State v. White

• Decision Date: 18 June 2009
• Docket Number: SC S055672.,CC 041136028.,CA A128491.
• Citation: 346 Or. 275,211 P.3d 248
• Parties: STATE of Oregon, Respondent on Review, v. Ricky Lashawn WHITE, aka Ricky Leshawn Booker, aka Ricky Leshawn White, aka Jermaine Marcell, Petitioner on Review.
• Court: Oregon Supreme Court

211 P.3d 248

346 Or. 275

STATE of Oregon, Respondent on Review, v. Ricky Lashawn WHITE, aka Ricky Leshawn Booker, aka Ricky Leshawn White, aka Jermaine Marcell, Petitioner on Review.

CC 041136028.

CA A128491.

SC S055672.

Supreme Court of Oregon, En Banc.

Argued and Submitted November 12, 2008.

Decided June 18, 2009.

On review from the Court of Appeals.^*

Robin A. Jones, Senior Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

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

BALMER, J.

The issue in this criminal case is whether, under ORS 161.067(1), the trial court should have merged defendant's guilty verdicts for two counts of second-degree robbery that arose out of the same criminal episode. One count was based on ORS 164.405(1)(a) (robbery while purporting to be armed with a dangerous weapon), and the other was based on ORS 164.405(1)(b) (robbery when aided by the actual presence of another person). The Court of Appeals affirmed the trial court's decision not to merge the guilty verdicts on the two counts. State v. White, 217 Or.App. 214, 175 P.3d 504 (2007). We allowed defendant's petition for review and now reverse and remand for further proceedings.

We take the relevant facts from the Court of Appeals opinion:

"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."

State v. White, 217 Or.App. at 216-17, 175 P.3d 504.

On appeal, defendant assigned as error the trial court's failure to merge the robbery counts.¹ The Court of Appeals affirmed, concluding that the two statutory provisions that defendant had violated — robbery purporting to be armed and robbery aided by the presence of another person — addressed "separate and distinct legislative concerns" and therefore constituted "separately punishable offenses" under Oregon's anti-merger statute, ORS 161.067(1).² White, 217 Or. App. at 224-25, 175 P.3d 504.

ORS 161.067(1) — the "anti-merger" statute — provides, in part:

"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."

ORS 161.067(1).³ A court will apply that statute and find separately punishable offenses if (1) the defendant engaged in acts that constituted "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." State v. Crotsley, 308 Or. 272, 278, 779 P.2d 600 (1989) (internal quotation marks omitted). The parties do not dispute that defendant engaged in a single criminal episode or that ORS 164.405(1)(a) and (b) contain different elements. The remaining issue, which the parties do dispute, is whether defendant's acts violated "two or more statutory provisions." ORS 161.067(1). Defendant argues that second-degree robbery is a single statutory provision and, therefore, his guilty verdicts under ORS 164.405(1)(a) and (b) merge. The state responds that the Court of Appeals correctly decided that paragraphs (a) and (b) of ORS 164.405(1) are separate "statutory provisions" and that the guilty verdicts do not merge.⁴

As an initial matter, we note that determining whether a defendant violated one statutory provision or two statutory provisions does not depend entirely on the structural form that the criminal statute takes. "Statutory provision" is not defined as "a section, subsection, or paragraph"; it instead means "any provision defining a `single crime,' whatever visual form the provision is given." State v. Kizer, 308 Or. 238, 243, 779 P.2d 604 (1989). Thus, to determine whether an action violates two statutory provisions, we must determine whether the legislature intended to create two crimes or only one. Of course, one indicator of legislative intent is the visual form that the statute takes. See State v. Barrett, 331 Or. 27, 35, 10 P.3d 901 (2000) ("[T]he use of a single section * * * is some indication that the legislature intended to define a single crime."). But, because that factor is not dispositive, we also consider other aspects of the text and context of the statute to help determine whether it creates two crimes or only one.

In State v. White, 341 Or. 624, 147 P.3d 313 (2006), for example, this court examined the first-degree burglary statute, ORS 164.225,⁵ and determined, based on the text of the statute, that the legislature had intended to create only one crime. After an incident in which the defendant had entered his former girlfriend's apartment and assaulted her, the defendant was convicted of two counts of first-degree burglary for (1) entering and remaining in a building with the intent to commit assault; and (2) entering and remaining in a building with the intent to commit menacing. White, 341 Or. at 627, 147 P.3d 313. Looking at the "clear words of the statute," the court noted that the burglary statutes require "intent to commit a crime" — that is "any crime"; it is irrelevant what crime the defendant intends to commit. Id. at 640, 147 P.3d 313. For that reason, the court determined that the text of the statute did not "suggest a legislative intent to treat a single unlawful entry or remainder as violating more than one `statutory provision' based on the burglar's intent to commit more than one crime inside the building." Id.

Similarly, in Barrett, 331 Or. 27, 10 P.3d 901, this court looked at the aggravated murder statute in considering whether a sentencing court could impose multiple life sentences on a defendant for three counts of aggravated murder under ORS 163.095,⁶ each of which was based on a different aggravating circumstance. After examining the text and context of the statute, the court determined that the legislature had intended to set out the various theories that could be used to prove a single element, namely "aggravation," of a single crime, aggravated murder. As to the text of the statute, ORS 163.095 defined aggravated murder as murder accompanied by "any" of the listed aggravating circumstances. Because "any" means "one or more," the court determined that the wording of the first sentence of ORS 163.095 "suggest[ed] that any or all the enumerated circumstances simply serve to prove the single essential element of `aggravation.'" Barrett, 331 Or. at 35, 10 P.3d 901. For context, the court then looked to the statutes defining the penalties for murder and aggravated murder. If a murder is committed with one of the 18 aggravating circumstances described in ORS 163.095, then the penalty is greater than that for "simple murder." That sentencing scheme "suggest[ed] a single legislative intent to punish more severely certain murders that the legislature deems to be particularly heinous." Id. at 35-36, 10 P.3d 901. Because the court determined that the legislature had intended to create a single crime when it...