State v. Thomas (A175763)

                                      159

      Argued and submitted September 27, 2022, vacated and remanded
                            February 8, 2023


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                   NICO ARMONN THOMAS,
                      Defendant-Appellant.
                 Multnomah County Circuit Court
                      19CR63675; A175763
                                   

     Defendant appeals from a judgment of conviction for unlawful use of a
weapon (UUW), ORS 166.220, which followed an earlier prosecution for felon
in possession of a firearm (FIP), ORS 166.270. Among other things, defendant
assigns error to the trial court’s denial of his motion to dismiss the UUW charge
on former jeopardy grounds. Held: The Court of Appeals concluded that the trial
court erred in concluding that defendant’s two offenses were separate criminal
episodes because defendant’s conduct underlying the UUW offense and the FIP
offense was continuous and uninterrupted and directed at a single criminal
objective of threatening or harming the victim. Because the trial court did not
reach the question whether the prosecutor possessed the requisite knowledge
of the UUW offense at the time of commencement of the first prosecution of the
FIP offense—an element that defendant must prove to succeed on his motion to
dismiss—the court vacated the UUW conviction and remanded to the trial court
for an evidentiary hearing on that question.
    Vacated and remanded.



    Andrew M. Lavin, Judge.
   Neil F. Byl, Deputy Public Defender, argued the cause
for appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Peenesh Shah, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
   Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Jacquot, Judge.*
______________
    * Jacquot, J., vice James, J. pro tempore.
160                       State v. Thomas (A175763)

  JOYCE, J.
  Vacated and remanded.
Cite as 

 (2023)                                                 161

           JOYCE, J.
         Defendant appeals from a judgment of conviction
for unlawful use of a weapon (UUW), ORS 166.220, which
followed an earlier prosecution for felon in possession of a
firearm (FIP), ORS 166.270. He raises four assignments of
error. For the reasons that follow, we agree with defendant
in his first assignment that the trial court erred in denying his motion to dismiss on former jeopardy grounds. But
because the trial court did not reach the question whether
the prosecutor possessed the requisite knowledge of the
UUW offense at the time of commencement of the first prosecution of the FIP offense—an element that defendant must
prove to succeed on his motion to dismiss—we vacate the
UUW conviction and remand to the trial court for an evidentiary hearing on that question.1
        Defendant assigns error to the trial court’s denial
of his motion to dismiss the UUW charge on the basis
that the former jeopardy statute, ORS 131.515(2), required
the state to bring the UUW charge together with the FIP
charge. ORS 131.515(2) provides that “[n]o person shall be
separately prosecuted for two or more offenses based upon
the same criminal episode, if the several offenses are reasonably known to the appropriate prosecutor at the time of
commencement of the first prosecution and establish proper
venue in a single court.”2
        As particularly relevant to the question on appeal,
a defendant seeking dismissal on former jeopardy grounds
bears the burden of proving that each offense was part of
the same criminal episode. State v. Fore, 

,

    1
      Defendant’s remaining assignments of error assert challenges to the
court’s denial of his motions to exclude scientific fingerprint evidence and certain
gang evidence, as well as a challenge to his sentence as unconstitutional. We
decline to address those assignments of error, because they would no longer be at
issue should the trial court grant defendant’s motion to dismiss. That said, our
decision should not be understood as precluding defendant from raising them
on appeal again should the court reimpose defendant’s conviction. See State v.
Sierra, 

, 

 (2016), aff’d, 

, 

(2017) (explaining that, where an appellate court expressly declines to address an
issue on appeal, there is no prior ruling of the appellate court that can be treated
as law of the case on that issue).
    2
      It is undisputed that venue was appropriate for both offenses in the same
court.
162                               State v. Thomas (A175763)

715, 

 (2003). Whether defendant proved that the
UUW charge arose from the “same criminal episode” as the
FIP offense “is a question of law that, in turn, may depend
on predicate findings of historical fact.” State v. Potter, 

, 

 (2010). We consider whether
there is evidence in the record sufficient to support the trial
court’s factual findings and review the court’s application of
the law to those facts for legal error. State v. Witherspoon,

