State v. Davis

No. 172               March 13, 2024                    487

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                  STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
                 RYAN SCOTT DAVIS,
                  Defendant-Appellant.
             Multnomah County Circuit Court
                  16CR44786; A176231

  Eric L. Dahlin, Judge.
  Submitted March 17, 2023.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Andrew D. Robinson, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Michael A. Casper, Assistant Attorney
General, filed the brief for respondent.
   Before Aoyagi, Presiding Judge, Joyce, Judge, and
Jacquot, Judge.
  JACQUOT, J.
  Remanded for resentencing; otherwise affirmed.
488                                                         State v. Davis

           JACQUOT, J.
         Defendant was convicted by a jury of first-degree
burglary, ORS 164.225 (Counts 1 and 5); first-degree robbery, ORS 164.415 (Counts 2 and 6); unauthorized use of a
vehicle (UUV), ORS 164.135 (Counts 3 and 7); unlawful use
of a weapon (UUW), ORS 166.220 (Counts 4 and 9); identity
theft, ORS 165.800 (Count 8); second-degree burglary, ORS
164.215 (Count 11); and interfering with a peace officer,
ORS 162.247 (Count 12).1 The sentencing court exercised its
authority under ORS 137.123(5) to impose consecutive sentences for Counts 4, 6, and 11. Defendant appeals the judgment of conviction, making nine assignments of error, and
seeks reversal of his convictions or resentencing. We affirm
without discussion defendant’s first eight assignments of
error and write only to address his ninth—that the court
erred by ordering that defendant serve his sentence for
Count 4 consecutive to Count 2. We conclude that the court
was not authorized to impose a consecutive sentence for
Count 4. We remand for resentencing and otherwise affirm.
                                  FACTS
         The relevant facts are undisputed. On the night of
July 20, 2016, over the course of three hours, defendant committed a series of offenses at three different locations. He
first entered the home of D through her unlocked sliding
back door. Defendant was armed with a gun and threatened
to kill D if she did not remain quiet. He asked her who else
was in the house, and when she replied that her husband
and children were upstairs, he threatened to kill them too if
D made another sound. He told her that he needed her car
and demanded her cell phone, but she was too frightened
to find her phone. Defendant took the car keys, grabbed D’s
husband’s phone from the counter so that D could not call
for help, and left out of the front door. D called 9-1-1 shortly
after. Defendant drove off in D’s car but was unable to operate the manual transmission and abandoned the car a few
blocks away. Defendant proceeded to enter two more homes
and commit crimes inside, including stealing another car.
After breaking into the third home, defendant was arrested.
   1
     Defendant was charged with and acquitted of one additional count of first-degree burglary, ORS 164.225 (Count 10).
Cite as 

 (2024)                               489

         At sentencing, the state sought a total of 457 months
of incarceration, based on consecutive sentences for 9 of the
11 offenses and application of the “gun minimum” in ORS
161.610. Defendant argued that a largely concurrent and
only partially consecutive sentence would offer a just result
for the victims and defendant. Except for Count 4 and 6, the
court sentenced defendant consecutively for the events that
occurred at each location, but concurrently for the different crimes committed at each house. The sentence for the
crimes committed at D’s house included a 90-month mandatory minimum sentence on the first-degree robbery charge
in Count 2 and a consecutive 60-month gun minimum sentence for the UUW charge in Count 4.
                          ANALYSIS
         “We review a trial court’s imposition of consecutive
sentences for errors of law and determine whether the trial
court’s predicate factual findings are supported by any evidence in the record.” State v. Porter, 

