State v. Witherspoon , 250 Or. App. 316 ( 2012 )

ARMSTRONG, P. J.

Defendant appeals a judgment convicting him of, among other offenses, misdemeanor fourth-degree assault, ORS 163.160, menacing, ORS 163.190, and felony fourth-degree assault, ORS 163.160(3). He assigns error to the court’s calculation of his criminal history score for purposes of sentencing him on the felony fourth-degree assault charge, arguing that the court erred in counting the other two convictions as part of his score and, as a result, erred in sentencing him to 14 months’ imprisonment on that count. The issue on appeal is whether defendant’s conviction for felony fourth-degree assault arose from a separate criminal episode from his convictions for misdemeanor fourth-degree assault and menacing. For the reasons that follow, we remand for resen-tencing and otherwise affirm.

Defendant stipulated to the pertinent facts, which come from a statement of defendant’s wife, M. Defendant awoke one evening at 9:30 p.m. and expressed his frustration with M for not waking him earlier. M sent defendant’s son, C, who had been preparing to go to bed, to his bedroom. Defendant yelled at M for leaving the window of his office open and accused her of searching the office. After she told him that “he needed to stop throwing a temper tantrum,” defendant grabbed M’s hair and pulled her head back, aggravating a bulging disc in her neck, and continued to yell at her, referring to her in derogatory terms and stating that he hoped that she “rotted from [cancer] slowly.” She slapped him, and he let her go.

Defendant persisted in yelling at M, questioning her about why they had so many condoms in their bathroom and accusing her of marital infidelity. He told her that she needed to leave, presumably the house, and she responded that it was he who needed to leave, which led defendant to grab her and shake her violently.

Defendant and M eventually moved to the bathroom, where he accused her of using cocaine. She denied the accusation, and, after further argument, defendant left the bathroom and went to the kitchen, where he knelt on the floor and yelled at M, who had followed him into the kitchen, to hit him. When she refused, he pulled a kitchen knife out of a drawer and forcibly placed it in her hand, yelling at her to stab him with it. She reached down and pulled his hair until he released his hold on her hand in which he had placed the knife.

After defendant released his hold on her hand, M “jumped over him and ran into the living room [to use a telephone] to call 9-1-1” for help. Defendant followed her and, while she held the phone in her hand, pulled the phone’s cord out of the wall. M fled to C’s bedroom and told C that they were going to leave the house. Defendant followed M to the bedroom and told her that she was not going to take C. C was crying and wrapped his arms around M. Defendant told C to stop crying and said that M was brainwashing him into fearing defendant. Defendant pulled C and M apart, shook M again, and threw her against a bookshelf. Defendant then grabbed C and slammed his face into the ladder of his bunk bed.

Defendant forced M out of the bedroom and again told C that M was brainwashing him. Defendant then left the bedroom and told M that he was going to the store for cigarettes. It was approximately 3:00 a.m. by that point. Defendant later returned to the house, retrieved a blanket, and proceeded to sleep in M’s van.

As relevant to this appeal, defendant was convicted of three criminal counts involving M: Count 1, misdemeanor assault, for pulling M’s head back and aggravating her neck injury; Count 2, menacing, for placing M in fear of imminent serious physical injury when he shook her in the living room and pulled the knife out of the drawer in the kitchen; and Count 4, felony assault, for throwing her against the bookshelf in C’s bedroom.

At sentencing, the state asked the court to count defendant’s convictions on Counts 1 and 2 as part of defendant’s criminal history score in sentencing defendant on Count 4. The state contended that, because Counts 1 and 2 constituted two separate “person Class A misdemeanors” and because Count 4 arose from a separate incident that came after the events that gave rise to his convictions on Counts 1 and 2, defendant’s criminal history score on Count 4 should be “D” rather than “I.”¹

Defendant’s counsel responded that the counts did not involve separate incidents because “there was no opportunity [for defendant] to withdraw or calm down between them. Incidents one and two were part of a single, continuous argument with” M. He began to refer to Count 4 but was interrupted by a question from the court. Defense counsel then responded, “It was all done as part of one incident where [defendant] was angry, arguably out of control. He did not have a cooling-down period sufficient to stop.” Eventually, defense counsel specifically contended that Count 4 was part of the same episode as the other two counts.

