State v. Thornsberry

                                       287

Argued and submitted January 30, 2020; remanded for resentencing, otherwise
                        affirmed October 27, 2021


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
             JACOBI BROSHAWN THORNSBERRY,
                     Defendant-Appellant.
                  Lane County Circuit Court
                     17CR75871; A167617
                                     

    For one of defendant’s two first-degree rape convictions, the trial court
imposed a 300-month prison term under ORS 137.690, which provides for that
imprisonment term if a defendant has a prior conviction, which includes a conviction in the same sentencing proceeding if the conviction is for a separate criminal
episode. The trial court made the finding that the criminal episodes were separate and imposed the 300-month prison sentence. On appeal, defendant argues
that the jury, rather than the trial court, was required to make the finding that
the two rape convictions arose out of separate criminal episodes before the trial
court could impose the 300-month prison sentence. Held: Under Apprendi v. New
Jersey, 

, 

, 

 (2000), defendant had the
constitutional right to have a jury make the finding that the second rape conviction arose from a criminal episode that was separate from the criminal episode
that gave rise to the first rape conviction. Further, the trial court’s error was not
harmless.
    Remanded for resentencing; otherwise affirmed.



   Clara L. Rigmaiden, Judge.
   Kali Montague, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Timothy A. Sylwester, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
   Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
   ARMSTRONG, P. J.
   Remanded for resentencing; otherwise affirmed.
288                                                   State v. Thornsberry

           ARMSTRONG, P. J.
         For one of defendant’s two first-degree rape convictions, the trial court imposed a 300-month prison term
under ORS 137.690, which provides for that imprisonment
term if a defendant has a prior conviction, which includes
a conviction in the same sentencing proceeding if the conviction is for a separate criminal episode. Over defendant’s
objection, in which he argued that the jury had to make a
finding that the criminal episodes were separate, the trial
court made the finding that they were and imposed the
300-month prison sentence. On appeal, defendant renews
his challenge that the jury, rather than the trial court, was
required to make the finding that the two rape convictions
arose out of separate criminal episodes before the trial court
could impose the 300-month prison sentence. As we explain,
under Apprendi v. New Jersey, 

, 

,

 (2000), defendant had the constitutional
right to have a jury make the finding that the second rape
conviction arose from a criminal episode that was separate
from the criminal episode that gave rise to the first rape
conviction. The trial court therefore erred in making that
finding. Further, we conclude that the error was not harmless.1 We remand for resentencing.2
         Our discussion of the Apprendi challenge has two
parts. First, we discuss whether the Apprendi rule applies
to defendant’s circumstances and, second, after concluding
that it does, we turn to whether the trial court’s error was
harmless.
        We turn to defendant’s argument that, under the
rule announced in Apprendi, a jury, not the trial court, was
    1
       Our conclusion that Apprendi applies and that the trial court’s error is not
harmless obviates the need to address defendant’s assignment of error in which
he argues that the trial court plainly erred in finding that the rape convictions
arose out of separate criminal episodes.
    2
       Defendant, who did not object to the trial court’s nonunanimous jury
instruction, raises a plain-error challenge to the jury’s guilty verdicts, for which
there was no poll. We reject that challenge for the reasons stated in State v.
Dilallo, 

, 

 (2020).
    Defendant also challenges the trial court’s imposition of a lifetime postprison supervision (PPS) term. The state concedes that it was plain error for the
trial court to impose lifetime PPS. Given that we are remanding for resentencing,
we need not resolve the asserted sentencing error.
Cite as 

