State v. Ham

                                      304

            Submitted November 5, 2018, affirmed October 30, 2019


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                       SERENGAW HAM,
                 aka Tong Eleet, aka TR Marten,
                      Defendant-Appellant.
                 Multnomah County Circuit Court
                      16CR28808; A163759
                                  

     Defendant pleaded no contest to, among other offenses, five counts of recklessly endangering another person, ORS 163.195. Before sentencing, defendant
moved to merge all five guilty verdicts on the reckless endangerment counts.
The sentencing court denied the motion and convicted defendant of all charges.
Defendant appeals, contending that the five reckless endangerment counts
should have been merged because the indictment did not specify each individual
victim and the state’s failure to clarify who in particular defendant was accused
of endangering resulted in a conviction on an improper factual basis. Held: Under
State v. Slagle, 

, 

, rev den, 

 (2019), a defendant who makes an unqualified guilty or no contest plea assents to the broadest
construction of the plea. Because defendant’s plea could be construed to apply
to five separate victims, and because defendant stipulated to facts necessary to
convict him of five separate counts of reckless endangerment, the trial court did
not err in denying defendant’s motion.
    Affirmed.



   David F. Rees, Judge. (Judgment)
   Judith H. Matarazzo, Judge. (Supplemental Judgment)
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Matthew Blythe, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Doug M. Petrina, Assistant Attorney
General, filed the brief for respondent.
   Before Lagesen, Presiding Judge, and James, Judge, and
Haselton, Senior Judge.
   LAGESEN, P. J.
   Affirmed.
Cite as 

 (2019)                               305

        LAGESEN, P. J.
         While intoxicated, defendant crashed his car into
another car, pushing that car into another car, which was
pushed into a third car. He was charged with, among other
offenses, five counts of recklessly endangering another
person, ORS 163.195. Defendant pleaded no contest to all
charges and was convicted. On appeal, defendant contends
that the five reckless endangerment verdicts should have
been merged because the indictment did not specify each
individual victim. Defendant also argues that the state’s
failure to clarify who in particular defendant was accused
of endangering resulted in a conviction on an improper factual basis. In light of our holding in State v. Slagle, 

, 

, rev den, 

 (2019), we reject
defendant’s arguments and affirm.
        Three people were in the first car that defendant hit;
the second and third cars affected by the collision were each
occupied by one person. The state charged defendant with
multiple offenses, including five counts of reckless endangerment. Each reckless endangerment count was identically
worded and alleged:
      “The said Defendant(s) … did unlawfully and recklessly create a substantial risk of serious physical injury
   to another person, contrary to the statutes in such cases
   made and provided and against the peace and dignity of
   the State of Oregon[;]
      “This count is of the same and similar character as
   the conduct alleged in the other counts of this charging
   instrument.”

         At the plea hearing, defendant stipulated to facts
sufficient to support a finding of guilt on each of the reckless
endangerment counts. Before sentencing, defendant moved
the court to merge all five guilty verdicts on the reckless
endangerment counts. He asserted that the indictment was
inadequate to establish that each count had a separate victim. Therefore, defendant argued, he was charged with five
counts of one offense that should merge. The court denied
the motion and entered judgment on five separate convictions for reckless endangerment.
306                                                             State v. Ham

        Defendant appeals, assigning error to the sentencing court’s refusal to merge the five guilty verdicts on the
reckless endangerment counts. He contends that the indictment did not say that each count was against a separate
victim and the state did not identify each victim at the plea
hearing. Therefore, defendant argues, his plea should not
be construed to be an admission to the fact that each count
involved a separate victim. Defendant also asserts that failure to identify the victims of the reckless endangerment
charges means that defendant was sentenced for charges on
an improper factual basis, which, in defendant’s view, would
be unconstitutional.
         We review the sentencing court’s determination of
whether to merge verdicts for errors of law. State v. Huffman,

, 

 (2010). Under ORS
161.067, because it is undisputed that defendant’s offenses
involved the same conduct or criminal episode, whether the
reckless endangerment verdicts merge turns on whether the
sentencing court permissibly determined that each count
involved a separate victim. ORS 161.067(2) provides that,
“[w]hen 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.”
         Our recent decision in Slagle controls the resolution
here. In Slagle, the defendant pleaded guilty—without any
limitation or qualification (contained in a plea bargain or
elsewhere)—to 10 counts of first-degree encouraging child
sexual abuse, ORS 163.684. Slagle, 

