[Ppnews] Jeff Luers Appeal Decided Today!!! Reversed & Remanded

[Political Prisoner News]

"Lauren Regan, ED" <lregan at cldc.org> wrote:

Folks:  The Court of Appeals just unanimously 
ruled that Jeff's case will be reversed and 
remanded back to the Circuit Court for 
resentencing as a result of Judge Velure's errors 
in imposing the original draconian sentence.  The 
opinion just came out this morning and we are 
still reviewing it for details, but it looks like 
Jeff could potentially get about 15 years taken 
off his 266 month sentence.  We will provide you 
with more information as it becomes known.  The 
entire opinion is included below for those who 
are interested.  Congratulations to Jeff and his family!
Lauren

ps--for those who are not familiar with the Luers 
case, this young man was sentenced to 22 years in 
prison for the arson of the Romania car 
dealership in Eugene, OR, and an attempted arson 
of Tyree Oil.  The total damage amounted to 
burned tires on 3 SUVs , the tires were replaced 
and the SUVs were resold.  No harm to any living 
things.  Outrage over the unjust sentence spanned 
the globe.  Luers is currently imprisoned at the 
Oregon State Prison and CLDC has continuously 
assisted Jeff with various legal matters during his incarceration.



FILED: February 14, 2007
IN THE COURT OF APPEALS OF THE STATE OF OREGON
STATE OF OREGON,
Respondent,
v.
JEFFREY MICHAEL LUERS,
Appellant.

Appeal from Circuit Court, Lane County.
200106676;


A115208

Lyle C. Velure, Judge.
Argued and submitted November 30, 2005.
Shawn Wiley, Deputy Public Defender, argued the 
cause for appellant. With him on the briefs were 
Peter A. Ozanne, Executive Director, and Peter 
Gartlan, Chief Defender, Office of Public Defense Services.
Janet A. Klapstein, Assistant Attorney General, 
argued the cause for respondent. With her on the 
briefs were Hardy Myers, Attorney General, and 
Mary H. Williams, Solicitor General.
Before Landau, Presiding Judge, and Schuman and Ortega, Judges.
ORTEGA, J.
Reversed and remanded for entry of judgment 
reflecting single conviction for first-degree 
arson and single conviction for attempted 
first-degree arson; sentences vacated; remanded 
for resentencing; otherwise affirmed.
ORTEGA, J.
Defendant was convicted of three counts of arson 
in the first degree, ORS 164.325; two counts of 
attempted arson in the first degree, ORS 161.405, 
ORS 164.325; two counts of unlawful possession of 
a destructive device, ORS 166.382; two counts of 
unlawful manufacture of a destructive device, ORS 
166.384; one count of criminal mischief in the 
first degree, ORS 164.365; and one count of 
attempted criminal mischief in the first degree, 
ORS 161.405, ORS 164.365. (1) The trial court 
sentenced him to a total prison sentence of 266 
months followed by 36 months of post-prison 
supervision. On appeal, defendant assigns error 
to the trial court's denial of his motions to 
sever certain charges and to suppress certain 
evidence, to its denial of his motions for 
judgments of acquittal as to certain counts, to 
its failure to merge specified convictions, and 
to various aspects of the sentences imposed. We 
agree that the trial court erred in failing to 
merge defendant's three convictions for 
first-degree arson and in failing to merge his 
two convictions for attempted first-degree arson. 
We either reject or do not reach his other 
assignments of error. We therefore reverse and 
remand for merger of the relevant convictions and 
for resentencing, vacate his remaining sentences 
and remand for resentencing, and otherwise affirm.
I. HISTORICAL AND PROCEDURAL BACKGROUND
Because defendant was convicted, we view the 
evidence in the light most favorable to the 
state, giving the state the benefit of all 
reasonable inferences. State v. Cervantes, 319 Or 
121, 125, 873 P2d 316 (1994). Tyree Oil is a 
petroleum product supplier for gas stations in 
Lane County. On the morning of May 27, 2000, a 
truck driver for Tyree Oil was refueling his 
truck when he discovered a device that had been 
placed on the running board of his tractor 
trailer, next to the gas tank. The device 
consisted of a one-gallon plastic milk jug that 
had been painted black and had a yellow sponge 
inserted under the handle; protruding from the 
sponge was an incense stick with wooden matches 
(which had been burned) attached to it with 
thread. The jug was filled with gasoline, was 
taped shut, and had a piece of fabric extending 
from the mouth of the jug to the gas tank of the 
truck cab, the cap of which had been removed. The 
driver then discovered a similar device near 
where he had parked the night before; the device 
had been crushed under the wheels of the 
tractor-trailer. There were at least five other 
tankers and an office building in the vicinity of 
the devices. The office building ordinarily was 
locked at night but was accessible to drivers 24 
hours a day for the purpose of obtaining dispatch 
orders. Two weeks after the driver found the 
devices, Tyree employees discovered a hole in the 
chain link fence surrounding the truck yard, near 
where the truck had been parked.
On June 16, 2000, Eugene Police Officer Harvey 
and two other officers were patrolling in an 
unmarked police car, looking for information 
relating to a gathering of protesters. Harvey 
previously had observed people of interest in 
that regard near a storage unit 
facility--specifically, unit 14 of the facility. 
Shortly after midnight, Harvey saw a 1993 Ford 
station wagon leaving the facility; he recognized 
the passenger as defendant. The driver was later 
identified as Marshall, defendant's codefendant 
in his first trial. (2) Harvey followed the 
vehicle, which drove near the Romania car 
dealership lot and parked on Garden Way. 
Defendant and Marshall then got out and began 
walking. Harvey lost sight of them around 12:45 
a.m. when they turned onto a footpath near the 
car dealership. At 12:56 a.m., Officer Willis saw 
the two men running toward their vehicle, watched 
them enter the vehicle, and began following them as they drove away.
Around the same time, a security guard at the 
Romania dealership saw flames coming from 
vehicles in the truck lot. At approximately 1:04 
a.m., he called emergency personnel from the truck lot office.
Willis continued to follow defendant and 
Marshall. As the vehicles reached Main Street in 
Springfield, Willis heard police dispatch report 
a fire at the Romania dealership. The vehicle in 
which defendant was a passenger had a 
malfunctioning headlight, and Eugene officers 
asked Springfield police to stop the vehicle on 
that basis. Springfield Police Officer Smith did 
so at 1:11 a.m. Smith proceeded to investigate 
the traffic infraction as well as Marshall's 
subsequent failure to present a driver's license. 
Smith then questioned defendant and Marshall 
regarding their whereabouts earlier in the 
evening and about what appeared to be marijuana 
in the car. A Eugene police officer who had 
arrived on the scene instructed Smith to "wait" 
until the fire was investigated. Eventually 
Eugene Police Officer Calef arrived. 
Approximately one-half hour after the stop was 
initiated, the officers learned that fire 
investigators believed that the Romania fire had 
been set intentionally. After giving Miranda 
warnings, Calef then questioned defendant, who 
denied having been in the area of the Romania 
dealership. Police arrested defendant and 
Marshall and searched the vehicle, where they 
found gloves that were later admitted into evidence at defendant's trial.
The fire took 20 minutes to contain and showed 
features of the presence of flammable liquids. No 
firefighters were injured. Three trucks were 
damaged, resulting in a $50,000 loss. 
Investigators found the charred remains of a 
one-gallon plastic jug and two sponges near the 
fire; there were petroleum distillate and 
gasoline residue on the jug and one of the sponge 
pieces. An Oregon Department of Transportation 
(ODOT) road maintenance building was located next 
to the Romania dealership. One wall of the 
building was approximately four feet from the 
burned trucks; in addition, there was a natural 
gas meter between the ODOT building and one of 
the trucks. Although no ODOT work crews happened 
to be in the building on the night of the fire, 
emergency repair crews regularly went in and out 
of the building 24 hours a day.
Later that same day, Harvey went to the location 
of the storage unit leased by defendant and 
another person. On the ground outside the unit 
Harvey observed a burned incense stick. In an 
affidavit supporting a request for a search 
warrant, Harvey recited his observations of 
defendant on the night of the fire as well as his 
belief, based on his training and experience, 
that the fire was started using a time-delay 
incendiary device and that such devices commonly 
involve the use of incense sticks and other 
items. The trial court issued the warrant and, on 
searching the unit, police discovered, among 
other items, a bed, sleeping mats, gas cans, 
Coleman fuel containers, sponges, spools of 
thread, and incense sticks. The unit also 
contained several time-delay ignition devices 
constructed of wooden matches tied to incense 
sticks with thread; some of the devices had been 
ignited. In a loft area believed to be 
defendant's sleeping quarters, police discovered 
a bolt cutter that matched the cuts in the fence at Tyree Oil.
