State v. Lister

                                   518

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).
    Submitted June 24; remanded for resentencing, otherwise affirmed
    August 31; petition for review denied November 3, 2022 (

)


                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
               STEPHEN MATHEW LISTER,
                   Defendant-Appellant.
              Washington County Circuit Court
                   19CR55841; A174679

   Theodore E. Sims, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sara F. Werboff, Deputy Public Defender, Office
of Public Defense Services, filed the opening brief for appellant. Stephen Lister filed a supplemental brief pro se.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jennifer S. Lloyd, Assistant Attorney
General, filed the brief for respondent.
   Before James, Presiding Judge, and Aoyagi, Judge, and
Joyce, Judge.
   AOYAGI, J.
   Remanded for resentencing; otherwise affirmed.
Nonprecedential Memo Op: 

 (2022)             519

        AOYAGI, J.

          For intentionally running his car into two people
on a motorcycle and then leaving the scene, defendant was
convicted of two counts of first-degree assault, ORS 163.185
(Counts 3 and 4); two counts of unlawful use of a weapon,
ORS 166.220(1)(a) (Counts 5 and 6); and two counts of failure to perform the duties of a driver to injured persons
(FPDD), ORS 811.705 (Counts 7 and 8). On appeal, he raises
four assignments of error regarding his sentencing. He also
raises two pro se supplemental assignments of error. As
explained below, we agree with the parties that the trial
court plainly erred by imposing separate punitive and
compensatory fines, and therefore reverse and remand for
resentencing, but we reject defendant’s other assignments
of error.

                            FACTS

          In August 2019, defendant and C had a physical
and verbal altercation in a parking lot. A short time later,
C was riding his motorcycle with his wife, J, when they
passed defendant getting into his car. J threw a metal rod at
defendant’s car. Enraged, defendant pursued the motorcycle,
fishtailing as he made a turn and driving twice the posted
limit of 25 miles per hour. As the motorcycle approached a
stop sign, defendant accelerated, increasing his speed from
52 miles per hour to 66 miles per hour in the five seconds
before impact, and struck the motorcycle at a speed of 66
miles per hour. Upon impact, one victim skidded across the
asphalt, while the other flew 200 to 300 feet and landed in
a field. Defendant never braked, before or after the collision,
and left the scene without stopping. Bystanders saw a car
with front-end damage speeding away.

         C and J were seriously injured in the collision. J suffered a severe spinal injury, is paralyzed from the waist
down, and can use her arms and wrists but not her fingers.
C suffered a broken pelvis, a broken toe, a dislocated shoulder, dislocated fingers, lacerations, and a head injury. C also
lost three inches of height due to four exploded vertebrae in
his spine.
520                                               State v. Lister

        Defendant was criminally charged as a result of the
foregoing incident and ultimately convicted on the six counts
previously described. Two attempted-murder charges were
dismissed, on the state’s motion, after the jury deadlocked
on those charges.
 CONSECUTIVE SENTENCING ON COUNTS 7 AND 8
        In his first and second assignments of error, defendant contends that the trial court erred by ordering his sentences on Counts 7 and 8 to run consecutively to his sentences on Counts 3 and 4. “We review a trial court’s decision
to impose consecutive sentences for errors of law and to
determine whether the trial court’s predicate factual findings are supported by any evidence in the record.” State v.
Provancha, 

, 

 (2018), rev den,

 (2019) (internal quotation marks omitted).
          The trial court sentenced defendant to 90 months
on Count 3 (assault of J) and 90 months on Count 4 (assault
of C), to be served consecutively to each other because they
involved different victims. Defendant does not challenge
those sentences, nor does he challenge his sentences on
Counts 5 and 6. The court sentenced defendant to 24 months
on Count 7 (FPDD as to J) and 24 months on Count 8 (FPDD
as to C), to be served consecutively to each other because
they involved different victims, and to be served consecutively to his sentences on Counts 3 and 4 for reasons to be
discussed. Defendant challenges the latter aspect of his sentencing on Counts 7 and 8.
         ORS 137.123(5) allows a trial court to impose consecutive sentences “for separate convictions arising out of
a continuous and uninterrupted course of conduct” if the
court finds either of two circumstances:
       “(a) That the criminal offense for which a consecutive
   sentence is contemplated was not merely an incidental violation of a separate statutory provision in the course of the
   commission of a more serious crime but rather was an indication of defendant’s willingness to commit more than one
   criminal offense; or
      “(b) The criminal offense for which a consecutive sentence is contemplated caused or created a risk of causing
Nonprecedential Memo Op: 

