341 P.3d 156
Or. Ct. App.2014Background
- Early morning entry: Defendant and an accomplice cut a hole in the perimeter fence of General Trailer, peeled back a metal shop door, and cut holes in the shop wall.
- Inside the shop they cut copper leads from five welding machines; video security alerted police and officers apprehended them.
- Jury convictions: second-degree burglary (intent to commit theft), first-degree theft, and first-degree criminal mischief (damage exceeding $1,000).
- Sentencing: trial court imposed consecutive sentences on burglary and criminal-mischief under ORS 137.123(5)(a), finding the criminal mischief showed willingness to commit more than one offense.
- Restitution: trial court awarded $2,350 for property damage; defendant did not object at sentencing but later challenged the amount on appeal.
- Appeal issues: defendant challenged consecutive sentences and, unpreserved, the restitution award.
Issues
| Issue | State's Argument | Lagesen (defendant)'s Argument | Held |
|---|---|---|---|
| Whether consecutive sentences for burglary and criminal mischief were permissible under ORS 137.123(5)(a) | Consequential property damage (e.g., fence hole) was not merely incidental and supports finding defendant was willing to commit more than one offense | Consecutive sentences improper because mischief was incidental to the burglary | Affirmed — any evidence supports trial court finding that extra damage showed willingness to commit a separate offense, permitting consecutive sentences |
| Whether restitution award (replacement cost for welding leads) was reviewable on appeal | State: restitution award was within trial court discretion; no challenge preserved below | Defendant: restitution improperly included replacement cost though leads were reusable; trial court lacked statutory authority to award that amount | Not reviewed — unpreserved and not plain error; possible strategic reasons for no objection prevented plain-error review |
Key Cases Cited
- State v. Anderson, 208 Or App 409 (Or. Ct. App. 2006) (standard: review factual findings under ORS 137.123(5)(a) for any evidence)
- State v. Warren, 168 Or App 1 (Or. Ct. App. 2000) (applies any-evidence standard to consecutive-sentence findings)
- State v. Gornick, 340 Or 160 (Or. 2006) (errors not preserved are not plain error when omission may reflect trial strategy)