Defendant was indicted on three counts of arson 
in the first degree, two counts of attempted 
arson in the first degree, two counts of unlawful 
manufacture of a destructive device, two counts 
of unlawful possession of a destructive device, 
one count of criminal mischief in the first 
degree, and one count of attempted criminal 
mischief in the first degree. (3) He moved to 
sever the counts relating to the fire at the 
Romania dealership (three arson counts, one 
criminal mischief count, and one count each of 
unlawful manufacture and unlawful possession of a 
destructive device) from the counts relating to 
the incident at Tyree Oil (two attempted arson 
counts, one attempted criminal mischief count, 
and one count each of unlawful manufacture and 
possession of a destructive device). The trial 
court denied the motion. Defendant then attempted 
to waive jury trial as to only the counts 
relating to the fire at the Romania dealership, 
but the trial court did not allow him to do so. 
Defendant ultimately waived jury trial as to all counts.
Also before trial, defendant moved to suppress 
evidence discovered during the warrantless 
searches of his person and the vehicle in which 
he was a passenger on the night that he was 
stopped by Springfield police, as well as 
evidence discovered during the warrant search of 
the storage unit. The trial court denied the motion.
Defendant was tried to the court. At the close of 
the state's case, defendant moved for a judgment 
of acquittal on the factor elevating the offense 
of arson in the first degree to a Ballot Measure 
11 offense. See ORS 137.700(2)(b)(A) (mandatory 
minimum sentence applies to arson in the first 
degree as defined in ORS 164.325 "when the 
offense represented a threat of serious physical 
injury"). The trial court denied that motion as well.
The trial court found defendant guilty of the 
counts set out above. On the convictions for 
unlawful manufacture and possession of a 
destructive device relating to the incident at 
Tyree Oil, the court sentenced defendant to 90 
days in the county jail. On the first of the two 
attempted arson convictions related to that 
incident, the court sentenced defendant to a 
durational departure sentence of 44 months in 
prison based on the court's findings that 
defendant used a weapon in the commission of the 
offense, namely, an incendiary device, and that 
the device was "placed in such a fashion and in 
such a neighborhood that the degree of harm or 
loss could have been very significant" because a 
petroleum storage depot was located across the 
street. On the second attempted arson conviction, 
the trial court imposed a sentence of 18 months, 
to be served consecutively to the 44-month 
sentence. The court "merge[d]" the sentence for 
attempted criminal mischief into the 18-month attempted arson sentence.
On the convictions for unlawful manufacturing and 
possession of a destructive device relating to 
the fire at the Romania dealership, the court 
sentenced defendant to 24 months' and 18 months' 
imprisonment, respectively, with the sentences to 
be served concurrently with each other and 
consecutively to the 18-month sentence for 
attempted arson. The trial court "merge[d]" the 
sentence for criminal mischief in the first 
degree into the sentence for the first arson 
conviction; on the latter, the court sentenced 
defendant to 90 months' imprisonment, to be 
served consecutively to the 24-month sentence for 
unlawful manufacturing of a destructive device. 
The trial court also imposed 90-month prison 
sentences on the second and the third arson 
convictions, with the second to be served 
concurrently with the first and third to be 
served consecutively to the first. As noted, 
defendant's aggregate sentence was 266 months in prison.
II. PRETRIAL MATTERS
A. Motion to Sever
Because it may to obviate the need to consider 
other assignments of error, we begin with 
defendant's tenth assignment, in which he 
contends that the trial court erred in denying 
his motion to sever the counts relating to the 
incident at Tyree Oil, which occurred on May 27, 
2000, from those relating to the fire at the 
Romania dealership, which occurred on June 16, 
2000. (4) Defendant first contends that the 
denial of his motion was contrary to ORS 
132.560(3) (5) and that provision's underlying 
constitutional guarantees of due process and a 
fair trial. Defendant contends that, under the 
statute, an important consideration in 
determining whether joinder of charges resulted 
in prejudice to a defendant is whether evidence 
relating to one set of charges would be 
admissible in a separate trial on the other 
charges. He contends that here, consistently with 
State v. Johns, 301 Or 535, 725 P2d 312 (1986), 
evidence of the Romania fire would not have been 
admissible at a separate trial on the counts 
arising out of the Tyree Oil incident because, 
where the charred remains of the ignition devices 
found at the Romania fire were too small to 
demonstrate that they were parts of devices like 
those found at Tyree Oil, the incidents were not 
sufficiently similar. Defendant also contends 
that the denial of his motion substantially 
prejudiced him because there was evidence that a 
large number of people used the storage unit 
where the incendiary materials were found and 
because the state's evidence of defendant's 
involvement in the Tyree Oil incident therefore 
was much weaker and more circumstantial than its 
"overwhelming" evidence--including defendant's 
presence near the fire--that defendant was 
involved in the Romania fire; hearing evidence 
pertaining to both incidents "inevitably" would 
influence the jury's verdict on the Tyree Oil charges, according to defendant.
Defendant also contends that trying the charges 
together violated his rights to jury trial and 
against self-incrimination. Again, according to 
defendant, the evidence pertaining to the Tyree 
Oil incident was merely circumstantial, and he 
wished to testify to a jury regarding his 
whereabouts at the time the incident occurred; he 
was unable to do so, however, due to his concern 
that he would be subject to cross-examination 
regarding the Romania fire, as to which counts he planned to waive jury trial.
The state responds that, under the applicable 
version of ORS 132.560(3), the test is not mere 
"prejudice[]," but rather "substantial[]" 
prejudice. According to the state, defendant did 
not meet that standard here for several reasons. 
First, notwithstanding defendant's assertion on 
appeal that he wished to testify at trial 
regarding his whereabouts on the night of the 
Tyree Oil incident, he did not file an alibi 
notice or make an offer of proof as to such 
testimony. Second, according to the state, 
evidence from either of the two incidents would 
have been admissible in a separate trial relating 
to the other. Third, the state contends that, in 
ruling on defendant's earlier motion to 
sever--made, that is, in the first trial, which 
ended in a mistrial--the trial court had stated 
that it would grant defendant's motion to "limit 
the scope of cross-examination should [defendant] 
choose to testify * * * and would sustain any 
objection to any questions that go beyond the 
scope of cross-examination"--but defendant failed to make any such motion.
We review for errors of law the trial court's 
determination that the facts presented in 
defendant's motion to sever did not demonstrate 
the existence of "substantial[] prejudice[]" to 
defendant, as required in ORS 132.560(3). Cf. 
State v. Barone, 329 Or 210, 217, 986 P2d 5 
(1999), cert den, 528 US 1086 (2000) (setting out 
that standard of review in the context of 
previous version of statute, which referred to 
"prejudice[]"); State v. Miller, 327 Or 622, 
628-29, 969 P2d 1006 (1998) ("prejudice[]" as 
used in previous version of statute is a legal 
standard). (6) Whether the joinder of charges 
substantially prejudiced a particular defendant 
involves a case-specific assessment of the 
charges and the facts alleged to support them. 
See Miller, 327 Or at 629-30 (so explaining in 
the context of the previous version of the 
statute). The mere assertion that evidence 
relating to some charges will influence the 
jury's consideration of other charges is 
insufficient. See State v. Thompson, 328 Or 248, 
257, 971 P2d 879, cert den, 527 US 1042 (1999) 
(so explaining in the context of the previous 
version of the statute); State v. Parker, 119 Or 
App 105, 109, 849 P2d 1157, rev den, 317 Or 584 
(1993) (noting that the possibility of prejudice 
exists in every situation where charges or 
defendants are joined in a trial). Rather, the 
court's analysis properly must focus on "any 
circumstance" that impairs the defendant's right 
to a fair trial, such as, for example, a 
defendant's "claim that joinder would deprive him 
of protections in the Oregon Evidence Code 
against the admission of evidence." Miller, 327 
Or at 633 (emphasis in original). When evidence 
pertaining to the various charges would be 
mutually admissible in separate trials or is 
sufficiently simple and distinct to mitigate the 
dangers created by joinder, substantial prejudice 
has not been established. State v. Meyer, 109 Or 
App 598, 604, 820 P2d 861 (1991), rev den, 312 Or 
677 (1992); see also Miller, 327 Or at 631 
(noting that the question whether a defendant was 
prejudiced for the purpose of former ORS 
132.560(3) (1997) is separate from, and not 
necessarily controlled by, the question of the 
admissibility of evidence of other crimes under 
OEC 404(3) and State v. Johns, 301 Or 535, 725 
P2d 312 (1986)). Also relevant is the probable 
effectiveness of limiting instructions given to 
the jury by the court. State v. Staley, 142 Or 
App 583, 589, 923 P2d 650 (1996), rev den, 324 Or 
560 (1997). The reviewing court must be able to 
determine from the record that the trial court 
engaged in the required prejudice analysis. See 
State v. Bruning, 180 Or App 247, 253, 42 P3d 
365, rev den, 335 Or 114 (2002) (the defendant 
asserted at the hearing on her motion to sever 
that she intended not to testify as to certain 
counts, thereby affecting the admissibility of 
certain evidence; where the Court of Appeals was 
unable to determine whether the trial court 
engaged in a sufficient analysis of prejudice 
arising from joinder of the charges, the court 
reversed and remanded for a new trial).