 (2022)                  521

   greater or qualitatively different loss, injury or harm to the
   victim or caused or created a risk of causing loss, injury or
   harm to a different victim than was caused or threatened
   by the other offense or offenses committed during a continuous and uninterrupted course of conduct.”
It is undisputed that defendant’s convictions arose from a
continuous and uninterrupted course of conduct.
         We begin with ORS 137.123(5)(a). The trial court
expressly found that defendant’s conduct evinced his willingness to commit more than one offense—and thereby necessarily rejected defendant’s argument that he had a singular intention (to injure the victims) and committed FPDD
merely incidentally to the assaults. “[A] trial court’s determination under ORS 137.123(5)(a) that, in committing a particular offense, a defendant showed ‘a willingness to commit
more than one criminal offense’ is a factual determination
that we review under the ‘deferential standard of review’ of
whether there is any evidence in the record to support that
finding.” State v. Traylor, 

, 

(2014) (quoting State v. Anderson, 

,

 (2006), rev den, 

 (2007)). We must
consider “the relationship between the uncontroverted facts,
with reasonable inferences necessarily viewed in the light
most favorable to the trial court’s findings and the predicate
criminal statutes.” State v. Byam, 

, 

 (2017).
         A person commits first-degree assault (a Class A
felony) when the person “[i]ntentionally causes serious physical injury to another person by means of a deadly or dangerous weapon.” ORS 163.185(1)(a). A person commits FPDD
(a Class B felony in these circumstances) when the driver of
a vehicle “knows or has reason to believe that the driver’s
vehicle was involved in a collision,” the collision results in
injury or death to a person, and the driver does not perform
all of several duties, including (with certain limitations)
stopping immediately, rendering aid to injured persons, and
remaining at the scene to talk to police. ORS 811.705(1).
        We agree with the state that this case involves a
defendant committing two acts during a continuous and
uninterrupted course of conduct, rather than a “single act”
522                                           State v. Lister

as defendant portrays it. See Provancha, 

-
75 (describing our somewhat different analytical approaches
depending on whether the defendant committed a single act
that constituted multiple offenses or committed multiple
criminal acts). Defendant committed first-degree assault
when he purposely ran into the victims with his car at a
high rate of speed. Defendant then left the scene without
stopping to render aid to the victims or otherwise fulfill the
duties of a driver. Those two acts were part of a continuous
and uninterrupted course of conduct, and both involved the
use of a vehicle, but they were nonetheless qualitatively and
temporally distinct.
         Assault and FPDD do not naturally go hand in
hand. FPDD is not “necessary,” Traylor, 

,
or “coincidental,” Anderson, 

, to assault.
One can easily commit either offense without the other, and
the offenses are quite different in nature. See Anderson, 

 (pointing to the “substantially different”
nature of two offenses, and to the lack of need to commit one
to commit the other, as supporting the trial court’s finding
that the defendant was willing to commit more than one
offense). Moreover, the offenses here were temporally distinct, albeit occurring in immediate succession—defendant
completed his assault of the victims when he struck them,
and then he began committing FPDD as he drove away from
the scene. See State v. Martinez, 

, 

, rev den, 

 (2015) (affirming consecutive
sentences under ORS 137.123(5)(a), where a robbery and
an attempted murder that occurred during a continuous
and uninterrupted course of conduct “began at two distinct
moments in time and involved distinct acts”).
         When “a defendant commits the consecutively sentenced offense through conduct that is temporally or qualitatively distinct from the act constituting the more serious
offense, such evidence may support an inference that the
commission of one offense was not merely incidental to the
other.” State v. Edwards, 

, 

,
rev den, 

 (2017). Whether such an inference is
permissible depends “on whether something in the record
supports a finding that the defendant had a different intention in committing each of the multiple acts.” Provancha,
Nonprecedential Memo Op: 

 (2022)            523

. For example, in Traylor, 

, “[t]he fact that defendant was more destructive of
property than he needed to be in the manner in which he
conducted [a] burglary … permit[ted] the inference that
defendant was willing to commit the separate offense of
criminal mischief in addition to the offense of burglary.” In
State v. Sumerlin, 

, 

 (1996),
“[b]y speeding while driving drunk, defendant showed a
willingness to commit both reckless driving and DUII,”
because he could have committed either offense without the
other. And, in State v. Hendershott, 

, 

 (1994), rev den, 

 (1995), the defendant
ran several stop signs in a residential area while trying to
elude police, and we affirmed the imposition of consecutive
sentences for reckless driving and eluding, rejecting defendant’s argument that he had a single intention of “trying
to avoid arrest,” and concluding that the record allowed the
finding that he had evinced a willingness to commit more
than one offense.
         On this record, it is reasonable to infer that defendant assaulted the victims in a fit of rage, and then left
the scene of the collision to try to avoid legal and financial
responsibility for his actions. We disagree with defendant
that, as long as he remained enraged, any crimes that he
committed after the assaults were merely incidental to the
assaults. The FPDD offenses may have been motivated in
part by the same emotion that motivated the assaults, but
“the fact that two crimes share a common motivation …
is not dispositive of whether one is ‘merely incidental’ to the
other.” Anderson, 