, 

 (2012); Fore, 

. We conclude that defendant carried his burden to
show that the conduct underlying the UUW offense was
part of the same criminal episode as that of the FIP offense.
         The facts related to those offenses are relatively
few and were stipulated to by the parties below. Police suspected defendant of shooting a firearm at a person whom
police identified as a gang member. Witnesses at the shooting described that defendant and another individual fled in
a dark-colored Ford Windstar van with the passenger side
rear window missing.
         After police processed the shooting scene (approximately two hours after the shooting was reported), Deputy
Stephens, a gang enforcement investigator, drove to a
residence that he knew to be associated with the victim.
The home was one or two miles from where the shooting
occurred. Stephens went to that residence because he suspected that the shooting incident was gang-related, and it
“may be part one and part two could be imminent and we
would like to prevent part two.” Within five minutes of his
arrival, Stephens saw a van matching the same description
as the van involved in the shooting driving by him “at a
very slow rate.” Stephens attempted to stop the van, but it
sped off, and a high-speed chase ensued. During the pursuit, he saw defendant throw something out of the window.
The object that defendant threw turned out to be a handgun
of the same caliber as the gun that was used in the shooting.
         Defendant was charged with, and convicted of, FIP
based on the incident of him throwing the gun out of the
window during the police pursuit. Later, further investigation linked defendant to the earlier shooting: Some bullet
casings from the scene of the shooting were initially sent
Cite as 

 (2023)                                             163

to the lab and did not match the gun that defendant threw
from the van. After receiving further firearms training,
Stephens sent additional casings to the lab for testing, and
they match the gun that defendant had thrown from the
van. That investigation then led to the charge at issue here,
UUW, approximately five months after defendant was convicted of FIP.
         The question we must resolve is whether the UUW
offense was part of the same criminal episode as the FIP
offense; if so, former jeopardy may preclude the state from
separately prosecuting defendant for UUW. ORS 131.515(2)
(“No person shall be separately prosecuted for two or more
offenses based upon the same criminal episode ….”). A
“[c]riminal episode” is “continuous and uninterrupted conduct that … is so joined in time, place and circumstances
that such conduct is directed to the accomplishment of a
single criminal objective.” ORS 131.505(4). Factors bearing
on that determination include “(1) whether the conduct comprising the offenses is continuous and uninterrupted, (2) the
extent to which it is temporally and spatially linked, and
(3) whether it is designed to serve a single criminal objective.” State v. Wilder, 

, 

(2020), rev den, 

 (2021).3
          With respect to whether conduct is designed to
serve a “single criminal objective,” a criminal objective
“refers to the pursuit of some object or attainment of some
goal beyond the successful commission of the acts constituting the offense charged[.]” State v. Cloutier, 

,
599 n 21, 

 (1979). The criminal objective should
not be construed too narrowly, such as by distinguishing
between various motivations behind a particular course of
conduct. Witherspoon, 

. Whether a defendant’s conduct is directed to the accomplishment of a single
criminal objective is “ ‘an objective determination,’ ” depending on “ ‘what reasonably appeared under the circumstances
to be within a single criminal objective.’ ” State v. Tooley, 265
    3
      Two crimes may also be part of the same criminal episode if they are
“cross-related.” Wilder, 

. Because we conclude that defendant
carried his burden of showing that the offenses were directed to the accomplishment of the same criminal objective, we do not further address the question
whether the crimes were cross-related.
164                               State v. Thomas (A175763)

Or App 30, 39, 

, rev den, 

 (2014) (quoting Commentary to Criminal Law Revision Commission
Proposed Oregon Criminal Procedure Code, Final Draft
and Report § 26, 17 (Nov 1972)).
         Under the particular circumstances of this case,
we conclude that defendant carried his burden of proving
that the separate crimes of shooting at the victim (UUW)
and continued possession of the same firearm (FIP) were
directed at a single criminal objective. Defendant’s conduct was directed at one specific target—the victim of the
shooting—with a single criminal objective of threatening
and harming that person. See e.g., Witherspoon, 

 (the defendant’s multiple acts of domestic abuse
that took place in various rooms in the victim’s residence
shared a single criminal objective of harassing and injuring
the victim over the course of the night); State v. Kautz, 