, 

 (2021). Under ORS 137.123(5), a sentencing court
has discretion to impose consecutive sentences for separate
convictions arising out of a continuous and uninterrupted
course of conduct only if it finds that the criminal offense for
which a consecutive sentence is contemplated either “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,” ORS 137.123(5)(a),
or “caused or created a risk of causing greater or qualitatively different loss, injury or harm to the victim or … to a
different victim than was caused or threatened by the other
offense or offenses committed during a continuous and uninterrupted course of conduct,” ORS 137.123(5)(b).
         At the sentencing hearing, the state asked the
sentencing court to apply the ORS 161.610 60-month “gun
minimum” to Count 4, UUW, and to sentence the robbery
in Count 2 and the UUW consecutively. It argued that the
court could impose a consecutive sentence for Count 4 under
either subsection (a) or (b) of ORS 137.123(5), because defendant’s use of the weapon to threaten D and her family was
“a completely separate act” from the robbery and therefore
490                                                State v. Davis

not merely incidental to the robbery, and because defendant
“also threatene[d] harm to a complete separate victim, the
husband and the children who were upstairs.” The court
ultimately ordered that the sentence for UUW in Count 4 be
run consecutive to the sentence for robbery in Count 2.
         As noted above, to impose a consecutive sentence
under ORS 137.123(5)(a), the court was required to find that
defendant’s unlawful use of a weapon was not “merely incidental” to the robbery, and defendant argues on appeal that
the record would not support such a finding. We agree. Under
ORS 137.123(5)(a), where a defendant has concurrently violated separate criminal statutes by undertaking the same
act to achieve the same end, absent “explicit evidence of multiple intents,” the offenses are “so inextricably intertwined
that the [less serious] offense … is, necessarily, ‘incidental’
to the ‘more serious crime.’ ” State v. Byam, 

, 

 (2017). In such a case, commission of the
less serious offense cannot be said to indicate a “willingness to commit more than one criminal offense.” Id.; ORS
137.123(5)(a). However, evidence that a defendant’s conduct
constituting the less serious offense is “temporally or qualitatively distinct” from that constituting the more serious
offense may support an inference that one offense was not
merely incidental to the other. State v. Russell, 

, 

, rev den, 

 (2021).
         As relevant here, defendant was convicted of first-degree robbery with a firearm for knowingly using and
threatening the immediate use of physical force upon D,
ORS 164.395(1), while armed with the firearm, a deadly
weapon, ORS 164.415(1)(a), “with the intent of preventing
and overcoming” D’s resistance to defendant’s taking and
retention of the property, ORS 164.395(1)(a). Further, he
was convicted of the less serious offense of UUW with a firearm, ORS 166.220, for carrying and possessing the firearm
with the intent to use it unlawfully against D. Both of those
convictions were based on the same criminal act underlying defendant’s use of the firearm—defendant using the
firearm to threaten to kill D while committing the theft—
undertaken for the same purpose—preventing and overcoming her resistance to him taking her car keys, car, and phone.
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 (2024)                             491

Nothing in the record indicates that, by unlawfully using
a firearm against D, defendant intended anything other
than keeping D from resisting defendant taking her car and
phone, which was an element of the charge for the crime
of the robbery itself. Because the record does not “contain[ ]
discrete facts supporting an inference that [the] defendant
acted with a willingness to commit multiple offenses,” the
court was not authorized to impose consecutive sentences
under ORS 137.123(5)(a). State v. Edwards, 

, 

, rev den, 

 (2017) (internal quotation marks omitted).
         As noted above, a court may impose a consecutive
sentence under ORS 137.123(5)(b) if “[t]he criminal offense
for which a consecutive sentence is contemplated … caused
or created a risk of causing loss, injury or harm to a different victim” than the other offenses in the same course of
conduct. This court has established that, “for consecutivesentencing purposes under ORS 137.123(5)(b), the ‘victim’ at
issue is determined by the substantive statute defining the
relevant criminal offense.” State v. Gatewood, 

, 

 (2019), rev den, 

 (2020).
Here, the counts in the indictment track the statutory language of the offenses and accuse defendant of threatening
use of force against D (robbery) and intending to unlawfully
use a weapon against D (UUW), not any of her family members. Therefore, neither D’s husband nor her children fall
within the definition of “victim” as that term is used in ORS
137.123(5)(b), and any threats defendant may have made
against them would not provide grounds for the imposition
of a consecutive sentence under these circumstances.
        Remanded for resentencing; otherwise affirmed.