State v. WhiteState v. White
FILED: November 9, 2006
Argued and submitted September 6, 2006.
Douglas F. Zier, Assistant Attorney General, Salem, argued the cause and filed the brief for petitioner on review. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.
Anne Fujita Munsey, Senior Deputy Public Defender, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were Peter A. Ozanne, Executive
GILLETTE, J.
The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
GILLETTE, J.
In this criminal appeal, we are asked to explain the correct application of
The relevant facts are as follows. Defendant and the victim were romantically involved and shared an apartment until late August 2000. At that time, defendant was arrested on assault charges and spent the next two weeks in custody. While defendant was in custody, the victim obtained a restraining order against him and moved to another apartment.
At some point thereafter, the victim encountered defendant as she was leaving her apartment to go to work. She retreated into her apartment and locked the door. After a few minutes had passed, the victim believed that defendant had left and opened the door. Defendant, who had been hiding beside the door, shoved the door open and pushed the victim back inside. Defendant then entered the apartment, covered the victim‘s mouth with his hand, and grabbed her throat. He told her, “These games will stop” and also told her not to scream. The victim indicated that she understood, and defendant then told the victim, “We‘re going to close the blinds.”
When defendant let go of the victim to close the blinds to a window, the victim unlocked and opened the door to the balcony, ran outside, and started to scream to her neighbors for help. Defendant came out after the victim, grabbed her legs, and tried to pull her back into the apartment. The victim held onto the balcony railing and continued screaming. Neighbors then observed defendant punching the victim “until she went down on her side,” then “stomping” on the victim‘s head and body. Defendant eventually fled, leaving the victim with a fractured right wrist, facial fractures, a shoulder injury, broken teeth and a cut lip.
Defendant was charged with various crimes, including two counts of first-degree burglary. One burglary count alleged that defendant “did unlawfully and knowingly enter and remain in a building * * * with the intent to commit the crime of assault therein.” (Emphasis added.) The other burglary count charged that defendant “did unlawfully and knowingly enter and remain in a building * * * with the intent to commit the crime of menacing therein.” (Emphasis added.) After a trial to the bench, the trial court found defendant guilty of most of the charged crimes, including the two burglary counts. Defendant then asked the trial court to merge the two burglary convictions into a single conviction, arguing that the two counts were not “separately punishable offenses” under the so-called anti-merger statute,
Defendant appealed that decision, arguing that there was no basis in the law, and particularly not under
Before the Court of Appeals, the state responded by pointing to State v. Barnum, 333 Or 297, 39 P3d 178 (2002), a case that similarly involved a single unlawful entry that resulted in two burglary convictions. In Barnum, this court held that the defendant “properly [had been] charged [with] and convicted of two counts of burglary” because “there was sufficient evidence that defendant entered or remained unlawfully with the intent to commit arson and that he entered or remained unlawfully with the intent to commit theft.” Id. at 302-03. The state argued that the foregoing holding in Barnum established “unequivocally that separate convictions are appropriate when the entry and remaining are done with intent to commit different crimes.”
In the ensuing decision and opinion in this case, the Court of Appeals confessed to a certain amount of confusion over the Barnum case, particularly in light of this court‘s previous precedents, including State v. Barrett, 331 Or 27, 10 P3d 901 (2000). The Court of Appeals repeated its earlier observation in State v. Lucio-Camargo, 186 Or App 144, 62 P3d 811 (2003), that
“’Barnum appears, without explanation, to authorize multiple convictions and punishments even though the defendant‘s conduct violated only one statutory provision and does not otherwise qualify under subsections (2) and (3) of
ORS 161.067 .‘”
White, 202 Or App at 12-13 (quoting Lucio-Camargo, 186 Or App at 154). Apparently at a loss as to how to proceed, the Court of Appeals resorted to the stated policy behind
Before this court, the state argues that the trial court correctly entered two judgments of conviction and that the Court of Appeals erred in vacating one of those judgments. The state contends, as it did below, that Barnum is directly on point and controlling, insofar as it holds that the law permits multiple burglary convictions based on a single unlawful entry.2 Defendant responds that the outcome in Barnum cannot be reconciled with this court‘s previous “merger” cases and that, in any event, Barnum‘s analytical underpinnings are so unclear that the Court of Appeals correctly declined to follow it.