We begin by reviewing the assertions in 
defendant's motion to sever and the trial court's 
ruling. In his written motion, defendant asserted 
in part that the Tyree Oil and Romania counts 
should be severed from each other because 
evidence of the conduct alleged in the Romania 
counts would not be admissible in the prosecution 
of the Tyree Oil counts and vice versa. Defendant 
also asserted that denial of his motion would 
impair his constitutional rights to jury trial 
and to remain silent. As described above, as a 
tactical matter, defendant wished to be tried to 
a jury and to testify in the Tyree Oil 
matter--which, according to defendant, involved 
only circumstantial evidence and for which he had 
an alibi--while waiving his right to jury trial 
and testifying only as to limited matters 
regarding the Romania fire counts. (7) In the 
hearing on his motion, defendant reiterated those 
assertions and also contended that he would be 
prejudiced by "publicity that continues 
practically every single day about 
eco-terrorists" who, after his arrest in this 
case, allegedly committed crimes similar to the 
Romania fire. The trial court denied the motion 
"on the merits," "for the reason stated in the 
record" in the earlier case in which the trial 
court granted defendant's motion for a mistrial 
and, later, denied Marshall's motion to sever.
As previously discussed, the determination 
whether joinder of charges substantially 
prejudices a defendant must be based on a 
case-specific analysis of the charges and the 
facts alleged to support them. See Miller, 327 Or 
at 629-30 (requiring a case-specific assessment); 
Bruning, 180 Or App at 253 (an insufficient 
case-specific analysis of prejudice required 
reversal and remand for a new trial). 
Technically, the trial court did not make that 
assessment here; as noted, the ruling that the 
trial court applied here in response to 
Marshall's motion to sever was made after 
defendant was no longer part of that case. 
Nevertheless, to the extent that the arguments 
made in Marshall's motion, as well as their 
factual predicates, were the same as those made 
here, the trial court's assessment may properly 
be applied here. (8) We therefore first examine 
the relevant portion of the transcript in 
Marshall's case, which was made part of the 
record in this one. If the trial court properly 
applied its earlier ruling here, we then consider 
whether that ruling was correct.
As noted, after defendant was granted a mistrial 
in his first trial, his codefendant, Marshall, 
moved to sever the Tyree Oil counts from those 
involving the Romania fire. The record shows 
that, in support of his motion to sever, Marshall 
asserted that he planned to put his intent in 
issue and that doing so would "open up" 
cross-examination about either incident to 
questions about the other incident; Marshall 
contended that failure to sever the Tyree Oil and 
Romania charges therefore would put him in the 
"position to have the jury hear those facts about 
Tyree in the same case and then make the decision 
about his intent" to cause physical injury to 
persons in the Romania fire. He also expressed 
concern that the jury would not understand why a 
defendant would testify as to only part of a 
case. He stated that "it goes back to the 
defendant's right to waive jury on the Romania 
case because he has more faith in the Court 
making a just decision on the facts than he would 
a jury, right or wrong, which is his 
constitutional prerogative." He summarized, "The 
goal is to give the defendant the benefit of his 
right not only to testify or not to testify but 
to have a jury or not have a jury. Both of those 
rights under the peculiar facts of this case are 
defeated if the matters are joined."
In denying Marshall's motion, the trial court in the earlier case stated:
"The Court feels that at the time of this trial 
the defendant can testify as to one incident but 
not the other. The Court feels that the Court can 
fashion an instruction to the jury that they are 
not to consider the fact that defendant did not 
comment on the Tyree [O]il case as any indication 
of guilt and that they cannot even discuss his 
failure to testify if he so chooses during their 
deliberations and it should play no part in this decision. (9)
"I feel * * * that the defendant can be 
adequately protected in his constitutional rights 
by filing motions in limine to limit the scope of 
cross-examination should he choose to testify 
which the Court will grant in light of the entire 
situation, and would sustain any objection to any 
questions that go beyond the precise scope of the defendant's testimony.
"With those protections I do not feel that there 
has been a substantial and compelling showing 
that these matters ought to be severed for trial 
and that we need to proceed both from the 
standpoint of everyone's rights, the victim's 
rights, the defendant's rights, and judicial 
economy and need to proceed to trial on this matter as scheduled.
"Therefore, the motion to sever will be denied."
We conclude that Marshall's arguments in the 
earlier case, as well as the facts underlying 
those arguments, were sufficiently similar to the 
facts and to defendant's arguments in this case 
to permit the trial court properly to adopt and apply its earlier ruling here.
We review, then, the trial court's assessment 
that defendant was not substantially prejudiced 
by the denial of the motion to sever in this case 
and conclude that the court did not err. First, 
notwithstanding the fact that evidence--the 
remains of a plastic jug, sponges and flammable 
fuel--discovered at the site of the Romania fire 
was degraded from its original condition, that 
evidence was sufficiently similar to evidence 
discovered at the site of the Tyree Oil incident 
that evidence of either incident was admissible 
in a trial of charges arising out of the other. 
See Meyer, 109 Or App at 604. Nor were 
defendant's rights to jury trial and to remain 
silent impaired more significantly than in any 
case involving multiple charges, the evidence for 
some of which is weaker than that for others. See 
Thompson, 328 Or at 257 (a mere assertion that 
evidence relating to some charges will influence 
the jury's consideration of other charges is 
insufficient to show prejudice). Finally, the 
trial court's proposed "protections"--including, 
should defendant choose to testify, a limitation 
on cross-examination and appropriate jury 
instructions--were sufficient to mitigate any 
prejudice. See Staley, 142 Or App at 589. We 
therefore reject defendant's tenth assignment of error.
B. Motion to Suppress
We turn to defendant's eighth and ninth 
assignments of error, in which he contends that 
the trial court erred under Article 1, section 9, 
of the Oregon Constitution (10) and the Fourth 
Amendment to the United States Constitution (11) 
in denying his pretrial motions to suppress 
evidence discovered during the warrantless search 
of his vehicle and the warrant search of his 
storage unit. According to defendant, although 
Smith validly stopped defendant and Marshall for 
a traffic infraction, Smith's actions in 
detaining defendant and questioning him about his 
earlier activities in Eugene constituted an 
unlawful seizure because, at that time, Smith 
lacked objectively reasonable suspicion that 
defendant had committed any crime. Defendant 
points to evidence in the record that Eugene 
police who were conducting surveillance of 
defendant and Marshall lost sight of them for a 
time and never actually saw them at the Romania 
dealership and that, notwithstanding that lack of 
association with the fire that occurred there, 
defendant was detained after the traffic stop for 
approximately 30 minutes. Defendant also contends 
that the police exploited their unlawful seizure 
of his person in several ways: first, by using 
the time during which he was detained to 
determine that the Romania fire was intentionally 
set, thereby giving rise to probable cause to 
arrest him; and second, by using that time to 
obtain a statement from him--the false assertion 
that he had not been on a street near the 
dealership where the police had in fact observed 
him--which then gave rise, as he conceded at 
trial, to probable cause to search his vehicle 
and, through the use of the statement in the 
search warrant affidavit, to probable cause to search the storage unit.
In addition, as relevant to the federal 
constitutional analysis, defendant contends that, 
although a police officer gave him Miranda 
warnings, there was insufficient attenuation 
between the unlawful conduct of the police, on 
the one hand, and his statement and the search of 
the vehicle, on the other. Finally, defendant 
contends that the trial court's error in denying 
his motion was not harmless because his 
statement, as well as the gloves found during the 
search of the vehicle, were admitted at trial and 
because, without his statement, the search 
warrant affidavit did not provide probable cause 
to search the storage unit--a search that 
resulted in the discovery of numerous items of inculpatory evidence.
The state responds that the stop was valid based 
on the vehicle's undisputed equipment malfunction 
and the officers' reasonable suspicion that 
defendant was implicated in a nontraffic offense, 
namely, the fire that had been reported to 
Springfield police by Eugene police. In addition, 
according to the state, the officers at the scene 
of the stop received confirmation within a 
reasonable time that the fire was set 
deliberately. The state contends that the 
officers therefore were authorized to conduct a 
further investigation of the fire, including the 
post-Miranda questioning of defendant that 
resulted in his denial of being in the area of 
the fire; that defendant's false statement about 
his whereabouts established probable cause to 
arrest him; and that the search of the car was 
then justified as a search incident to 
defendant's arrest and under the automobile 
exception. As to the search of the storage unit, 
the state contends that multiple assertions in 
the affidavit supported probable cause for that 
search, including those relating to defendant's 
actions on the night of the fire.
We review the trial court's order denying 
defendant's motion to suppress evidence for 
errors of law. State v. Ehly, 317 Or 66, 75, 854 
P2d 421 (1993). We are bound by the trial court's 
findings of fact if they are supported by 
constitutionally sufficient evidence in the 
record. State v. Stevens, 311 Or 119, 126, 806 
P2d 92 (1991). Where the trial court does not 
make findings on a particular issue, we presume 
that it decided the facts in a manner consistent 
with its ultimate conclusion regarding the 
lawfulness of the seizure and search. Ball v. 
Gladden, 250 Or 485, 487-88, 443 P2d 621 (1968); 
State v. Nguyen, 176 Or App 258, 262, 31 P3d 489 (2001).
