Submitted on August 29, 2012.
Lincoln County Circuit Court 100276, 100301, Charles P. Littlehales, Judge.
Peter Gartlan, Chief Defender, and Ingrid A. MacFarlane, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Inge D. Wells, Senior Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Haselton, Chief Judge, and Sercombe, Judge.
Defendant, who was convicted of one count of burglary in the first degree, ORS 164.225, and multiple counts of first- and second-degree theft, ORS 164.055; ORS 164.045, appeals, assigning error to the imposition of an upward durational departure sentence on the first-degree burglary conviction. He contends that the trial court erred in predicating that departure, in part, on the "multiple victims" enhancement factor, OAR 213-008-0002(1)(b)(G) (3/8/96), which, defendant asserts, is in apposite given the circumstances of the burglary. That rule allows an upward durational departure from a presumptive sentence when "[t]he offense involved multiple victims or incidents" but not when the additional sentence is otherwise "captured in a consecutive sentence." We conclude that, in the circumstances of this case, the burglary offense did not "involve[ ] multiple victims, " and, accordingly, we remand for resentencing.
The factual setting that is material to our review of the departure sentence is simple and uncontroverted. In December 2009, defendant unlawfully entered a residence in Lincoln County, which was being used as a vacation rental home, with the intent to commit theft therein. Although 13 people were staying at the rental home for the holiday season, no one was inside at the time of defendant's entry. Once inside, defendant stole various items, including laptop computers and other electronic devices, belonging to seven of the occupants. Following a bench trial, defendant was convicted on one count of first-degree burglary, two counts of first-degree theft, and five counts of second-degree theft, with each of the theft convictions corresponding to a particular theft victim.
The state sought an upward durational departure sentence on the first-degree burglary conviction based on a variety of enhancement factors, including "[p]ersistent involvement[, ]" "[m]ultiple victims/incidents[, ]" "[o]n Parole/Probation/PPS[, ]" and "[d]isregard for laws, inability to be deterred from new crimes[.]" With respect to the "multiple victims" factor, the state relied on the number of occupants (seven) whose personal property had been stolen.
Defendant offered two arguments as to why the "offense involved multiple victims" enhancement factor should not apply to the sentence on the burglary charge. First, defendant contended that the individuals were victims only of the thefts, and not of the burglary qua burglary:
"As far as victims go, your Honor, this is one Burglary. * * * That's one crime I mean there's victims underneath there, but the one crime was the Burglary. So to say that he purposely tried to victimize six or seven different people is really an inaccurate statement of the facts. I mean they in fact were victims of the thefts, but not to the point contemplated by enhancement factors. This was one incident * * *."
Second, and subsequently, defendant asserted that enhancement was inapposite because the circumstances of the burglary were unexceptional and defendant, in unlawfully entering the house, did not do so with the contemporaneous intent to commit crimes therein against multiple victims:
"There are multiple victims only because this kind of a crime tends to have multiple victims under the circumstances. He didn't pick each one and say, 'I'm going to go steal from [a] and then [b] and the rest of them, ' he didn't pick them out that way. This was you know a one-time pick it up and go situation. I think that's the spirit of the separate victims and that's not what applies here."
The trial court ultimately imposed an upward departure sentence on the burglary conviction of 48 months' incarceration, doubling the duration of the presumptive sentence, with 36 months' post-prison supervision. The court predicated that departure on the "multiple victims" and "persistent involvement" guideline departure factors, as well as the nonenumerated departure factors asserted by the prosecution. In doing so, the court did not state that either of the guidelines departure factors would independently support the departure sentence; nor did the court express its reason for rejecting defendant's arguments pertaining to the (in)applicability of the "multiple victims" enhancement factor.
On appeal, defendant essentially reiterates his arguments before the trial court. First, defendant contends that the "multiple victims" enhancement factor is in apposite because, as a categorical matter, a single unlawful entry into jointly occupied space with a generalized intent to commit theft therein can yield only a single conviction-- with a single victim. Thus, defendant reasons, to the extent that he stole the property of multiple occupants, those persons were the "victims" not of the burglary but, instead, of the individual thefts.
In support of that broad contention, defendant argues that the victim of the burglary for purposes of the sentencing guidelines is the same as the victim of the crime for purposes of ORS 161.067, a statute that provides guidance on the number of punishable offenses that may arise out of the "same conduct or criminal episode." ORS 161.067(2) provides, in part:
"When the same conduct or criminal episode, though violating only one statutory provision involves two or more victims, there are as many separately punishable offenses as there are victims. However, two or more persons owning joint interests in real or personal property shall be considered a single victim for purposes of determining the number of ...