State v. Dent

167

Argued and submitted June 21, 2022, affirmed February 8, 2023

STATE OF OREGON,

Plaintiff-Respondent,

v.

JAMIE DEANN DENT,

Defendant-Appellant.

Multnomah County Circuit Court

18CR63119; A173987

525 P3d 487

Defendant appeals from a judgment of conviction for 11 counts of mail theft,

ORS 164.162, and one count of aggravated identity theft, ORS 165.803. She

argues that the trial court erred in denying her motion to suppress evidence

found in a search of her house, and that the court erred when it concluded that

Counts 1 to 9 constituted separate criminal episodes for the purpose of calcu-

lating her criminal history score. Held: The trial court did not err. The Court of

Appeals concluded that the affidavit in support of a warrant to search defendant’s

house, along with the officer’s training and experience, were enough to support a

finding of probable cause. The court then analyzed whether defendant’s charges

constituted separate criminal episodes under the cross-related and single crimi-

nal objective tests. As to the cross-related test, the court concluded that because

a complete recounting of each individual theft charge could be made without ref-

erence to any of the other charged thefts, the charges were not cross-related. As

to the single criminal objective test, the court concluded that, objectively viewed,

the charged offenses were not continuous and uninterrupted as measured by

time, place, and circumstances. Thus, the charged offenses were not part of the

same criminal episode.

Affirmed.

David F. Rees, Judge.

Sara F. Weboff, Deputy Public Defender, argued the

cause for appellant. Also on the brief was Ernest G. Lannet,

Chief Defender, Criminal Appellate Section, Office of Public

Defense Services.

Robert M. Wilsey, Assistant Attorney General, argued

the cause for respondent. Also on the brief were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Before Ortega, Presiding Judge, and Powers, Judge, and

Hellman, Judge.

168 State v. Dent

HELLMAN, J.

Affirmed.

Cite as 324 Or App 167 (2023) 169

HELLMAN, J.

Defendant appeals from a judgment of conviction

for 11 counts of mail theft, ORS 164.162, and one count of

aggravated identity theft, ORS 165.803. She raises three

assignments of error. In her first assignment, defendant

argues that the trial court erred in denying her motion to

suppress evidence found in a search of her house. In her

second assignment, defendant argues that the court erred

when it found that Counts 1 to 9 constituted separate crimi-

nal episodes for the purpose of calculating her criminal his-

tory score. In her third assignment, defendant argues that

the court erred in instructing the jury that it could return

nonunanimous verdicts. For the reasons explained below we

reject each of defendant’s assignments of error. Accordingly,

we affirm.

I. FACTS

The facts are not in dispute. Between December 13,

2016, and September 20, 2018, defendant, a “rural carrier

associate” for the United States Postal Service (USPS), stole

mail and packages containing cash, money orders, checks,

and other forms of payment from various residential and

commercial addresses along her route. Deputy Lerch, of the

Multnomah County Sheriff’s Office, and Inspector Brown, of

the USPS Office of the Inspector General, began an investi-

gation and identified defendant as the suspect in the thefts.

Lerch’s affidavit in support of a warrant to search defen-

dant’s house included information indicating that cash,

deposits, and packages worth over $40,000 were missing

from mail originating from or addressed to individuals and

businesses along defendant’s route, that defendant’s work

schedule aligned with the dates and times the mail went

missing, and that, in some cases, defendant had scanned

the missing packages and mail. Lerch also stated,

“I know from my training and experience that people

who commit crimes of * * * Mail Theft often store items of

evidence and fruits of their crimes * * * in their residences[.]

I know they will also have receipts and other ledgers docu-

menting their deposits of stolen cash into bank accounts.”

Based on Lerch’s affidavit, a search warrant was issued for

defendant’s house. The search uncovered numerous individual

170 State v. Dent

pieces of opened and unopened mail, a bag of mail, cash,

checks, money orders, and a contract with the proprietor of

a horse training and boarding facility for the care of defen-

dant’s horses. Defendant was arrested, and police searched

her personal effects where they found an opened letter con-

taining another person’s social security card.