We begin with the stop itself, both as made 
initially and as extended. As defendant concedes, 
the initial stop was lawful based on the 
vehicle's malfunctioning headlight. We further 
conclude that the stop was not rendered invalid 
by its eventual duration of 34 minutes. 
Specifically, we conclude that, based on 
information imparted by the Eugene police, 
Springfield police reasonably suspected that the 
occupants of the vehicle had been involved in 
criminal activity relating to the Romania fire. 
See Nguyen, 176 Or App at 263 (holding that a 
police officer who had received a report of a 
crime in progress and within two minutes observed 
persons leaving the scene of the reported crime 
had reasonable suspicion to justify stopping the 
persons). Accordingly, police lawfully extended 
the stop in order to investigate that occurrence. See ORS 810.410(3)(c).
Next, based on defendant's false statement--made 
after Miranda warnings-- regarding his 
whereabouts that evening and based on information 
from the fire investigator that the reported fire 
probably was intentionally set, the police 
developed probable cause to arrest defendant. In 
turn, that arrest justified the officers' search 
of the vehicle as a warrantless search incident 
to arrest. See State v. Hoskinson, 320 Or 83, 86, 
879 P2d 180 (1994) (discovery of evidence related 
to crime for which the defendant is being 
arrested is valid justification for search incident to lawful arrest). (12)
Lastly, we consider the warrant search of the 
storage unit. As noted, defendant challenges the 
inclusion in the warrant affidavit of his false 
statement regarding his whereabouts prior to 
being stopped and contends that, without that 
information, the affidavit was insufficient to 
provide probable cause to search the unit. The 
state contends that the statement was properly 
obtained and that, in any event, other 
information in the affidavit provided probable 
cause, including defendant's observed presence 
near the scene of the fire and the burned incense 
stick observed by the officer outside the unit.
We agree with the state. As previously discussed, 
the police lawfully obtained defendant's false 
statement that he had not been near the scene of 
the fire. In any event, that statement was not 
necessary in order to establish probable cause to 
search the storage unit, because the remainder of 
the statements in the affidavit supplied probable 
cause. See State v. Johnson, 340 Or 319, 329, 131 
P3d 173, cert den, ___ US ___, 127 S Ct 724 
(2006) (statements of informants relied on in 
search warrant affidavit were not necessary to establish probable cause).
Having concluded that the trial court did not err 
in denying defendant's motion to suppress, we 
need not consider whether any error was harmless. 
For all of the above reasons, we reject 
defendant's eighth and ninth assignments of error.
III. TRIAL MATTERS
A. Motions for Judgments of Acquittal
We turn to defendant's assignments of error 
pertaining to the conduct of his trial. In his 
sixth assignment of error, defendant contends 
that the trial court erred in denying his motion 
for judgments of acquittal regarding the element 
of the first-degree arson charges that elevated 
those charges to ORS 137.700 (Measure 11) 
offenses. Defendant first contends that ORS 
164.325, defining the offense of arson in the 
first degree in part as "recklessly caus[ing] 
serious physical injury to a firefighter or peace 
officer acting in the line of duty relating to 
the fire," and ORS 137.700, providing that arson 
in the first degree is subject to the latter 
statute "when the offense represented a threat of 
serious physical injury," properly must be 
interpreted together to mean that, when the 
person at risk from a fire is a firefighter or 
peace officer responding to the fire, there must 
be actual injury. Alternatively, defendant 
contends that the evidence was insufficient to 
show that the Romania fire represented a threat 
of serious physical injury to either the security 
guard or the relevant firefighter. In his seventh 
assignment of error, defendant contends that the 
trial court erred in denying his motions for 
judgment of acquittal on the two counts of 
unlawful possession of a destructive device and 
the two counts of unlawful manufacture of a 
destructive device. According to defendant, the 
devices used in the Romania fire did not qualify 
as destructive devices under ORS 166.382 and ORS 
166.384 because they were not "bombs" within the meaning of ORS 166.382. (13)
The state responds that defendant's sixth and 
seventh assignments of error fail because, viewed 
in the light most favorable to the state, the 
evidence shows both that the resulting fire 
"represented a threat of serious physical injury" 
to persons present, as required by ORS 137.700, 
and that the relevant devices were destructive 
devices within the meaning of ORS 166.382. As to 
the threat of serious physical injury, the state 
first contends that, although ORS 164.325(1)(c) 
requires that a fire actually cause serious 
physical injury to a firefighter or peace officer 
acting in the line of duty relating to the fire, 
ORS 137.700(2)(b)(A) does not differentiate 
between such officials and other persons and 
therefore requires only the circumstance stated 
therein--that the offense represented a threat of 
serious physical injury--in order to subject a 
first-degree arson conviction to sentencing under 
the latter statute. The state also contends that, 
in any event, the Romania fire represented a 
threat of serious physical injury to at least one 
person other than the firefighters and other 
emergency personnel who responded to the fire, 
namely, the security guard who reported it, and 
therefore fits within the portion of the 
definition of first-degree arson contained in ORS 
164.325(1)(b) (defining arson in the first degree 
to include "recklessly plac[ing] another person 
in danger of physical injury"). The state points 
to evidence that, in reporting the fire, the 
security guard had to pass near it, and that he 
then waited in a building toward which the fire 
was spreading; to evidence regarding the fire's 
intensity and scope and the firefighters' efforts 
to put it out; and to the fact that the fire burned near a metered gas line.
As to whether the devices were destructive 
devices, the state contends that the devices met 
the definition in the statute because such 
devices need not have explosive components. 
Rather, under the statute, it is sufficient that 
they have incendiary components, as alleged and 
proven here by way of three witnesses' testimony 
describing the devices as "incendiary bombs." 
(14) In addition, the state notes that gasoline 
by its nature has explosive properties.
We review the trial court's rulings for errors of 
law, viewing the evidence in the light most 
favorable to the state to determine whether any 
rational trier of fact could have found the 
relevant elements of the crimes beyond a 
reasonable doubt. State v. Schlender, 199 Or App 
253, 255, 110 P3d 653, rev den, 339 Or 230 
(2005). We begin with the question whether the 
devices used in the Romania fire were destructive 
devices within the meaning of ORS 166.382. ORS 166.382 provides, in part:
"(1) A person commits the crime of unlawful 
possession of a destructive device if the person possesses:
"(a) Any of the following devices with an 
explosive, incendiary or poison gas component:
"(A) Bomb;
"(B) Grenade;
"(C) Rocket having a propellant charge of more than four ounces;
"(D) Missile having an explosive or incendiary 
charge of more than one-quarter ounce; or
"(E) Mine; or
"(b) Any combination of parts either designed or 
intended for use in converting any device into 
any destructive device described in paragraph (a) 
of this subsection and from which a destructive 
device may be readily assembled.
"(2) As used in this section:
"(a) 'Destructive device' does not include any 
device which is designed primarily or redesigned 
primarily for use as a signaling, pyrotechnic, 
line throwing, safety or similar device.
"(b) 'Possess' has the meaning given that term in ORS 161.015."
ORS 166.384(1)(a) in turn makes it unlawful to 
manufacture "[a] destructive device, as defined in ORS 162.382[.]"
Under ORS 166.382(1)(a), the term "destructive 
device" includes a "[b]omb" with either an 
"explosive" or "incendiary" component. The 
adjective "incendiary" means "of, relating to, or 
involving a deliberate burning of property." 
Webster's Third New Int'l Dictionary 1141 
(unabridged ed 2002). Here, the device at issue 
indisputably had incendiary components, 
particularly, the combination of gasoline and 
fuse materials; defendant concedes the point. He 
disputes, however, whether the device was a 
"bomb"--in particular, whether the device carried an explosive charge.
The plain meaning of the word "bomb" is
"a projectile or other device carrying an 
explosive charge fused to detonate under certain 
conditions (as upon impact or through a timing 
contrivance) and that is hurled (as by a mortar), 
dropped (as from an aircraft), or merely set into 
position at a given point (as dynamite) with 
varying effects (as concussion, or fire-flinging, 
or the release of gases) depending upon the type used."
Id. at 249. The adjective "explosive" means 
"relating to, characterized or operated by, or 
suited to cause explosion." Id. at 802. In turn, 
"explosion" means "an act of exploding : a 
violent expansion or bursting that is accompanied 
by noise and is caused by a sudden release of 
energy." Id. Finally, the verb "explode" means 
"to undergo rapid combustion with sudden release 
of energy" and "to burst violently as a result of 
pressure from within." Id. at 801. Those 
dictionary definitions suggest that a "bomb" 
necessarily includes an explosive charge, that 
is, something that is capable of a "sudden 
release of energy" that causes its container to "burst * * * from within."
