State v. Fasasi ( 2024 )

724 July 10, 2024 No. 484
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
HAFEEZ ADEWALE FASASI,
Defendant-Appellant.
Washington County Circuit Court
20CR63410; A178614
Theodore E. Sims, Judge.
Submitted November 20, 2023.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kali Montague, Chief Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and David B. Thompson, Assistant
Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
POWERS, J.
Convictions on Counts 2 and 4 reversed and remanded
for entry of judgment of conviction for one count of identity
theft; remanded for resentencing; otherwise affirmed.
Cite as 333 Or App 724 (2024) 725
726 State v. Fasasi
POWERS, J.
Defendant appeals from a judgment convicting him
of two counts of first-degree forgery (Counts 1 and 3), three
counts of identity theft (Counts 2, 4, and 6), and one count of
second-degree forgery (Count 5). He raises six assignments of
error. His first four assignments relate to the forgery counts,
in which he challenges the sufficiency of the evidence for
those convictions and also assigns error to the trial court’s
failure to merge Counts 1 and 3. In his fifth assignment of
error, defendant contends that the court erred in failing to
merge two of the identity theft convictions, Counts 2 and 4.
The state concedes that the court erred in failing to merge
the identity theft convictions. As explained below, we accept
the state’s concession and remand the case for resentencing
but otherwise affirm. That disposition obviates the need to
address defendant’s final assignment of error challenging a
departure sentence on Count 3.
The pertinent facts are few and undisputed. The vic-
tim’s checkbook containing blank checks was stolen during
a burglary of his apartment. Some months later, defendant
contacted an acquaintance, JB, and asked that she deposit
two $1,000 checks for him because he did not have a bank
account. JB deposited the checks using her bank’s mobile
app. She then gave defendant $500 in cash and electron-
ically transferred the remaining $1,500 to a Cash App
account that defendant provided her.
Approximately a month later, defendant asked JB
to deposit a third check in the amount of $700. A tear in the
check made it difficult for JB to deposit, so defendant told
JB that he would go home and get a new check. He returned
five to ten minutes later with a check that looked identical
but was not torn. JB deposited the check and gave defendant
$500 but was unable to transfer the remaining $200 to the
same Cash App account. JB contacted police after her bank
froze her account due to fraudulent activity. All three checks
that defendant gave JB were for an account that belonged
to the victim. Defendant was indicted on first- and second-
degree forgery charges and three counts of identity theft,
and a jury found him guilty of all charges.
Cite as 333 Or App 724 (2024) 727
On appeal, defendant argues in his first three
assignments of error that the trial court erred when it
denied his motion for judgment of acquittal on the three
forgery charges. He contends that the state’s evidence was
insufficient to support a finding that defendant falsely made,
completed, or altered the checks. See ORS 165.007(1)(a)
(prohibiting falsely making, completing, or altering a writ-
ten instrument). Specifically, defendant contends that the
state offered no evidence to support that he completed the
checks or that it was his handwriting; thus, he argues that
the jury’s finding that he forged the checks required an
impermissible stacking of inferences. See State v. Bivins,
191 Or App 460, 467, 83 P3d 379 (2004) (explaining that
there is a difference between inferences drawn from circum-
stantial evidence and those drawn from mere speculation
and observing that “[r]easonable inferences are permissible;
speculation and guesswork are not”).
A judgment of acquittal is appropriate if the evidence
is insufficient to support a verdict. State v. Cunningham,
320 Or 47, 61-62, 880 P2d 431 (1994), cert den, 514 US
1005 (1995). We review a trial court’s denial of a motion for
judgment of acquittal for legal error, viewing the facts and
reasonable inferences that can be drawn from the facts in
the light most favorable to the state. State v. Newkirk, 319
Or App 131, 133, 509 P3d 757, rev den, 370 Or 214 (2022); see
also State v. Hedgpeth, 365 Or 724, 733, 452 P3d 948 (2019)
(explaining that “the question is whether the factfinder rea-
sonably could infer that a particular fact flows from other
proven facts, not whether the inference necessarily flows
from the proven facts” (emphasis omitted)). Under that stan-
dard, we conclude that the record sufficiently supported the
trial court’s denial of defendant’s motion.