II. NONUNANIMOUS JURY INSTRUCTION

Defendant was convicted by a unanimous jury.

Therefore, her third assignment of error is foreclosed by

State v. Flores Ramos, 367 Or 292, 334, 478 P3d 515 (2020)

(holding that a nonunanimous jury instruction is not a

structural error that requires retrial when the jury convicts

the defendant unanimously).

III. MOTION TO SUPPRESS

In defendant’s first assignment of error, she argues

that the trial court erred when it denied her motion to sup-

press the evidence discovered in her house. Specifically, she

argues that Lerch’s affidavit did not contain enough objec-

tive factual information to allow a reasonable magistrate to

conclude that there was a nexus between the suspected crim-

inal activity and defendant’s house. According to defendant,

in such a circumstance, an officer’s training and experience

is insufficient to justify the search. The state responds that

the affidavit contained a wealth of information provided by

Brown and that those facts can count in the magistrate’s

probable cause calculus even when not accompanied by

“more than the bare assertion of training and experience.”

State v. Daniels, 234 Or App 533, 542, 228 P3d 695, rev den,

349 Or 171 (2010). We agree with the state.

When reviewing a challenge to the sufficiency of

an affidavit supporting a magistrate’s issuance of a war-

rant, this court asks “(1) whether there is reason to believe

that the facts stated are true, and (2) whether the facts

and circumstances disclosed by the affidavit, if true, are

sufficient to establish probable cause to justify the search

requested.” State v. Goodman, 328 Or 318, 325, 975 P2d 458

(1999). Probable cause exists when the facts in the affidavit,

along with reasonable inferences, permit the magistrate to

Cite as 324 Or App 167 (2023) 171

determine that seizable evidence will probably be found in

the location to be searched. State v. Cannon, 299 Or App

616, 626, 450 P3d 567 (2019). A magistrate may also “rely

on [their] own common sense” in interpreting facts and

inferences to reach a probable cause determination. State v.

Henderson, 341 Or 219, 225, 142 P3d 58 (2006).

Defendant argues that, because cash is common

and fungible, it was not common sense for a magistrate to

infer that cash, deposit slips, or other evidence of the mail

thefts would be found at her house. But the correct inquiry

is not whether the property in question was fungible, or

whether there is “another plausible way of thinking about”

the property, but rather “whether the information in the

affidavit supported the conclusion that the [stolen property]

‘probably’ would be found in the location to be searched.”

Id. at 225 n 5. Having reviewed the affidavit, we conclude

that the information contained therein, along with Lerch’s

training and experience, was enough to allow a reasonable

magistrate, exercising common sense, to conclude that evi-

dence of the mail thefts would probably be found in defen-

dant’s house.

IV. SINGLE CRIMINAL EPISODE

Defendant was charged with nine counts of mail

theft under a taking theory (Counts 1 to 9), two counts of

mail theft under a secreting theory (Counts 10 to 11), and

one count of aggravated identity theft (Count 12). The state

based each taking theft on an individual piece of post-

marked mail. It based the secreting thefts on the bag of non-

postmarked mail found in defendant’s closet. Specifically, it

based one count on the “business mail” from the bag of mail

and the other count on the “personal mail” from the bag of

mail. Count 12, the identity theft, was based on defendant

having 10 or more pieces of another person’s identity in her

possession as evidenced by checks, money orders, and other

identifying information found in the bag of mail, in defen-

dant’s closet, in her dresser, and in her purse.

At sentencing, the state argued that Counts 1 to 9

constituted separate criminal episodes from Counts 10 to

12 for the purposes of sentencing under ORS 137.717, the

172 State v. Dent

repeat property offender statute.1 Defendant remonstrated

that all the charges constituted the same criminal episode

and thus that she was not eligible for sentencing under ORS

137.717. The trial court agreed with the state and sentenced

defendant accordingly.