However, by its terms, ORS 166.382(1)(a) 
expressly contemplates that a bomb may have 
either an explosive, an incendiary, or a poison 
gas component. Accordingly, the text of the 
statute indicates that a "bomb" as defined 
therein need not be capable of exploding. Rather, 
under ORS 166.382(1), a "bomb" may instead have, 
as applicable here, an incendiary rather than an 
explosive component. Stated another way, if, for 
purposes of ORS 166.382, all "bombs" must have 
explosive components, it would have been 
unnecessary for the legislature to have included 
that type of component among the alternatives 
listed in paragraph (1)(a). (15) We therefore 
reject defendant's argument that the device at 
issue here was not a bomb because it did not 
carry an explosive charge. Consistently with ORS 
166.382, the device was a destructive device, 
namely, a bomb with an incendiary component.
Defendant does not contend that he did not 
possess or manufacture the challenged devices. 
Because we conclude that the devices were 
destructive devices for purposes of the offense 
statutes, a reasonable jury could find that 
defendant committed the crimes of possession and 
manufacture of a destructive device. The trial 
court therefore did not err in denying 
defendant's motions for judgments of acquittal on Counts 5, 6, 12, and 13.
We turn to whether the resulting fire represented 
a risk of serious physical injury to any person. 
As noted, defendant first contends that, as a 
matter of law, when the person at risk is a 
firefighter or peace officer, there must be 
actual injury. Alternatively, he contends that 
the evidence in this case is insufficient to show 
a threat of serious physical injury to any person.
We need not determine in this matter whether 
there must be actual injury to a firefighter or 
peace officer to hold defendant guilty of 
first-degree arson under ORS 164.325(1)(c) and 
ORS 137.700. Here, there is sufficient evidence 
in the record from which a factfinder could find 
beyond a reasonable doubt that there was a threat 
of serious physical injury to the security guard 
at the Romania dealership who called in emergency 
personnel, bringing the offense within ORS 
164.325(1)(b) (defining first-degree arson to 
include starting a fire or causing an explosion 
that "recklessly places another person in danger 
of physical injury") and ORS 137.700(2)(b)(A) 
(defining first-degree arson as a Measure 11 
offense "when the offense represented a threat of 
serious physical injury"). The evidence 
demonstrates that, in order to reach the 
telephone to call 9-1-1, the security guard had 
to pass near the fire; that several vehicles were 
on fire and that the flames went as high as 10 
feet; that, due in part to the fact that the fire 
was spreading from one vehicle to another and in 
part to a "small wind blowing," the fire was 
"spreading real fast" toward the building from 
which the security guard was speaking to the 
9-1-1 operator; and that the fire generally was 
intense and volatile. The trial court therefore 
did not err in denying defendant's motions for 
judgments of acquittal on the elements of his 
arson convictions elevating them to ORS 137.707(2)(b)(A) offenses.
B. Merger of Convictions
1. Arson and attempted arson convictions
We next consider defendant's assignments of error 
relating to the trial court's failure to merge 
certain of his convictions. In his first 
assignment of error, he contends that the trial 
court erred in refusing to merge into one 
conviction his three convictions for arson 
arising out of the Romania dealership fire and in 
refusing to merge into one conviction his two 
convictions for attempted arson arising out of 
the Tyree Oil incident. (16) According to 
defendant, each incident properly should result 
in the conviction for only a single offense, 
because the various counts alleged as to each 
incident merely constituted alternative methods 
of proving his guilt of that one offense. 
Defendant relies on State v. Barrett, 331 Or 27, 
10 P3d 901 (2000), under which multiple offenses 
merge into a single conviction if the offenses 
are closely joined in fact and if the anti-merger 
provisions of ORS 161.067 (set out below) do not 
apply. Defendant contends that those requirements 
are met here because the conduct alleged in the 
various counts arising out of each relevant 
incident was closely related to the conduct 
alleged in the other count or counts arising from 
that incident and because, contrary to ORS 
161.067, the alleged conduct as to each incident 
violated only one "statutory provision"--ORS 
164.325(1)(b)--and did not require proof of an 
element that the other count or counts related to 
that incident did not require. Defendant also 
relies on State v. Bell, 181 Or App 456, 46 P3d 
216, rev den, 334 Or 491 (2002), in which the 
state conceded that three counts of first-degree 
arson, each based on ORS 164.325(1)(b) and 
involving a single fire set in a motel room, 
should have merged; referring to Barrett, this court agreed.
The state responds that ORS 161.067 precludes 
merger as to either set of convictions. It points 
out that, although all of defendant's 
first-degree arson convictions were based on ORS 
164.325(1)(b), one involved endangerment of the 
ODOT building, one involved endangerment of the 
Romania dealership office, and on involved danger 
to a person. Relying on State v. Crotsley, 308 Or 
272, 278, 779 P2d 600 (1989), the state contends 
that the convictions therefore involved different 
elements and, accordingly, separate "statutory 
provisions" within the meaning of ORS 161.067(1), 
or what Crotsley called "separate and distinct 
legislative concerns"--as relevant to arson, the 
protection of property, on the one hand, and the 
protection of human life, on the other. 
Alternatively, relying on this court's decision 
in State v. Glaspey, 184 Or App 170, 55 P3d 562 
(2002), rev'd, 337 Or 558, 100 P3d 730 (2004), 
the state contends that there were at least two 
victims of the arson committed at the Romania 
dealership--the security guard and a firefighter 
who testified at trial, Van Moos; and that the 
attempted arson convictions also involved 
multiple victims, namely, various neighborhood 
residents. As to its concession in Bell, the 
state now contends that that concession was 
incorrect in light of State v. Barnum, 333 Or 297, 39 P3d 178 (2002).
The so-called anti-merger statute, ORS 161.067, 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 offenses as there are separate statutory violations.
"(2) When the same conduct or criminal episode, 
though violating only one statutory provision 
involves two or more victims, there are as many 
separately punishable offenses as there are 
victims. However, two or more persons owning 
joint interests in real or personal property 
shall be considered a single victim for purposes 
of determining the number of separately 
punishable offenses if the property is the 
subject of [arson and related offenses as defined 
in ORS 164.315, ORS 164.325, or ORS 164.335, among other crimes.]
"(3) When the same conduct or criminal episode 
violates only one statutory provision and 
involves only one victim, but nevertheless 
involves repeated violations of the same 
statutory provision against the same victim, 
there are as many separately punishable offenses 
as there are violations, except that each 
violation, to be separately punishable under this 
subsection, must be separated from other such 
violations by a sufficient pause in the 
defendant's criminal conduct to afford the 
defendant an opportunity to renounce the criminal intent."
We first consider whether merger was precluded 
under ORS 161.067(1). We begin by reviewing the 
current state of the law in relation to that 
provision. In Crotsley, the court applied ORS 
161.067(1), (17) to the defendant's convictions 
for first- and third-degree rape involving a 
14-year-old victim. 308 Or at 275. The court 
concluded that, in committing those crimes, the 
defendant had engaged in a single criminal 
episode; that his acts violated two or more 
"statutory provisions," that is, provisions 
addressing "separate and distinct legislative 
concerns," and that each provision at issue in 
that case required proof of an element that the 
others did not. Id. at 278. Specifically, the 
court determined that ORS 163.375, setting out 
the crime of first-degree rape, provided "three 
alternative combinations of elements" that 
constituted that crime--the use of forcible 
compulsion, ORS 163.375(1)(a); a victim under 12 
years of age, ORS 163.375(1)(b); and a victim who 
is a close family member of the perpetrator and 
is under 16 years of age, ORS 163.371(1)(c). 308 
Or at 278-79. Accordingly, where the defendant 
was charged with first-degree rape based on his 
forcible compulsion of the victim and his 
conviction for third-degree rape was based on the 
victim's age, those convictions addressed 
separate legislative concerns and required proof 
of different elements; accordingly, the 
convictions did not merge. Id. at 279-80. The 
court reached the same result with regard to the 
defendant's convictions for first- and third-degree sodomy. Id. at 280.
Next, in Barrett, the Supreme Court considered 
whether ORS 161.067(1) precluded merger of the 
defendant's three convictions for aggravated 
murder of one victim based on three aggravating 
circumstances: that the murder was committed 
during commission of a robbery; that it was 
committed during commission of a kidnapping; and 
that it was committed in order to conceal the 
perpetrator's identity. 331 Or at 29. The court 
concluded that the three convictions did not 
violate two or more statutory provisions, or 
require proof of different elements, for purposes 
of ORS 161.067(1). 331 Or at 31. The court noted 
that, although the phrase "statutory provision" 
does not necessarily mean a section, subsection, 
or paragraph, the use of a single section "is 
some indication that the legislature intended to 
define a single crime." Id. at 35. The court 
further noted that the statute defining 
aggravated murder uses the phrase "committed 
under, or accompanied by, any" of the various 
aggravating circumstances; the court inferred 
that the enumerated circumstances "simply serve 
to prove the single essential element of 
'aggravation.'" Id. (emphasis in Barrett). The 
court also concluded that the single harm that 
the legislature intended to address in the 
aggravated murder statute was "the intentional, 
aggravated killing of another human being." Id. 
at 36. The court rejected this court's conclusion 
that each aggravating circumstance involved a 
different harm to the victim, concluding instead 
that the aggravating factors "constitute no more 
than different theories under which murder 
becomes subject to the enhanced penalties for 
aggravated murder." Id. It accordingly remanded 
the case to the circuit court for entry of one 
judgment of conviction for aggravated murder that 
separately enumerated each aggravating factor. Id. at 37.
