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State v. Warren5/31/2000
e. The defendant argued that his possession of controlled substances was incidental to his constructive delivery of controlled substances. We observed that, in addition to the large quantities of cocaine in the defendant's possession, there were a small scale, a box of baggies, a pager, and some small plastic bindles containing cocaine. Those facts demonstrated that the defendant had a willingness to commit the crime of delivery of cocaine in addition to the crime of mere possession of cocaine.
In Sumerlin, the defendant was convicted of both reckless driving and driving under the influence of intoxicants. The trial court sentenced him to consecutive sentences. On appeal, he challenged the consecutive nature of the sentences. We affirmed, pointing to the fact that " y speeding while driving drunk, defendant showed a willingness to commit both [offenses]." Sumerlin, 139 Or App at 589. In both Rojas-Montalvo and Sumerlin, there were, unlike here, discrete facts that supported an inference that the defendants were willing to commit more than one crime .
Regarding its ruling under ORS 137.123(5)(b), the trial court here reasoned that " aving the intent to kill creates a risk of causing greater and qualitatively different loss, injury, or harm than merely having the intent to cause serious physical injury." The court's reasoning assumes that defendant had the intent to cause serious physical injury, as well as the intent to kill the victim. Again, the trial court made no findings that support such an inference. Apparently, the only fact relied on by the trial court is the fact that defendant shot the victim in the head at close range with a gun. In the absence of a finding that reasonably leads to the inference that defendant intended to cause serious physical injury in addition to killing the victim, the trial court's imposition of consecutive sentences was error under subsection (b).
Sentence vacated and remanded for resentencing; otherwise affirmed.
BREWER, J., concurring in part and dissenting in part.
The majority holds that the trial court erred by imposing consecutive sentences on defendant's convictions, following a jury trial for attempted murder with a firearm, ORS 163.115(1), and assault in the first degree, ORS 163.185. Because the trial court was authorized to impose consecutive sentences under ORS 137.123(5)(a), I dissent from that portion of its disposition.
On May 23, 1996, the victim encountered defendant and two friends at a Portland nightclub. Defendant and his friends were leaving the club when the victim entered. The victim exchanged words with the three men. Defendant took offense to the remarks and "walked" the victim outside the building. Defendant's friends remained inside. Witnesses inside the building heard one or more gun shots. The victim then walked back inside, followed by defendant. At that point, defendant pulled a gun and shot the victim in the back of the head at close range. The victim survived the gunshot wound but suffered extensive permanent injuries. He had no memory of the events surrounding the shooting, although he recognized defendant as the person who shot him. He had surgery and was hospitalized for about two weeks. He was wheelchair bound for weeks after that. He lost full use of his shoulder, his right leg, and he has to wear a leg brace. He suffers from slurred and jumbled speech, as well as impaired vision. The bullet was left in his head following surgery.
The jury found defendant guilty of attempted murder with a firearm and assault in the first degree. At sentencing, the trial court determined that defendant's matrix classification under the sentencing guidelines was 10-C for the a
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