“When a court imposes sentences for multiple con-

victions in a single proceeding, the court may use a defen-

dant’s convictions arising from earlier criminal episodes to

calculate the defendant’s criminal history score with respect

to * * * a later criminal episode.” State v. Witherspoon, 250 Or

App 316, 321, 280 P3d 1004 (2012). “Whether conduct giv-

ing rise to convictions constitutes a single criminal episode

is a question of law, although the answer to that question

‘may depend on predicate findings of historical fact.’ ” State

v. Nesbit, 274 Or App 694, 696, 361 P3d 649 (2015) (quoting

State v. Potter, 236 Or App 74, 82, 234 P3d 1073 (2010)).

In State v. Dulfu, 363 Or 647, 669, 426 P3d 641

(2018), the Oregon Supreme Court concluded that the term

“criminal episode” has the same meaning in the criminal

history context as it does in the double jeopardy context.

There are “three alternative tests for determining when a

prosecution for one charge will bar a later prosecution for

another charge.” Id. at 669-70.

“The first test is whether the charges arose out of the

‘same act or transaction,’ * * * for the purposes of permis-

sive joinder under ORS 132.560. [T]wo charges arise out

of the same act or transaction if they are so closely linked

in time, place and circumstance that a complete account of

one charge cannot be related without relating details of the

other charge. That test is referred to as the ‘cross-related’

test, and, * * * [it serves] as a criterion for application of

‘single act or transaction’ for double jeopardy purposes as

well[.] * * *

“The second test is whether the charges arose out of a

‘single criminal episode,’ as that term is defined for the pur-

poses of the double jeopardy statute, ORS 131.515, which

provides, in part, ‘No person shall be separately prosecuted

for two or more offenses based upon the same criminal

1

The state conceded that Counts 10 to 12 were part of the same criminal

episode.

Cite as 324 Or App 167 (2023) 173

episode * * *[.]’ For the purposes of the double jeopardy stat-

ute, ‘criminal episode’ is defined by ORS 131.505(4), which

provides, “ ‘Criminal episode’ means continuous and unin-

terrupted conduct that establishes at least one offense and

is so joined in time, place and circumstances that such con-

duct is directed to the accomplishment of a single criminal

objective.”

Id. (citations omitted).2 For clarity, we refer to the first test

as the “cross-related” test and to the second test as the “sin-

gle criminal objective” test.

A. Cross-Related Test

Charges are cross-related if they “arise out of the

same act or transaction.” Id. “[T]wo charges arise out of

the same act or transaction if they are so closely linked

in time, place and circumstance that a complete account

of one charge cannot be related without relating details of

the other charge.” Id. We have interpreted that language to

mean that “[i]f a complete account of each crime necessarily

includes details of the other, then they arise from the same

criminal episode. Crimes are not cross-related, and thus do

not necessarily include details of one another, where one

of the crimes may be proved without evidence of the other

crime.” Witherspoon, 250 Or App at 322.

Defendant argues that this case is like Nesbit. In

that case, the defendant filed a single false claim for benefits

and then received multiple checks based on that false claim.

We held that the charged theft offenses constituted a single

criminal episode because “a complete account of why [the]

defendant committed theft each time he deposited one of the

insurance checks * * * would necessarily include the detail

that [the bank] issued the check pursuant to [the] defen-

dant’s initial false claim for benefits.” 274 Or App at 699

(emphasis in Nesbit). The state responds that the facts of

this case are more like those in State v. Spynu, 278 Or App

250, 253, 372 P3d 622 (2016). In that case, the defendant

filed multiple fraudulent vouchers with the Department of

Human Services and was charged with 10 counts of theft.

2

The Dulfu court also articulated a third test, commonly referred to as the

“simultaneous possession” test and applied that test to the facts before it. That

test is not at issue in this case.

