State v. Martin ( 2022 )

266
Argued and submitted September 29, 2021, affirmed October 5, petition for
review denied December 29, 2022 (370 Or 694)
STATE OF OREGON,
Plaintiff-Respondent,
v.
ROBERT RAY MARTIN,
Defendant-Appellant.
Washington County Circuit Court
C140113CR; A173823
519 P3d 132
Defendant appeals from a second sentencing judgment, obtained as post-
conviction relief, arguing that the trial court erred in concluding that some
of his offenses did not arise out of the same criminal episode. ORS 131.505(4)
(“ ‘Criminal episode’ means continuous and uninterrupted conduct that * * * is
so joined in time, place and circumstances that such conduct is directed to the
accomplishment of a single criminal objective.”). Defendant committed public
indecency at five different drive-throughs on the same night by masturbating
with his penis exposed. ORS 163.465(1)(c) (2013). Held: The trial court did not err
in concluding that each offense was a separate criminal episode because the time,
place, and circumstances of defendant’s conduct support the trial court’s conclu-
sion that defendant achieved his objective separately at each drive-through.
Affirmed.
Eric Butterfield, Judge.
Ryan Scott argued the cause and filed the briefs for
appellant.
Doug M. Petrina, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before James, Presiding Judge, and Lagesen, Chief Judge,
and Kamins, Judge.
KAMINS, J.
Affirmed.
Cite as 322 Or App 266 (2022) 267
KAMINS, J.
Defendant appeals from a second sentencing judg-
ment, obtained after receiving post-conviction relief, which
reimposed his original sentence. He raises seven assign-
ments of error, all but one of which stem from the trial
court’s conclusion that some of the offenses did not arise out
of the same criminal episode.1 Because each offense consti-
tuted a separate criminal episode, his sentence was lawful
and the verdicts do not merge. We therefore affirm.
Defendant was convicted of eight counts of felony
public indecency, ORS 163.465(1)(c) (2013), amended by Or
Laws 2017, ch 318, § 10; Or Laws 2019, ch 65, § 1. (“A per-
son commits the crime of public indecency if while in, or in
view of, a public place the person * * * expos[es] the genitals
of the person with the intent of arousing the sexual desire
of the person or another person.”). He committed five of the
offenses at different locations on the same night, between
approximately 6:00 p.m. and 1:00 a.m. In each offense, defen-
dant pulled up to a drive-through service window where a
woman was working and stared at her without speaking
while masturbating with his penis exposed. In some of the
instances, the employee did not realize what he was doing
until he drew her attention downward with his eyes. There
were no other cars in line when he approached each window,
and he took steps to conceal his identity, such as removing
the license plates from his car.
At the original trial, defendant did not argue that
those incidents arose out of a single criminal episode, an
argument that, if successful, would have reduced his sen-
tence. See OAR 213-012-0020(2) (providing for the “200 per-
cent” and “shift-to-I” rules). Defendant sought and obtained
the post-conviction relief of resentencing on the basis that
his trial counsel was ineffective for failing to make that
argument.2 On remand, the trial court held a hearing to
1
We cannot reach assignment seven, which challenges the trial court’s
denial of early release and sentence reduction programming, because it is beyond
the scope of remand from the post-conviction court. State v. Curry, 209 Or App 31,
36, 146 P3d 348 (2006) (“[T]he trial court is authorized only to correct the error
that was identified by the post-conviction court.”).
2
The PCR court did not determine whether the offenses arose out of a single
criminal episode, and neither party appealed.
268 State v. Martin
consider the issue, concluded that each offense was a sepa-
rate criminal episode, and reimposed the original sentence.
On appeal, we must determine whether any of defendant’s
visits to five different restaurants’ drive-through windows
took place during a single criminal episode.
Whether conduct constitutes a single criminal epi-
sode “is a question of law that, in turn, may depend on pred-
icate findings of historical fact.” State v. Potter, 236 Or App
74, 82, 234 P3d 1073 (2010). 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. Burns, 259 Or App 410, 421, 314
P3d 288 (2013). “The state bears the burden of proving by a
preponderance of evidence” that each offense was a separate
criminal episode. State v. Nesbit, 274 Or App 694, 695, 361
P3d 649 (2015).
The term “criminal episode” is defined as “contin-
uous and uninterrupted conduct that * * * is so joined in
time, place and circumstances that such conduct is directed
to the accomplishment of a single criminal objective.” ORS
131.505(4). A criminal objective, in turn, “refers to the pur-
suit of some object or attainment of some goal beyond the
successful commission of the acts constituting the offense
charged.” State v. Cloutier, 286 Or 579, 599 n 21, 596 P2d
1278 (1979).
