Argued and Submitted November 15, 2013.
110130125. Multnomah County Circuit Court. Kathleen M. Dailey, Judge.
Ryan Scott argued the cause and filed the brief for appellant.
Michael R. Salvas, Senior Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Justice J. Rillera, Assistant Attorney General.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[271 Or.App. 262] ARMSTRONG, P. J.
Defendant appeals a judgment of conviction arising from his act of shooting at people who were at the apartment of a former gang associate. The jury found defendant guilty of attempted aggravated murder with a firearm (Count 1), two counts of attempted murder with a firearm (Counts 3 and 4), unlawful use of a weapon with a firearm (Count 5), and felon in possession of a firearm with a firearm (Count 6); it acquitted defendant of an additional count of attempted murder with a firearm (Count 2). At sentencing, the trial court merged the guilty verdict for one of the counts of attempted murder into the guilty verdict for attempted aggravated murder. In his second assignment of error, defendant argues that the trial court erred in failing to merge the guilty verdicts for both counts of attempted murder into the guilty verdict for attempted aggravated murder. As amplified below, we conclude that the trial court correctly did not merge those verdicts because defendant attempted to murder two victims. We also reject without written discussion defendant's first assignment of error regarding the admission of testimony about defendant's cellular phone number. Accordingly, we affirm.
Because the jury found defendant guilty, we state the facts in the light most favorable to the state. State v. Johnson, 342 Or. 596, 598, 157 P.3d 198 (2007), cert den, 552 U.S. 1113, 128 S.Ct. 906, 169 L.Ed.2d 753 (2008). In the early morning hours of Christmas Eve 2010, defendant, armed with a gun, went to the apartment of a former associate of his
gang, Jimenez. At the time, Jimenez was in the apartment with his girlfriend, his daughter, and two other men--Sanchez and Rocha. When defendant banged on and kicked the front door, Sanchez and Rocha went out the back and came up behind defendant to confront him. Defendant pulled out a gun and fired at Sanchez, who had started running in a different direction from Rocha. When Jimenez heard the gun shots, he ran out the front door and threw a bottle at defendant, and defendant fired in his direction. Defendant then broke a window into the apartment and reached in with his gun, firing in the direction of Jimenez, who had run back inside. Defendant fled the scene and was subsequently arrested.
[271 Or.App. 263] Among other things, a grand jury indicted defendant of attempted murder of Sanchez and attempted murder of Jimenez. The grand jury also indicted defendant on one count of attempted aggravated murder for " unlawfully and intentionally attempt[ing] to cause the death of another human being, defendant having unlawfully and intentionally attempted to cause the death of an additional human being, in the course of the same criminal episode." The jury found defendant guilty of those three counts.
At sentencing, defendant argued that the verdicts for both of the attempted murder counts should merge into the attempted aggravated murder verdict. Defendant argued that, because the attempted aggravated murder count required two victims, all of the elements for both the attempted murder counts were subsumed by the attempted aggravated murder count. The trial court disagreed and concluded that, because there were two victims, there would be two convictions--an attempted aggravated murder conviction and an attempted murder conviction. The trial court then merged Count 4 (attempted murder of Jimenez) into the attempted aggravated murder count. On appeal, defendant reprises the same argument in assigning error to the trial court's failure to merge the guilty verdicts on both attempted murder counts into the guilty verdict on the attempted aggravated murder count.
Merger of guilty verdicts is governed by ORS 161.067 and the case law construing it. That statute provides, in part:
" (1) When 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, there are as many separately punishable ...