State v. Kizer

¶1dissenting.

¶2Defendant acknowledges that the issue of incorporation was not raised before the trial court. Although an appellant generally may not raise issues on appeal that were not litigated before the trial court, appellate courts have the power to take notice of unpreserved errors of law “apparent on the face of the record.” ORAP 7.19.

¶3In support of its decision to review the claim of error, the majority suggests that the absence of an objection by defense counsel did not mislead the court. To the contrary, defense counsel may have had sound tactical reasons for not objecting to the concurrent sentences and, if he had made a timely objection, the trial court could well have changed the sentences. Usually a concurrent sentence is a boon to a defendant, and may have been to the defendant in this case. An objection by defense counsel could have caused the court to incorporate the “making” and “uttering” charges and to impose consecutive sentences on the other charges. Even though alleged in the indictment “as part of the same transaction,” the theft of the purse was clearly a separate criminal act, not incorporated in the subsequent acts of forging and uttering of the stolen check. If so, the objection could have hurt defendant substantially.

¶4We need not speculate on counsel’s reasons for not preserving a claim of error. We simply should not entertain a claim of error “apparent on the face of the record” in a case where tactical judgment at trial could have dictated the choice and, as I shall demonstrate, there may have been no “error” at all, much less an “apparent” one.

¶5*245In this case, the determination on incorporation under ORS 161.062(1) (1985) and ORS 161.067(1) (1986) depends, in part, on factual issues not resolved by the trial court, i.e., whether the acts were part of the same “criminal episode.” Error, if any there were, could not, therefore, be apparent on the face of the record.

¶6The forgeries that are the subject of defendant’s petition were committed by making and by uttering the same check. The record does not establish that the making and uttering were contemporaneous, but the likelihood is that they were not. The evidence is that defendant stole the victim’s checks hours before she attempted to cash one of them, and that she forged the check at some time before she presented it to the bank teller for cashing. The evidence demonstrates that the victim last saw her stolen wallet at approximately 12 p.m. on March 2,1987, in her office at Lewis & Clark Law Library. She discovered it missing after 5 p.m. that same date. The stolen wallet contained $10, a checkbook, an address book, miscellaneous identification, and personal papers.

¶7At 4:10 p.m. the same day, defendant, accompanied by two other persons, presented the victim’s stolen identification and a completed forged $210 check at a drive-through window of the Tigard branch of U.S. National Bank in an attempt to cash the check. The teller became suspicious and questioned defendant about the account; defendant demanded the identification back, then left with her two companions, abandoning the check and identification. The teller did not see defendant forge the check. Presumably it was forged earlier because the signature closely matched that of the victim’s, an act that can scarcely be accomplished at a drive-through bank window. The teller provided police with the license number and description of defendant’s car. Another officer had towed that car one week earlier, after defendant had been arrested on an unrelated forgery charge. When the car was towed, it contained a map that had several Portland area schools marked on it. Some of the credit cards that defendant allegedly used in the earlier forgery had come from one of the marked schools. Defendant testified that she was not present at the bank and never handled the check or otherwise participated in the crime.

¶8The majority appears to accept carte blanche the allegation in the indictment that the making and uttering of the *246check were done “as part of the same act and transaction.” That allegation, however, does not control whether the acts were done at separate times. A separation in time can be a factor sufficient to support a conclusion that there was more than one “criminal episode,” which then would be outside the scope of ORS 161.062(1) and 161.067(1) and, presumably, subject to multiple convictions and sentences. The majority’s conclusion seems to be based on references to a “single crime” in legislative history from a 1971 law to interpret the term “same … criminal episode” in these 1985 and 1986 statutes. Those statutes were passed to clarify the 1971 criminal laws. That legislative history is not applicable to the 1985 and 1986 statutes.

¶9The 1985 legislature, in a companion provision of the same bill enacting ORS 161.062(1), also dealt with the issue of consecutive or concurrent sentences for multiple convictions. In that context the legislature used the term “continuous and uninterrupted course of conduct” as an apparent synonym for “same … criminal episode.” The answer as to which history is more relevant is clear, and the only conclusion I can reach is that there are material unresolved questions of fact pertinent to a determination of “same … criminal episode.” These unresolved questions not only mean that error is not apparent on the face of the record, but also that the question of error is, at the very least, an open one.

¶10Moreover, the majority opinion miscasts the state’s position on legislative intent. The state does not concede that the 1971 commentary to the Oregon Criminal Code is applicable. In fact, the state specifically points out in its response to the petition for review that both the Oregon legislature and the people of the State of Oregon recently enacted laws disfavoring incorporation. See ORS 161.062, enacted by the legislature in 1985, and ORS 161.067, enacted in 1986 by initiative.

