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State v. Warren5/31/2000
. Defendant argues that the assault was "merely incidental" to his attempt to murder the victim. Defendant is mistaken.
Our decision in State v. Rojas-Montalvo, 153 Or App 222, 957 P2d 163, rev den 327 Or 192 (1998), informs our analysis in this case. In Rojas-Montalvo, the defendant was sentenced consecutively on convictions for unlawful possession of a controlled substance and unlawful delivery of a controlled substance. On appeal, the defendant argued that because he "pleaded guilty to a 'constructive' delivery of cocaine, he court cannot find that the possession of cocaine 'was not merely an incidental violation of a different statutory provision in the course of the commission of a more serious crime.'" Id. at 225. We held that the imposition of consecutive sentences was permissible and that the offenses were not merely incidental to one another because " defendant need not possess a controlled substance in order to be found guilty of delivery, * * * and being in possession does not necessarily imply delivery." Id.
Defendant notes that the defendant in Rojas-Montalvo was willing both to possess and deliver drugs because "the steps taken to obtain the drugs, then package them did indicate a willingness to commit more than one crime." In his quest to distinguish Rojas-Montalvo, defendant concedes his intent to commit murder but denies intending to physically injure the victim. There are three flaws in defendant's reasoning, at least two of which are adopted by the majority.
First, defendant does not come to grips with the fact that he was convicted of committing more than one offense as a consequence of his single act. In order to be convicted of separate offenses arising from the same conduct, each of which requires an intentional act, defendant must have intended to commit more than one offense. Put differently, if defendant was not willing both to kill and to seriously injure the victim, he could not have been convicted of first-degree assault and attempted murder. See ORS 163.185; ORS 163.115(1). The majority's conclusion that the trial court was required to make "findings of other facts that demonstrate a willingness to commit the additional offense of first-degree Assault I," ___ Or App at ___ (slip op at 4), is simply wrong. The jury determined that defendant was willing to commit both crimes and the trial court properly let stand the jury's verdict.
Second, defendant misses the point of the holding in Rojas-Montalvo. There, we decided that consecutive sentences were authorized under ORS 137.123(5)(a) by comparing the nature of the defendant's convictions and determining that it was not necessary to commit one offense in order to commit the other. Id. In Rojas-Montalvo, the defendant, in a single incident, only possessed the cocaine; the delivery was constructive. The defendant's intent to deliver cocaine was inferred from the quantity of drugs and the paraphernalia found in his possession when he was apprehended. In this case, defendant also committed a single act--shooting the victim--from which his willingness to commit two separate crimes could be inferred. Defendant could not be certain that the victim would die as a result of the close range gunshot to the head. Defendant could be reasonably confident, however, that if the victim survived, he would at least suffer serious physical injury. The trial court was entitled to infer, as did the jury, that defendant was willing to seriously injure the victim, assuming that he did not succeed in committing murder.
Thus far, I have not considered the phrasing of ORS 137.123(5)(a) as a whole. However, a third fundamental problem with defendant's view of the case is apparent from a straightforward app
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