Argued and submitted on April 25, 2013.
Wasco County Circuit Court 0900196CR John V. Kelly, Judge. (Judgment) Janet L. Stauffer, Judge. (Amended Judgment).
Shawn E. Wiley, Chief Deputy Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Susan G. Howe, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
Before Schuman, Presiding Judge, and Duncan, Judge, and Nakamoto, Judge.
SCHUMAN, P. J.
Defendant was arrested after she solicited a 17-year-old acquaintance and, several days later, two undercover state troopers to break into defendant's neighbors' home in The Dalles and kidnap their infant daughter. She was subsequently tried and convicted of attempted first-degree burglary and two counts of solicitation to commit second-degree kidnapping. On appeal, she argues that the trial court erred in convicting her as an accomplice to attempted first-degree burglary, because no principal actually attempted to commit the crime. We reject that argument because we conclude that, in fact, the court did not convict her as an accomplice to attempted first-degree burglary; rather, it convicted her for attempting that crime herself. She also contends that the trial court failed to merge all of her guilty verdicts for inchoate crimes into a single conviction, as required under ORS 161.485(2),  because they were all "designed to commit or to culminate in commission of the same crime." We reject that argument because we conclude that it derives from an erroneous statutory interpretation. We therefore affirm.
The facts are undisputed. Defendant had long wanted a child, but she was unable to conceive. Instead, she devised an elaborate but improbable plan to kidnap her neighbors' child and pass the child off as her own. In late August of 2009, defendant approached a 17-year-old acquaintance who had once applied for a job at a restaurant that defendant had owned. Defendant asked the acquaintance if he was still interested in a job, explaining only that it was illegal, and involved "a kid, a gun, and $10, 000." The youth declined the offer and told friends and family about the conversation. They urged him to report the incident to The Dalles police, and he did so.
At police request and with their guidance, the youth called defendant and asked whether she was still looking for someone to do the job. Defendant responded that she was. The youth fabricated a story about a "cousin" in financial trouble who was interested in doing the job. Defendant told the youth that she had acquired the necessary guns and repeated that the job paid $10, 000 and involved a baby girl. She also assured the youth that nobody would be hurt and that "hopefully the plan is not to put [any ammunition] in [the guns]." Defendant explained that the job had to be done in the next two weeks.
Shortly thereafter, Oregon State Trooper Jason Perrizo called defendant, identified himself as the youth's "cousin, " and told her that he had arrived in town. Defendant arranged to meet Perrizo and another undercover trooper in a retail store parking lot. Once there, they began discussing the kidnap plan. Defendant provided the troopers with her neighbors' address, directions to and a description of their house, and the age of the baby. She provided $1, 000 as down payment and promised to pay the remaining $9, 000 upon completion, as well as another $2, 000 if no one was hurt. When defendant handed the troopers a bag containing $1, 000 cash and unloaded firearms, Perrizo asked her if she was sure she wanted to go through with the plan. She said that she was. At that point, uniformed officers entered the parking lot and arrested defendant. She eventually admitted to the scheme described above, explaining that she had devised the plan to fake a pregnancy and kidnap her neighbors' child a few months earlier. After a bench trial, defendant was convicted of, among other things, attempted first-degree burglary, solicitation of the youth to commit second-degree kidnapping, and solicitation of Perrizo to commit second-degree kidnapping.
On appeal, defendant raises seven assignments of error addressing three rulings of the trial court: (1) the implicit denial of defendant's contention that there was not enough evidence to convict her of attempted first-degree burglary; (2) the decision not to merge the three remaining convictions; and (3) the imposition of departure sentences for each conviction based on facts not alleged in the indictment. The Oregon appellate courts have already rejected this last argument, and we do so again, without further discussion. State v. Reinke, 354 Or 98, 124, 309 P.3d 1059, adh'd to as modified, 354 Or ___, ___ P.3d ___ (Dec 2013); State v. Sanchez, 238 Or.App. 259, 267, 242 P.3d 692 (2010), rev den, 349 Or 654 (2011).
We turn, then, to defendant's assignments of error regarding the adequacy of evidence to support her conviction for attempted first-degree burglary. First, she argues that the trial court relied on an incorrect interpretation of the accomplice liability statute in convicting defendant; and, second, she argues that, under a correct interpretation, there was insufficient evidence to justify a conviction. The fatal flaw in defendant's first argument is that it is predicated on the erroneous premise that the trial court convicted her as an accomplice to attempted first-degree burglary. Based on that conclusion, defendant argues that the accomplice liability statute, ORS 161.155, unambiguously requires that the person who receives the accomplice's aid must actually commit the crime that is allegedly aided. Therefore, defendant reasons, because the undercover troopers never intended to enter the home and attempt a burglary, the state failed to establish a necessary element of accomplice liability. However, defendant mistakes the trial court's basis for convicting her of attempted first-degree burglary. As the state contends, the prosecution of defendant for attempted burglary, and the trial court's rationale for finding her guilty of that charge, did not derive from her assistance to the undercover officers or the youth; rather, they were based on her own conduct. The prosecutor never advanced an argument based on accomplice liability, nor did the trial court indicate that it was basing its judgment on such a theory. In rendering its verdict on attempted first-degree burglary, the trial court stated,
"I believe it has been proved beyond a reasonable doubt that [defendant] attempted, by hiring others, to enter into a dwelling place to kidnap a child and, of course, Attempted Burglary, no--excuse me. Let me address burglary requires that a person enter into a dwelling ...