.
Counts 2 through 10 alleged:
       “ ‘The defendant … did unlawfully and knowingly
    possess a record in visual recording of sexually explicit
    conduct involving a child, separate and distinct from all
    others alleged in this Information, with the intent to disseminate the record in visual recording while knowing or
    being aware of and consciously disregarding the fact that
    creation of the visual recording of sexually explicitly conduct involved child abuse[.]’ ”1

    1
      “Count one differed only in that it did not include the phrase ‘separate and
distinct from all others alleged in this Information.’ ” Slagle, 

.
Cite as 

 (2019)                                                 307

Id. at 393. The defendant argued that all 10 guilty verdicts should have merged into a single verdict because the
charging instrument did not identify or otherwise specify
that each count involved a separate victim. Id. at 395. He
maintained that that omission meant that he had pleaded
guilty to committing crimes against one “generic victim”
only. Id.
          We rejected that theory. We first observed that the
indictment broadly alleged that each count of first-degree
encouraging child sexual abuse entailed “conduct involving
a child.” Id. (emphasis in original). We noted that an indefinite article such as the one in “a child” can be used specifically and nonspecifically, and therefore could be read to
refer to a different child in each count. Id. We also reasoned
that “the defendant, by failing to limit or qualify his pleas,
assent[ed] to the broadest construction of his pleas.” Id. (citing Hibbard v. Board of Parole, 

, 

 (1996), vac’d on other grounds, 

, 

 (1998) (omission and internal quotation marks omitted)).2 We therefore concluded that, “[b]ecause defendant
pleaded guilty without qualifying his pleas, he assented to
the broader construction that he possessed 10 visual recordings of different children.” Id. at 396.
         The same reasoning disposes of defendant’s contention in this case that the verdicts must merge because the
indictment does not specifically allege that all five counts
involved separate victims. Here, like in Slagle, defendant’s
plea was not conditional, limited, or otherwise subject to the
terms of a plea agreement. Similar to each count in Slagle
that broadly alleged harm to “a child,” each reckless endangerment count here broadly alleges harm to “another person.” Just as each reference to “a child” in Slagle could be
properly construed to refer to a separate child, each reference to “another person” can be construed to pertain to a
separate victim. See Webster’s Third New Int’l Dictionary

    2
      We note that, in Hibbard, Slagle, and this case, there was no dispute that
the charging instrument alleged all material elements of the pertinent crimes.
We also observe that, in this case, the factual basis offered to support the plea is
consistent with the broad construction of the indictment. We are not called upon
to address how the “broad construction” principle would apply if that construction conflicted with the state’s proffered factual basis for a plea.
308                                                           State v. Ham

89 (unabridged ed 2002) (defining “another” as “different or
distinct from the one first named or considered”). And, as in
Slagle, defendant assented to the broadest construction of
his pleas when he did not limit them. 

.
For those reasons, under Slagle, the sentencing court permissibly construed the five reckless endangerment counts to
pertain to separate victims. Consequently, ORS 161.067(2)
precluded merger.
         Defendant also argues that, because each victim
was not identified, there is “no way to guarantee that the
[reckless endangerment] charges in the indictment were the
same as those to which defendant pleaded no contest and
for which defendant was ultimately sentenced.” Defendant’s
improper factual basis theory is not entirely clear and he
cites no authority to support it.3 We reject it. Because each
count may properly be construed to correspond to a separate victim in this case, and because defendant stipulated
to the facts necessary to convict him of five separate counts
of reckless endangerment, the court did not sentence defendant on an improper factual basis.
           Affirmed.




    3
      We understand defendant to be attacking the validity of the trial court’s
factual basis inquiry under ORS 135.395. We have held that “[a] guilty plea obviates the need for the state to present any evidence, so long as the judge has a
basis for determining that the plea is voluntary and has a factual basis.” Barnes
v. Cupp, 

, 

, rev den, 

 (1980), cert den,

 (1981) (citing ORS 135.395).