That definition is grounded in the statutes address-
ing former jeopardy. State v. Dulfu, 363 Or 647, 668-69, 426
P3d 641 (2018) (concluding that the drafters of the sentenc-
ing regulations intended for “criminal episode” to have the
same meaning as in the former jeopardy context). The prin-
cipal requirement of those statutes is that “[n]o person shall
be separately prosecuted for two or more offenses based
upon the same criminal episode.” ORS 131.515(2). Hence,
the animating principle of the definition of “criminal epi-
sode” “is to identify the conduct (of a person) which may only
be prosecuted once.” Commentary to Criminal Law Revision
Commission Proposed Oregon Criminal Procedure Code,
Final Draft and Report § 26, 16 (Nov 1972).
Defendant argues that the five incidents arose out
of a single criminal episode because all of his conduct was
Cite as 322 Or App 266 (2022) 269
directed toward the single criminal objective of “exposing
himself for the purposes of sexual arousal.” He further
argues that, because indecent exposure does not depend on
the existence of a “victim” who observes the exposure, and
there is no evidence that he covered up or left public prop-
erty between each incident, his conduct was essentially akin
to streaking through downtown Portland for five hours. See
State v. Gialloreto, 301 Or App 585, 595, 457 P3d 1105 (2019),
rev den, 366 Or 827 (2020) (“[T]he offense of public indecency
does not require a victim.”). The state, on the other hand,
contends that defendant achieved his criminal objective at
each drive-through, then undertook it again at the next,
such that, while his objective may have been the same, it
was not a single one. We agree with the state.
“[O]ur analysis of whether conduct is directed to the
accomplishment of a single criminal objective is ‘an objec-
tive determination.’ ” Welsh v. Taylor, 284 Or App 387, 394,
392 P3d 366, rev den, 361 Or 886 (2017) (citing Commentary
§ 26 at 17). The inquiry is informed by “the degree to which
the conduct is joined in time, place and circumstances.”
State v. Taylor, 293 Or App 460, 465, 428 P3d 939 (2018)
(internal quotation marks omitted). “[T]he standard 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 crimi-
nal objectives.” Burns, 259 Or App at 430; see also State v.
Wilder, 305 Or App 618, 627, 471 P3d 798 (2020), rev den,
367 Or 535 (2021) (“A critical factor in treating criminal con-
duct as a unitary event is not the coincidence of time, place,
and circumstance, but the resulting inference that the con-
duct is directed to the accomplishment of a single criminal
objective.” (Emphases in original; internal quotation marks
omitted.)).
The Commentary provides examples that reinforce
the focus on the time, place, and circumstance of each offense.
For instance, “[i]f a person burglarizes a number of homes
during an evening, each burglary would be a separate crim-
inal episode because there is a difference of time and place,”
but “a close question would develop if several apartments
270 State v. Martin
in the same building were burglarized in succession in one
evening.” Commentary § 26 at 17. The difference between
those two examples is that the apartment burglaries would
be closer together in time and location than the house bur-
glaries. In the drug context, “[t]he simultaneous possession
and sale of narcotics would constitute a criminal episode”
but “sales of narcotics by one defendant to different people
at different times on the same day would constitute separate
criminal episodes because of a difference in time.” Id.
The time, place, and circumstances of defendant’s
conduct support the trial court’s conclusion that defendant
achieved his objective—as defendant puts it, “exposing him-
self for the purposes of sexual arousal”—separately at each
drive-through. Each count in the indictment identified a
different “public place” where defendant exposed himself,
and the jury found that he exposed himself at each of those
places. ORS 163.465(1) (2013) (providing that the person
must be “in, or in view of, a public place” to be convicted of
public indecency). Defendant committed each exposure at a
different time, and those locations were miles apart—more
like burglarizing different houses than apartments in the
same building. Commentary § 26 at 17.
The circumstances of defendant’s conduct also sup-
port the trial court’s conclusion that each offense was a
separate episode. Defendant was convicted of exposing his
genitals “with the intent of arousing the sexual desire of the
person or another person.” ORS 163.465(1)(c) (2013) (empha-
sis added). The evidence that defendant sought to draw
the attention of the women to what he was doing indicated
that the women were not incidental witnesses, rather, their
presence was an essential part of defendant’s intent. The
trial court could reasonably have determined that defen-
dant, however misguidedly, took such elaborate measures to
approach separate drive-through employees for the purpose
of arousing those witnesses’ sexual desire, in addition to his
own. Additionally, the women had no discernible connection
to each other, other than happening to have similar jobs,
reinforcing the inference that the offenses were not joined in
circumstances. Cf. State v. Thornsberry, 315 Or App 287, 296,
501 P3d 1 (2021) (observing that the offenses all took place
in the same apartment and the victims were roommates). A
Cite as 322 Or App 266 (2022) 271
sufficient difference in the time, place, and circumstances
of each exposure supported an inference that each incident
was a separate episode.