. This record contains
adequate “discrete facts,” 

 to support the trial court’s
finding that defendant demonstrated a willingness to commit more than one offense.
        It follows that the trial court had authority under
ORS 137.123(5)(a) to impose defendant’s sentences on Counts
7 and 8 consecutively to his sentences on Counts 3 and 4.
Given that conclusion, we need not address whether the
court also had authority to do so under ORS 137.123(5)(b).
Subsections (a) and (b) provide alternative bases to impose
consecutive sentences. Moreover, whereas it is clear that
the court relied on subsection (a) to impose the challenged
524                                                             State v. Lister

consecutive sentences, it is less clear to us that the court
also relied on subsection (b) for that purpose.1 We therefore decline to address whether the court had authority to
impose the sentences on Counts 7 and 8 consecutively to
the sentences on Counts 3 and 4 under ORS 137.123(5)(b),
because, in any event, the court had such authority under
ORS 137.123(5)(a).
                       COMPENSATORY FINES
         In his third and fourth assignments of error, defendant contends that the trial court plainly erred by imposing separate punitive and compensatory fines. The court
imposed a $200 punitive fine as to each count, and it separately imposed a $200,000 compensatory fine to be paid to
J and a $3,490 compensatory fine to be paid to C.
         “We review a trial court’s imposition of a compensatory fine for legal error.” State v. Grismore, 

, 

 (2016). Because defendant did not preserve
this issue below, our review is discretionary and limited
to “plain error.”2 The state concedes that the court plainly
erred by imposing the fines in the manner it did.

     1
       When sentencing defendant on Counts 7 and 8, the trial court explained
that “these crimes indicate a willingness to commit more than just one
offense”—a clear reference to ORS 137.123(5)(a) as authority to impose the sentences on Counts 7 and 8 consecutively to the sentences on Counts 3 and 4—and
that there were “separate victims”—a clear reference to ORS 137.123(5)(b) as
authority to impose the sentences on Counts 7 and 8 consecutively to each other.
The court then stated, “And, certainly, what you did had the potential of creating
even greater harm than it actually did. Neither victim was killed, but both could
have been.” It is unclear to us whether the court meant that statement as an
observation regarding the assaults—that defendant could have killed C and J by
assaulting them in the manner that he did—or as a finding under ORS 137.123
(5)(b) to the effect that the FPDD offenses risked causing “greater or qualitatively
different loss, injury or harm” to C and J than the assaults. On appeal, both
parties assume the latter, but, in our view, the court’s statement is ambiguous,
particularly given that it does not obviously track the language or substance of
subsection (b).
     2
       “Generally, an issue not preserved in the trial court will not be considered
on appeal.” State v. Wyatt, 

, 

 (2000). However, we have
discretion to consider a “plain error.” ORAP 5.45(1). An error is “plain” when it is
an error of law, the legal point is obvious and not reasonably in dispute, and the
error is apparent on the record without our having to choose among competing
inferences. State v. Vanornum, 

, 

 (2013). Whether an
error is “plain” is an issue of law. State v. Gornick, 

, 

(2006). If the trial court made a “plain error,” it is a matter of discretion whether
we will correct it. 

Nonprecedential Memo Op: 

 (2022)             525

         ORS 161.625(1) allows for the imposition of a punitive fine on a felony conviction. Meanwhile, ORS 137.101(1)
provides that, when “the court imposes a fine as a penalty
for the commission of a crime resulting in injury for which
the person injured by the act constituting the crime has a
remedy by civil action,” the court may “order that the defendant pay any portion of the fine separately to the clerk of the
court as compensatory fines in the case” and then order the
clerk of court to pay over that portion to the injured victim
or victims.
         Read together, those statutes allow a trial court to
impose a punitive fine under ORS 161.625(1) and then designate a portion to be paid in accordance with ORS 137.101(1).
But the court cannot impose a punitive fine and a separate
compensatory fine. We have long held that there is “no statutory authority for a court to award, in addition to a fine
imposed under ORS 161.625(1), a compensatory fine under
ORS 137.101(1).” State v. Moore, 

, 

 (2010) (emphasis added). It is “plain” error to do so, and
we have previously exercised our discretion to correct such
errors. See, e.g., State v. Kellison, 

, 57, 

 (2017), rev den, 

 (2018); State v. Nichols, 

, 

 (2016). We do the same here
and, because we agree with defendant that it is “not a foregone conclusion that the trial court will simply impose the
same sentence in the proper way,” remand for resentencing.
PRO SE SUPPLEMENTAL ASSIGNMENTS OF ERROR
         Defendant raises two pro se supplemental assignments of error. First, he contends that the court erred by
ordering his sentences on Counts 7 and 8 to run consecutively to his sentences on Counts 3 and 4. We reject that
argument for the same reasons that we rejected his counsel’s
arguments on the same issue. Second, defendant argues that
the trial court erroneously admitted unspecified “prior acts”
evidence. For the reasons argued in the state’s answering
brief, that assignment fails. Finally, to the extent defendant
summarily invokes due process and other legal concepts, we
reject those arguments without written discussion.
        Remanded for resentencing; otherwise affirmed.