174 State v. Dent

We held that the charges constituted multiple criminal epi-

sodes because “each theft resulted from [the] defendant’s act

of submitting distinct false vouchers at distinct times and

accepting distinct payments and benefits on those vouchers.”

Id.

This case presents a scenario closer to Spynu than

to Nesbit. In Nesbit, each of the theft charges related back to

one act.3 By contrast, here, like in Spynu, each of defendant’s

acts of taking the mail in Counts 1 to 9 stood alone. None

of the taking thefts alleged in Counts 1 to 9 related back to

each other, or to any other charged offense, as was the case

in Nesbit. To be sure, the state used some of the evidence

from Counts 10 to 12 to support its case on Counts 1 to 9.

However, overlapping evidence for the charged offenses does

not necessarily mean that the charges are cross-related. We

recognized that in Spynu, when we noted that, “given the

repetitive nature of defendant’s crimes, * * * if the thefts had

been tried separately, the separate trials undoubtably would

have involved some overlapping evidence. Nevertheless, a

‘complete account’ of any single one of the theft charges could

be related without relating details of the other.” Spynu, 278

Or App at 253.

Spynu thus stands for the proposition that under

the cross-related test, two charges are not necessarily

cross-related if some overlapping evidence links them, so

long as each charge can be related without relating the

details of the other charge. Such is the case here. As the

trial court correctly surmised, had the state opted to prose-

cute each taking theft separately, each piece of postmarked

mail would have been enough to prove the elements of mail

theft by taking. As such, even without the evidence from

Counts 10 to 12, a complete recounting of each individual

theft charge could be made by relying solely on each piece

of postmarked mail without reference to any of the other

charged thefts. The charges were thus not cross-related.

3

Although each of the thefts in Nesbit related back to the underlying act of

filing a false report, the state opted not to charge the defendant for that offense.

Instead, the defendant was charged with three counts of aggravated theft in the

first degree. Defendant cites no authority, nor could we find one, which states

that, for the purpose of the cross-related test, the underlying act or transaction

must be charged to link the charged offenses such that they are cross-related.

Cite as 324 Or App 167 (2023) 175

B. Single Criminal Objective Test

As noted above, the single criminal objective test

borrows language from Oregon’s double jeopardy statute

and defines criminal episode as “continuous and uninter-

rupted conduct that establishes at least one offense and is

so joined in time, place and circumstances that such con-

duct is directed to the accomplishment of a single criminal

objective.” Dulfu, 363 Or at 670; ORS 131.505(4). Whether

a defendant’s conduct is directed to the accomplishment of

a single criminal objective is an “objective determination.”

State v. Burns, 259 Or App 410, 422, 314 P3d 288 (2013) (quot-

ing Commentary to Criminal Law Revision Commission

Proposed Oregon Criminal Procedure Code, Final Draft

and Report § 26, 17 (Nov 1972) (Commission Commentary)).

“[T]he subjective intent of the person should not be consid-

ered in determining whether or not a certain offense was

part of the criminal episode.” Commission Commentary § 26

at 17. “Instead, the determination depends on ‘what reason-

ably appeared under the circumstances to be within a single

criminal objective.’ ” State v. Tooley, 265 Or App 30, 39, 333

P3d 348, rev den, 356 Or 575 (2014) (quoting Commission

Commentary § 26 at 17).

“We defer to the trial court’s explicit and implicit

findings of fact if there is evidence to support them and

review its application of the law to those facts for legal error.”

State v. Martin, 322 Or App 266, 268, 519 P3d 132, rev den,

370 Or 694 (2022). “ ‘The state bears the burden of proving

by a preponderance of evidence’ that each offense was a sep-

arate criminal episode.” Id. (quoting Nesbit, 274 Or App at

695).

As an initial matter, we reject the state’s argument

that because defendant chose to commit the same crime

against multiple people multiple times, each act constituted

a separate criminal episode, notwithstanding the fact that

defendant had the same general criminal objective for each

and was not interrupted before she was caught and arrested.