¶11The 1971 legislative commentary simply is not relevant to current incorporation issues in forgery cases. It tells us little relevant here on what acts constitute the same “criminal episode” under the terms of the 1985 and 1986 statutes; nor does it assist in interpreting or applying the term “two or more statutory provisions” in those statutes.

¶12Although the legislative history of ORS 161.062 does not directly address the problem presented in forgery cases, *247the statute itself, clear on its face, and the discussions leading to its enactment reflect that the legislature intended, quite simply, that where a crime is defined by distinct statutory elements contained within separate statutory provisions and those elements do not overlap, a person who violates those separate provisions in the course of the same criminal episode may properly be convicted on each. The intent was to have multiple convictions and sentences on the record and express exceptions (e.gfor burglary and theft) were noted in the statute.

¶13ORS 165.007(1) provides:

“(1) A person commits the crime of forgery … if, with intent to injure or defraud, the person:

“(a) Falsely makes, completes or alters a written instrument; or

“(b) Utters a written instrument which the person knows to be forged.”

¶14The acts of making or completing the instrument forged are contained in paragraph (a), a separate statutory provision from that in which the act of uttering is contained — paragraph (b). A person may commit forgery by making a check without uttering it, and vice versa. Each of the paragraphs in ORS 165.007 contains an element that the other does not. Accordingly, under ORS 161.062(1) and 161.067(1) the separate statutory violations constitute separately punishable offenses if the acts are part of the same criminal episode. This is not materially different from holding a defendant separately accountable for theft and sale of the stolen merchandise.

¶15The majority equates paragraphs (a) and (b) of the driving under the influence of intoxicants statute, ORS 183.010(1), as analogous to the making and uttering crimes. DUII can be proven by one of two methods: (a) the driver has a .08 percent or more weight of alcohol in the blood, or (b) the driver is under the influence of intoxicating liquor. This separation merely provides alternative methods of proving the same offense, whereas making and uttering require different conduct, that is, separate acts, and are designated as separate crimes by the (a) and (b) designations.

¶16To summarize: There is an unresolved question of *248fact that I believe is material to determining whether defendant was engaged in the same criminal episode. If defendant was not so engaged, then the state plainly is entitled to separate convictions and sentences for making and for uttering the forged check. We cannot tell from the record whether the trial court concluded that multiple convictions and sentences were permitted because defendant’s acts were not part of the same criminal episode or whether the trial court felt compelled by (or thought it had discretion under) ORS 161.062(1) or 161.067(1) to enter separate convictions and sentences. I cannot conclude, as the majority has, that the facts of this case, as a matter of law, amount to the same criminal episode, or that ORS 165.007(l)(a) and (b) are not separate “provisions” within the meaning of that term in ORS 161.062(1) and 161.067(1). Paragraphs (a) and (b) of ORS 165.007(1) clearly define separate crimes and, consistent with the 1985 legislative intent, should be separately punishable. See State v. Crotsley, 308 Or 272, 779 P2d 600 (1989). The prosecution’s allegation that the acts arose out of the same act and transaction does not resolve this issue. That allegation merely allowed the prosecution to try these charges in one trial rather than separately.

¶17Finally, if there was error, it was harmless error. Defendant testified on direct examination that she previously had been convicted of the following nine felonies: Robbery II (1973), Forgery I (1975 and 1987), conspiracy to commit bank robbery (1977), Theft I (1980, 1982 and 1987), and failure to appear (1982 and 1987). Within the corrections context, an additional conviction and sentence here will not result in any change to defendant’s history risk score that might lead to a later parole release date under OAR chapter 255.1 Defendant’s *249record of 10 or 11 felonies will put her far past the level at which her prior record (or lack thereof) would contribute any points toward reduction of her matrix computation.

¶18In fact, convictions which are “merged” (the term used in the rules), may be considered aggravating factors in the matrix computation. Under Corrections Department rules, the trial court’s failure to incorporate the two forgery offenses actually may have inured to defendant’s benefit. Error, if any, in the trial court’s failure to incorporate defendant’s forgery convictions and sentences was, in defendant’s case, harmless.

¶19I dissent because:

¶20(1) There was no error;

¶21(2) If there was error, the claim of error was not preserved;

¶22(3) If there was error, it is not apparent on the face of the record; and

¶23(4) If there was error, it was harmless.