State v. Johnson ( 2024 )

No. 228 April 10, 2024 811
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
DARRELL JOHNSON, SR.,
Defendant-Appellant.
Marion County Circuit Court
19CR40752; A179592
Sean E. Armstrong, Judge.
Submitted February 7, 2024.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Emily P. Seltzer, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Shannon T. Reel, Assistant Attorney
General, filed the brief for respondent.
Before Aoyagi, Presiding Judge, Joyce, Judge, and Jacquot,
Judge.
JOYCE, J.
Remanded for resentencing; otherwise affirmed.
812 State v. Johnson
JOYCE, J.
Defendant appeals from a judgment of conviction
for second-degree robbery, ORS 164.405 (Count 1), and first-
degree aggravated theft, ORS 164.057 (Count 2), for aid-
ing and abetting a robbery and theft at a jewelry store in
Woodburn. In his first two assignments of error, defendant
challenges the denial of his motions for judgment of acquit-
tal on both crimes. In his third assignment, defendant chal-
lenges his sentence. For the reasons explained below, we
affirm the convictions but remand for resentencing.
Motion for judgment of acquittal: Defendant argues
that the trial court erred in denying his motions for judg-
ment of acquittal on second-degree robbery and first-degree
aggravated theft. Second-degree robbery occurs when a per-
son commits third-degree robbery and “[r]epresents by word
or conduct that the person is armed with what purports
to be a dangerous or deadly weapon[.]” ORS 164.405(1)(a).
First-degree aggravated theft occurs when a person com-
mits first-degree theft and the value of the property taken
is $10,000 or more. ORS 164.057(1)(b). A person is crimi-
nally liable for another’s conduct if the person, with intent
to promote or facilitate the crime, “[a]ids or abets * * * such
other person in planning or committing the crime[.]” ORS
161.155(2)(b). Defendant here argues that the state failed
to present evidence that defendant was present inside the
store at the time of the theft and robbery.
On review of the denial of a motion for a judgment of
acquittal, we examine the evidence “in the light most favor-
able to the state to determine whether a rational trier of
fact, accepting reasonable inferences and reasonable credi-
bility choices, could have found the essential element of the
crime beyond a reasonable doubt.” State v. Cunningham, 320
Or 47, 63, 880 P2d 431 (1994), cert den, 514 US 1005 (1995).
We describe the evidence consistently with that standard, in
light of the elements of the two crimes.
In July 2016, three men robbed a jewelry store in
Woodburn. One of them brandished a gun and told the store
manager to “Open the motherfucking cases.” The store
manager testified at defendant’s trial that, if defendant had
Nonprecedential Memo Op: 331 Or App 811 (2024) 813
sunglasses on, then his lower profile “could match” one of the
men in the store with whom the manager spoke. A detective
with the Woodburn Police Department reviewed and com-
pared surveillance videos from the store with photographs
of defendant obtained from Facebook. The detective identi-
fied defendant as the person in a video wearing a backpack
and a hat. He testified that, in his opinion, defendant was
one of the three men present in the store based on similar-
ities in height, body shape, build, and based on defendant’s
narrow or sloping shoulders, his shaved or bald head, and
his mustache.
The state also presented evidence on defendant’s
cell phone data. Defendant had a cell phone number with
an area code for Fresno, California, where he lived. Records
from that cell phone number indicated that, on the day
before the robbery, someone traveled with the cell phone
from Fresno to Portland, and then to an area close to the
jewelry store in Woodburn. On the day of the robbery, some-
one used the cell phone in the “cell site that would provide
coverage to the” jewelry store. After the robbery, someone
traveled with the cell phone back to Fresno. The day after
the robbery, defendant sent a Facebook message asking,
“You need a watch?”
On appeal, defendant contends that the identifica-
tion evidence was unreliable and that the cell phone evidence
did not establish defendant’s presence inside the store. But
viewing the evidence in a light most favorable to the state, a
factfinder could reasonably infer that defendant was present
and that he aided and abetted the robbery and theft. We
acknowledge that some of the evidence was circumstantial,
including the cell phone data. But “the state may rely on
circumstantial evidence and reasonable inferences flowing
from that evidence.” State v. Bivins, 191 Or App 460, 466, 83
P3d 379 (2004). “[T]he established facts may support multi-
ple reasonable inferences and, if they do, which inference to
draw is for the jury to decide.” Id. at 467. Because the evi-
dence supported a reasonable inference that defendant was
present in the store and assisted in the robbery and theft,
we reject defendant’s first two assignments of error.