The state responded that there was a break in time between the events that occurred in the living room, bathroom, and kitchen and those that occurred in C’s bedroom. In response to the parties’ arguments, the court stated that it had no “problem finding that [Count 4] was separate and came later.” The court ultimately determined that defendant’s criminal history score on Count 4 was “D” and that Count 4 fell in category 6 of the crime seriousness scale under the sentencing guidelines.

However, instead of imposing the presumptive sentence of 14 months’ imprisonment on Count 4 under grid block 6-D of the sentencing guidelines, the court ordered a downward departure sentence of 36 months’ probation.² As a probation condition, the court prohibited defendant from having any contact with M or C. Defendant subsequently violated the terms of his probation by contacting M, and the court revoked his probation and sentenced him to the presumptive sentence of 14 months’ imprisonment on Count 4.

Defendant appeals, contending that the court erred in calculating his criminal history score on Count 4 and, consequently, erred in imposing 14 months’ imprisonment on that count. The state disputes those contentions. We agree with defendant.

A defendant’s criminal history score is used to calculate the sentence that a court imposes under the sentencing guidelines. OAR 213-004-0006; State v. Norman, 216 Or App 475, 485, 174 P3d 598 (2007), vac’d in part on other grounds, 345 Or 319, 207 P3d 423 (2008). The court calculates the defendant’s criminal history by assessing several factors, including the number and severity of the defendant’s prior convictions. OAR 213-004-0006; Norman, 216 Or App at 485.

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 crime arising from a later criminal episode. Norman, 216 Or App at 485 (citing State v. Bucholz, 317 Or 309, 317, 855 P2d 1100 (1993)).³ However, “when a defendant’s multiple convictions stem from the same criminal episode, his criminal history score remains the same with respect to all of those convictions.” Id. at 485-86. In other words, a conviction cannot be included in a defendant’s criminal history score for purposes of imposing sentence on another crime if the second crime could not have been prosecuted separately from the first, that is, if double jeopardy principles required the two crimes to be prosecuted together. Accordingly, the determination whether defendant’s convictions for Counts 1 and 2 could be included in his criminal history score in sentencing him on Count 4 turns on whether, in accordance with double jeopardy principles, the counts had to be prosecuted together. See id. at 486.

In State v. Potter, 236 Or App 74, 234 P3d 1073 (2010), we set out the analytical sequence by which to determine whether crimes arise from the same criminal episode for purposes of double jeopardy. The court first considers “whether ‘a complete account of one [crime] necessarily includes details of the other’ ” or, framed another way, whether the crimes are “cross-related.” Id. at 82-83 (quoting State v. Boyd, 271 Or 558, 566, 533 P2d 795 (1975)) (emphasis in Potter). If 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. See State v. Lyons, 161 Or App 355, 363, 985 P2d 204 (1999) (determining that charges underlying a violation of the Oregon Racketeer Influenced and Corrupt Organizations Act (ORICO) and the ORICO violation, itself, were not cross-related because proof of the underlying charges did not “in any way depend on proof of the ORICO violation”).

Here, defendant contends that “the facts of each [count] were so linked in time, place, and circumstance that one [crime] could not be explained without relating the facts of the other[,]” emphasizing that “one could not take one aspect of the defendant’s conduct and explain it as a discrete event without providing the context of the domestic dispute of that evening.” We conclude that, although the events that led to the three relevant counts in this case would have provided useful context for proving each count, defendant’s conviction for Counts 1 and 2 in no way depended on proof of Count 4. Thus, the three counts are not cross-related, and a complete account of Counts 1 and 2 does not necessarily include details of Count 4.

