State v. Owen

149 P.3d 299, 209 Or. App. 662, 2006 Ore. App. LEXIS 1931
CourtCourt of Appeals of Oregon
DecidedDecember 13, 2006
Docket031035330; A125658
StatusPublished

This text of 149 P.3d 299 (State v. Owen) 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. Owen, 149 P.3d 299, 209 Or. App. 662, 2006 Ore. App. LEXIS 1931 (Or. Ct. App. 2006).

Opinion

WOLLHEIM, J.

Defendant appeals a judgment of conviction for four counts of robbery in the second degree. ORS 164.405. He assigns error to the trial court’s failure to merge his convictions into a single conviction for each victim. Although defendant failed to preserve his claims of error in the trial court, the court’s failure to merge his convictions on Counts 4 and 6 of the indictment is error apparent on the face of the record, and we therefore consider it. We reverse and remand for merger of Counts 4 and 6 and for resentencing, and otherwise affirm.

On April 23, 2003, defendant and an accomplice approached Weston and Maplethorpe in a park. Defendant pulled up his sleeve to reveal a gun to the victims; he then cocked the gun and told the victims to give him all of their money. After the victims relinquished their money, defendant and his accomplice fled.

Defendant was charged with two counts of robbery in the first degree, ORS 164.415, and four counts of robbery in the second degree, ORS 164.405. After a bench trial, the court acquitted defendant of robbery in the first degree, but convicted him of four counts of robbery in the second degree as alleged in Counts 3 through 6 of the indictment.

Because the language of the indictment is important to our decision, we discuss Counts 3 through 6 of the indictment in detail. Counts 3 and 5 involved offenses against Weston. Count 3 alleged that defendant committed robbery in the second degree in violation of ORS 164.405(l)(b) by “unlawfully and knowingly us [ing] and threaten [ing] the immediate use of physical force upon * * * Weston, being aided by another person actually present” (Emphasis added.) Count 5 alleged that defendant committed robbery in the second degree in violation of ORS 164.405(l)(a) by “unlawfully and knowingly us [ing] and threaten [ing] the immediate use of physical force upon * * * Weston, and did represent by word and conduct that [he] * * * [was] armed with a deadly and dangerous weapon, while in the course of committing * * * theft of property.” (Emphasis added.)

[665]*665Counts 4 and 6 of the indictment involved offenses against Maplethorpe. Counts 4 and 6 are virtually identical to each other; both counts alleged that defendant committed robbery in the second degree in violation of ORS 164.405(l)(a), by “unlawfully and knowingly us[ing] and threaten [ing] the immediate use of physical force upon * * * Maplethorpe, and did represent by word and conduct that [he] * * * [was] armed with a deadly and dangerous weapon, while in the course of committing * * * theft of property.”1

On appeal, defendant first argues that the trial court erred by failing to, sua sponte, merge his convictions for the robbery of Weston. Second, he argues that the trial court erred by failing to, sua sponte, merge his convictions for the robbery of Maplethorpe. Defendant concedes that he failed to preserve those claims of error but asks this court to review the errors as plain error.

We start by discussing the circumstances under which this comb has discretion to review unpreserved claims. ORAP 5.45(1) provides, in part:

“No matter claimed as error will be considered on appeal unless the claimed error was preserved in the lower court and is assigned as error in the opening brief * * *, provided that the appellate court may consider an error of law apparent on the face of the record.”

As a general rule, we review only assignments of error that are preserved in the trial court; however, we may review unpreserved errors that are apparent on the face of the record, that is, plain errors. ORAP 5.45(1); State v. Terry, 333 Or 163, 180, 37 P3d 157 (2001), cert den, 536 US 910 (2002). Determining whether a claimed error constitutes “plain error” involves a two-step analysis. Ailes v. Portland Meadows, Inc., 312 Or 376, 381-82, 823 P2d 956 (1991). In the first step, three requirements must be satisfied: (1) the error must be an error of law, (2) the error of law must be [666]*666obvious, not reasonably in dispute, and (3) the error must appear on the face of the record. State v. Reyes-Camarena, 330 Or 431, 435, 7 P3d 522 (2000). If those requirements are satisfied, then we move to the second step, where we must expressly decide whether to exercise our discretion to review the error of law. Ailes, 312 Or at 382.

Because we reach the merits of defendant’s second assignment of error, we begin by addressing that assignment. In his second assignment of error, defendant argues that the trial court erred by failing to merge his convictions for robbery in the second degree of Maplethorpe. The court entered two convictions against defendant for violation of ORS 164.405(l)(a),2 pursuant to Counts 4 and 6 of the indictment. Defendant argues that the trial court should have entered a single judgment of conviction for his offenses against Maplethorpe, because the convictions constitute a violation of a single statutory provision, they arise from a single criminal episode, and they are against the same victim. The state urges us to decline review of that claim, asserting that the error is not plain.3 We disagree.

As discussed above, defendant’s unpreserved claim constitutes plain error if (1) it is an error of law, (2) the error is obvious, and (3) the error appears on the face of the record. Reyes-Camarena, 330 Or at 435. The issue here is whether the trial court’s failure to merge defendant’s convictions on Counts 4 and 6 was an error of law.

[667]*667Merger of criminal convictions is governed in part by ORS 161.067(1), which 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.”

Accordingly, ORS 161.067(1) permits a court to enter separate judgments of conviction for acts that arise from the same criminal episode if (1) the acts violate two or more statutory provisions, and (2) each statutory provision requires proof of an element that the others do not. See State v. Crotsley, 308 Or 272, 278, 779 P2d 600 (1989) (interpreting former ORS 161.062(1) (1989), repealed by

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Related

State v. White
147 P.3d 313 (Oregon Supreme Court, 2006)
State v. Terry
37 P.3d 157 (Oregon Supreme Court, 2001)
State v. Reyes-Camarena
7 P.3d 522 (Oregon Supreme Court, 2000)
Ailes v. Portland Meadows, Inc.
823 P.2d 956 (Oregon Supreme Court, 1991)
State v. Crotsley
779 P.2d 600 (Oregon Supreme Court, 1989)
State v. Johnson
25 P.3d 353 (Court of Appeals of Oregon, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
149 P.3d 299, 209 Or. App. 662, 2006 Ore. App. LEXIS 1931, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-owen-orctapp-2006.