Next, in Barnum, the court applied ORS 161.067(1) 
to the defendant's two convictions for burglary. 
The relevant two counts of the indictment in that 
case charged that the defendant had entered and 
remained in the victim's home with the intent to 
commit arson and that he had entered and remained 
in the victim's home with the intent to commit 
theft. 333 Or at 300. The court noted that, under 
ORS 164.225, a person commits burglary when he 
"enters or remains unlawfully" in a dwelling with 
the intent to commit a crime therein and that the 
defendant had not challenged the form or degree 
of specificity of the indictment in his case. 333 
Or at 302. The court concluded that, if the jury 
found that each element in each count had been 
proved beyond a reasonable doubt, the defendant 
could properly be convicted of both counts, 
regardless of whether those two violations were 
separately punishable. Id. The court concluded, 
however, that under ORS 161.067(3), providing for 
separate punishment when crimes constitute 
repeated violations of the same statutory 
provision when the crimes are separated by a 
sufficient pause in the defendant's criminal 
conduct, the defendant could not be separately 
punished for each conviction because there was 
not a sufficient pause between the defendant's 
commission of the theft intended in the first 
burglary count and his commission of the arson 
intended in the second burglary count. Id. at 303.
As noted, in Bell, a per curiam opinion, this 
court accepted the state's concession--now 
disavowed--that Barrett required merger under ORS 
161.067(1) of the defendant's three convictions 
for arson involving a single fire and based on 
the same statutory provision. (18) However, in 
doing so, we did not specifically analyze the 
arson statute according to the principles 
established in Barrett. Moreover, although Barnum 
had been decided three months earlier, we did not 
mention the latter case or note any tension 
between it and Barrett. Accordingly, although 
Bell concerned the same offense statute as the 
one at issue here, we do not regard it as controlling precedent in this case.
We turn to another case decided only recently, 
State v. White, 341 Or 624, 147 P3d 313 (2006), 
which, like Barnum, involves the burglary 
statute, ORS 164.225. In White, the defendant was 
convicted of two counts of burglary, based on the 
defendant's entry into a building with the intent 
to commit the crime of assault and his entry with 
the intent to commit the crime of menacing. 341 
Or at 627. The Supreme Court resolved the tension 
between its opinions in Barrett and Barnum and 
clarified that Barrett provides the proper 
analysis for determining whether a defendant's 
convictions should merge and that Barnum should 
not be followed. Id. at 637-38. In White, the 
Supreme Court explained that, as to ORS 
161.067(1), the "mistake[]" in Barnum "arose out 
of an assumption that the burglary statute 
contains two separate 'statutory provisions.'" 
341 Or at 638. It explained, "By assuming, rather 
than searching for, the legislative intent behind 
the burglary statutes, this court in Barnum 
short-circuited the process that it discussed and 
employed in its earlier cases to determine 
whether the defendant had violated 'two or more 
statutory provisions * * *.'" Id. at 635. It 
noted, consistently with Barrett and Crotsley, 
that in order to determine whether the 
defendant's conduct violated "two or more 
statutory provisions," the proper analysis is to 
first determine whether the prohibitions violated 
by the defendant involve "separate and distinct 
legislative concerns." Id. at 638.
The court then explained that the language of the 
burglary statute reveals a legislative intent to 
treat a single unlawful entry as a violation of 
only one statutory provision, even where the 
defendant enters with the intent to commit more 
than one crime. Id. at 640. "The burglary statute 
refers to an 'intent to commit a crime' * * * 
--any crime." Id. (emphasis added in White). 
"Under the clear words of the statute, the state 
must prove some criminal intent, but the nature 
of the intended crime is irrelevant." Id. 
(emphasis omitted). The court concluded that 
there is no basis to differentiate a burglary 
based on an intent to assault and a burglary 
based on an intent to menace. Id. The convictions 
therefore merged. Id. at 640-41.
We return to the question of whether defendant's 
multiple first-degree arson convictions and his 
multiple attempted first-degree arson convictions 
were subject, respectively, to merger under ORS 
161.067(1). We begin by examining the relevant 
offense statute. See Barrett, 331 Or at 34-36 
(examining the offense statute in order to 
determine whether it addressed separate 
legislative concerns and therefore constituted 
separate statutory provisions for merger purposes). ORS 164.325 provided:
"(1) A person commits the crime of arson in the 
first degree if, by starting a fire or causing an 
explosion, the person intentionally damages:
"(a) Protected property of another;
"(b) Any property, whether the property of the 
person or the property of another person, and 
such act recklessly places another person in 
danger of physical injury or protected property 
of another in danger of damage; or
"(c) Any property, whether the property of the 
person or the property of another person, and 
recklessly causes serious physical injury to a 
firefighter or peace officer acting in the line of duty relating to the fire.
"(2) Arson in the first degree is a Class A felony."
See also ORS 164.305 (defining protected property 
as "any structure, place or thing customarily 
occupied by people, including 'public buildings' 
as defined by ORS 479.168 and 'forestland,' as defined by ORS 477.001").
As we have noted, each of defendant's arson 
offenses, as pleaded and proved, as well as each 
of his attempted arson offenses, violated only 
one statutory provision, namely ORS 
164.325(1)(b). That aspect of our analysis weighs 
in favor of merger under ORS 161.067(1). Cf. 
Barrett, 331 Or at 35 (use of a single section is 
some indication that legislature intended to 
define a single crime). (19) Further, the 
circumstance at issue in each offense does not 
require proof of an "element" that the other circumstances do not.
We turn to whether ORS 164.325(1)(b) reflects a 
single legislative concern, on the one hand, or 
"separate and distinct" legislative concerns, on 
the other. By its terms, ORS 164.325(1)(b) 
involves intentional damage to property, with 
either of two consequences: recklessly placing 
another person in danger of physical injury or 
recklessly placing protected property of another 
in danger of damage. On their face, those two 
separately stated consequences might appear to 
implicate separate and distinct legislative 
concerns. Given the definition in ORS 164.305 of 
"protected property," however--property 
"customarily occupied by people"--we understand 
those two consequences to reflect a single 
concern, namely, to protect human life and 
safety. See Commentary to Criminal Law Revision 
Commission Proposed Oregon Criminal Code, Final 
Draft and Report § 144 (July 1970) ("The aim of 
the Commission is to protect human life and 
safety by enhancing the degree of arson to first 
degree when the property involved is a building, 
structure or thing of a kind which is typically 
occupied by people."); see also id. at § 141 
(definition in ORS 164.305 of "[p]rotected 
property" has the purpose of protecting 
structures or things typically occupied by people 
and is consistent with the "primary rationale" of 
the arson offense, which is the protection of 
human life or safety; the definition includes 
"forestland" because forest fires also present a 
high risk to human safety). Certainly, those 
alternative consequences are not separate 
legislative concerns in the manner of the 
convictions in Crotsley--concerns about rape 
involving, respectively, forcible compulsion, a 
victim under 12 years of age, or a victim who is 
a close family member under 16 years of age. 
Rather, the distinctions embodied in ORS 
164.325(1)(b), to the extent that there are any, 
are more akin to those in Barrett: various 
circumstances involving a danger to the life and 
safety of persons, each of which serves the 
purpose of aggravating the crime to first-degree 
arson. See 331 Or at 36 (the harm that the 
legislature intended to address in ORS 163.095 
was "the intentional, aggravated killing of 
another human being"). Put differently, the 
stated circumstances "constitute no more than 
different theories under which [second-degree 
arson] becomes subject to the enhanced penalties" 
for first-degree arson. See 331 Or at 36 
(applying that standard to multiple convictions for aggravated murder).
For all of the above reasons, we conclude that 
ORS 161.067(1) does not preclude merger of 
defendant's three convictions for first-degree 
arson arising out of his conduct in setting the 
Romania fire. By the same reasoning, that statute 
also does not preclude merger of defendant's two 
convictions for attempted arson arising out of the Tyree Oil incident.
We next consider whether merger is precluded by 
reason of different "victims" of defendant's 
arson and attempted crimes, as provided in ORS 
161.067(2). The state points to the trial court's 
finding that defendant's act of setting the 
Romania fire "represented a [threat of] serious 
physical injury to the security guard, the fire 
fighters, and others who might have been in this 
vicinity" and to its finding that the Tyree Oil 
incident placed nearby residents in danger. The 
trial court made those findings, however, in the 
context of finding the existence of aggravating 
factors elevating defendant's arson crimes to 
Measure 11 offenses (20) and in the context of 
finding defendant guilty of attempted 
first-degree arson. Indeed, as discussed below, 
the persons mentioned by the trial court were not 
the subjects of distinctions made in the 
indictment in this case. Rather, whether 
defendant's three convictions for arson involved 
separate "victims" for the purpose of ORS 
161.067(2) requires a different analysis.
