant then left, taking items stolen from the victim's person and house, including the automobile registration, and driving away in the victim's 1969 Ford.

After the assailant left, the victim was able to get a gag out of his mouth and yell for help. Police arrived at the victim's residence and, after learning what had occurred, broadcast a description of the victim's automobile.

Several hours later a Washington State Policeman observed the victim's automobile being driven by defendant. The officer learned by radio that the vehicle and operator were being sought by Portland police. Washington officers chased and eventually arrested defendant. They seized many items from the car. It was stipulated between the parties that the items seized from the car included all or most of the things taken from the victim's home.

Defendant's first contention--that it was error to convict and sentence him on all three crimes charged--raises questions involving State v. Woolard, 259 Or. 232, 484 P.2d 314, 485 P.2d 1194 (1971), and State v. Welch, 96 Or.Adv.Sh. 631, 505 P.2d 910 (1973). Welch states that whether a defendant's conduct violates different statutes or the same statute more than once is a question of legislative intent. Woolard states that even when separate statutes are violated, whether separate convictions and sentences can be imposed is also a question of legislative intent.

An important preliminary question is whether we should reach the merits of defendant's contention, in light of the fact that no Woolard-Welch objections were made in the trial court.

State v. Farr, 8 Or.App. 78, 492 P.2d 305 (1971), Sup.Ct. review denied, cert. denied Temple v. Oregon, 406 U.S. 973, 92 S.Ct. 2423, 32 L.Ed.2d 674 (1972), was a case involving a Woolard error in which no objection had been made in the trial court. We regarded that as error apparent on the face of the record in accordance with Rule 5.40 of the rules of this court and disposed of it on its merits. 8 Or.App. at 82, n. 1, 492 P.2d 305.

Since Farr, we have considered Woolard errors in several other cases, without explicit reference to the fact that no objection had been made in the trial court or to Rule 5.40.

However, Farr and our other cases do not stand for the proposition that we will always, as a matter of law, consider Woolard errors in the absence of proper objection in the trial court. The general rule remains that only alleged errors objected to in the trial court will be considered on appeal. We have been lenient in deviating from this general rule in cases that were tried just before or just after Woolard was decided. That is not the situation here. An opinion denying rehearing in Woolard was filed June 23, 1971. This case was tried December 18, 1972. We would expect that after this length of time the Bar would be well acquainted with the Woolard doctrine. Nevertheless, in this instance, we will reach the merits of defendant's Woolard and Welch contentions, even though no objection was made in the trial court. It should not be assumed that we will do so again.

Applying the Welch analysis, we conclude that the taking of the victim's automobile was part of defendant's commission of an armed robbery, and did not constitute the separate crime of larceny. The relevant armed robbery statute, former ORS 163.280, provided:

'* * * (A)ny person, being armed with a dangerous weapon, who assaults another and who robs, steals or takes from the person assaulted any money or other property which may be the subject of larceny, shall be punished upon conviction by imprisonment in the penitentiary for life or for any lesser term * * *.'

Under this statute, the requirement of a taking 'from the person assaulted' could be established by a taking of property that was in the victim's presence or under the victim's control. State v. Carcerano, 238 Or. 208, 390 P.2d 923 (1964), cert. denied 380 U.S. 923, 85 S.Ct. 921, 13 L.Ed.2d 807 (1965).

"* * * A thing is in the presence of a person in respect to robbery, which is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain its possession * * *." State v. Carcerano, supra at 220, 390 P.2d at 928, quoting from State v. Deso, 110 Vt. 1, 6, 1 A.2d 710 (1938).

In this case, everything the defendant took, including the victim's automobile, was in the victim's presence and under the victim's control within the Carcerano rule.

Thus, the taking of the automobile was but one part of the single crime of armed robbery, and it was improper to treat the taking of the automobile as the separate crime of larceny. See State of Oregon v. McCormack, 8 Or. 236 (1880) (holding that taking several items at the same time and place from the same person constituted one crime); Cf., State v. Welch, supra. The larceny conviction must be reversed.

This leaves the crimes of burglary and armed robbery. Applying the Woolard analysis, we conclude that defendant should have only been convicted and sentenced for armed robbery, not both armed robbery and burglary. The relevant burglary statute, former ORS 164.230, provided:

'Any person who breaks and enters any dwelling house with intent to commit a crime therein, or having entered with such intent, breaks any dwelling house, or is armed with a dangerous weapon therein, or assaults any person lawfully therein, is guilty of burglary, and shall be punished upon conviction by imprisonment in the penitentiary for not more than 15 years.'

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