State v. Williams , 16 Or. App. 48 ( 1974 )

517 P.2d 311 (1973)

STATE of Oregon, Respondent,
v.
Dennis Ralph WILLIAMS, Appellant.

Court of Appeals of Oregon.

Argued and Submitted November 19, 1973. Decided December 24, 1973. Rehearing Denied January 30, 1974. Review Granted February 20, 1974.

Robert C. Cannon, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Scott McAlister, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Before SCHWAB, C.J., and LANGTRY and FORT, JJ.

FORT, Judge.

Defendant was convicted of the crimes of first degree burglary, ORS 164.225, and second degree robbery, ORS 164.405. He appeals.

Although separately tried, this case is a companion case to State v. Stoneberg, Or. App., 517 P.2d 333 (1973). The facts surrounding this matter are set out in that opinion, including this defendant's direct involvement therein. We will not repeat them here.

Defendant first challenges the admission into evidence of certain admissions made by him to an FBI agent who interrogated him in the jail at Seattle, Washington, several months after the crimes here involved. No claim is made of any violation of defendant's Miranda rights nor that the admissions were the result of any fraud, duress or other allegedly improper police activity. The matters reported by the officer all related to the crimes charged here and the circumstances immediately surrounding their commission. The testimony was clearly admissible. The assignments of error relating thereto are without merit.

As in Stoneberg, defendant challenges the failure to submit certain lesser included offenses to the jury. ORS 136.660 states:

"In all cases, the defendant may be found guilty of any crime the commission of which is necessarily included in that with which he is charged in the indictment or of an attempt to commit such crime."

In addition to the authorities cited and the discussion contained in State v. Stoneberg, supra, we point out that in applying ORS 136.660 to the present facts, we find helpful the interpretation given the very similar federal "necessarily included" provision. Rule 31(c) of the Federal Rules of Criminal Procedure.^[1]

In Sansone v. United States, 380 U.S. 343, 351, 85 S. Ct. 1004, 1010, 13 L. Ed. 2d 882 (1965), the court said that a lesser offense charge is proper only where "* * * on the facts of a given case there are disputed issues of fact which would enable the jury rationally to find that, although all the elements of * * * [the greater offense] have not been proved, all the elements of * * * [such lesser offense have been proved]."

It is stated in Driscoll v. United States, 356 F.2d 324, 327-328 (1st Cir.1966), vacated on other grounds, 390 U.S. 202, 88 S. Ct. 899, 19 L. Ed. 2d 1034 (1968):

"We take Sansone to mean that when the government has made out a compelling case, uncontroverted on the evidence, on an element required for the charged offense but not for the lesser-included offense, there is a duty on defendant to come forward with some evidence on that issue if he wishes to have the benefit of a lesser-included offense charge. To put it another way, while a judge cannot prevent a jury from rejecting the prosecution's entire case, he is not obligated, under these circumstances, to assist a jury in coming to an irrational conclusion of partial acceptance and partial rejection of the prosecution's case by giving a lesser-included offense instruction. Two prerequisites seem vital: that there be no factual dispute and that a finding contrary to the only evidence on the issue would be irrational." (Emphasis supplied.)

In Driscoll, the government presented direct evidence of the greater offense through three witnesses. The court stated:

"* * * The record before us discloses no efforts to impeach, contradict, or explain this testimony. All we have are the pleas of not guilty.

"We do not think that these pleas, standing alone, create the contradiction in evidence required by Sansone, supra. It is true that, at the outset of the case, the pleas of not guilty created an ultimate issue as to willfulness to be resolved by the jury. It is also true that by their silence in the face of specific and direct evidence on the issue of willfulness, appellants did not forfeit their right to have the jury instructed that willfulness must be proven beyond a reasonable doubt. But we think it is equally true that by remaining mute in the face of such evidence and relying solely on their pleas of not guilty, appellants did not create such a ``disputed factual element' in the sense that entitled them to an instruction for a lesser-included offense. [Citations omitted.]" See, United States v. Comer, 137 U.S.App.D.C. 214, 421 F.2d 1149, 1153-1154 (D.C. Cir.1970), quoting the foregoing at length.

We conclude that here, as we held in Stoneberg, there were no disputed issues of fact warranting the submission of the requested lesser-included offenses to the jury.

In accord are our recent decisions in State v. Stoneberg, supra; State v. Atkins, Or. App., 97 Adv.Sh. 1626, 1627, 513 P.2d 1191 (1973). See also, State v. Boucher, Or. App., 97 Adv.Sh. 206, 209, 509 P.2d 1228 (1973); Annotation, What Constitutes Lesser Offenses "Necessarily Included" in Offense Charged, Under Rule 31(c) of Federal Rules of Criminal Procedure, 11 A.L.R.Fed. 173 (1972); Annotation, 58 A.L.R. 2d 808 (1958); People v. Mussenden, 308 N.Y. 558, 127 N.E.2d 551 (1955).

The assignments relating to the failure to submit certain lesser-included offenses are without merit.

Finally, defendant asserts the court erred in not vacating the robbery conviction on the basis of the Woolard doctrine.^[2]

Prior to imposition of sentence, defendant objected to being sentenced on both convictions, citing State v. Meyer, 12 Or. App. 486, 507 P.2d 824 (1973). The court ruled in defendant's favor and sentenced him solely on the burglary conviction. Defendant did not, however, move to vacate the robbery conviction. The state asserts the defendant is thus barred from raising the dual conviction objection.

Although it is defendant's duty to properly move to vacate in the trial court, since defendant did properly object to being sentenced on both charges, we will consider the merits here. State v. Webber, Or. App., 97 Adv.Sh. 1236, 1239, 513 P.2d 496 (1973).

On the merits, the facts regarding this assignment are substantively analogous to those in State v. Meyer, supra. There we said at — of 12 Or. App., at 828 of 507 P.2d:

"* * * The state overlooks that Woolard prohibits both a second conviction and a second sentence in this case. An improper judgment of conviction is not necessarily moot just because defendant will remain incarcerated on a separate valid judgment of conviction. Whether defendant stands convicted of one or two felonies can have a variety of collateral consequences for him; for example in those states that do have habitual criminal laws. As we said in State v. Farr, [,8 Or. App. 78, 492 P.2d 305], supra:

"``* * * The error substantially affects defendant's status by placing one felony conviction against him which should not exist * * *. 8 Or. App. at 82, n 1, 492 P.2d at 307.'"

Accordingly, we remand for vacation of the second degree robbery conviction.

Affirmed as modified.

NOTES

[1] Federal Rules of Criminal Procedure, 31 (c) states:

"The defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense."

[2] State v. Woolard, 259 Or. 232, 434 P.2d 314, 485 P.2d 1194 (1971).