State v. Linthwaite

628 P.2d 1250, 52 Or. App. 511, 1981 Ore. App. LEXIS 2942
CourtCourt of Appeals of Oregon
DecidedMay 26, 1981
Docket80-281-C - CA 18242, 80-478-C - CA 18243, 80-479-C - CA 18244, 80-480-C - CA 18245, 80-481-C - CA 18246, 80-482-C - CA 18247, 80-56-F & 80-3973-T
StatusPublished
Cited by15 cases

This text of 628 P.2d 1250 (State v. Linthwaite) 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. Linthwaite, 628 P.2d 1250, 52 Or. App. 511, 1981 Ore. App. LEXIS 2942 (Or. Ct. App. 1981).

Opinions

[513]*513VAN HOOMISSEN, J.

In these eight consolidated cases, defendant appeals his convictions on five charges of Recklessly Endangering (ORS 163.195), four charges of Attempting to Use a Dangerous Weapon (ORS 166.220), four charges of Menacing (ORS 163.190), two charges of Criminal Mischief in the Second Degree (ORS 164.354) and one charge of Reckless Driving (ORS 487.550).

On appeal, defendant contends the trial court erred: (1) in denying his motion to sever seven misdemeanor charges from two felony charges and for separate trials on the felony charges; (2) in overruling his demurrer to an indictment describing the alleged victim only as "full name unknown”; (3) in sentencing him without allowing the merger of all four counts of Attempting to Use a Dangerous Weapon into one conviction and sentence, and in refusing to merge each conviction and sentence for Menacing with the corresponding conviction for Recklessly Endangering the same victim; and (4) in permitting him to be convicted of and sentenced for two offenses with which he was not charged. For the reasons stated hereafter, we find that these cases should be affirmed in part, reversed in part and remanded for resentencing.

FACTS

On February 26, 1980, while driving in an erratic manner in a public park, defendant nearly collided with another car, resulting in a confrontation between himself and several members of a single family. Defendant produced a knife and began brandishing it at four members of the family and at an unrelated bystander. He kicked and damaged the car with which he had nearly collided and smashed a camera belonging to one member of the family. The entire episode lasted about twenty minutes.

ORIGINAL CHARGES

On February 27, 1980, defendant was charged in an eight-count district court information as follows: Count I, Attempted Assault in the First Degree (Anderson), Count II, Attempted Assault in the First Degree (Steele), Count in, Menacing (Vigil), Count IV, Criminal Mischief in the Second Degree (camera), Count V, Attempted Criminal Mischief in the Second Degree (automobile), Count VI, [514]*514Harassment (Garland), Count VII, Carrying a Concealed Weapon (knife) and Count VIII, Possession of a Controlled Substance (demerol). He also was charged in a separate complaint with Reckless Driving.1

On February 28, 1980, the grand jury returned a two-count indictment charging defendant with Attempted Assault in the First Degree (Anderson/Steele). This indictment realleged the facts contained in Counts I and II of the district court information.2

Thereafter, the prosecutor moved to consolidate the two felony charges contained in the indictment with the remaining six misdemeanor charges contained in the district court information and the Reckless Driving charge.3 Defendant moved to sever the misdemeanors from the felonies. He also requested separate trials on the felony charges. The state’s motion to consolidate and defendant’s motion to sever and for separate trials resulted in the entry of an order severing the charges of Harassment (Count VI) and Possession of a Controlled Substance (Count VIII) and consolidating the remaining five misdemeanors and two felonies for trial.4

ADDITIONAL CHARGES

Defendant moved for reconsideration. On April 4, 1980, before that motion was heard by the court, the grand jury returned five new indictments charging him with two [515]*515counts of Attempted Assault in the First Degree (Marsing/full name unknown); four counts of Attempting to Use a Dangerous Weapon (Anderson/Steele/Marsing/ full name unknown); two counts of Menacing (Marsing/full name unknown) and Criminal Mischief in the Second Degree (automobile). All of the nine new charges were based upon the same episode which had formed the basis of the original district court information and the first indictment.5

On April 7, 1980, the court heard arguments on defendant’s motion for reconsideration. During this hearing, the prosecutor made an oral motion to consolidate the nine new charges contained in the indictments filed April 4, 1980, with the charges previously consolidated by the circuit court. The defendant again objected to consolidation. The court entered the following order:

"* * * [I]t appearing to this Court that there exists confusion regarding what cases involving Kenneth Richard Linthwaite are to be tried on April 23, 1980; and
"IT IS HEREBY ORDERED that the following cases involving Defendant will be tried on that date:
"(A) Counts I and II of Case No. 80-281-C
"(B) Cases number 80-478-C through and including case No. 80-482-C, and all Counts of these cases.
"(C) Counts HI, IV and VII of case No. 80-56-F, and Case No. 80-3973-T;
"IT IS FURTHER ORDERED that Counts VI and VIH of case No. 80-56-F are not to be heard on April 23,1980, and the State may try those charges and all other drug charges arising out of the incident of February 26, 1980, involving Defendant in Riverside Park at a later date without Defendant having available the defense of double jeopardy.”

Next defendant filed a demurrer against a three count indictment charging Attempted Assault in the First Degree, Attempting to Use a Dangerous Weapon and Menacing.6 The victim in each count was identified only as [516]*516"full name unknown.” The demurrer was overruled. The fourteen consolidated cases7 were thereupon tried to a jury, which convicted defendant of sixteen offenses.8

POST TRIAL PROCEEDINGS

Prior to sentencing, defendant filed a "Notice Of Merger” as follows:

"Comes now the Defendant * * * and gives notice to the Court of his intention to raise the issue of merger at the time of sentencing. The issue of merger shall be raised as the convictions for five convictions of recklessly endangering ORS 163.195 and four convictions of menacing ORS 163.190 and the four convictions for attempting to use a dangerous weapon ORS 166.220(1).”

Dismissing every defense theory concerning merger of convictions and sentences and the impropriety of cumulative punishment, the court suspended imposition of sentence [517]

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Cite This Page — Counsel Stack

Bluebook (online)
628 P.2d 1250, 52 Or. App. 511, 1981 Ore. App. LEXIS 2942, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-linthwaite-orctapp-1981.