State v. Stanton

337 P.3d 955, 266 Or. App. 374, 2014 Ore. App. LEXIS 1421
CourtCourt of Appeals of Oregon
DecidedOctober 15, 2014
Docket101034072; A149660
StatusPublished
Cited by3 cases

This text of 337 P.3d 955 (State v. Stanton) 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. Stanton, 337 P.3d 955, 266 Or. App. 374, 2014 Ore. App. LEXIS 1421 (Or. Ct. App. 2014).

Opinion

DEVORE, J.

Defendant appeals a judgment of conviction for five counts of unlawful use of a weapon with a firearm, ORS 166.220;1 ORS 161.610(2). He assigns error to the trial court’s denial of his request to merge the guilty verdicts for the five counts, pursuant to the “anti-merger” statute, ORS 161.067(1). Defendant makes two arguments that his guilty verdicts should have merged. First, he argues that, when he fired five shots toward a group of people, there was a single class of persons constituting “one victim.” Second, defendant argues that there was no sufficient pause in his conduct. We review for legal error and are bound by the trial court’s factual findings, provided there is sufficient evidence in the record to support them. State v. Cale, 263 Or App 635, 637, 330 P3d 43 (2014). As it happens here, the state concedes that the trial court did not make factual findings as to merger. The state urges that we remand so that the trial court may address the issue in the first instance. We agree with the state, vacate the judgment, and remand for reconsideration of merger. Otherwise, we affirm.2

■ For purposes of our review, the following circumstances appear to be uncontroverted.3 Defendant drove to downtown Portland to pick up two women, Martin and Sisón. He met them in a parking lot directly across the street from Qube, a club at the southwest corner of First Avenue and Pine Street. Meanwhile, a group of unknown people left Qube, at the insistence of the club’s bouncers. Three of the men in the group crossed the street and loitered [376]*376near defendant in the middle of a parking lot. A bouncer standing outside Qube suspected that there might be a fight. An aggressive exchange ensued, during which defendant drew a pistol from his waistband. Martin grabbed defendant and pulled him into the back seat of the car, but, before she could begin driving away, one of the men from the group shattered the back window. Seven to 10 members of the group stood together at the northwest street corner as defendant’s car began to leave.4 The car stopped at an angle in the intersection. Defendant leaned out of the window and fired three shots toward the group standing near the corner. Immediately thereafter, defendant fired another two shots as the car sped away. Defendant was charged with several crimes including five counts of unlawful use of a weapon with a firearm.

At defendant’s bench trial, a Qube bouncer testified as to the timing and number of shots that defendant fired. He explained that there were “three shots consecutively and then the vehicle started to pull away and there [were] two more shots fired as the vehicle was pulling away. * * * Bang, bang, bang ... bang, bang.” A 9-1-1 recording that included the sounds of the gunshots was consistent with the bouncer’s recollection. The trial court made a credibility finding in favor of the bouncer’s testimony, found that defendant fired five shots, and convicted defendant of multiple counts, including five counts of unlawful use of a weapon with a firearm.

In preparation for sentencing, defendant submitted a memorandum contending, among other things, that the guilty verdicts for unlawful use of a weapon should merge. The anti-merger statute, ORS 161.067, provides, in relevant part:

“(2) When the same conduct or criminal episode, though violating only one statutory provision, involves two or more victims, there are as many separately punishable offenses as there are victims.
“(3) When the same conduct or criminal episode violates only one statutory provision and involves only one victim, but nevertheless involves repeated violations of the same [377]*377statutory provision against the same victim, there are as many separately punishable offenses as there are violations, except that each violation, to be separately punishable under this subsection, must be separated from other such violations by a sufficient pause in the defendant’s criminal conduct to afford the defendant an opportunity to renounce the criminal intent.”

Defendant argued that “[t]he gunshots were part of the same conduct or criminal episode” without a sufficient pause in the criminal conduct to allow defendant an opportunity to renounce criminal intent. Defendant suggested that the state’s theory of the case did not rely on the presence of multiple victims. At sentencing, the parties requested a finding regarding “whether [the] verdict in the five UUW counts was based on five separate victims or on the five shots.” Contrary to defendant, the state argued that

“there were five people standing there, and he fired five shots. *** [U]nder the law, under the definition of victim, if there were five people standing there, * * * [they are] all legally considered separate victims. And I think clearly they are. They would all have — you know, if they had testified or made themselves available or whatever, they’d all have a right, if they’d been standing on that corner to speak at sentencing, to be entitled to restitution, if there were any. So I think based on the legal definition of a victim, there are five separate victims in this case, even though they weren’t identified at the time.”

Defense counsel rejoined that the evidence was unclear as to how many individuals were on the corner and that the shots occurred in “rapid succession” with “indiscernible pause, if any.”

On a different issue, the state raised the potential for consecutive sentencing for the various offenses, as permitted by ORS 137.123(5)(b).5 That statute provides, in part:

“(5) The court has discretion to impose consecutive terms of imprisonment for separate convictions arising out of a continuous and uninterrupted course of conduct only if the court finds:
[378]*378“(b) The criminal offense for which a consecutive sentence is contemplated caused or created a risk of causing greater or qualitatively different loss, injury or harm to the victim or caused or created a risk of causing loss, injury or harm to a different victim than was caused or threatened by the other offense or offenses committed during a continuous and uninterrupted course of conduct.”

In response, the court considered the number of victims for the purpose of consecutive sentencing, noting that defense counsel “cites in his memo * * * ORS 161.067, as well, which is *** similar or related [to ORS 137.123(5)(b)].” The trial court determined that “each shot created additional risk, and that can be the basis for consecutive sentences. So I’m not saying that there were five different victims. I’m saying there was a risk, and that’s enough under the statute.”

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Related

State v. Ortiz-Rico
462 P.3d 741 (Court of Appeals of Oregon, 2020)
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417 P.3d 568 (Court of Appeals of Oregon, 2018)
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368 P.3d 79 (Court of Appeals of Oregon, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
337 P.3d 955, 266 Or. App. 374, 2014 Ore. App. LEXIS 1421, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-stanton-orctapp-2014.