State v. Sparks

946 P.2d 314, 150 Or. App. 293, 1997 Ore. App. LEXIS 1418

• Court: Court of Appeals of Oregon
• Decided: October 1, 1997
• Docket: 95CR0877; CA A90258
• Status: Published

Opinions

EDMONDS, J.

Defendant appeals his convictions on six counts of burglary in the first degree. ORS 164.225. We reverse.

The evidence shows that defendant entered three vacant rooms of a motel, took a television set from each room and vandalized each room. The state charged defendant with six counts of first-degree burglary, alleging that defendant had unlawfully entered into each of the vacant rooms for the purposes of committing the crime of theft and of criminal mischief.¹ A jury convicted defendant on all six counts, and defendant appeals.

In his first assignment of error, defendant contends that, because he unlawfully entered only three motel rooms, he could be convicted of only three counts of burglary. The state argues that, because defendant intended to commit two different crimes when he entered each of the three rooms, he could be properly convicted on all six counts.

ORS 164.225(1) provides, in part:

“A person commits the crime of burglary in the first degree if the person violates ORS 164.215 and the building is a dwelling.”

ORS 164.215 provides that “a person commits the crime of burglary in the second degree if the person enters or remains unlawfiilly in a building with intent to commit a crime therein.” ORS 161.062 and ORS 161.067 provide that, when the same criminal conduct violates two or more statutory provisions and each provision requires proof of an element that the others do not, there are as many separate punishable offenses as there are separate statutory violations. Thus, a defendant could be convicted separately for conduct that violates two or more statutory provisions to the extent that each statutory provision that is violated requires an element that the other does not. State v. Crotsley, 308 Or 272, 278, 779 P2d 600 (1989).

In this case, there was only one unlawful entry into each motel room. Even though defendant had the intent to commit more than one crime when he entered the premises, the two counts of burglary for entering the same room require proof of the same elements, i.e., the entering of a dwelling with intent to commit a crime therein. The merger of convictions under these statutes is controlled by the elements in the criminal statute and not by factual circumstances. State v. Atkinson, 98 Or App 48, 777 P2d 1010 (1989). Because the two counts pertaining to each room do not require proof of separate statutory elements, the convictions merged under the above statutes. The trial court erred in entering convictions on all six counts.

In his second assignment of error, defendant argues that the trial court erred in not applying the “200 percent” and the “shift to column I” rules in OAR 253-12-020² to the consecutive sentences imposed by the court. If the rules are applied, the duration of defendant’s sentences could be less. Although as a result of the disposition of defendant’s first assignment of error it will be necessary for the trial court to resentence defendant, we address defendant’s assignment in the event that the issue should arise again. Defendant contends that the trial court should have applied the rules because the burglaries were committed as part of a single criminal episode. In State v. Miller, 317 Or 297, 306, 855 P2d 1093 (1993), the court held that OAR 253-12-020(2) applies only to crimes that arise from a single “criminal episode.”

The words “criminal episode” in Oregon law have a precise meaning. ORS 131.505(4) defines a “criminal episode” as “continuous and uninterrupted conduct that establishes at least one offense and is so joined in time, place and circumstances that such conduct is directed to the accomplishment of a single criminal objective.” A “criminal episode” is synonymous with the phrase “same act or transaction.” State v. Boyd, 271 Or 558, 565-66, 533 P2d 795 (1975); State v. Fitzgerald, 267 Or 266, 273, 516 P2d 1280 (1973). In Fitzgerald, the court said, regarding the latter phrase:

“We hold that the two charges arise out of the same act or transaction if they are so closely linked in time, place and circumstance that a complete account of one charge cannot be related without relating details of the other charge.”³ (Emphasis supplied.)

In this case, the circumstances of defendant’s conduct demonstrate that he had to have formed a discrete criminal objective each time he made an unlawful entry into one of the motel rooms. A complete account of any one of the unlawful entries could be proven without reference to the others. Consequently, in light of the meaning of the words “criminal episode,” the rules relied on by defendant do not apply to his convictions.

Reversed and remanded for entry of judgment of conviction on three counts of first-degree burglary and for resentencing.

1 The state also charged defendant with one count of theft in the second degree; that count was dismissed on the state’s motion.

2 OAR 253-12-020(2) provides, in part:

“(a) Subject to the provisions of subsection (b) of this section, the presumptive incarceration term of the consecutive sentences is the sum of:

“(A) the presumptive incarceration term on the prison term defined in OAR 253-08-005(1) imposed pursuant to a dispositional departure for the primary offense, as defined in OAR 253-03-001(17); and

“(B) up to the maximum incarceration term indicated in the Criminal History I Column for each additional offense imposed consecutively.

“(b) The total incarceration term of the consecutive sentences, including the incarceration term for the primary offense, shall not exceed twice the maximum presumptive incarceration term of the primary sentence except by departure as provided by OAR 253-08-007.”

3 Boyd and Fitzgerald involved an interpretation of the “same criminal episode” language in the context of ORS 131.515, a statute about former jeopardy.