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State v. Burris

Court of Appeals of Oregon

April 22, 2015

STATE OF OREGON, Plaintiff-Respondent,
v.
LARON MC KINLEY BURRIS, II, aka Laron Mc Kinley Burris III, aka Laron Mc Kinley Burris, Defendant-Appellant

Submitted June 17, 2014.

110431520. Multnomah County Circuit Court. Cheryl A. Albrecht, Judge.

Kristin A. Carveth, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Greg Rios, Assistant Attorney General, argued the cause for respondent. With him on the briefs were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before DeVore, Presiding Judge, and Haselton, Chief Judge, and Garrett, Judge.

OPINION

Page 339

[270 Or.App. 514] DEVORE, P. J.

This criminal case presents a question of merger, under ORS 161.067, the " anti-merger statute." Defendant appeals a judgment of conviction for a number of robbery and weapon offenses. In defendant's first unpreserved assignment of error, he argues that the trial court failed to instruct the jury that it must agree on the material facts comprising one of two alternative versions of first-degree robbery. Without further discussion, we decline to review that assignment for plain error, because the error, if any, was harmless on this record. See State v. Phillips, 354 Or. 598, 608, 317 P.3d 236 (2013) (holding error to be harmless where there were not two separate, competing factual theories and where the act and intent necessary for accomplice liability, on the particular facts, subsumed those of principal liability). In defendant's second assignment of error, he argues that the trial court erred in refusing to merge several of the robbery offenses. We review for legal error, State v. Sanders, 185 Or.App. 125, 129, 57 P.3d 963 (2002), adh'd to as modified on recons, 189 Or.App. 107, 74 P.3d 1105 (2003), rev den, 336 Or. 657, 92 P.3d 122 (2004), and we affirm.

The facts are undisputed. Drake and his mother were homeless. Drake suffered from Crohn's Disease, a chronic intestinal illness, and he kept methadone pills prescribed to manage his pain from the condition. He arranged to sell some of his methadone pills to Anderson. Drake, his mother, and a friend met Anderson and defendant, who was Anderson's cousin, at a MAX stop in Portland. Because police officers were present, the group " walked for quite a ways" to a Plaid Pantry where Drake urged they should make the sale. Defendant drew a gun from his pants and pointed it at Drake, without saying anything. Anderson told Drake to empty his pockets. Drake did so, and Anderson and defendant fled on foot with Drake's pills and his cell phone. Defendant was charged with one count of first-degree robbery with a firearm (Count 1), ORS 164.415 and ORS 161.610(2); two counts of second-degree robbery with a firearm (Counts 2 and 3), ORS 164.405 and ORS 161.610(2); one count of unlawful use of a weapon with a firearm [270 Or.App. 515] (Count 4), ORS 166.220 and ORS 161.610(2); and one count of felon in possession of a weapon with a firearm (Count 5), ORS 166.270 and ORS 161.610(2). As alleged in the indictment, the two counts of second-degree robbery were based on distinct alternatives (1)(a) and (1)(b) permitted by ORS 164.405. That statute provides, in part,

" (1) A person commits the crime of robbery in the second degree if the person violates ORS 164.395 [third-degree robbery] and the person:

" (a) Represents by word or conduct that the person is armed with what purports to be a dangerous or deadly weapon; or

" (b) Is aided by another person actually present."

Under subsection (1)(a) of the statute, Count 2 alleged that defendant was " armed with what purported to be a deadly and dangerous weapon" during the commission of the offense whereas, under subsection (1)(b) of the statute, Count 3 alleged that defendant was " aided by another person actually present" during the commission of the offense. ORS 164.405(1)(a), (1)(b). The state charged each of the counts so as to include " with a firearm" as an aggravating element, ORS 161.610(2). The jury found defendant guilty on all counts as charged.

At the sentencing hearing, defendant argued, among other things, that he should

Page 340

only have a single conviction for robbery because Counts 1 through 3 should merge. The trial court agreed in part. It determined that the two guilty verdicts for second-degree robbery should merge. State v. White, 346 Or. 275, 291, 211 P.3d 248 (2009) (with second-degree robbery the legislature intended to create a single crime). The trial court, however, did not merge those guilty verdicts with first-degree robbery.[1]

On appeal, defendant renews his argument, urging that the guilty verdicts on Count 1 (first-degree robbery) and Count 2 (second-degree robbery under ORS 164.405(1)(a)) [270 Or.App. 516] should have merged with the guilty verdict on Count 3 (second-degree robbery under ORS 164.405(1)(b)) because, as charged in the indictment to include " with a firearm," all of the elements of first-and second-degree robbery with a firearm are subsumed in Count 3, which requires those same elements in addition to the unique element, " aided by another person present." The state responds that the statutory provisions at issue require proof of an element that the others would not, and that, therefore, the guilty verdicts cannot merge pursuant to the anti-merger statute. ORS 161.067(1). As we explain, we agree with the state.

