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State v. Gatewood

Court of Appeals of Oregon

October 16, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
ALEXANDER DEAN GATEWOOD, Defendant-Appellant.

          Submitted March 6, 2019.

          Coos County Circuit Court 17CR01905 Martin E. Stone, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Marc D. Brown, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Doug M. Petrina, Assistant Attorney General, fled the brief for respondent.

          Before Ortega, Presiding Judge, and Powers, Judge, and Kistler, Senior Judge.

         Case Summary: Defendant-who was convicted of one count of first-degree theft, ORS 164.055, and one count of felon in possession of a firearm (FIP), ORS 166.270-appeals the judgment of conviction, assigning error to the trial court's imposition of consecutive sentences. Defendant argues that, for consecutive-sentencing purposes under ORS 137.123(5)(b), the state was not a "victim" of the FIP offense. Held: For consecutive-sentencing purposes, the identity of the "victim" was determined by the substantive statute defining the relevant criminal offense. Under the substantive statute defining the offense of FIP, the state was the victim. Because the victim of the theft offense was different from the victim of the FIP offense, the trial court did not err in imposing consecutive sentences.

         [300 Or.App. 22] ORTEGA, P. J.

         Defendant-who was convicted of one count of first-degree theft, ORS 164.055, and one count of felon in possession of a firearm (FIP), ORS 166.270-appeals, assigning error to the trial court's imposition of consecutive sentences. Defendant argues that, for consecutive-sentencing purposes under ORS 137.123(5)(b), [1] the state was not a "victim" of the FIP offense, nor does Article I, section 44(3), of the Oregon Constitution[2] support such a proposition. We conclude that, for consecutive-sentencing purposes, the identity of the "victim" is determined by the substantive statute defining the relevant criminal offense and that, under the substantive statute defining the offense of FIP, the state is the victim.[3]Accordingly, we affirm.

         The pertinent facts are few and undisputed. Based on evidence that he had taken JC's gun without permission, defendant-who had a felony conviction-was convicted of one count of first-degree theft, ORS 164.055, [4] and one count of FIP, ORS 166.270.[5] At sentencing, defendant preemptively argued for concurrent sentences, reasoning that "the same facts were being used for each count-same incident." Over defendant's objection, the trial court ordered that the sentence on the theft count run consecutively to the sentence on the FIP count, stating that "[t]here's an identified victim" on [300 Or.App. 23] the theft count: JC. Defendant appealed, asserting that the trial court erred by imposing the consecutive sentences.

         Although the trial court did not precisely state the authority pursuant to which it imposed the consecutive sentences, it is reasonably clear from the record-and both parties recognize-that the court relied on ORS 137.123(5)(b). See State v. Edwards, 286 Or.App. 99, 102, 399 P.3d 463, rev den, 362 Or. 175 (2017) (stating that a trial court is not required to state which paragraph of ORS 137.123(5) it was relying on to impose a consecutive sentence). ORS 137.123 (5)(b) provides:

"The court has discretion to impose consecutive terms of imprisonment for separate convictions arising out of a continuous and uninterrupted course of conduct only if the court finds:
"(b) The criminal offense for which a consecutive sentence is contemplated caused or created a risk of causing greater or qualitatively different loss, injury or harm to the victim or caused or created a risk of causing loss, injury or harm to a different victim than was caused or threatened by the other offense or offenses committed during a continuous and uninterrupted course of conduct."

(Emphasis added.) Neither party disputes that JC was the victim of the theft offense. At issue is whether the state was the victim of "the other offense" of FIP, such that there was a "different victim" to authorize imposing the consecutive sentences.

         On appeal, on both statutory and constitutional grounds, defendant challenges the proposition that the state was the victim of the FIP offense. First, defendant argues that the term "victim" in ORS 137.123(5)(b) is statutorily defined by ORS 131.007, which imbues "victim" with a generic, omnibus meaning. That is so, defendant posits, because both those statutory provisions were proposed by initiative petition and enacted by voters together as part of Ballot Measure 10 (the Crime Victims' Bill of Rights) in 1986. In defendant's view, that contemporaneity evinces the voters' intent for the definition of "victim" set out in ORS 131.007 to apply to the term "victim" as it is used in ORS [300 Or.App. 24] ...


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