STATE OF OREGON, Plaintiff-Respondent, v. SERENGAW HAM, aka Tong Eleet, aka TR Marten, Defendant-Appellant.
Multnomah County Circuit Court 16CR28808; A163759
Oregon Court of Appeals
Submitted November 5, 2018, affirmed October 30, 2019
300 Or App 304 (2019) | 453 P3d 927
Before Lagesen, Presiding Judge, and James, Judge, and Haselton, Senior Judge.
Affirmed.
David F. Rees, Judge. (Judgment)
Judith H. Matarazzo, Judge. (Supplemental Judgment)
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Matthew Blythe, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Doug M. Petrina, Assistant Attorney General, filed the brief for respondent.
LAGESEN, P. J.
Affirmed.
While intoxicated, defendant crashed his car into another car, pushing that car into another car, which was pushed into a third car. He was charged with, among other offenses, five counts of recklessly endangering another person,
Three people were in the first car that defendant hit; the second and third cars affected by the collision were each occupied by one person. The state charged defendаnt with multiple offenses, including five counts of reckless endangerment. Each reckless endangerment count was identically worded and alleged:
“The said Defendant(s) * ** did unlawfully and recklessly create a substantial risk of serious physical injury to another person, contrary to the statutes in such cases made and provided and against the peace and dignity of the State оf Oregon[;]
“This count is of the same and similar character as the conduct alleged in the other counts of this charging instrument.”
At the plea hearing, defendant stipulated to facts sufficient to support a finding of guilt on each of the reckless endangerment counts. Before sentencing, defendant moved the court to merge all five guilty verdicts on the reckless endangerment counts. He asserted that the indictment was inadequate to establish that each count had a separate victim. Therefore, defendant argued, he was charged with five counts оf one offense that should merge. The court denied the motion and entered judgment on five separate convictions for reckless endangerment.
We review the sentencing court‘s determination of whether to merge verdicts for errоrs of law. State v. Huffman, 234 Or App 177, 183, 227 P3d 1206 (2010). Under
Our recent decision in Slagle controls the resolution here. In Slagle, the defendant pleaded guilty—without any limitation or qualification (contained in a plea bargain or elsewhere)—to 10 counts of first-degree encouraging child sexual abuse,
“‘The defendant *** did unlawfully and knowingly possess a record in visual recording of sexually explicit conduct involving a child, separate and distinct from all others alleged in this Information, with the intent to disseminate the record in visual recording while knowing or being aware of аnd consciously disregarding the fact that creation of the visual recording of sexually explicitly conduct involved child abuse[.]‘”1
We rejected that theory. We first observed that the indictment broadly alleged that each count of first-degree enсouraging child sexual abuse entailed “conduct involving a child.” Id. (emphasis in original). We noted that an indefinite article such as the one in “a child” can be used specifically and nonspeсifically, and therefore could be read to refer to a different child in each count. Id. We also reasoned that “the defendant, by failing to limit or qualify his pleas, assent[ed] to the brоadest construction of his pleas.” Id. (citing Hibbard v. Board of Parole, 144 Or App 82, 87-88, 925 P2d 910 (1996), vac‘d on other grounds, 327 Or 594, 965 P2d 1022 (1998) (omission and internal quotation marks omitted)).2 We therefore concluded that, “[b]ecause defendant pleaded guilty without qualifying his pleas, he assented to the broader construction thаt he possessed 10 visual recordings of different children.” Id. at 396.
The same reasoning disposes of defendant‘s contention in this case that the verdicts must merge because the indictment does not specifically allege that all five counts involved separate victims. Here, like in Slagle, defendant‘s plea was not conditional, limited, or otherwise subject to the terms of a plеa agreement. Similar to each count in Slagle that broadly alleged harm to “a child,” each reckless endangerment count here broadly alleges harm to “another person.” Just as each reference to “a child” in Slagle could be properly construed to refer to a separate child, each reference to “another person” can be construed to pertain to a separate victim. See Webster‘s Third New Int‘l Dictionary
Defendant also argues that, because each victim was not identified, there is “no way to guarantee that the [reckless endangerment] charges in the indictment were the same аs those to which defendant pleaded no contest and for which defendant was ultimately sentenced.” Defendant‘s improper factual basis theory is not entirely clear and he cites no authority to support it.3 We reject it. Because each count may properly be construed to correspond to a separate victim in this case, and because defendant stipulated to the facts necessary to convict him of five separate counts of reckless endangerment, the court did not sentence defendant on аn improper factual basis.
Affirmed.