The anti-merger statute provides, in relevant part, that guilty verdicts may not merge if " the same conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an element that the others do not ***." ORS 161.067(1); State v. Flores, 259 Or.App. 141, 144, 313 P.3d 378 (2013), rev den, 354 Or. 735, 320 P.3d 567 (2014).[2] In this case, defendant does not dispute that first-degree robbery and second-degree robbery are separate statutory provisions under ORS 161.067(1). See State v. Colmenares-Chavez, 244 Or.App. 339, 346-47, 260 P.3d 667, rev den, 351 Or. 216, 262 P.3d 402 (2011) (first-degree robbery and second-degree robbery are different statutory provisions for purposes of ORS 161.067(1))[3]; see also State v. Parkins, 346 Or. 333, 354-55, 211 P.3d 262 (2009) (reasoning that " when the legislature sets out the offenses in separate sections, defines them as different degrees of an incrementally graded offense, and assigns them different punishments[,]" the statutory provisions are generally " separate provisions for purposes of the anti-merger statute" ). Defendant does, however, challenge whether his robbery offenses run afoul of the anti-merger statute's limitation that " each provision requires proof of an element that the others do not[.]"

[270 Or.App. 517] As the matter is presented, we must answer two questions. First, we must determine whether each robbery provision that defendant violated requires proof of an element that the others do not. White, 346 Or. at 283. Second, we must determine whether adding the aggravating element " with a firearm" under ORS 161.610(2) changes the conclusion. In both inquiries, we ask whether one offense is a subset of another offense. " Put differently, convictions for conduct in a criminal episode that violates two or more statutory provisions merge if all of the elements in one provision are subsumed into the elements of the other provision." State v. Noe, 242 Or.App. 530, 532, 256 P.3d 166 (2011) (citing State v. Tucker, 315 Or. 321, 331, 845 P.2d 904 (1993)). Our inquiry has been framed algebraically: " if one offense contains X elements, and another offense contains X 1 elements, the former offense does not contain

Page 341

an element that is not also found in the latter offense" and, thus, merger is required. State v. Blake, 348 Or. 95, 99, 228 P.3d 560 (2010).

" The elements of proof of a criminal offense are controlled by the statute defining the offense, not by the factual circumstances recited in the indictment." State v. Atkinson, 98 Or.App. 48, 50, 777 P.2d 1010 (1989); see also State v. Wright, 150 Or.App. 159, 162, 945 P.2d 1083 (1997), rev den, 326 Or. 390, 952 P.2d 63 (1998) (citing State v. Sumerlin, 139 Or.App. 579, 584, 913 P.2d 340 (1996)). " However, when a statute contains alternative forms of a single crime ***, we will look to the indictment to determine which form is charged, and we use the elements of the charged version in the merger analysis." State v. Pass, 264 Or.App. 583, 587, 333 P.3d 1139 (2014).

Unlike the pattern for other related offenses, first-degree robbery is not predicated on the elements of second-degree robbery. Rather, both offenses are predicated on the commission of third-degree robbery. For our purposes here, third-degree robbery involves the use or threat of immediate use of physical force upon another person with the intent of preventing or overcoming resistance to the taking of property or compelling the owner to deliver the property. ORS 164.395. The statute on second-degree robbery provides:

[270 Or.App. 518] " (1) A person commits the crime of robbery in the second degree if the person violates ORS 164.395 [third-degree robbery] and the person:

" (a) Represents by word or conduct that the person is armed with what purports to be a dangerous or deadly weapon; or

" (b) Is aided by another person actually present."

ORS 164.405.[4] And, the statute on first-degree robbery provides:

" (1) A person commits the crime of robbery in the first degree if the person violates ORS 164.395 [third-degree robbery] and the person:
" (a) Is armed with a deadly weapon[.]"

ORS 164.415.

As to each offense charged here, the aggravating element, " with a firearm," was alleged. The authorizing statute provides that " [t]he use or threatened use of a firearm, whether operable or inoperable, by a defendant during the commission of a felony may be pleaded in the accusatory instrument and proved at trial as an element in aggravation of the crime ***." ORS 161.610(2). This court has concluded that the phrase " with a firearm" is an element of a crime that must be proved beyond a reasonable doubt. Flores, 259 Or.App. at 147 (" The proscribed conduct--use or threatened use of a firearm during the commission of a felony--is expressly designated an element." (Emphasis in original.)). " Adding it to an offense creates a new crime, the aggravated crime, which is separate from the 'unaggravated crime.'" Id.

