State v. Dent

                                       167

        Argued and submitted June 21, 2022, affirmed February 8, 2023


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                      JAMIE DEANN DENT,
                       Defendant-Appellant.
                  Multnomah County Circuit Court
                       18CR63119; A173987
                                   

    Defendant appeals from a judgment of conviction for 11 counts of mail theft,
ORS 164.162, and one count of aggravated identity theft, ORS 165.803. She
argues that the trial court erred in denying her motion to suppress evidence
found in a search of her house, and that the court erred when it concluded that
Counts 1 to 9 constituted separate criminal episodes for the purpose of calculating her criminal history score. Held: The trial court did not err. The Court of
Appeals concluded that the affidavit in support of a warrant to search defendant’s
house, along with the officer’s training and experience, were enough to support a
finding of probable cause. The court then analyzed whether defendant’s charges
constituted separate criminal episodes under the cross-related and single criminal objective tests. As to the cross-related test, the court concluded that because
a complete recounting of each individual theft charge could be made without reference to any of the other charged thefts, the charges were not cross-related. As
to the single criminal objective test, the court concluded that, objectively viewed,
the charged offenses were not continuous and uninterrupted as measured by
time, place, and circumstances. Thus, the charged offenses were not part of the
same criminal episode.
    Affirmed.



    David F. Rees, Judge.
   Sara F. Weboff, 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.
   Robert M. Wilsey, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
168             State v. Dent

  HELLMAN, J.
  Affirmed.
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 (2023)                                    169

         HELLMAN, J.
         Defendant appeals from a judgment of conviction
for 11 counts of mail theft, ORS 164.162, and one count of
aggravated identity theft, ORS 165.803. She raises three
assignments of error. In her first assignment, defendant
argues that the trial court erred in denying her motion to
suppress evidence found in a search of her house. In her
second assignment, defendant argues that the court erred
when it found that Counts 1 to 9 constituted separate criminal episodes for the purpose of calculating her criminal history score. In her third assignment, defendant argues that
the court erred in instructing the jury that it could return
nonunanimous verdicts. For the reasons explained below we
reject each of defendant’s assignments of error. Accordingly,
we affirm.
                            I.   FACTS
        The facts are not in dispute. Between December 13,
2016, and September 20, 2018, defendant, a “rural carrier
associate” for the United States Postal Service (USPS), stole
mail and packages containing cash, money orders, checks,
and other forms of payment from various residential and
commercial addresses along her route. Deputy Lerch, of the
Multnomah County Sheriff’s Office, and Inspector Brown, of
the USPS Office of the Inspector General, began an investigation and identified defendant as the suspect in the thefts.
Lerch’s affidavit in support of a warrant to search defendant’s house included information indicating that cash,
deposits, and packages worth over $40,000 were missing
from mail originating from or addressed to individuals and
businesses along defendant’s route, that defendant’s work
schedule aligned with the dates and times the mail went
missing, and that, in some cases, defendant had scanned
the missing packages and mail. Lerch also stated,
      “I know from my training and experience that people
   who commit crimes of … Mail Theft often store items of
   evidence and fruits of their crimes … in their residences[.]
   I know they will also have receipts and other ledgers documenting their deposits of stolen cash into bank accounts.”
Based on Lerch’s affidavit, a search warrant was issued for
defendant’s house. The search uncovered numerous individual
170                                             State v. Dent

pieces of opened and unopened mail, a bag of mail, cash,
checks, money orders, and a contract with the proprietor of
a horse training and boarding facility for the care of defendant’s horses. Defendant was arrested, and police searched
her personal effects where they found an opened letter containing another person’s social security card.
      II. NONUNANIMOUS JURY INSTRUCTION
         Defendant was convicted by a unanimous jury.
Therefore, her third assignment of error is foreclosed by
State v. Flores Ramos, 

, 

 (2020)
(holding that a nonunanimous jury instruction is not a
structural error that requires retrial when the jury convicts
the defendant unanimously).
              III. MOTION TO SUPPRESS
         In defendant’s first assignment of error, she argues
that the trial court erred when it denied her motion to suppress the evidence discovered in her house. Specifically, she
argues that Lerch’s affidavit did not contain enough objective factual information to allow a reasonable magistrate to
conclude that there was a nexus between the suspected criminal activity and defendant’s house. According to defendant,
in such a circumstance, an officer’s training and experience
is insufficient to justify the search. The state responds that
the affidavit contained a wealth of information provided by
Brown and that those facts can count in the magistrate’s
probable cause calculus even when not accompanied by
“more than the bare assertion of training and experience.”
State v. Daniels, 