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required to make the factual finding that the two rape convictions arose out of separate criminal episodes. As to the
facts, for this part of the discussion, it suffices to say that
the state charged defendant with raping two women, J and
A, alleging that defendant raped A by forcible compulsion
and that defendant raped J while she was incapacitated.
The rapes occurred during one night in a single apartment,
the charges were tried together, and defendant was convicted of those rape charges. For the Count 1 rape conviction, the court sentenced defendant to 100 months’ imprisonment under ORS 137.700(2)(a)(K) (a Measure 11 sentence)
and, for the Count 2 rape conviction, the court sentenced
defendant to 300 months’ imprisonment under ORS 137.690
(a Measure 73 sentence).
        ORS 137.690 provides:
       “a. Any person who is convicted of a major felony sex
   crime, who has one (or more) previous conviction of a major
   felony sex crime, shall be imprisoned for a mandatory minimum term of 25 years.
      “b. ‘Major felony sex crime’ means rape in the first
   degree (ORS 163.375), sodomy in the first degree (ORS
   163.405), unlawful sexual penetration in the first degree
   (ORS 163.411), or using a child in a display of sexually
   explicit conduct (ORS 163.670).
      “c. ‘Previous conviction’ includes a conviction for the
   statutory counterpart of a major felony sex crime in any
   jurisdiction, and includes a conviction in the same sentencing proceeding if the conviction is for a separate criminal
   episode as defined in ORS 131.505.”
ORS 131.505(4) provides:
       “ ‘Criminal episode’ means continuous and uninterrupted conduct that establishes at least one offense and is
   so joined in time, place and circumstances that such conduct is directed to the accomplishment of a single criminal
   objective.”
In this case, defendant’s first-degree rape convictions qualify
under ORS 137.690(b) as major felony sex crimes; the second
rape conviction occurred in the same sentencing proceeding
as the first, ORS 137.690(c); and the trial court found that
the second rape conviction was for a criminal episode that
290                                       State v. Thornsberry

was separate from the criminal episode that gave rise to the
first rape conviction.
         Relying on the rule announced by the United States
Supreme Court in Apprendi, defendant argues that the trial
court was not permitted under the Sixth Amendment to the
United States Constitution to make the finding that the
first-degree rapes occurred during separate criminal episodes. In Apprendi, the defendant was convicted of unlawful
possession of a weapon and sentenced under a hate-crime
statute that authorized a prison sentence longer than the
ordinary sentence for the weapon-possession crime. 

. The Court considered whether, under the Sixth
Amendment, the defendant was entitled to have a jury make
the finding that qualified him for the hate-crime sentence.

. The Court made clear that the jury right does
not apply to the longstanding discretion afforded to trial
courts when imposing a judgment within the sentencing
range that a statute sets out. Not longstanding, observed
the Court, were legislative schemes that remove from the
jury a fact determination that, if found, exposes a criminal
defendant to a penalty that goes beyond the maximum sentence the defendant “would receive if punished according to
the facts reflected in the jury verdict alone.” 

. In
that case, the Court held that, other than the fact of a prior
conviction, a jury must find—beyond a reasonable doubt—
any fact that increases a crime’s penalty beyond the prescribed statutory maximum. 

. Further, in Blakely
v. Washington, 

, 

, 

 (2004), the Court said that the “ ‘statutory maximum’ for
Apprendi purposes is the maximum sentence a judge may
impose solely on the basis of the facts reflected in the jury
verdict or admitted by the defendant.” (Emphasis omitted.)
         Here, defendant contends that the conviction on
Count 1 does not come within the prior-conviction exception
of the Apprendi rule. Defendant points out that the prior-conviction exception is limited to facts that “the judicial
record conclusively establishes.” State v. Bray, 

, 

 (2007). Defendant also points out that,
when the state relies on the prior-conviction exception for
a conviction that was established in the same jury trial as
the offense being sentenced, the prior-conviction exception
Cite as 

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must rely on facts that the jury has already found. State v.
Cuevas, 

, 

 (2015). Defendant contends that the trial court improperly relied on its own factfinding rather than any facts found by the jury to determine
that the convictions arose out of separate criminal episodes
before it imposed a 300-month sentence under ORS 137.690.
That factfinding by the trial court, defendant argues, ran
afoul of the Apprendi rule.
        Not so fast, responds the state. In the state’s view,
the Apprendi rule has been limited by decisions from the
United States Supreme Court and the Oregon Supreme
Court, namely, Oregon v. Ice, 

