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State v. Warren5/31/2000
Appeal from Circuit Court, Multnomah County.
Robert W. Redding, Judge.
Argued and submitted February 29, 2000.
Sentence vacated and remanded for resentencing; otherwise affirmed.
Brewer, J., concurring in part and dissenting in part.
EDMONDS, J.
Defendant appeals from his convictions for attempted murder with a firearm, ORS 163.115(1), and assault in the first degree, ORS 163.185. On appeal, defendant makes several assignments of error. We affirm without discussion on all of his assignments of error, except regarding his contention that the trial court erred by imposing consecutive sentences on his convictions. We vacate and remand.
At the trial that resulted in the convictions, there was evidence that the victim encountered defendant and two friends as they were leaving a Portland nightclub. The victim exchanged words with the three men. The jury could have found that defendant took offense to the remarks and "walked" the victim outside the building, while his friends remained inside. Witnesses inside the building heard one or more gunshots. The victim then walked back inside, followed by defendant. At that time, defendant pulled a gun out and shot the victim in the back of the head at close range.
At sentencing, defendant urged:
"There is no question that there was but one criminal episode here, one single act, i.e., one shot fired. In such an event, the statute limits the Court's discretion to impose consecutive sentences. The first such limitation refers to a 'defendant's willingness to commit more than one criminal offense.' ORS 137.123(5)(a). In the case at bar, with one single shot being fired, the evidence of such 'willingness' is altogether lacking. A different scenario might be if one shoots a victim and wounds him but keeps on shooting, for from this could be inferred an intent not to merely injure (Assault) but also to kill.
"The other portion of ORS 137.123(5) which permits the court to impose consecutive sentences arising out of a 'continuous and uninterrupted course of conduct' is subparagraph (b) which speaks in terms of an injury to the victim caused by the offense which is 'greater or qualitatively different' than the injury from the other offense. * * * 'Qualitatively' is not defined in the statute and its ordinary meaning is, referring to quality or kind, as opposed to quantity. Webster's Third New International Dictionary, p. 1858. The 'kind' of injury caused by a bullet that is fired pursuant to an intent to kill is not demonstrably different from the injury caused by a bullet which is fired as a concomitant of the intent required for the offense of Assault I. There are severe injuries in either case but they are the same kind, physically or metaphysically."
The trial court disagreed with defendant's argument:
"And at this point I am making a factual finding that the attempted murder was not merely an incidental violation of a separate statutory provision in the course of commission of a more serious crime.
"The crime of attempted murder, rather, was an indication of defendant's willingness to commit more than one criminal offense. It indicated that the defendant not only had the willingness to create a serious physical injury to this victim, which he did accomplish, but that the defendant also had an intent to kill this victim, which he failed to realize.
"Further, the Court makes a finding that the crime of attempted murder created a risk of causing greater and qualitatively different loss, injury and harm to this victim. Having the intent to kill creates a risk of causing greater and qualitativel
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