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State v. Taylor

Court of Appeals of Oregon

August 22, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
GEORGIO WILLIAM TAYLOR, Defendant-Appellant.

          Submitted September 29, 2017

          Benton County Circuit Court 15CR34784; Matthew J. Donohue, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Mary M. Reese, Deputy Public Defender, Offce of the Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jacob Brown, Assistant Attorney General, fled the brief for respondent.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary: Defendant appeals a judgment of conviction for, among other offenses, three counts of coercion (Counts 1 to 3), ORS 163.275, and one count of felony assault in the fourth-degree (Count 5), ORS 163.160(3). The trial court, when calculating defendant's criminal history score on Count 5, concluded that the "shift-to-I" rule did not apply because Counts 1 to 3 and Count 5 were part of separate criminal episodes. On appeal, defendant assigns error to the trial court's conclusion that the "shift-to-I" rule did not apply. Held: The Court of Appeals held that the record in this case did not support the trial court's conclusion that Counts 1 to 3 were separate from Count 5 for purposes of applying the "shift-to-I" rule.

         Remanded for resentencing; otherwise affirmed.

          [293 Or.App. 461] TOOKEY, J.

         Defendant appeals a judgment of conviction for, among other offenses, three counts of coercion (Counts 1 to 3), ORS 163.275, and one count of felony assault in the fourth-degree constituting domestic violence (Count 5), ORS 163.160(3). The trial court sentenced defendant to 36 months' imprisonment on each of Counts 1 to 3 under 7-A on the sentencing guidelines grid block to be served concurrently, and 30 months' imprisonment on Count 5 under 6-A on the sentencing guidelines grid block to be served consecutively to Counts 1 to 3. On appeal, defendant assigns error to the trial court's calculation of his criminal history score on Count 5. Defendant contends that the trial court "erred when it found that Count 5 arose in a separate criminal episode and refused to apply the 'shift-to-I' rule when imposing a consecutive sentence on Count 5."[1] For the reasons that follow, we conclude that the record does not support the trial court's conclusion that Counts 1 to 3 were separate from Count 5 for purposes of applying the "shift-to-I" rule. We therefore remand for resentencing and otherwise affirm.

         "The question of whether events constitute a single criminal episode is a question of law * * *." State v. Burns, 259 Or.App. 410, 420, 314 P.3d 288 (2013), recons den and appeal dismissed, 261 Or.App. 113, 323 P.3d 275 (2014). In this case, the facts are not in dispute. Thus, we "review the court's application of the law to those facts for legal error." Id. at 421.

         At the time that defendant committed the crimes in this case, he was on supervision and had previously been convicted for prior acts of domestic violence against the victim. As a result of that supervision, he was prohibited from having contact with the victim and prohibited from drinking alcohol. Additionally, at the time that he committed the crimes in this case, defendant had active warrants for his arrest.

         [293 Or.App. 462] Notwithstanding the prohibitions on his conduct due to his supervision, on the evening of August 13, 2015, defendant and the victim were drinking together in the victim's apartment. Also present in the apartment was the victim's two or three-month-old infant, H. At some point after 1:00 a.m. on August 14, 2015, defendant fell asleep.

         After defendant fell asleep, the victim went into the bathroom. Shortly thereafter, defendant woke up and went into the bathroom as well. Defendant grabbed the victim with one hand in the throat and jaw area, which cut off her breathing. Defendant then lifted the victim off the toilet by her throat, carried her out of the bathroom to the living room-a distance of 15 to 25 feet-and threw her on a couch. The time between when defendant lifted the victim off the toilet and when he threw her on the couch was approximately 10 to 15 seconds. Defendant then struck the victim while she was on the couch.

         The victim attempted to leave the apartment and got as far as the porch before defendant intercepted her, grabbed her and brought her back into the apartment. Shortly thereafter, H woke up. The victim picked H up, and while she was holding H, ...


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