Before we turn to the specifics of the parties’ arguments, we set out the statutes and other background relevant to those arguments. We begin with
“(1) A person commits the crime of burglary in the first degree if the person violates ORS 164.215 and the building is a dwelling, or if in effecting entry or while in a building or in immediate flight therefrom the person:“* * * * *
“(b) Causes or attempts to cause physical injury to any person.”
ORS 164.215 , the statute referred toORS 164.225 , provides, in part:“(1) Except as otherwise provided in
ORS 164.255 , a person commits the crime of burglary in the second degree if the person enters or remains unlawfully in a building with intent to commit a crime therein.”
Also central to the present controversy is
“(1) When the same conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an element that the others do not, there are as many separately punishable offenses as there are separate statutory violations.
“(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 statutory 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.”
This court briefly described the history and purpose of
On the same day that this court decided Crotsley, it also decided another merger case, State v. Kizer, 308 Or 238, 779 P2d 604 (1989). In Kizer, the defendant argued that the trial court had erred in convicting and sentencing him on two counts of forgery when he had forged and passed a single check. The court held that, although the forgery statute,
Finally, in Barrett, this court considered a defendant‘s claim that, even if the state properly had charged him with three counts of aggravated murder,
“[t]hat [the] defendant‘s conduct in intentionally murdering the victim * * * was ‘aggravated’ by ‘any,’ i.e., one or more, act surrounding that conduct does not convert that conduct into more than one separately punishable offense.”
Barrett, 331 Or at 36. That is, this court concluded that the defendant could be convicted of only a single count of aggravated murder.
The court acknowledged, however, that the fact of unanimous guilty verdicts on multiple theories of aggravation should in some fashion be memorialized. The court explained:
“If the trial court were to enter a conviction on only one count, and dismiss the other two, it always would be possible that an appeal would result in a reversal, for insufficient evidence, of the count that was selected to serve as the basis for conviction. With the other two counts dismissed, defendant would be able to argue that he was entitled to a judgment of acquittal on the charge of aggravated murder. Such an outcome would be inappropriate, if there were evidence to sustain defendant‘s guilt under * * * the other * * * counts.”
Id. at 36-37. Accordingly, the court remanded the case to the circuit court for resentencing, with instructions to enter a single judgment of conviction for aggravated murder, which judgment would enumerate each of the aggravating circumstances that the jury had found to exist. Id. at 37.
That brings us to Barnum. As noted, Barnum is factually similar to the present case, in that it also involved multiple charges of first-degree burglary,
On review, this court affirmed in part and reversed in part. The court noted, first, that
“‘If the trial court were to enter a conviction on only one count [of aggravated murder], and dismiss the other * * *, it always would be possible that an appeal would result in a reversal, for insufficient evidence, of the count that was selected to serve as the basis for conviction. With the other [count] dismissed, defendant would be able to argue that he was entitled to a judgment of acquittal on the [remaining charge].‘”
Id. (quoting Barrett, 331 Or at 36-37) (brackets in original).
This court in Barnum then proceeded to a different question: “May [the] defendant be punished separately for each of the two counts?” Barnum, 333 Or at 302. The court indicated that the answer to that question depended on whether the defendant‘s two violations of the same statute “were ‘repeated violations * * * separated * * * by a sufficient pause in defendant‘s criminal conduct * * *’ within the meaning of
As noted, the parties in the present case disagree about Barnum‘s relevance. According to the state, Barnum exemplifies the idea, first discussed in Crotsley, 308 Or at 276-77, that
“criminal records [should] accurately reflect all crimes actually committed and that a person who commits multiple crimes by the same conduct or during the same criminal episode should have a criminal record reflecting each crime committed rather than only a single conviction which would not accurately portray the nature and extent of that person‘s conduct.”