, 

, rev den, 

 (2002) (the
defendant’s burglary and robbery offenses were directed to
a single criminal objective of stealing property; although the
robbery occurred after the burglary, the defendant’s earlier
objective to steal the victim’s property continued throughout the course of events). Indeed, the handgun that resulted
in defendant’s FIP conviction was the same firearm that
formed the foundation for the state’s subsequent prosecution
for defendant’s unlawful use of that firearm in the shooting.
         To be sure, as the state notes, defendant’s two
offenses were separated in time by approximately two hours
and separated in location by at least one mile. But whether
there is a single criminal objective does not depend on
“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.” State v. Burns, 

, 

(2013), recons den and appeal dismissed, 

,

 (2014); see also State v. Taylor, 

, 

 (2018) (concluding that the defendant’s
multiple crimes of coercion and felony assault occurred over
the course of one night in or near a single apartment as part
of an ongoing domestic violence supported a single criminal
objective). We agree with defendant that the separation in
Cite as 

 (2023)                                             165

time and place here does not indicate that defendant’s conduct was directed toward different criminal objectives; to
the contrary, defendant’s conduct over time and in the different locations precisely demonstrates that he had a single
criminal objective—to harm the victim.
         Whether defendant’s conduct in carrying out his
criminal objective was “continuous and uninterrupted”
presents a somewhat closer question, given that there was a
gap in time of about two hours and a gap in distance of one
to two miles between the two offenses. That said, “[a] mere
gap in time is not sufficient to establish noncontinuous or
interrupted conduct.” State v. Thornsberry, 

, 

 (2021) (internal quotation marks omitted);
see also Tooley, 

 (in the context of a
motion for judgment of acquittal, a rational factfinder could
conclude that the defendant’s two murders, separated by
12 hours, were part of a continuous and uninterrupted
course of conduct that constituted a single criminal episode). That is because “conduct,” as used in ORS 131.505(4),
means “the entire course of conduct” in which the defendant
engaged to accomplish their criminal objective, even if there
is a time gap in between the defendant’s separate crimes.
Tooley, 

.
         Here, defendant’s entire course of conduct—beginning
with his failed attempt to injure the victim at the shooting (as charged in the UUW offense) and ending when he
discarded the same firearm used at the shooting after he
showed up in the same van moving “at a very slow rate”
near the residence associated with the victim (as charged
in the FIP offense)—was continuous and uninterrupted. As
discussed above, in a relatively short period of time after
defendant failed to harm the victim at the shooting, police
saw the van at the address known to be associated to the victim.4 Defendant’s appearance in the victim’s neighborhood
no more than two hours after the shooting provides a temporal and spatial link showing that he continued to carry
his criminal objective to threaten the victim throughout his
    4
      In fact, the state’s theory at trial on the UUW charge was that defendant
went to that address to continue looking for the victim, with the continuous and
uninterrupted possession of the same firearm in the car and with the same intent
to shoot him.
166                              State v. Thomas (A175763)

course of conduct. Conversely, there is no evidence in the
record indicating that defendant desisted in his criminal
objective of threatening the victim. See Witherspoon, 

 (where the defendant committed multiple
crimes constituting domestic violence over the course of more
than five hours and there was a break in time between the
events when the defendant and the victim were in separate
parts of the house, the defendant’s multiple acts of domestic
abuse were nevertheless “continuous and uninterrupted”);
see also Burns, 

 (as an example provided
by the drafters of ORS 131.505(4), one criminal episode of
theft and robbery exists when “the defendant steals a car at
9:00 p.m., robs a market at 9:30 p.m., and then flees in the
stolen car” (citing Commentary to Criminal Law Revision
Commission Proposed Oregon Criminal Procedure Code,
Final Draft and Report § 26, 17-18 (Nov 1972))).
         Because defendant’s conduct underlying the UUW
offense and FIP offense was continuous and uninterrupted
and directed at a single criminal objective of threatening or
harming the victim, we conclude that the trial court erred
in concluding that two offenses were separate criminal episodes based on that ground. Defendant suggests—and the
state agrees—that the proper remedy is to remand to the
trial court to address the additional question whether the
UUW offense was “reasonably known to the appropriate
prosecutor at the time of commencement of the first prosecution” of the FIP offense. ORS 131.515(2). We agree with
the parties’ proposed remedy and thus vacate the conviction
and remand to the trial court for an evidentiary hearing on
that question.
        Vacated and remanded.