Dеfendant was convicted of multiple crimes including attempted aggravated murder with a firearm (ORS 163.095(2)(d) (aggravated murder); ORS 161.405(2)(a) (attempt)), first-degree robbery with a firearm (ORS 164.415), and second-degree assault with a firearm (ORS 163.175). The aggravating factor underlying the charge of attempted aggravated murder was an allegation that defendant attempted to kill the victim “in the course of and in the furtherance of’ committing the crime of robbery. On appeal, defendant makes unpreserved arguments that the trial court erred by failing to merge the guilty verdicts on the robbery and assault counts into the guilty verdict on the count of attempted aggravated murder. We rejeсt those unpreserved merger arguments, presented in defendant’s first and third assignments of error, without discussion. In his second assignment of error, defendant challenges the trial court’s imposition of partially consecutive sentences on the convictions for attempted aggravated murder and robbery. We reject that argumеnt for the reasons set forth below and, accordingly, affirm.
“We review a trial court’s decision to impose consecutive sentences for errors of law and to determine whether the trial court’s predicate factual findings are supported by any evidence in the record.” State v. Traylor,
“ [Defendant], on or about June 11,2012, * * * did unlawfully and intentionally commit and attempt to commit the crime of Robbery in the First Degree and in the course оf and in the furtherance of the crime that defendant was committing and attempting to commit, defendant personally and intentionally attempted to cause the death of [the victim], and during the commissionof this felony, the defendant(s) used and threatened the use of a firearm * *
In Count 2, defendant was charged with first-degree robbery with а firearm:
“[Defendant], on or about June 11, 2012, *** did unlawfully and knowingly, while in the course of committing and attempting to commit theft, with the intent of preventing and overcoming resistance to defendant’s taking of property and retention of the property immediately after the taking, and being armed with a deadly weapon, use and threaten the immediate use of physical force upon [the same victim] * * *.
“The state further alleges that during the commission of this felony the defendant used and threatened the use of a firearm.”
Defendant’s case was tried to a jury. The state presented evidence that, one spring evening, the victim had driven to a park near his аpartment and was relaxing in his car, listening to music, before the start of his graveyard shift at work. The victim noticed defendant, who was parked nearby, talking on his phone. At some point, defendant drove his car over to the victim’s car and parked next to him, then left for about an hour. When the victim next saw defendant, defendant was standing next to the victim’s car. Defendant, who was “playing with” a gun, asked the victim for his wallet. The victim refused. Defendant then asked the victim to get out of his car, and the victim refused that request, too, saying “you ain’t getting my wallet and you ain’t getting my car.” Defendant said, “Well, then I’m going to have to shoot you.” As the victim tried to drive away, defendant did just that, shоoting the victim once in the arm. The victim testified that his car already was moving when defendant fired; the victim believes that it is possible that the car bumped defendant’s hand, causing him to lose some control of the gun when he pulled the trigger. The victim drove the short distance to his home and called 9-1-1. He was transported to a hospital. A doctor who treated the victim testified that the bullet broke the victim’s arm and fragments traveled into the victim’s chest area, coming within an inch of multiple blood vessels. Had the bullet hit one of the major arteries, the victim probably would have died within 10 minutes if he had not received medical care.
The jury convicted dеfendant of six out of seven crimes charged, including attempted aggravated murder with a firearm and first-degree robbery with a firearm.
The trial court agreed with the state, concluding that it had discretion to order the
On appeal, defendant renews his argument that the court erred by ordering partially consecutive sentencеs on the convictions for attempted aggravated murder and robbery. Defendant asserts that the record does not support the trial court’s ORS 137.123(5) findings “because the legislature took the felony [robbery] into account when it set the penalty for attempted aggravated murder.” According to defendant, because the robbery “was an essential fact or a fundamental component of the attempted aggravated murder conviction,” the robbery “was merely incidental to” that more serious crime. Therefore, defendant concludes, consecutive sentences were not authorized under ORS 137.123(5)(a). Defendant also contеnds that consecutive sentences were not authorized under ORS 137.123(5)(b) because “the attempted aggravated murder statute fully encapsulates the harm caused by defendant’s conduct—an attempted murder during the commission of a felony.”