State v. Glaspey, 337 Or 558, 100 P3d 730 (2004), 
sets out the template for that analysis. In that 
case, the defendant assaulted his wife; the 
couple's two children witnessed the assault. Id. 
at 560. The defendant was convicted of two counts 
of felony assault in the fourth degree, as 
provided in ORS 163.160, based on the theory that 
each of the two child witnesses was a victim of 
the crime and that the defendant therefore had 
committed two offenses. 337 Or at 560. On appeal, 
the defendant contended that the child witnesses 
were not victims of the crimes for the purposes 
of either the offense statute or ORS 161.067(2). 
337 Or at 561. This court disagreed and affirmed the separate convictions. Id.
The Supreme Court reversed. The court explained 
that whether persons are "victims" for the 
purpose of ORS 161.067(2) depends on the 
legislature's intent with regard to the specific 
substantive statute defining the relevant 
offense. 337 Or at 563; see also id. at 567 (ORS 
161.067(2) "invests the term 'victim' with the 
same meaning that it has for the relevant 
substantive statutory provision that defines the 
offense"). The court determined that intent by 
construing the offense statute according to the 
analytical method set out in PGE v. Bureau of 
Labor and Industries, 317 Or 606, 610-12, 859 P2d 
1143 (1993). The court concluded that, for 
purposes of the offense of felony assault in the 
fourth degree, the term "victim" refers to a 
person who is "directly and physically injured" 
by an assault and does not refer to a minor child 
who witnesses the assault as described in that 
offense statute. Glaspey, 337 Or at 565. The 
court concluded that the trial court therefore 
had erred in failing to merge the defendant's two convictions. Id. at 564-67.
Here, defendant was charged with three counts of 
first-degree arson as provided in ORS 
164.325(1)(b). We again consider the text of that 
provision, in this instance for the purpose of 
determining who, if anyone, is the "victim" of 
the offense. Again, the statute provides that a 
person commits the crime of first-degree arson 
if, by starting a fire or causing an explosion, 
the person "intentionally damages"
"(b) Any property, whether the property of the 
person or the property of another person, and 
such act recklessly places another person in 
danger of physical injury or protected property 
of another in danger of damage[.]"
Unlike the offense statute at issue in Glaspey, 
ORS 164.325(1)(b) does not use the term "victim." 
Rather, by its terms, the conduct that is 
criminalized primarily is conduct directed at 
property. See also ORS 164.325(1)(a) (providing 
that a person commits the crime by damaging 
"[p]rotected property of another"); ORS 
164.325(1)(c) (providing that a person commits 
the crime by damaging "[a]ny property" and 
recklessly causing serious physical injury to an 
emergency responder). Nevertheless, ordinarily, a 
victim is a person. See Webster's at 2550. Where 
the text of ORS 164.325(1)(b) indicates that the 
target of the criminal conduct is property and 
where a victim for the purpose of ORS 161.067(2) 
ordinarily is a person, it is reasonable to 
conclude that, for the purpose of ORS 161.067(2), 
the victim of the crime of first-degree arson as 
provided in ORS 164.325(1)(b) is the owner of the property.
It is true that commission of the crime of 
first-degree arson under ORS 164.325(1)(b) also 
requires that the conduct of intentionally 
damaging property recklessly place another person 
in danger of physical injury or place protected 
property--again, property customarily occupied by 
people, ORS 164.305(1)--in danger of damage. 
Indeed, that requirement informs our conclusion, 
reached above, that all of the circumstances 
enumerated in ORS 164.325(1)(b) reflect a single 
legislative concern for the purposes of merger 
under ORS 161.067(1). That understanding, 
however, does not control our analysis of who is 
a "victim" for purposes of ORS 161.067(2). 
Rather, we conclude that the element of 
recklessly placing persons or protected property 
in danger is a collateral or secondary 
consequence (albeit necessary to the statutory 
definition of first-degree arson) of the act of 
intentionally damaging property. It therefore is 
comparable to the requirement, in the felony 
fourth-degree assault statute at issue in 
Glaspey, that a child witness the assault. 
Accordingly, it is consistent with the court's 
reasoning in Glaspey, as well as with the text of 
ORS 164.325(1)(b), to conclude that the entity 
that is, in effect, "directly and physically 
injured" by the crime of arson is the owner of 
the intentionally damaged property.
The statutory context of ORS 164.325(1)(b) 
supports that interpretation. As quoted above, 
ORS 161.067(2) itself provides in part that, for 
the purposes of specified crimes including 
first-degree arson, "two or more persons owning 
joint interests in real or personal property 
shall be considered a single victim for purposes 
of determining the number of separately 
punishable offenses[.]" (21) That provision also 
suggests that, in the case of property crimes 
such as arson, the "victim"--in Glaspey terms, 
the entity "directly and physically injured" or 
harmed--is the owner of the damaged property.
Here, as noted, defendant was charged with and 
convicted of three counts of arson in the first 
degree. However, as noted above, each count 
charged, in identical language, that defendant 
"intentionally damage[d] certain property of Joe 
Romania Chevrolet, motor vehicles[.]" As we have 
construed ORS 164.325(1)(b), the owner of that 
property was the "victim" of defendant's arson 
crime for the purpose of ORS 161.067(2). 
Conversely, although each count recited a 
different secondary consequence--in the first 
count, that defendant thereby recklessly placed 
protected property, the ODOT building, in danger 
of damage; in the second, that he thereby 
recklessly placed protected property, the Romania 
office building, in danger of damage; and in the 
third, that he thereby recklessly placed "another 
person" in danger of physical injury--the 
entities that were subject to those secondary 
consequences, whether property or persons, were 
not victims for the purpose of the arson statute 
and therefore were not victims for the purpose of 
ORS 161.067(2). Finally, even assuming, which the 
state does not argue, that the motor vehicles 
were jointly owned by two or more persons, under 
ORS 161.067(2), those persons properly must be 
considered a single victim. For all of those 
reasons, ORS 161.067(2) does not preclude merger 
of defendant's three convictions for arson.
A similar analysis prevails with regard to 
defendant's two convictions for attempted arson. 
Again, each count alleged that, by attempting to 
start a fire or cause an explosion, defendant 
intentionally attempted to "damage property of 
Tyree Oil, Inc., a fuel truck." Although the 
counts alleged distinct secondary 
consequences--for the first count, placing 
protected property, the Tyree Oil office 
building, in danger of damage; and for the 
second, placing another person in danger of 
physical injury--the victim for each count was, 
as we have construed ORS 164.325(1)(b), the owner 
of the fuel truck that was the direct object of defendant's conduct--Tyree Oil.
Because merger was not precluded by ORS 
161.067(1) or ORS 161.067(2), the trial court 
erred in failing to merge defendant's three arson 
convictions into a single conviction and in 
failing to merge his two attempted arson 
convictions into a single conviction. We 
therefore vacate all of those convictions and 
remand for merger, with instructions to 
articulate in the judgment the theory applicable to each merged count.
2. Unlawful manufacture and possession of a destructive device
We turn to defendant's third assignment of error, 
in which he contends that the trial court erred 
in failing to merge his two convictions for 
unlawful possession of a destructive device with 
his two convictions for unlawful manufacture of a 
destructive device. (22) Defendant argues that, 
because one cannot manufacture a destructive 
device without also possessing it, the statute 
criminalizing the possession of such a device 
does not require proof of any element for which 
proof is not also required under the statute 
criminalizing the manufacture of the device; 
accordingly, merger is not precluded under ORS 161.067(1).
The state responds that, although one count of 
each crime was based on the Tyree Oil incident 
and the other count of each crime was based on 
the Romania fire, in fact, the evidence showed, 
and the trial court implicitly found, that 
defendant "manufactured" the devices in his 
storage unit and had the opportunity to renounce 
his criminal intent before taking and placing the 
devices at the respective crime scenes, during 
which conduct he "possessed" them. The state 
reasons that merger therefore is precluded by ORS 
161.067(3), prohibiting merger when conduct 
violates only one statutory provision and 
involves only one victim but the violations are 
"separated from other such violations by a 
sufficient pause in the defendant's criminal 
conduct to afford the defendant an opportunity to 
renounce the criminal intent."
The state also contends that merger was precluded 
under ORS 161.067(1). First, the state argues 
that, by the plain meaning of the terms, 
"manufacture" contemplates the assembly of raw 
materials whereas "possession" contemplates 
physical possession of a completed device; 
according to the state, each provision therefore 
requires proof of an element that the other does 
not. In making that argument, the state relies on 
State v. Brown/Ford, 106 Or App 291, 807 P2d 316 
(1990), rev den, 311 Or 427 (1991), in which we 
considered whether ORS 161.067(1) precludes 
merger of the crimes of possession of a 
controlled substance and manufacture of a 
controlled substance and concluded that, where 
the legislature had defined "manufacture" in the 
relevant version of ORS 475.005 as "the 
production, preparation, propagation, 
compounding, conversion or processing of a 
controlled substance" and where possession does 
not necessarily require proof of any of those 
activities, each crime required proof of an 
element that the other did not. Also as relevant 
to preclusion of merger under ORS 161.067(1), the 
state contends that, in enacting the separate 
crimes of manufacture and possession of a 
destructive device, the legislature could have 
concluded that those two courses of conduct 
presented different risks to the public and 
therefore represented different legislative concerns.
