Argued and Submitted October 31, 2014.
Lane County Circuit Court. 201217903A, 201221295. Suzanne B. Chanti, Judge.
Mary M. Reese, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Patrick M. Ebbett, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Lagesen, Presiding Judge, and Armstrong, Judge, and Wollheim, Senior Judge.
[267 Or.App. 614] LAGESEN, P. J.
On appeal from convictions for first-degree theft, second-degree burglary, first-degree criminal-mischief, and failure to appear, defendant challenges the trial court's decision to impose consecutive sentences on the burglary and criminal-mischief convictions. He also makes an unpreserved challenge to the amount of the restitution imposed by the trial court. We affirm.
On an early morning, defendant and Charles Stevenson cut a hole in the fence surrounding the premises of General Trailer, Inc., a trailer manufacturer in Springfield, and either passed through or over that fence. They then entered a shop building at the site by cutting and peeling back a metal door. They also cut several small holes in the metal wall of the building. Once inside the shop building, they cut the copper wire leads off of five welding machines in the shop. Their activities were detected by General Trailer's video security service, which alerted police, who arrived at the premises in time to apprehend defendant and Stevenson.
Based on that conduct, defendant was charged with, and convicted by a jury of, second-degree burglary, first-degree theft, and first-degree criminal-mischief. The burglary charge was predicated on defendant's act of breaking into the shop building with the intent to comment theft. The criminal-mischief charge was predicated on defendant and Stevenson's path of property destruction accompanying the other crimes:
" The defendant, on or about August 27, 2012 in Lane County, Oregon did unlawfully and with intent to damage property, damage a fence, a building, welding leads and other property, in a total amount exceeding One Thousand Dollars ($1,000), the property of General Trailer Co. and James Fritz, defendant having no right to do so nor reasonable grounds to believe that defendant had such right[.]"
[267 Or.App. 615] At sentencing, the trial court imposed consecutive sentences under ORS § 137.123(5)(a)
on the burglary and criminal-mischief convictions. In accordance with that provision, the court found that defendant's criminal-mischief conviction did not represent " merely an incidental violation of" the criminal-mischief statute, ORS 164.365, in the course of the burglary but, instead, indicated defendant's willingness to commit a " whole separate offense." The court found that defendant did not need to cause the extent of property destruction that he did in order to commit burglary; in particular, the court found that defendant did not need to cut a hole in the fence to accomplish his crimes because the evidence showed that the police officers that responded to the scene were able to " hop over the fence." From those facts showing that, in committing criminal mischief, defendant caused more property damage than necessary to accomplish the burglary, the court inferred that, in committing criminal mischief, defendant showed " a willingness to commit more than one criminal offense." ORS 137.123(5)(a). The trial court also awarded restitution in the amount of $2,350; defendant did not contest the ...