State v. Fitzgerald

Court of Appeals of Oregon

State v. Fitzgerald

843 P.2d 964, 117 Or. App. 152, 1992 Ore. App. LEXIS 2333

CourtCourt of Appeals of Oregon

DecidedDecember 9, 1992

DocketC901255CR; CA A71673

StatusPublished

Cited by1 cases

This text of 843 P.2d 964 (State v. Fitzgerald) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Fitzgerald, 843 P.2d 964, 117 Or. App. 152, 1992 Ore. App. LEXIS 2333 (Or. Ct. App. 1992).

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Opinions

De MUNIZ, J.

Defendant appeals his convictions for burglary in the first degree, ORS 164.225, and theft in the second degree. ORS 164.045. He first argues that the trial court erred in denying his motion for a mistrial on the basis of prosecutorial misconduct. He contends that the prosecutor, by referring to him as a “professional cat burglar” during final argument, went beyond the facts in order to hint at other wrongs or crimes for which he might have been responsible.

Defendant’s interpretation of the prosecutor’s comment is plausible. However, the comment was not an unreasonable characterization of defendant’s method of operation of entering a house through an unlocked door while the occupant slept and not leaving fingerprints. A motion for mistrial is addressed to the sound discretion of the trial court. State v. Smith, 310 Or 1, 24, 791 P2d 836 (1990). We cannot say that the court abused its discretion in denying the motion.

Defendant also argues that the court erred in imposing an upward departure on the conviction for burglary. The court cited the victim’s vulnerability as one aggravating factor. OAR 253-08-002(l)(b)(B). The court said:

“The victim’s vulnerability, age, youth, disability or ill health, and I put down here ‘vulnerability due to being asleep.’ Someone is asleep, they’re vulnerable. It would be the same as if the person is in an iron lung or a wheelchair, the person doesn’t have that mobility or the ability to respond. So I have made a margin note on here that the aggravating factor of vulnerability is, in this particular instance, albeit perhaps not the primary or motivating factor for a departure, but the person is asleep and is therefore unable to protect themselves [sic].”

OAR 253-08-002(2) provides:

“If a factual aspect of a crime is a statutory element of the crime or is used to subclassify the crime on the Crime Seriousness Scale, that aspect of the current crime of conviction may be used as an aggravating or mitigating factor only if the criminal conduct constituting that aspect of the current crime of conviction is significantly different from the usual criminal conduct captured by the aspect of the crime.” (Emphasis supplied.)

[155]*155The guidelines enhance the punishment for burglary in an occupied dwelling.¹ For purposes of the guidelines, “occupied” means that a person is inside the building at the time of the burglary. State v. Johnson (A69111), 116 Or App 252, 841 P2d 643 (1992). The court here found that persons who are asleep lack mobility or the ability to respond. That is true, but it adds nothing to what is captured in the enhancing factor of “occupied dwelling.” The sentence is enhanced precisely because a person is at home, and any confrontation that might occur could result in greater risk of danger. See State v. Johnson (A69111), supra, 116 Or App at 254-55. The concept of “occupied dwelling” would be virtually meaningless if it did not include the vulnerability of the victim engaged in the customary activities that occur in a dwelling.

OAR 253-08-002(2) does not preclude use of the subclassifying aspect if there is evidence that the particular sleeping victim was more vulnerable than victims sleeping in their dwellings would ordinarily be. There was no evidence to show that.

Defendant also argues that the court erred in finding, as an aggravating factor, that there was permanent injury to the victim. OAR 253-08-002(l)(b)(I). That factor was not included in the written judgment. However, insofar as the court may have relied on it, the court erred. That factor must relate to the individual victim. State v. Wilson, 111 Or App 147, 152, 826 P2d 1010 (1992). The finding here was not [156]*156based on evidence of the harm to the victim but, rather, on “the literature, that the victims of crime are 10 times more likely than average to be severely depressed even a decade or more later.”²

Remanded for resentencing on the conviction for burglary in the first degree; otherwise affirmed.

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De MUNIZ, J.

Defendant appeals his convictions for burglary in the first degree, ORS 164.225, and theft in the second degree. ORS 164.045. He first argues that the trial court erred in denying his motion for a mistrial on the basis of prosecutorial misconduct. He contends that the prosecutor, by referring to him as a “professional cat burglar” during final argument, went beyond the facts in order to hint at other wrongs or crimes for which he might have been responsible.

Defendant’s interpretation of the prosecutor’s comment is plausible. However, the comment was not an unreasonable characterization of defendant’s method of operation of entering a house through an unlocked door while the occupant slept and not leaving fingerprints. A motion for mistrial is addressed to the sound discretion of the trial court. State v. Smith, 310 Or 1, 24, 791 P2d 836 (1990). We cannot say that the court abused its discretion in denying the motion.

Defendant also argues that the court erred in imposing an upward departure on the conviction for burglary. The court cited the victim’s vulnerability as one aggravating factor. OAR 253-08-002(l)(b)(B). The court said:

“The victim’s vulnerability, age, youth, disability or ill health, and I put down here ‘vulnerability due to being asleep.’ Someone is asleep, they’re vulnerable. It would be the same as if the person is in an iron lung or a wheelchair, the person doesn’t have that mobility or the ability to respond. So I have made a margin note on here that the aggravating factor of vulnerability is, in this particular instance, albeit perhaps not the primary or motivating factor for a departure, but the person is asleep and is therefore unable to protect themselves [sic].”

OAR 253-08-002(2) provides:

“If a factual aspect of a crime is a statutory element of the crime or is used to subclassify the crime on the Crime Seriousness Scale, that aspect of the current crime of conviction may be used as an aggravating or mitigating factor only if the criminal conduct constituting that aspect of the current crime of conviction is significantly different from the usual criminal conduct captured by the aspect of the crime.” (Emphasis supplied.)

[155]*155The guidelines enhance the punishment for burglary in an occupied dwelling.¹ For purposes of the guidelines, “occupied” means that a person is inside the building at the time of the burglary. State v. Johnson (A69111), 116 Or App 252, 841 P2d 643 (1992). The court here found that persons who are asleep lack mobility or the ability to respond. That is true, but it adds nothing to what is captured in the enhancing factor of “occupied dwelling.” The sentence is enhanced precisely because a person is at home, and any confrontation that might occur could result in greater risk of danger. See State v. Johnson (A69111), supra, 116 Or App at 254-55. The concept of “occupied dwelling” would be virtually meaningless if it did not include the vulnerability of the victim engaged in the customary activities that occur in a dwelling.

OAR 253-08-002(2) does not preclude use of the subclassifying aspect if there is evidence that the particular sleeping victim was more vulnerable than victims sleeping in their dwellings would ordinarily be. There was no evidence to show that.

Defendant also argues that the court erred in finding, as an aggravating factor, that there was permanent injury to the victim. OAR 253-08-002(l)(b)(I). That factor was not included in the written judgment. However, insofar as the court may have relied on it, the court erred. That factor must relate to the individual victim. State v. Wilson, 111 Or App 147, 152, 826 P2d 1010 (1992). The finding here was not [156]*156based on evidence of the harm to the victim but, rather, on “the literature, that the victims of crime are 10 times more likely than average to be severely depressed even a decade or more later.”²

Remanded for resentencing on the conviction for burglary in the first degree; otherwise affirmed.

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843 P.2d 964, 117 Or. App. 152, 1992 Ore. App. LEXIS 2333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fitzgerald-orctapp-1992.

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