The state responds that the trial court’s findings are supported by the record and аre adequate to justify the imposition of partially consecutive sentences under both subsections of ORS 137.123(5). First, the state argues, “defendant had already committed acts sufficient to sustain a conviction for first-degree robbery by the time that he decided to shoot the victim, attempting to kill him.” Thus, the state concludes, the robbery was not merely “incidental” to the attempted aggravated murder, but indicated defendant’s willingness to commit another crime, and partially consecutive sentences were justified under ORS 137.123(5)(a). As to harms, the state asserts that “the victim’s fear over losing his wallet was clearly a qualitatively different harm than the fear of losing his life,” justifying рartially consecutive sentences under ORS 137.123(5)(b).
We agree with the state that the trial court was authorized to impose consecutive sentences under ORS 137.123(5)(a). That provision gives a trial court discretion to impose consecutive sentences for multiple convictions arising from “a continuous and uninterrupted course of conduct” if the court finds that “the criminal offense for which a consecutive sentence is contemplated was not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious crime but rather was an indication of defendant’s willingness to commit more than one criminal offense [.]” Here, first-degree robbery is the offense for which a partially consecutive sentence was contemplated. Consequently, the trial court could impose that partially consecutive sentence if the robbery “was not merely” incidental to the attempted aggrаvated murder, but indicated defendant’s willingness to commit more than one crime. As the state observes, defendant committed robbery before he tried to kill the victim, and he did so through actions—“playing with” a gun while demanding the victim’s wallet—that were distinct from the subsequent act—firing the gun—that constituted the attempt to kill the victim. Because the actions that constituted the two offenses were distinct both temporally and qualitatively, the trial court could properly find that defendant’s robbery of the victim was not “merely incidental” to the attempted aggravated murder. Cf., State v. Garcia-Mendoza,
In arguing to the contrary, defendant emphasizes that he was convicted of attempted aggravated murder, not of attempted ordinary, nonaggravated murder. The legislature has determined that certain types of murder are “particularly heinous” and has identified those types of murder by describing specified aggravating factors. See ORS 163.095 (listing aggravating factors); State v. Barrett,
We disagree. ORS 137.123(5) allows imposition of “consecutive terms of imprisonment for separate convictions arising out of a continuous and uninterrupted course of conduct” if, inter alia, “the criminal offense for which a consecutive sentence is contemplated” was not merely incidental, “but rather was an indication of defendant’s willingness to commit more than one criminal offense.” ORS 137.123 (5) (a) (emphases added). Thus, the statute directs a trial court’s attention to the nature of a defendant’s offenses in deciding whether to impose consecutive sentences, as well as the defendant’s willingness to commit more than a single offense.
Here, the two criminal offenses at issue are first-degree robbery and attempted aggravated murder. It is important to recognize that the second of those offenses is not some amalgam like “robbery plus attempted murder,” as defendant posits. Rather, the offensе is simply attempted murder of a sort that the legislature deems particularly heinous because of the aggravated circumstances in which it was committed and, therefore, deserving of enhanced punishment. Barrett,
Affirmed.
Notes
The jury also convicted defendant of unlawful use of a weapon with a firearm (Count 3), two counts of felon in possession of a firearm (Counts 4 and 5), and second-degree assault with a firearm (Count 7). The jury acquitted defendant of a charge of menacing (Count 6), which related to an encounter that defendant had with the victim’s son a few days after the shooting.
ORS 137.123(5) provides:
“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:
“(a) That the criminal offense for which a consecutive sentence is contemplated was not merely an incidental violation of a sеparate statutory provision in the course of the commission of a more serious crime but rather was an indication of defendant’s willingness to commit more than one criminal offense; or
“(b) The criminal offense for which a consecutive sentence is contemplated caused or created a risk of сausing 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.”
Accordingly, we do not address the state’s сontention that the court also could impose consecutive sentences under ORS 137.123(5)(b).
We acknowledge some tension in the Supreme Court’s case law regarding the precise nature of the legislatively identified aggravating circumstances that elevate ordinary murder to aggravated murder. In Barrett, the court held that “thе various aggravating circumstances are not ‘elements’ for purposes oí former ORS 161.062(1) [the ‘anti-merger’ statute] but, rather, alternative ways of proving the element of aggravation.”