, 

, rev den,

 (2010). We agree with the state.
         When reviewing a challenge to the sufficiency of
an affidavit supporting a magistrate’s issuance of a warrant, this court asks “(1) whether there is reason to believe
that the facts stated are true, and (2) whether the facts
and circumstances disclosed by the affidavit, if true, are
sufficient to establish probable cause to justify the search
requested.” State v. Goodman, 

, 

(1999). Probable cause exists when the facts in the affidavit,
along with reasonable inferences, permit the magistrate to
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determine that seizable evidence will probably be found in
the location to be searched. State v. Cannon, 

, 

 (2019). A magistrate may also “rely
on [their] own common sense” in interpreting facts and
inferences to reach a probable cause determination. State v.
Henderson, 

, 

 (2006).
         Defendant argues that, because cash is common
and fungible, it was not common sense for a magistrate to
infer that cash, deposit slips, or other evidence of the mail
thefts would be found at her house. But the correct inquiry
is not whether the property in question was fungible, or
whether there is “another plausible way of thinking about”
the property, but rather “whether the information in the
affidavit supported the conclusion that the [stolen property]
‘probably’ would be found in the location to be searched.”

 at 225 n 5. Having reviewed the affidavit, we conclude
that the information contained therein, along with Lerch’s
training and experience, was enough to allow a reasonable
magistrate, exercising common sense, to conclude that evidence of the mail thefts would probably be found in defendant’s house.
           IV. SINGLE CRIMINAL EPISODE
         Defendant was charged with nine counts of mail
theft under a taking theory (Counts 1 to 9), two counts of
mail theft under a secreting theory (Counts 10 to 11), and
one count of aggravated identity theft (Count 12). The state
based each taking theft on an individual piece of postmarked mail. It based the secreting thefts on the bag of nonpostmarked mail found in defendant’s closet. Specifically, it
based one count on the “business mail” from the bag of mail
and the other count on the “personal mail” from the bag of
mail. Count 12, the identity theft, was based on defendant
having 10 or more pieces of another person’s identity in her
possession as evidenced by checks, money orders, and other
identifying information found in the bag of mail, in defendant’s closet, in her dresser, and in her purse.
        At sentencing, the state argued that Counts 1 to 9
constituted separate criminal episodes from Counts 10 to
12 for the purposes of sentencing under ORS 137.717, the
172                                                        State v. Dent

repeat property offender statute.1 Defendant remonstrated
that all the charges constituted the same criminal episode
and thus that she was not eligible for sentencing under ORS
137.717. The trial court agreed with the state and sentenced
defendant accordingly.
           “When a court imposes sentences for multiple convictions in a single proceeding, the court may use a defendant’s convictions arising from earlier criminal episodes to
calculate the defendant’s criminal history score with respect
to … a later criminal episode.” State v. Witherspoon, 

, 

 (2012). “Whether conduct giving rise to convictions constitutes a single criminal episode
is a question of law, although the answer to that question
‘may depend on predicate findings of historical fact.’ ” State
v. Nesbit, 

, 

 (2015) (quoting
State v. Potter, 

, 

 (2010)).
         In State v. Dulfu, 

, 

(2018), the Oregon Supreme Court concluded that the term
“criminal episode” has the same meaning in the criminal
history context as it does in the double jeopardy context.
There are “three alternative tests for determining when a
prosecution for one charge will bar a later prosecution for
another charge.” 

.
       “The first test is whether the charges arose out of the
   ‘same act or transaction,’ … for the purposes of permissive joinder under ORS 132.560. [T]wo charges arise out
   of the same act or transaction if they are so closely linked
   in time, place and circumstance that a complete account of
   one charge cannot be related without relating details of the
   other charge. That test is referred to as the ‘cross-related’
   test, and, … [it serves] as a criterion for application of
   ‘single act or transaction’ for double jeopardy purposes as
   well[.] …
       “The second test is whether the charges arose out of a
   ‘single criminal episode,’ as that term is defined for the purposes of the double jeopardy statute, ORS 131.515, which
   provides, in part, ‘No person shall be separately prosecuted
   for two or more offenses based upon the same criminal

    1
      The state conceded that Counts 10 to 12 were part of the same criminal
episode.
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    episode …[.]’ For the purposes of the double jeopardy statute, ‘criminal episode’ is defined by ORS 131.505(4), which
    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.”