814 State v. Johnson
Sentencing: In his third assignment of error, defen-
dant argues that the trial court erred in imposing the sen-
tence of 70 months in prison for second-degree robbery. “We
review a claim that the sentencing court failed to comply
with the requirements of law in imposing a sentence for
errors of law.” State v. Brewer, 260 Or App 607, 618, 320 P3d
620, rev den, 355 Or 380 (2014) (internal quotation marks
omitted).
For his conviction for second-degree robbery, defen-
dant was subject to a mandatory-minimum sentence of 70
months. ORS 137.700(2)(a)(S). The state requested that sen-
tence on Count 1, pointing out that defendant had a long
criminal history, that he was currently serving time in fed-
eral prison, and that his Oregon sentence should be con-
secutive to that sentence. Defendant argued that the trial
court had discretion to impose a lesser sentence under ORS
137.712. That statute provides, in relevant part:
“(1)(a) Notwithstanding ORS 137.700 * * *, when a
person is convicted of * * * robbery in the second degree
as defined in ORS 164.405, the court may impose a sen-
tence according to the rules of the Oregon Criminal Justice
Commission that is less than the minimum sentence that
otherwise may be required by ORS 137.700 * * * if the court,
on the record at sentencing, makes the findings set forth
in subsection (2) of this section and finds that a substan-
tial and compelling reason under the rules of the Oregon
Criminal Justice Commission justifies the lesser sentence.
***
“* * * * *
“(2) A conviction is subject to subsection (1) of this sec-
tion only if the sentencing court finds on the record by a
preponderance of the evidence:
“* * * * *
“(d) If the conviction is for robbery in the second
degree:
“(A) That the victim did not suffer a significant physi-
cal injury;
“(B) That, if the defendant represented by words or
conduct that the defendant was armed with a dangerous
Nonprecedential Memo Op: 331 Or App 811 (2024) 815
weapon, the representation did not reasonably put the vic-
tim in fear of imminent significant physical injury;
“(C) That, if the defendant represented by words or con-
duct that the defendant was armed with a deadly weapon,
the representation did not reasonably put the victim in fear
of imminent physical injury; and
“(D) That the defendant does not have a previous con-
viction for a crime listed in subsection (4) of this section.”
ORS 137.712.
Defendant argued that he did not have disqualify-
ing convictions, and there were no injuries during the rob-
bery. Accordingly, defendant argued that he was eligible
for a lesser sentence under ORS 137.712, and he asked the
court to exercise its discretion to depart from the otherwise
applicable sentence. He also argued that the “start date” for
his Oregon sentence should be January 6, 2020, which was
when Oregon issued a detainer on defendant (who was then
serving time in California).
The trial court determined that it would pro-
vide defendant with “credit for time served” beginning on
January 6, 2020. That provision is included in defendant’s
judgment of conviction. Thinking that it had effectively short-
ened defendant’s sentence by providing for the January 6,
2020, start date, the trial court then ruled that it was “not
going to deviate from the Ballot Measure 11 sentence” by
departing under ORS 137.712. However, as the court and
parties later discovered, the Department of Corrections will
not credit defendant with that time served.1
On appeal, defendant argues that the trial court
denied his request for a lesser sentence under ORS 137.712
believing, incorrectly, as it turned out, that it had reduced
defendant’s sentence by providing him with credit for time
served.2 We agree that the court did so. As a result, the
1
After learning that DOC would not credit defendant, defendant filed a
motion to modify the judgment and asked the court to apply ORS 137.712. The
court denied the motion on the ground that the sentence had been executed and
thus it lacked authority to modify it.
2
The state argues that defendant failed to preserve that argument because
“defendant did not ask the court to make express findings on the factors listed
in ORS 137.712(2)(d).” We reject the state’s lack of preservation argument.
816 State v. Johnson
court did not make findings regarding the factors in ORS
137.712 or decide whether substantial and compelling rea-
sons existed to depart. Brewer, 260 Or App at 620 (describ-
ing process for imposing a departure sentence under ORS
137.712). We therefore remand to the trial court to deter-
mine whether to impose a sentence under ORS 137.712.
Remanded for resentencing; otherwise affirmed.
Defendant sought a lesser sentence under ORS 137.712, and, when the trial court
ruled against him, he was not required to renew his contentions to preserve them
for appeal. State v. Walker, 350 Or 540, 550, 258 P3d 1228 (2011).