, 

, 

 (2009), and Cuevas, and the factfinding required
for a separate criminal episode falls outside the Apprendi
rule because the rule applies only to sentence-enhancement
provisions, i.e., those provisions that increase a crime’s penalty beyond the prescribed statutory minimum. The state
argues that this is a situation in which the default or presumptive sentence is the 300-month prison sentence imposed
under ORS 137.690 and that the factual finding concerning
whether there were separate criminal episodes is one that
“mitigates or limits the application of that sentence.”
         In Ice, the Court addressed, in light of Apprendi,
this state’s approach of having a trial court—and not a
jury—find the facts required to impose consecutive, rather
than concurrent, sentences for multiple convictions. See
ORS 137.123 (a trial court can only impose consecutive sentences for separate convictions arising out of continuous
and uninterrupted course of conduct upon certain findings
made by the court). The Court limited the reach of Apprendi,
holding that it would not extend its jury-requirement rule
beyond “the imposition of sentences for discrete crimes.” 

. That is, the Apprendi rule does not apply to factual findings necessary to impose sentences consecutively,
resulting in an increased aggregate sentence. 

        In Cuevas, the Oregon Supreme Court considered
whether Apprendi applied to two sentencing rules. The two
rules at issue there were (1) a rule limiting the length of
a consecutive sentence that a trial court can impose, OAR
213-012-0020(2), and (2) a rule directing trial courts to count
292                                      State v. Thornsberry

a defendant’s convictions at the time of sentencing when
calculating a defendant’s criminal history, OAR 213-004-
0006(2). Cuevas, 

. The court determined that
neither rule implicated the constitutional limits announced
in Apprendi.
         As for OAR 213-012-0020(2), the court concluded
that the factual finding on which the defendant’s argument
relied did not increase his sentence. That is, under OAR
213-012-0020(2), individual sentences, running consecutively, add up to an aggregate consecutive sentence, and the
only function that the rule serves is to limit the aggregatesentence length that the trial court would otherwise impose.
Cuevas, 

. Consequently, because Apprendi
applies only to factual findings that increase a defendant’s
sentence, the application of OAR 213-012-0020(2) to decrease
a sentence was not subject to Apprendi. 

 As for OAR 213-
004-0006(2), a single-criminal-episode finding decreases a
defendant’s criminal history score and the resulting sentence by not counting a conviction that otherwise would be
included in the defendant’s criminal history. 

. The
court concluded that Apprendi does not apply to the rule
because it reduces the criminal history score and therefore
decreases the defendant’s sentence. 

         In the state’s view, the structure of ORS 137.690(a)
and (c) is similar to the rules that were at issue in Cuevas
because a defendant is subject to 300 months’ imprisonment
on a second conviction in a single case unless the court finds
that the defendant committed that offense during the same
criminal episode as the first. That is, the presumptive sentence is the prescribed 300 months’ imprisonment, and the
factual finding at issue limits the application of that presumptive sentence. Defendant replies that ORS 137.690 does nothing of the sort; rather, it is a sentence-enhancement statute.
The presumptive sentences for the major felony sex crimes
that ORS 137.690 includes are Measure 11 sentences (ORS
137.700) that are imprisonment for either 100 months or 70
months. In this case, defendant points out that the Measure 11
sentence is 100 months and that the application of ORS
136.690 increased the sentence for the second of two first-degree rape convictions upon a factual finding that “the conviction is for a separate criminal episode.” ORS 137.690(c).
Cite as 

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         We agree with defendant. First, we have previously described ORS 137.690 as imposing “an enhanced
sentence” on persons who commit a second major felony sex
crime. State v. Carey-Martin, 

, 

 (2018) (emphasis added). The voters themselves saw
Measure 73 as something that increased minimum sentences for the worst sex crimes. 

 (James, J., concurring) (“The Oregon Voters’ Pamphlet listed the Measure 73
ballot title as ‘Requires increased minimum sentences for
certain repeated sex crimes, incarceration for repeated
driving under influence.’ ” (Quoting Official Oregon Voters’
Pamphlet, General Election, Nov 2, 2010, 54.)). Although, in
Carey-Martin, we were not considering the Apprendi rule, it
is notable that both we and the voters naturally viewed ORS
137.690 as a statute that increases the penalty when there
is more than one major felony sex crime conviction.
         Second, the “separate criminal episode” finding
under ORS 137.690 is different from the findings addressed
in Cuevas. In Cuevas, the court construed OAR 213-004-
0006(2) to mean that a finding by the trial court that there
was a single criminal episode reduced the defendant’s criminal history, resulting in reduced sentence. 