Where a complete account of one crime does not necessarily include details of another, the crimes may nonetheless have arisen from the same criminal episode, depending on consideration of the factors listed in ORS 131.505(4) — viz., whether the crimes were part of “continuous and uninterrupted conduct that * * * is so joined in time, place and circumstances that [the] conduct is directed to the accomplishment of a single criminal objective.” Here, the court found “that the [Count 4] felony was separate and came later” in relation to Counts 1 and 2. We defer to the trial court’s findings of fact “to the extent they are supported by evidence in the record.” Potter, 236 Or App at 82. Hence, defendant’s challenge to the court’s calculation of his criminal history score on Count 4 reduces to whether there is evidence in the record to support the court’s finding that Count 4 was separate from Counts 1 and 2 for purposes of the test established in ORS 131.505(4).

Our review of the record leads us to conclude that it lacks such evidence. The state based its prosecution of defendant on Count 2 on defendant’s actions in shaking M in the living room and pulling out a knife from a drawer in the kitchen. The record establishes that M responded to defendant pulling out the knife by fleeing from him: after forcing him to release his hold on her hand by pulling his hair, she “jumped over him and ran into the living room [to use a telephone] to call 9-1-1.” Defendant chased M into the living room and continued to direct threatening conduct toward her by ripping the phone’s cord out of the wall while she held the phone in her hand, thereby preventing her from obtaining relief from defendant’s abuse by calling for help. M responded by going to C’s bedroom and telling C that they were leaving the house. However, defendant pursued M into the bedroom, where defendant continued his abusive behavior by throwing M into a bookshelf.

Thus, the record establishes that M attempted to escape from defendant’s abusive behavior in the kitchen by running to the living room to use a phone to call 9-1-1, which defendant thwarted by ripping the phone’s cord out of the wall, and then fleeing to C’s room so that she could leave the house with C to escape from defendant’s abusive behavior, at which point defendant continued the abuse by throwing M into a bookshelf. There is no evidence in the record from which the trial court could find that that series of events was interrupted. Instead, the record establishes that Counts 2 and 4 arose from continuous and uninterrupted conduct by defendant that was joined in time, place, and circumstances.⁴

Counts 2 and 4 also shared a common criminal objective of harassing and injuring the victim through physical and emotional abuse. State v. Kautz, 179 Or App 458, 39 P3d 937 (2002), is illustrative. In that case, the defendant entered the victim’s workshop, took various items of personal property, and put those items in a car at the workshop. Id. at 460. As the defendant left the workshop, the victim saw him taking the car, pointed a gun at him, and demanded that he stop. The defendant pointed a shotgun, which he had taken from the workshop, at the victim, told him to “back off,” and ran away. Id.

Based on those actions, the defendant was charged with burglary and robbery. He contended that the court incorrectly applied the sentencing guidelines in calculating his sentence because the burglary and robbery arose from a single criminal episode. Id. at 464-65. The state contended that the court correctly determined that the burglary and the robbery arose from separate criminal episodes because the two crimes were not directed at the same criminal objective. The state contended that the objective of the burglary was to steal the victim’s property while the objective of the robbery was to threaten the victim so that the defendant could escape with the property that he had stolen.

We concluded “that that kind of parsing of [the] defendant’s criminal objective is inconsistent with the intent of ORS 131.505(4).” Id. at 467. We concluded that the crimes arose from a single criminal episode, explaining that, although the “defendant may have acquired an additional criminal objective to escape when confronted by [the victim], his earlier objective to steal [the victim’s] property continued during the course of all of the events.” Id.

The present case is similar. Defendant physically and emotionally abused M throughout the course of the night in response to a series of alleged actions by M, viz., failing to wake defendant, leaving a window open, searching defendant’s office, committing marital infidelity, engaging in illegal drug use, and attempting to leave the house with C. Nonetheless, to accept that defendant’s criminal objective changed over the course of the abuse would improperly parse defendant’s criminal objective.⁵

As in Kautz, where the defendant’s objective of taking the victim’s property continued even when he threatened the victim with a shotgun to facilitate his escape, here, defendant’s objective of abusing the victim in the kitchen continued into the living room and eventually into C’s bedroom as she attempted to escape his abuse. Although defendant may have acquired the additional objective in C’s bedroom that the dissent ascribes to him, viz., to stop M from taking C with her as she tried to flee from defendant, defendant’s earlier and ongoing criminal objective to harass and abuse M continued throughout the episode.⁶