The state suggests that that broadly stated intent compelled the first holding in Barnum -- that the defendant there properly had been convicted of two burglaries -- and that the factual similarities between Barnum and the present case compel a similar result here. However, the state does not explain how the words of
The state‘s reticence may arise out of its view that
Defendant does not deny that the state‘s theory is consistent with Barnum. He contends, however, that, in light of the words and history of
Barnum‘s problems began, we think, with its failure to address directly the definition of first-degree burglary in
By assuming, rather than searching for, the legislative intent behind the burglary statutes, this court in Barnum short-circuited the process that it discussed and employed in its earlier cases to determine whether the defendant had violated “two or more statutory provisions” for purposes of
This court may have compounded the problem in Barnum by treating the inquiry under
It is not, and this case presents the opportunity to say so. For one thing, an entirely different statute --
Finally, we must acknowledge that the ultimate decision in Barnum, affirming in part and reversing in part the decision of the Court of Appeals, may be wrong. On the one hand, the relevant holding -- that the defendant properly was “charged and convicted of two counts of burglary,” 333 Or at 303 -- could be interpreted as referring only to the propriety of two guilty verdicts. Such a holding would have been
In the end, then, we agree with defendant that Barnum is an anomaly in the body of cases that discuss the proper application of
The foregoing discussion brings us back to the present case and the question that it presents: When defendant was found guilty of “entering and remaining unlawfully” with the intent to menace and also was found guilty of “entering and remaining unlawfully” with the intent to commit assault, and both guilty verdicts arose out of the same unlawful entry into the victim‘s apartment, does Oregon law permit entry of two separate judgments of conviction for first-degree burglary? To answer that question, we must determine whether the conduct at issue gave rise to more than one “separately punishable offense” within the meaning of
We already have touched briefly upon subsection (1) in our discussion of Barnum: We have acknowledged that the court‘s mistaken decision in Barnum seemingly arose out of an assumption that the burglary statute contains two separate “statutory provisions” within the meaning of
In Barrett, this court discussed the meaning of the term “statutory provisions” as it is used in
“‘was not defined to mean a section, subsection, or paragraph; consistent with its purpose, the term can be interpreted to mean any provision defining a “single crime,” whatever visual form the provision is given.‘”
Id. (quoting Kizer, 308 Or at 243). Finally, the court in Barrett noted that, in Kizer, the question under former
Barrett thus maps out the proper approach to the question whether defendant‘s conduct in the present case violated “two or more
To make that determination, we begin with the critical wording of the general burglary statute that is incorporated by reference into
“As applied to the burglary sections, the concept of one committing the crime by ‘remaining unlawfully’ represents a departure from the traditional notion that burglary requires a ‘breaking and entering’ of an ‘unlawful entry.’ * * * Under the proposed definition an initial lawful entry followed by an unlawful remaining would constitute burglary if accompanied by an intent to commit a crime.”
Commentary to the Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report § 135 (July 1970) (emphasis added). In other words, the legislature included the “remains unlawfully” wording in the burglary statute solely to clarify that burglary could occur by remaining unlawfully after an initial lawful entry. It did not intend to provide that a defendant who commits burglary by entering a building unlawfully commits an additional, separate violation of the burglary statute by remaining in the dwelling thereafter.7
It follows that, although the legislature intended to provide two alternative ways to commit the crime of burglary, it did not define those alternatives in a manner that would permit multiple burglary convictions to arise out of a single unlawful entry. It did not intend to provide that a defendant would violate separate “statutory provisions” contained within the burglary statutes by, first, unlawfully entering a building and then by unlawfully remaining therein.
Neither do the burglary statutes suggest a legislative intent to treat a single unlawful entry or remainder as violating more than one “statutory provision” based on the burglar‘s intent to commit more than one crime inside the building. The burglary statute refers to an “intent to commit a crime” (emphasis added) inside the building -- any crime. Under the clear words of the statute, the state must prove some criminal intent, but the nature of the intended crime is irrelevant. That is, there is no apparent basis for differentiating a burglary based on an intent to assault from a burglary based on an intent to menace. Defendant‘s act of unlawfully entering the victim‘s apartment with either intent or with both intents would violate only one statutory provision.
We turn to the other potential basis for a claim that the trial court properly entered convictions for two burglaries -- the idea that defendant‘s conduct involved repeated violations of the same statutory provision within the meaning of
For the foregoing reasons, we conclude that, although defendant properly was charged with and even found guilty of two counts of first-degree burglary, each of which alleged a different crime that defendant intended to commit at the time of his unlawful entry, the trial court could not enter two judgments of convictions based on those verdicts. Under
The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
GILLETTE, J.