(construing OAR 213-004-0006(2) as a rule in which “each
prior conviction will be counted as part of a defendant’s
criminal history subject to an exception for convictions that
arose out of the same criminal episode” and that finding
the exception consequently results in a reduced criminal
history score and sentence). The opposite is true for ORS
137.690, which requires a finding of separate criminal episodes, resulting in an increased sentence. As for OAR 213-
012-0020(2), that rule applies only when a sentencing court
orders sentences to run consecutively, and the “only function” that the rule “serves is to limit the length of the aggregate sentence that the trial court otherwise would impose.”
Cuevas, 

. Here, a sentence imposed under
ORS 137.690 is an individual sentence, not an aggregate
sentence.
         Any resemblance that ORS 137.690 has to the rules
at issue in Cuevas is superficial. ORS 137.690 is a sentencing statute that increases the mandatory prison term for a
major felony sex crime of first-degree rape by 200 months. In
294                                       State v. Thornsberry

this case, the trial court made the finding that the two rape
convictions were for conduct that occurred during separate
criminal episodes, and that finding increased defendant’s
sentence. However, there are no facts in the jury verdicts
alone or any admission by defendant that supports a finding
that there were separate criminal episodes. Blakely, 

. Under Apprendi, which requires a jury finding for
facts that increase the prescribed statutory maximum, the
jury was required to make the finding that the rape convictions were for separate criminal episodes. The trial court
erred in concluding otherwise.
        The state next argues that, even if the trial court
erred by deciding whether the rapes occurred during separate criminal episodes, the error was harmless. See Bray,

 (the United States Supreme Court has held
that an Apprendi error is subject to harmless-error analysis,
and a violation of a defendant’s federal constitutional right
is harmless when it is harmless beyond a reasonable doubt).
          Reciting the facts in detail would be of no benefit
to the bar, the bench, or the public. It suffices to say that,
at trial, there was testimony that defendant met one of the
victims, J, at a bar in Eugene, went with J and her friend to
J’s friend’s apartment, and, during the course of the night
raped J and another woman, A, in the apartment. The state
also charged defendant with third-degree sexual abuse of
two other roommates in the apartment, W and M. During
the state’s closing arguments, the prosecutor argued that
defendant
   “took advantage of the situation, exploited that situation,
   and used it as an opportunity to systematically, carefully
   move his way through the girls’ apartment, all four rooms,
   touching their bodies, intimate parts of their bodies, and
   violating them in a manner you’ve heard them describe to
   you ….”
Later, the prosecutor asserted that defendant was gauging
accessibility of the victims and their vulnerability, “helping
himself, moving down the line.” The prosecutor added, “And
so what does he have to do? I’m going to hang out on the
couch. I’m going to hang out there for a little bit because we
don’t know what’s going on with these rooms.” The prosecutor
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further explained that defendant formulated his plan from
the time the bar closed:
   “[W] has no memory and walks right out of the place and
   leaves them—he has no idea where they live. He’s got one
   on the way, drunk on his back and he’s got to follow [W].
   She can walk. That’s how he follows her.
       “He doesn’t know how else to get to the apartment to get
   to the—where these girls lived, to get to a place of privacy,
   to get into their bedroom, to get on the bed and to forcibly rape [J] and [A] and go into the other two rooms and
   touch those women and violate their bodies. It’s because
   [W] could walk. She had to, right? He’s got to follow her to
   that place to gain accessibility.”
        The jury found defendant guilty for raping A and J
but acquitted defendant of sexual abuse of W and M.
         Turning to the state’s harmlessness argument,
the state argues that the trial court’s error was harmless
because no reasonable juror could find that the rapes took
place during a single criminal episode. The state argues that
the two rape convictions did not have a “single overarching,
long-term objective” because the rapes were the result of separate objectives and that defendant’s conduct was not “continuous and uninterrupted” because each rape was a discrete
crime. Defendant responds by pointing to the state’s theory
of the case at trial—that defendant used his presence in the
apartment to exploit the victims’ vulnerabilities and systematically move his way through the apartment—and argues
that he had the criminal objective to commit opportunistic
sexual assaults of the women in the apartment. Given that,
in defendant’s view, the trial court’s error is not harmless
because the state has not established beyond a reasonable
doubt that “no reasonable juror could draw any conclusions
other than” that the rape convictions were part of separate
criminal episodes. Bray, 

