State v. Jenkins

383 P.3d 395, 280 Or. App. 691, 2016 Ore. App. LEXIS 1050
CourtCourt of Appeals of Oregon
DecidedSeptember 8, 2016
Docket201315241; A157028
StatusPublished
Cited by6 cases

This text of 383 P.3d 395 (State v. Jenkins) 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. Jenkins, 383 P.3d 395, 280 Or. App. 691, 2016 Ore. App. LEXIS 1050 (Or. Ct. App. 2016).

Opinion

DUNCAN, P. J.

In this criminal case, defendant appeals the trial court’s judgment of conviction and sentence, raising two assignments of error. In his first assignment of error, he asserts that the trial court erred by finding him mentally competent to proceed to trial. We reject that assignment without discussion. In his second assignment of error, he asserts that the trial court erred by failing to merge the guilty verdicts on four counts of tampering with a witness into a single conviction. The state concedes that the trial court erred by failing to merge the guilty verdicts. We have not previously addressed whether guilty verdicts on multiple counts of tampering with a witness merge under the anti-merger statute, ORS 161.067.1 For the reasons explained below, we agree with the parties that when, as here, a defendant is found guilty of multiple counts of tampering with a witness based on a single act, the guilty verdicts merge under ORS 161.067, even though the counts involve different ways of violating the statute and different witnesses. Accordingly, we reverse and remand for entry of a single conviction for tampering with a witness and for resentenc-ing, and we otherwise affirm.

The relevant facts are few and undisputed. Defendant was charged with multiple crimes, including crimes against his mother and brother. While defendant was in jail on those charges, the grand jury subpoenaed his mother and brother. Thereafter, defendant sent a letter to his mother, telling her that she should either not “show up to court” or “change [her] story,” and that she should tell his brother “the same thing.”

Based on the letter, the state charged defendant with four counts of tampering with a witness (Counts 6, 7, 8, and 9). Tampering with a witness is defined by ORS 162.285, which provides:

“(1) A person commits the crime of tampering with a witness if:
“(a) The person knowingly induces or attempts to induce a witness * * * in an official proceeding to offer false testimony or unlawfully withhold any testimony; or
[694]*694“(b) The person knowingly induces or attempts to induce a witness to be absent from any official proceeding to which the person has been legally summoned.”

Counts 6 and 7 alleged that defendant committed witness tampering under section (a) of the statute by attempting to induce his mother and brother, respectively, to offer false testimony. And Counts 8 and 9 alleged that defendant committed witness tampering under section (b) of the statute by attempting to induce his mother and brother, respectively, to be absent from an official proceeding to which they had been summoned.

A jury found defendant guilty of the four witness tampering counts, among other crimes. At sentencing, defendant asserted that the guilty verdicts on the four counts should merge into a single conviction, submitting that the counts were simply “four different ways of committing the same offense” and that the case involved “[a] single letter [and a] continuous and uninterrupted act.” The trial court stated that it would merge the guilty verdicts on Counts 6 and 8, which involved defendant’s mother, and that it would do the same with the guilty verdicts on Counts 7 and 9, which involved defendant’s brother, but that it would not merge all four guilty verdicts because there were “separate witnesses being tampered with.” The judgment states that “the crime charged in Count 6 * * * merges with Count 8,” and “the crime charged in Count 7 * * * merges with Count 9.”2

On appeal, defendant argues that the trial court erred in failing to merge the guilty verdicts on all four of the witness tampering counts. Whether multiple guilty verdicts merge into a single conviction is a question of law, which we review for errors of law. State v. Slatton, 268 Or App 556, 558, 343 P3d 253 (2015).

Merger is governed by ORS 161.067, which precludes merger of guilty verdicts based on the same conduct or criminal episode in three circumstances, which are described in [695]*695three different subsections of the statute.3 ORS 161.067(1) precludes merger 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; ORS 161.067(2) precludes merger when the same conduct or criminal episode violates only one statutory provision, but involves two or more victims; and ORS 161.067(3) precludes merger when the same conduct or criminal episode violates only one statutory provision and involves only one victim, but the violations are separated by a sufficient pause in the defendant’s criminal conduct to afford the defendant an opportunity to renounce the criminal intent. This case does not involve any of those circumstances.

ORS 161.067(1) does not apply in this case because, although defendant was charged with violating two different paragraphs of the witness tampering statute — specifically, ORS 162.285(l)(a) and (l)(b) — those paragraphs do not constitute separate statutory provisions.

“‘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. White, 346 Or 275, 280, 211 P3d 248 (2009) (quoting State v. Kizer, 308 Or 238, 243, 779 P2d 604 (1989)). Thus, whether two different sections, subsections, or paragraphs constitute separate statutory provisions for the purposes of ORS 161.067 depends on whether the legislature intended them to define a single crime that can be [696]*696committed in more than one way, or two separate crimes. White, 346 Or at 280 (“ [T] o determine whether an action violates two statutory provisions, we must determine whether the legislature intended to create two crimes or only one.”). In other words, our task is to determine whether the legislature’s actions were directed at a “broad, unitary risk or harm that could be triggered by any of several legally interchangeable means” or at “distinct and particularized risks or harms.” State v. Crawford, 215 Or App 544, 554, 171 P3d 974 (2007), rev den, 344 Or 280 (2008). When determining whether the legislature intended a statute to define a single crime, we may consider the statute’s structure, text, context, and legislative history. See State v. White,

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Cite This Page — Counsel Stack

Bluebook (online)
383 P.3d 395, 280 Or. App. 691, 2016 Ore. App. LEXIS 1050, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-jenkins-orctapp-2016.