Because Counts 2 and 4 arose from continuous and uninterrupted conduct that was joined in time, place, and circumstances and that shared a common criminal objective such that it would violate double jeopardy principles to prosecute defendant separately for the two counts, we conclude that the record does not support the trial court’s conclusion that Count 4 was separate from Count 2 for purposes of calculating defendant’s criminal history score on Count 4. It follows that the court erred in calculating defendant’s criminal history score on Count 4 to be “D” and in sentencing defendant to the presumptive sentence of 14 months’ imprisonment under the sentencing guidelines on the basis of that score. We therefore must remand this case for resentencing.

Remanded for resentencing; otherwise affirmed.

1 The state contended that defendant’s two Class A misdemeanor convictions for Counts 1 and 2 combined to equal a felony conviction for criminal history score purposes, thereby qualifying defendant for a criminal history score of “D” for sentencing on Count 4. See OAR 213-004-0008 (“Every two prior adult convictions of person Class A misdemeanors in the offender’s criminal history shall be counted as one adult conviction of a person felony for criminal history purposes.”); OAR 213-004-0007 (“D — The offender’s criminal history includes one adult conviction * * * for a person felony[.]”).

2 Had the court not included Counts 1 and 2 in defendant’s criminal history score, defendant would have been sentenced under grid block 6-1, which provides a presumptive sentence of 36 months’ probation. OAR 213-004-0007; OAR 213-005-0008.

3 In Bucholz, the Supreme Court held that, when multiple convictions occur in a single proceeding, a court may recalculate a defendant’s criminal history score for one conviction based on the other convictions, provided that those other convictions arose from an earlier criminal episode. Norman, 216 Or App at 485.

4 We need not address whether the record establishes that Counts 1 and 4 arose from continuous and uninterrupted conduct by defendant that was joined in time, place, and circumstances in order to reach the conclusion that the court erred. If Counts 2 and 4 arose from a single criminal episode, but Counts 1 and 4 arose from separate criminal episodes, then defendant would have only one Class A misdemeanor conviction for the purpose of determining his criminal history score for sentencing on Count 4. Norman, 216 Or App at 485. Had the court included only Count 1 in defendant’s criminal history score, defendant would have been sentenced under grid block 6-H, which provides the same presumptive sentence as grid block 6-1. OAR 213-004-0007; OAR 213-005-0008. Thus, defendant’s presumptive sentence for Count 4 would be the same whether we conclude that the behavior underlying both Counts 1 and 2 occurred in the same criminal episode as Count 4 or conclude that the behavior underlying Count 2 occurred in the same criminal episode as Count 4.

5 The Supreme Court cautioned in Boyd against construing the phrase ‘‘directed to the accomplishment of a single criminal objective,” too narrowly. 271 Or at 565 n 4. A narrow understanding of that phrase would fail to afford a defendant the protection that our constitution provides against successive prosecutions, a protection that the court concluded the legislature intended to replicate in adopting ORS 131.505(4). Id.

6 It is unclear whether the objective that the dissent identifies, stopping M from leaving the house with C, can be considered to be a criminal objective, because it is unclear on this record whether preventing M from taking C from the house would constitute a crime if the manner in which defendant did that were not otherwise criminal. Of course, if that objective is not a criminal objective, then that is a further reason to reject the dissent’s thesis.

In contrast, defendant’s conduct in ripping the telephone cord out of the wall to prevent M from calling 9-1-1 did, in fact, add a new criminal objective to the criminal episode, that of interfering with making a report to a 9-1-1 emergency reporting system. See ORS 165.572. However, as in Kautz, the addition of another criminal objective does not detract from the focus on the overarching criminal objective that is required under a proper application of the standard that the legislature established in ORS 131.505(4) to protect people against double jeopardy. See, e.g., Boyd, 271 Or at 562-71, 565 nn 4-5.