.
         As for assessing whether a reasonable juror could
find beyond a reasonable doubt that the rapes were not part of
separate criminal episodes, ORS 131.505(4) requires that the
conduct be (1) “continuous and interrupted” and (2) “directed
to the accomplishment of a single criminal objective.” State v.
Taylor, 

, 

 (2018).
296                                     State v. Thornsberry

         To begin with, we reject the state’s contention that
no juror could find that defendant’s conduct was not “continuous and uninterrupted.” In particular, the state’s argument that “one crime being committed and ending before he
chooses to commit the same crime again” means that the
events of that night were not continuous and uninterrupted
is not supported by the case law. A “mere gap in time” is not
sufficient to establish noncontinuous or interrupted conduct.
State v. Tooley, 

, 

, rev den, 

 (2014) (that there was a 12-hour gap between two
killings committed as a way to take over drug business did
not mean that the conduct was not continuous and interrupted). Nor are separate victims or acts sufficient. See id.;
State v. Witherspoon, 

, 

 (2012)
(concluding that defendant’s physical and emotional abuse
throughout the course of the night was “continuous and
uninterrupted”). In this case, the record supports, and the
state argued, that defendant had a plan to systematically
exploit the vulnerabilities of the apartment’s occupants. A
reasonable juror could find that the defendant’s conduct was
in furtherance of that plan, and that nothing interrupted it.
         Second, we also are not persuaded that no reasonable juror could find that defendant had a single, overarching
criminal objective. The case law instructs that a criminal
objective “refers to the pursuit of some object or attainment
of some goal beyond the successful commission of the acts
at issue.” State v. Burns, 

, 

(2013) (internal quotation marks omitted); see, e.g., State v.
Kautz, 

, 

, rev den, 

(2002) (rejecting the state’s assertion that a burglary and
a robbery were not directed at the same criminal objective
because earlier objective to steal victim’s property continued during the course of events); Taylor, 

(concluding that counts of coercion and felony assault had
the common objective of harassing and injuring the victim).
It is also important to keep in mind that the state cannot
“parse criminal objectives too finely, such as by distinguishing between various motivations behind a particular course
of conduct.” State v. Wilder, 

, 

 (2020), rev den, 

 (2021). Also, consideration
of the “time, place, and circumstance” bears on a finding
Cite as 

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of single, overarching objective. Taylor, 

(that crimes occurred over the course of a single night in or
near a single apartment were part of ongoing domestic violence supported a single criminal objective); Burns, 

 (“[T]he standard is not whether there is any difference in time and space at all, but whether there is enough
of a difference in time, place, and circumstances surrounding the different acts to show that defendant’s conduct was
directed toward separate criminal objectives.”).
         In this case, we cannot say that no reasonable juror
could find that defendant had a single criminal objective
during the night that he committed the rapes. A juror could
have been swayed by the state’s theory of the case and, for
example, found that defendant had, when leaving the bar
or at the beginning of his presence in the apartment, an
objective to exploit the situation to commit sexual assaults
against multiple women, or could have found that the systematic plan was for the purpose of achieving nonconsensual sexual gratification. Further, the time, place, and circumstances could permit a reasonable juror to find that the
two rape convictions were in furtherance of a single criminal objective. That is, the crimes occurred in a single apartment over the course of a few hours, under circumstances
that a juror could find to reflect a systematic plan. Although
the jury could have found otherwise, we cannot say that it
would have had to do so as a matter of law. Because we conclude that a reasonable juror could find that the rapes were
not part of separate criminal episodes, the trial court’s error
was not harmless.
        Remanded for resentencing; otherwise affirmed.