 (citations omitted).2 For clarity, we refer to the first test
as the “cross-related” test and to the second test as the “single criminal objective” test.
A. Cross-Related Test
         Charges are cross-related if they “arise out of the
same act or transaction.” 

 “[T]wo charges arise out of
the same act or transaction if they are so closely linked
in time, place and circumstance that a complete account
of one charge cannot be related without relating details of
the other charge.” 

 We have interpreted that language to
mean that “[i]f a complete account of each crime necessarily
includes details of the other, then they arise from the same
criminal episode. Crimes are not cross-related, and thus do
not necessarily include details of one another, where one
of the crimes may be proved without evidence of the other
crime.” Witherspoon, 

.
        Defendant argues that this case is like Nesbit. In
that case, the defendant filed a single false claim for benefits
and then received multiple checks based on that false claim.
We held that the charged theft offenses constituted a single
criminal episode because “a complete account of why [the]
defendant committed theft each time he deposited one of the
insurance checks … would necessarily include the detail
that [the bank] issued the check pursuant to [the] defendant’s initial false claim for benefits.” 

(emphasis in Nesbit). The state responds that the facts of
this case are more like those in State v. Spynu, 

, 

 (2016). In that case, the defendant
filed multiple fraudulent vouchers with the Department of
Human Services and was charged with 10 counts of theft.
    2
       The Dulfu court also articulated a third test, commonly referred to as the
“simultaneous possession” test and applied that test to the facts before it. That
test is not at issue in this case.
174                                                              State v. Dent

We held that the charges constituted multiple criminal episodes because “each theft resulted from [the] defendant’s act
of submitting distinct false vouchers at distinct times and
accepting distinct payments and benefits on those vouchers.”

         This case presents a scenario closer to Spynu than
to Nesbit. In Nesbit, each of the theft charges related back to
one act.3 By contrast, here, like in Spynu, each of defendant’s
acts of taking the mail in Counts 1 to 9 stood alone. None
of the taking thefts alleged in Counts 1 to 9 related back to
each other, or to any other charged offense, as was the case
in Nesbit. To be sure, the state used some of the evidence
from Counts 10 to 12 to support its case on Counts 1 to 9.
However, overlapping evidence for the charged offenses does
not necessarily mean that the charges are cross-related. We
recognized that in Spynu, when we noted that, “given the
repetitive nature of defendant’s crimes, … if the thefts had
been tried separately, the separate trials undoubtably would
have involved some overlapping evidence. Nevertheless, a
‘complete account’ of any single one of the theft charges could
be related without relating details of the other.” Spynu, 

.
         Spynu thus stands for the proposition that under
the cross-related test, two charges are not necessarily
cross-related if some overlapping evidence links them, so
long as each charge can be related without relating the
details of the other charge. Such is the case here. As the
trial court correctly surmised, had the state opted to prosecute each taking theft separately, each piece of postmarked
mail would have been enough to prove the elements of mail
theft by taking. As such, even without the evidence from
Counts 10 to 12, a complete recounting of each individual
theft charge could be made by relying solely on each piece
of postmarked mail without reference to any of the other
charged thefts. The charges were thus not cross-related.

     3
       Although each of the thefts in Nesbit related back to the underlying act of
filing a false report, the state opted not to charge the defendant for that offense.
Instead, the defendant was charged with three counts of aggravated theft in the
first degree. Defendant cites no authority, nor could we find one, which states
that, for the purpose of the cross-related test, the underlying act or transaction
must be charged to link the charged offenses such that they are cross-related.
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B.   Single Criminal Objective Test
         As noted above, the single criminal objective test
borrows language from Oregon’s double jeopardy statute
and defines criminal episode as “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.” Dulfu, 

; ORS 131.505(4). Whether
a defendant’s conduct is directed to the accomplishment of
a single criminal objective is an “objective determination.”
State v. Burns, 

, 

 (2013) (quoting Commentary to Criminal Law Revision Commission
Proposed Oregon Criminal Procedure Code, Final Draft
and Report § 26, 17 (Nov 1972) (Commission Commentary)).
“[T]he subjective intent of the person should not be considered in determining whether or not a certain offense was
part of the criminal episode.” Commission Commentary § 26
at 17. “Instead, the determination depends on ‘what reasonably appeared under the circumstances to be within a single
criminal objective.’ ” State v. Tooley, 

, 

, rev den, 

 (2014) (quoting Commission
Commentary § 26 at 17).
         “We defer to the trial court’s explicit and implicit
findings of fact if there is evidence to support them and
review its application of the law to those facts for legal error.”
State v. Martin, 

, 

, rev den,

 (2022). “ ‘The state bears the burden of proving
by a preponderance of evidence’ that each offense was a separate criminal episode.” 