In Burns, we rejected a substantially similar argument.

There, the defendant was convicted of two counts of crimi-

nal mistreatment in the first degree for spanking two of his

children in short succession. The trial court concluded that

176 State v. Dent

the defendant’s offenses constituted two distinct criminal

episodes and, accordingly, it applied the defendant’s convic-

tion on Count 1 in sentencing the defendant on Count 2.

On appeal, the state argued that “the relevant inquiry

for determining a defendant’s criminal history score in a

case involving multiple crimes against multiple victims is

whether the defendant made discrete decisions to commit

each offense, despite an overarching criminal objective.” 259

Or App at 429. We reversed, noting that the state’s argu-

ment was “not consonant with the text or intent of the crim-

inal history rule” and “at loggerheads” with Supreme Court

precedent rejecting the idea that separate criminal acts are

per se equivalent to separate objectives. Id. (citing State v.

Boyd, 271 Or 558, 565 n 4, 533 P2d 795 (1975), and State v.

Cloutier, 286 Or 579, 595, 596 P2d 1278 (1979)). We were not

persuaded by the state’s argument in Burns, and we are not

persuaded by it here.

Turning to defendant’s argument, because we do

not consider defendant’s subjective intent in our analysis of

the single criminal objective test, we are not persuaded by

her argument that these offenses are part of a single crimi-

nal episode.4

In determining whether defendant’s conduct consti-

tuted a single criminal episode under the single criminal

4

Although we disagree with defendant’s argument under the single criminal

objective test, that argument does raise an important issue. In the indictment,

the state joined all the offenses together with specific language:

“This count is connected together by two or more acts or transactions

with the other counts of this charging instrument. This count is of the same

and similar character as the conduct alleged in the other counts of this

charging instrument. This count constitutes part of a common scheme or

plan based on two or more acts or transactions with the other counts of this

charging instrument.”

The state’s theory of the case was that all the mail was stolen and secreted for one

purpose: defendant’s overarching goal of obtaining money to pay for the care of

her horses. The state obtained a substantial benefit from its initial position that

the charges were closely related. Not only did that position allow joinder of the

12 counts for a single trial, it also provided a compelling trial theory as to why

a postal worker would risk her job and serious criminal convictions by stealing

mail. Having gained such a benefit at trial, it appears potentially unfair for the

state to take the opposite position on the relatedness of the counts at sentencing

simply to obtain the longest sentence possible. However, because defendant did

not raise any constitutionally-based or estoppel-based challenges to the sentence

below, we do not engage with the issue any further.

Cite as 324 Or App 167 (2023) 177

objective test, our inquiry “is not whether there is any dif-

ference in time and space at all, but whether there is enough

of a difference in time, place, and circumstances surround-

ing the different acts to show that defendant’s conduct was

directed toward separate criminal episodes.” Burns, 259 Or

App at 430. Here, the charged offenses were not continuous

and uninterrupted as measured by time, place, and circum-

stances such that they were directed to the accomplishment

of a single criminal objective. The charged offenses took

place over a nearly two-year period. Each theft by taking

offense was separated from the other by a period of days,

weeks, or months, with the final theft by taking charge sep-

arated from the theft by secreting and identity theft charges

by three months. Although all the charged offenses occurred

on defendant’s carrier route, the place in which each charged

offense occurred necessarily differed by the various loca-

tions from which defendant took the mail along that route.

Given those circumstances, and removing from the picture,

as we must, defendant’s subjective intent to unlawfully gain

money to care for her horses, we conclude that the state met

its burden to prove by a preponderance of the evidence that

defendant’s conduct constituted separate criminal episodes

under the single criminal objective test.

Because defendants conduct constituted separate

criminal episodes under both the cross-related test and the

single criminal objective test, the trial court did not err

when it sentenced defendant under ORS 137.717.

Affirmed.