The record contains evidence that the victim’s
checks were blank when they were stolen, that defendant
had the checks in his possession, and that they were com-
pleted when defendant provided them to JB. Further, when
a torn edge prevented the third check from depositing,
defendant left and returned five to ten minutes later with a
new, completed check that was not torn. JB gave defendant
cash for the checks or sent money to a mobile app account as
728 State v. Fasasi
requested by defendant. Viewed in the light most favorable
to the state, there was sufficient direct and circumstantial
evidence for a rational trier of fact to reasonably infer that
defendant completed the checks. See Bivins, 191 Or App at
466-67 (explaining that “the requirement that the jury be
convinced beyond a reasonable doubt does not mean that a
particular inference must inevitably follow from the estab-
lished facts. Rather, the established facts may support mul-
tiple reasonable inferences and, if they do, which inference
to draw is for the jury to decide” (citation omitted)).
Defendant next contends that the trial court erred
by not merging the guilty verdicts for the two first-degree
forgery charges into a single conviction. To avoid merger,
repeated violations of the same statutory provision against
the same victim “must be separated from other such viola-
tions by a sufficient pause in the defendant’s criminal con-
duct to afford the defendant an opportunity to renounce the
criminal intent.” ORS 161.067(3). Defendant argues that
the state failed to meet its burden of proving that there
was a sufficient pause between the violations because it
did not establish when the two $1,000 checks were forged.
Defendant did not raise the issue before the trial court and
asks that we review for plain error.
Defendant’s claim fails to meet the requirements
for plain-error review. We may review an unpreserved error
if it is one of law, obvious and not reasonably in dispute,
and apparent on the record without requiring the court to
choose between competing inferences. State v. Nickerson,
272 Or App 155, 156, 354 P3d 758 (2015). If the claim meets
those three prerequisites, we must then decide whether to
exercise our discretion to correct the error. Id. Here, the
state adduced evidence that the two checks had different
dates and different payees. That evidence suggests a rea-
sonable possibility that defendant forged the checks at dif-
ferent times. Thus, because there is a reasonable dispute
as to whether there was a sufficient pause between forging
each check, defendant’s claim is not one of plain error.
In a similar argument, defendant contends that the
trial court plainly erred by not merging the guilty verdicts for
identity theft in Counts 2 and 4. The jury convicted defendant
Cite as 333 Or App 724 (2024) 729
based on the state’s theory at trial that defendant “possessed”
the victim’s checks with the intent to defraud. See ORS
165.800(1) (“A person commits the crime of identity theft if
the person, with the intent to deceive or to defraud, obtains,
possesses, transfers, creates, utters or converts to the per-
son’s own use the personal identification of another person.”).
On appeal, defendant argues that he possessed both $1,000
checks at the same time and that the state failed to establish
any evidence of a sufficient pause in his criminal conduct.
The state concedes that the error qualifies as plain error and
that the trial court erred by failing to merge Counts 2 and 4.
Unlike defendant’s merger argument related to his
convictions for forgery, there is no evidence in the record
to suggest that his possession of the checks was separated
by any time at all, much less a pause sufficient to prevent
merger. Thus, we agree with the parties’ arguments, accept
the state’s concession, and exercise our discretion to correct
the error. See State v. Benson, 309 Or App 422, 440, 483 P3d
689 (2021), aff’d, 370 Or 58, 514 P3d 491 (2022) (accepting the
state’s concession, exercising discretion to correct the trial
court’s plain error for failing to merge guilty verdicts, and
explaining that it was appropriate to exercise discretion to
correct the plain error because of the gravity of the error, no
indication that the defendant declined to object for strategic
reasons, and the minimal burden on the judicial system to
resentence the defendant). Accordingly, we remand to the
trial court to merge the guilty verdicts on Counts 2 and 4
and for resentencing. Based on that disposition, we need not
address defendant’s final assignment of error regarding the
court’s downward durational departure on his sentence for
Count 3 because that argument can be addressed, if neces-
sary, at the resentencing hearing. See, e.g., State v. Parham,
302 Or App 179, 180, 456 P3d 690 (2020) (explaining that
remanding for resentencing obviated the need to address the
defendant’s remaining claims of sentencing errors “because
the issues they concern may not arise on remand”).
Convictions on Counts 2 and 4 reversed and
remanded for entry of judgment of conviction for one count
of identity theft; remanded for resentencing; otherwise
affirmed.