State v. White
| Decision Date | 26 December 2007 |
| Docket Number | 041136028.,A128491. |
| Citation | 175 P.3d 504,217 Or. App. 214 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Ricky Lashawn WHITE, aka Ricky Leshawn Booker, aka Ricky Leshawn White, aka Jermaine Marcell, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Robin A. Jones, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief were Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Defender, Legal Services Division, Office of Public Defense Services.
Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.
Before LANDAU, Presiding Judge, and SCHUMAN and ORTEGA, Judges.
Defendant appeals a judgment of conviction for two counts of second-degree robbery, ORS 164.405, arising out of an episode in which defendant, while shoplifting with another person, threatened one of the store's employees by representing that he had a weapon. Defendant assigns error to the sentencing court's failure to merge those convictions and to the court's use of his juvenile record in determining his sentence. We affirm.
The relevant facts are undisputed. Fender, a loss prevention employee at the Hollywood West Fred Meyer in Portland, saw Sims, who was with defendant, select a watch from a display and remove its packaging. Neither Sims nor defendant paid for the watch. After requesting back-up from other loss prevention employees, Fender followed Sims and defendant as they left the store with the watch. Fender approached Sims, who had the watch in his hand, and inquired about the unpaid merchandise. Sims told Fender that he would stab him if he touched him. Boyce, another loss prevention employee, approached defendant and told him that the store does not apprehend shoplifting accomplices and that he should leave. Defendant did not leave the scene. Around that time, several other loss prevention employees also approached Sims and defendant. Sims continued to threaten the group with the use of a weapon, although neither Sims nor defendant ever produced a weapon. Fender called 9-1-1.
The group of employees followed Sims and defendant into the parking lot. Boyce followed defendant as he moved slightly away from the group and placed his sweatshirt on top of a parked car. When Boyce took defendant's sweatshirt off of the car, defendant took the sweatshirt back and told Boyce not to touch it. While Boyce and defendant were among the parked cars, defendant told Boyce that he would stab Boyce if he touched him.
The car on which defendant had placed his sweatshirt pulled up next to Sims, and Sims, who was still holding the watch, got into the car. The car drove away, leaving defendant behind. The employees continued to follow defendant to the edge of the parking lot. As defendant left the parking lot, Officer Helzer, who was responding to Fender's 9-1-1 call, arrested defendant for robbery. Helzer conducted a search of defendant incident to that arrest and found no weapon.
After a jury trial, defendant was convicted of two counts of second-degree robbery, both on the basis of his conduct toward Boyce. One count charged defendant with violating ORS 164.405(1)(a), which elevates third-degree robbery to second-degree robbery if the person "[r]epresents by word or conduct that the person is armed with what purports to be a dangerous or deadly weapon." The other count charged defendant with violating ORS 164.405(1)(b), which elevates third-degree robbery to second-degree robbery if the person "[i]s aided by another person actually present."
At sentencing, defendant argued that those convictions should merge because they were based on the same criminal episode with respect to a single victim. The prosecutor responded that the two convictions should not merge because each was based on a paragraph of the statute that requires proof of an element that the other paragraph does not. The sentencing court entered separate convictions.
On appeal, defendant argues that the court erred in not merging his convictions. According to defendant, merger is required for essentially two reasons. First, he argues, merger is required because the two convictions arose out of a single criminal episode and involved only one victim. Second, he argues, even if those facts alone do not suffice, merger still is required because the two convictions are based on a statute that sets forth only a single offense and alternative theories by which that single offense may be established.
We begin by setting forth the text of the relevant statutes. Oregon's second-degree robbery statute, ORS 164.405, provides:
As pertinent to this case, Oregon's so-called "anti-merger" statute, ORS 161.067, provides, in part:
"(1) When the same conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an element that the others do not, there are as many separately punishable offenses as there are separate statutory violations."
A court will uphold a defendant's separate convictions if the following conditions are met: (1) the defendant engaged in acts that involve "the same conduct or criminal episode," (2) the defendant's acts violated "two or more statutory provisions," and (3) each statutory provision requires "proof of an element that the others do not." See State v. Crotsley, 308 Or. 272, 278, 779 P.2d 600 (1989) ().
When all of those conditions are met, ORS 161.067(1) authorizes separate convictions, even when the convictions arise out of a single episode and involve only one victim. See, e.g., State v. Johnson, 174 Or.App. 27, 29, 32, 25 P.3d 353 (2001), rev. den., 334 Or. 492, 52 P.3d 1057 (2002) (). We therefore reject defendant's contention that his convictions merge on that basis alone and now turn to whether the conditions that would preclude merger are met in this case.
The parties do not dispute that defendant engaged in a single criminal episode. Nor do the parties dispute that ORS 164.405(1)(a) and (b) contain different elements. However, the parties do dispute whether defendant's acts violated "two or more statutory provisions." Defendant argues that the legislature intended ORS 164.405(1)(a) and (b) to be merely alternative theories of aggravation upon which a defendant may be charged with the single crime of second-degree robbery. At oral argument, the state argued that the legislature intended that the behavior proscribed by each paragraph to be a separately punishable offense because each paragraph addresses a different legislative concern.
Our disposition of the parties' arguments is aided by a number of appellate court decisions interpreting ORS 161.067(1). In Crotsley, the Supreme Court construed the phrase "two or more statutory provisions," appearing in the now-repealed counterpart to ORS 161.067(1), to include prohibitions that address "separate and distinct legislative concerns." 308 Or. at 278, 779 P.2d 600. In that case, the court upheld multiple convictions arising out of a single sexual assault of the 14-year-old victim: first-degree rape and sodomy because the defendant used force, as well as third-degree rape and sodomy because the victim was under 16. Id. at 275, 280, 779 P.2d 600. The defendant argued that third-degree rape and sodomy were merely lesser-included offenses of first-degree rape and sodomy. Id. at 275, 779 P.2d 600. The court determined that the first-degree and third-degree offense statutes address separate and distinct legislative concerns—namely, forced sexual conduct against any woman and sexual conduct against a particular subset of women based on their age—and therefore rejected the defendant's argument that his convictions merge. Id. at 279, 280, 779 P.2d 600.
In contrast, on the same day, the Supreme Court decided State v. Kizer, 308 Or. 238, 244, 779 P.2d 604 (1989), in which the court held that two convictions merged. In Kizer, the defendant was convicted of two separate counts of forgery, one count for "making" a forged instrument under one paragraph of the statute and the other count for "uttering" the same forged instrument under the other paragraph. Id. at 240, 779 P.2d 604. The court construed the term "statutory provision" to mean any provision that defines a "single crime," regardless of the provision's "visual form." After reviewing the official legislative commentary to the forgery statute, the court determined that, despite the use of different paragraphs as its "visual form," the legislature intended the forgery statute and all of its paragraphs to define the single crime of forgery. Id. at 243, 779 P.2d 604. Because the legislature did not intend the paragraphs to define separate crimes, the court held that the defendant's convictions merged because he did not violate separate statutory provisions. Id. at 243, 244, 779 P.2d 604.
More recently, in State v. Barrett, 331 Or. 27, 31, 10 P.3d 901 (2000), the Supreme Court applied the prohibition against merger of convictions involving "two or more statutory provisions" in the context of the aggravated murder statute. In that case, the court reversed the defendant's multiple convictions for aggravated murder based on various aggravating circumstances that...
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