 (quoting Nesbit, 

).
        As an initial matter, we reject the state’s argument
that because defendant chose to commit the same crime
against multiple people multiple times, each act constituted
a separate criminal episode, notwithstanding the fact that
defendant had the same general criminal objective for each
and was not interrupted before she was caught and arrested.
In Burns, we rejected a substantially similar argument.
There, the defendant was convicted of two counts of criminal mistreatment in the first degree for spanking two of his
children in short succession. The trial court concluded that
176                                                              State v. Dent

the defendant’s offenses constituted two distinct criminal
episodes and, accordingly, it applied the defendant’s conviction on Count 1 in sentencing the defendant on Count 2.
On appeal, the state argued that “the relevant inquiry
for determining a defendant’s criminal history score in a
case involving multiple crimes against multiple victims is
whether the defendant made discrete decisions to commit
each offense, despite an overarching criminal objective.” 

. We reversed, noting that the state’s argument was “not consonant with the text or intent of the criminal history rule” and “at loggerheads” with Supreme Court
precedent rejecting the idea that separate criminal acts are
per se equivalent to separate objectives. 

 (citing State v.
Boyd, 

, 565 n 4, 

 (1975), and State v.
Cloutier, 

, 

 (1979)). We were not
persuaded by the state’s argument in Burns, and we are not
persuaded by it here.
        Turning to defendant’s argument, because we do
not consider defendant’s subjective intent in our analysis of
the single criminal objective test, we are not persuaded by
her argument that these offenses are part of a single criminal episode.4
        In determining whether defendant’s conduct constituted a single criminal episode under the single criminal

    4
      Although we disagree with defendant’s argument under the single criminal
objective test, that argument does raise an important issue. In the indictment,
the state joined all the offenses together with specific language:
         “This count is connected together by two or more acts or transactions
    with the other counts of this charging instrument. This count is of the same
    and similar character as the conduct alleged in the other counts of this
    charging instrument. This count constitutes part of a common scheme or
    plan based on two or more acts or transactions with the other counts of this
    charging instrument.”
The state’s theory of the case was that all the mail was stolen and secreted for one
purpose: defendant’s overarching goal of obtaining money to pay for the care of
her horses. The state obtained a substantial benefit from its initial position that
the charges were closely related. Not only did that position allow joinder of the
12 counts for a single trial, it also provided a compelling trial theory as to why
a postal worker would risk her job and serious criminal convictions by stealing
mail. Having gained such a benefit at trial, it appears potentially unfair for the
state to take the opposite position on the relatedness of the counts at sentencing
simply to obtain the longest sentence possible. However, because defendant did
not raise any constitutionally-based or estoppel-based challenges to the sentence
below, we do not engage with the issue any further.
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objective test, our inquiry “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 episodes.” Burns, 

. Here, the charged offenses were not continuous
and uninterrupted as measured by time, place, and circumstances such that they were directed to the accomplishment
of a single criminal objective. The charged offenses took
place over a nearly two-year period. Each theft by taking
offense was separated from the other by a period of days,
weeks, or months, with the final theft by taking charge separated from the theft by secreting and identity theft charges
by three months. Although all the charged offenses occurred
on defendant’s carrier route, the place in which each charged
offense occurred necessarily differed by the various locations from which defendant took the mail along that route.
Given those circumstances, and removing from the picture,
as we must, defendant’s subjective intent to unlawfully gain
money to care for her horses, we conclude that the state met
its burden to prove by a preponderance of the evidence that
defendant’s conduct constituted separate criminal episodes
under the single criminal objective test.
        Because defendants conduct constituted separate
criminal episodes under both the cross-related test and the
single criminal objective test, the trial court did not err
when it sentenced defendant under ORS 137.717.
        Affirmed.