Our decision in Welsh is instructive. 284 Or App
387. There, the petitioner sought post-conviction relief based
on his trial counsel’s failure to argue that multiple drug and
firearm-related offenses were part of a single criminal epi-
sode, positing that they were aimed at achieving the single
objective of “running a drug-dealing enterprise.” Id. at 395.
We rejected that argument, concluding that, although the
petitioner may have “formed a distant or overriding goal
to ‘engage in a drug-dealing enterprise,’ * * * his delivery of
each controlled substance and his possession of the firearms
were in pursuit of more immediate and separate criminal
objectives.” Id. at 399. We further observed that “[t]o con-
clude otherwise would permit a defendant to convert any
number of deliveries over a given period of time to a single
criminal episode merely by forming an intent to ‘engage in
a drug-dealing enterprise’ in advance,” which “would not
make sense.” Id. (citation omitted); see also Wilder, 305 Or
App at 631 (“Although defendant may have formed an over-
riding goal to facilitate a father-son hunting trip, the record
supports the determination that his unlawful hunting and
possession of the shotgun were in pursuit of more imme-
diate and separate objectives[.] * * * To conclude otherwise
would allow a defendant to convert numerous wildlife vio-
lations or firearm offenses into a single criminal episode
by merely forming a broad intent to foster family bonding
through hunting.”).
It would likewise not make sense to convert defen-
dant’s five targeted exposures into one criminal episode
merely by framing his objective more broadly. Defendant
carefully set up the circumstances of each exposure by
choosing a time when no other cars were present, tak-
ing steps to hide his identity, approaching the window
actively masturbating, and positioning himself such that
the employee would have a clear view of his penis. Those
facts indicate that each exposure was “in pursuit of [a] more
immediate and separate objective[ ]” of exposing himself for
sexual gratification and was thus a separate criminal epi-
sode. Id. The state therefore met its burden to prove that
272 State v. Martin
he accomplished his objective at each drive-through, then
undertook the same objective again at the next.
Defendant argues that our decision in State v.
Tooley forecloses the conclusion that his conduct amounted
to separate episodes. 265 Or App 30, 333 P3d 348, rev den,
356 Or 575 (2014). We disagree. Tooley arose in a different
context and a different procedural posture. In that case, the
state argued that the defendant’s murders rose to the level
of “aggravated” because they involved the murder of more
than one victim “in the same criminal episode as defined
in ORS 131.505.” ORS 163.095(1)(d) (2014), amended by Or
Laws 2015, ch 614, § 149; Or Laws 2019, ch 635, § 1. The
defendant moved for a judgment of acquittal, arguing that
no rational factfinder could conclude that his two murders
arose out of the same criminal episode. Tooley, 265 Or App
at 31. We disagreed, concluding that the record contained
sufficient evidence that a rational factfinder could conclude
that the murders arose out of the same criminal episode. Id.
at 44-45. Both the posture of Tooley—a motion for judgment
of acquittal—and its context—a determination of whether
a defendant’s crime subjects him to increased punishment
rather than an evaluation of whether the principles of dou-
ble jeopardy limit his sentencing exposure—render the case
unhelpful in evaluating criminal history score and merger.
See e.g., State v. Bryant, 245 Or App 519, 522, 263 P3d 368
(2011) (“[T]he term ‘criminal episode’ appears in many dif-
ferent contexts, and its meaning can vary with the context
in which it is used.”).
And, in any event, Tooley does not aid defendant’s
argument. The defendant in that case murdered a husband
and wife approximately 12 hours apart but in the same loca-
tion, the victims’ home. 265 Or App at 43. We concluded that
a rational factfinder could determine that all of the defen-
dant’s conduct, including his activities between the two mur-
ders, was “in service of an ultimate and discrete criminal
goal” to take over the victims’ drug-dealing business. Id. at
40. To achieve that goal, the defendant needed to complete
exactly two murders, so we concluded that a jury could infer
that he had one concrete, overarching goal and each murder
was a step toward achieving that goal.
Cite as 322 Or App 266 (2022) 273
In contrast, defendant’s objective here—sexual
gratification—is not a “discrete” goal, in that he did not need
to expose himself a specific number of times to achieve it. It
is more akin to the “distant and overriding” goals of running
a drug-dealing enterprise and fostering father-son bonding
through hunting. Welsh, 284 Or App at 399; Wilder, 305 Or
App at 631. The trial court was therefore permitted to find
that each offense constituted a separate criminal episode
such that defendant’s criminal history score was correctly
calculated, and his convictions do not merge.
Affirmed.