Defendant contends that adding the " with a firearm" element created a situation in which the elements of first-degree robbery should be subsumed in what ordinarily would be the elements of the lesser offense of second-degree robbery. Defendant reasons that the weapon-related elements of the two offenses become equivalent and that only the alternative elements of second-degree robbery would be unique. Thus, in defendant's view, first-degree robbery [270 Or.App. 519] (Count 1) and second-degree robbery with an apparent weapon (Count 2) should merge or merge " down" into second-degree robbery when aided by another person (Count 3).

We disagree. Given the elements that make up the crimes of which defendant was convicted, we conclude that all elements in one provision are not subsumed into the elements of the other.[5] To begin, defendant

Page 342

concedes, and we agree, that " being aided by another person actually present is an element that is unique to Count 3 [second-degree robbery (1)(b)], and proof of that element is not required in Counts 1[first-degree robbery] or 2 [second-degree robbery (1)(a) with an apparent weapon]." Therefore, second-degree robbery under ORS 164.405(1)(b) includes an element absent from first-degree robbery under ORS 164.415; that is, second-degree robbery (1)(b) is unique by requiring aid of " another person actually present."

Defendant is mistaken, however, that " no element of Count 1 [first-degree robbery] or 2 [second-degree robbery (1)(a) with an apparent weapon] is not also required by Count 3 [second-degree robbery (1)(b) as with another present]." First-degree robbery under ORS 164.415(1)(a) requires that a person actually be armed with a deadly weapon, and, in turn, a " deadly weapon" requires an instrument " presently capable of causing death or serious physical injury." ORS 161.015(2) (emphasis added). Accordingly, for first-degree robbery, the state must prove, at least by reasonable inference, that a defendant has an operable weapon. See State v. Mustain, 66 Or.App. 367, 371, 675 P.2d 494, [270 Or.App. 520] rev den, 297 Or. 83, 679 P.2d 1368 (1984) (there must be sufficient evidence in the record supporting that a defendant is in possession of an operable and loaded or readily loaded weapon). This is more than second-degree robbery requires. Of the two alternatives, second-degree robbery under ORS 164.405(1)(a) requires that a person represents that he or she is armed " with what purports to be a dangerous or deadly weapon[.]" (Emphasis added). No operable weapon is required. State v. Riehl, 188 Or.App. 1, 9, 69 P.3d 1252 (2003) (ORS 164.405(1)(a) includes " instances in which the actor is unarmed" ).

Although an argument might be made that second-degree robbery with an apparent weapon should merge with first-degree robbery, that is not our question here. Defendant was not convicted of only those two charges. He was also convicted of second-degree robbery with the aid of another person, under ORS 164.405(1)(b), and he argues that those two offenses (Counts 1 and 2) should merge with robbery with aid of another person (Count 3). Such merger cannot occur. First-degree robbery requires proof that the firearm is " presently capable" whereas second-degree robbery does not. Defendant has already recognized that second-degree robbery when aided by another person present, ORS 164.405(1)(b), involves a unique element, which is not found in first-degree robbery. Thus, in this case, each offense involves a unique element not found in the other, and the guilty verdicts on the offenses do not merge under ORS 161.067(1).[6]

For much the same reason, the second question posed in this case is answered in the same way. We do not agree with defendant that the " with a firearm" element, when added as to the three robbery counts, as permitted by ORS 161.610(2), created a situation in which the elements of first-degree robbery were subsumed in the elements

Page 343

of [270 Or.App. 521] second-degree robbery. The aggravating element " with a firearm" permits either an " operable or inoperable " gun. ORS 161.610(2) (emphasis added). First-degree robbery remains unique in requiring a " presently capable" weapon. There still is an element--operability of the firearm--that is not subsumed by the elements of the other provision, second-degree robbery. Compare Mustain, 66 Or.App. at 370 n 1 (quoting Commentary, Oregon Criminal Code of 1971, 2-3) (" 'robbery with an unloaded gun, not used to strike with, is not robbery while armed with a dangerous weapon'" ). As before, second-degree robbery with the aid of another (ORS 164.405(1)(b)) still requires its own unique element. The addition of the aggravating element " with a firearm" does not change the conclusion. The offenses of first-and second-degree robbery do not merge in this case.[7] Therefore, the trial court did not err, and we must affirm.

Affirmed.


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