We begin with whether merger was precluded under 
ORS 161.067(1). In contrast to our analysis of 
defendant's arson convictions, here, it is clear 
that defendant's acts constituting each pair of 
convictions violated two statutory provisions. 
The question then becomes whether each conviction 
within those pairs of convictions required proof 
of an element that the other did not. Crotsley, 
308 Or at 278. In making that determination, we 
examine only the statutory elements of each 
offense, not the underlying factual circumstances 
recited in the indictment. See State v. Wright, 
150 Or App 159, 162, 945 P2d 1083 (1997), rev den, 326 Or 390 (1998).
It is true that, in Brown/Ford, we concluded that 
the crimes of possession and manufacture of a 
controlled substance each required proof of an 
element that the other did not. Brown/Ford, 106 
Or App at 297. However, in that case, although we 
expressly determined that "possession does not 
necessarily require proof of any" of the 
activities defined as constituting manufacture, 
we did not explain why manufacture of a 
controlled substance did not require proof of its 
possession. Id. at 296-97. In addition, here, in 
contrast to the statutory scheme relating to 
controlled substances, we lack a statutory 
definition of the term "manufacture."
Nevertheless, we agree with the state that each 
offense requires proof of an element that the 
other does not. First, under ORS 166.384, a 
person manufactures a destructive device when the 
person "assembles, produces, or otherwise 
manufactures" such a device. Thus, a person 
commits that offense when a person assembles the 
components of the device; the state need not 
prove that, after assembling the device, the 
person had possession of it in its completed 
form. Conversely, possession of something 
commonly is understood to relate to physical 
control of the object, not to its production or 
assembly. See Webster's at 1770 (defining the 
verb "possess" as "to have and hold as property" 
and "to take into one's possession," and defining 
the noun "possession" as "actual physical control 
* * * of property" and as the "act or condition 
of having in or taking into one's control"). 
Thus, the crime of possession of a destructive 
device does not require proof that the person 
assembled the device into its completed form. 
Accordingly, ORS 161.067(1) precludes merger of 
defendant's two convictions for possession of a 
destructive device into his two convictions for 
manufacture of a destructive device. (23) The 
trial court did not err in declining to merge the convictions.
IV. SENTENCING ISSUES
A. Applicability of Departure Factors
We turn to defendant's challenges to his 
sentences. In his second assignment of error, 
defendant contends that the trial court erred in 
imposing a 44-month durational departure sentence 
on one of his convictions for attempted 
first-degree arson based on the Tyree Oil 
incident. Specifically, defendant argues that the 
trial court erred in finding that the incendiary 
device used by defendant in the commission of the 
offense was a "weapon" and in finding that 
defendant's placement of the device near a 
petroleum storage depot could have resulted, 
although it did not actually result, in "very 
significant" harm or loss. See OAR 
213-008-0002(1)(b)(E); OAR 213-008-0002(1)(b)(J).
As discussed above, defendant's three convictions 
for first-degree arson and his two convictions 
for attempted first-degree arson must be vacated 
and remanded for merger and for resentencing. 
(24) On resentencing, defendant will be entitled 
to the procedures set out in Oregon Laws 2005, 
chapter 463, sections 1 to 7 and 21 to 23, 
compiled as a note before ORS 136.001 (2005). 
Although it is possible that the issues presented 
in defendant's second assignment of error will 
arise in that proceeding, nevertheless, given the 
differences in procedure, as well as other 
possible differences, between defendant's 
original sentencing and his resentencing, we 
cannot say that it is likely that they will do 
so. We therefore decline to determine at this 
time whether the trial court erred in applying 
the challenged departure factors to defendant.
In his fourth assignment of error, defendant 
contends that the trial court erred in imposing 
an 18-month durational departure sentence on one 
of his convictions for unlawful possession of a 
destructive device based on its findings that 
defendant "not only manufactured this device but 
you took it and delivered it * * * and by your 
own admission set the fire that could have had 
disastrous results and you created a risk of 
substantial harm to a number of victims in this 
instance." (25) Again, that issue is not certain 
to arise on remand. Moreover, we agree with the 
state that, in light of defendant's concurrent 
24-month sentence, any error was, in effect, 
harmless. See State v. Tremillion, 111 Or App 
375, 376, 826 P2d 95, rev den, 313 Or 300 (1992) 
(the existence of a concurrent sentence rendered 
harmless any error relating to the challenged 
sentence). We therefore reject defendant's fourth assignment of error.
B. Constitutional Challenges to Total Sentence Length
In his fifth assignment of error, relying on 
Article I, section 16, of the Oregon Constitution 
and the Eighth Amendment to the Constitution of 
the United States, defendant contends that his 
cumulative sentence of 266 months constitutes 
cruel and unusual punishment and is 
unconstitutionally disproportionate to the 
sentence received by his codefendant and to the 
circumstances surrounding his commission of the 
crimes. However, we are reversing several of 
defendant's convictions and remanding for merger; 
the total sentence length for defendant's 
convictions therefore necessarily will be 
substantially shorter. In addition, as noted, the 
remainder of defendant's sentences also must be 
vacated and remanded for resentencing under ORS 
138.222(5). We therefore do not consider 
defendant's challenges to his total sentence length of 266 months.
C. Blakely Challenges
Finally, in a supplemental brief, defendant 
raises various challenges to his sentences based 
on the United States Supreme Court's application 
of the Sixth Amendment right to jury trial in 
Blakely v. Washington, 542 US 296, 124 S Ct 2531, 
159 L Ed 2d 403 (2004), and Apprendi v. New 
Jersey, 540 US 466, 120 S Ct 2348, 147 L Ed 2d 
435 (2000). As noted above, on remand for merger 
and for resentencing, defendant must be afforded 
the procedures set out in Oregon Laws 2005, 
chapter 463, compiled as a note before ORS 
136.001 (2005), including an election as to 
whether to have a jury try any proposed departure 
factors (referred to in those provisions as 
"enhancement fact[s]"). Defendant's Apprendi- and 
Blakely-based challenges therefore are moot.
Reversed and remanded for entry of judgment 
reflecting single conviction for first-degree 
arson and single conviction for attempted 
first-degree arson; sentences vacated; remanded 
for resentencing; otherwise affirmed.




1. Statutes are quoted as relevant in the 
discussion. References to ORS 164.325 are to the 
1999 version that was in effect at the time 
defendant committed his crimes. The 2005 
legislature added a provision, not relevant to 
this case, criminalizing the act of causing a 
fire or explosion while engaging in the 
manufacture of methamphetamine. Or Laws 2005, ch 706, § 4.





2. Due to the death during trial of defendant's 
counsel, defendant's first trial ended in a 
mistrial. Marshall eventually pleaded guilty to 
various crimes related to the events narrated 
here; defendant was the sole defendant in the trial underlying this appeal.






3. Defendant also was indicted for two counts of 
conspiracy to commit arson in the first degree; 
those counts were later dismissed.






4. The charges apparently were joined under ORS 
132.560(1)(b)(A), permitting joinder where the 
offenses are "[o]f the same or similar 
character." Defendant did not assert that joinder 
was improper, only that the charges should have 
been severed under ORS 132.560(3).






5. ORS 132.560 provides, in part:
"(1) A charging instrument must charge but one 
offense, and in one form only, except that:
"(a) Where the offense may be committed by the 
use of different means, the charging instrument 
may allege the means in the alternative.
"(b) Two or more offenses may be charged in the 
same charging instrument in a separate count for 
each offense if the offenses charged are alleged 
to have been committed by the same person or persons and are:
"(A) Of the same or similar character;
"(B) Based on the same act or transaction; or
"(C) Based on two or more acts or transactions 
connected together or constituting parts of a common scheme or plan.
"(2) If two or more charging instruments are 
found in circumstances described in subsection 
(1)(b) of this section, the court may order them to be consolidated.
"(3) If it appears, upon motion, that the state 
or defendant is substantially prejudiced by a 
joinder of offenses under subsection (1) or (2) 
of this section, the court may order an election 
or separate trials of counts or provide whatever 
other relief justice requires."






6. In Miller, the Supreme Court interpreted 
former ORS 132.560(3), amended by Or Laws 1999, 
chapter 1040, section 17, to determine what the 
legislature meant by the term "prejudice." The 
court concluded that the "prejudice" standard 
established in former ORS 132.560(3) (1997) 
demonstrated that the legislature intended to 
"authorize the court to safeguard the parties 
from potential injury or harm to their interests 
in a fair trial." Miller, 327 Or at 627 (emphasis 
omitted). The court further explained that it 
assesses "fairness [in this context] by 
evaluating the specific interests of the parties 
at stake in light of our legal traditions and the 
applicable rules of trial procedure" and that 
"actual or likely impairment" of a party's 
"interest in a trial conducted efficiently and in 
accordance with all applicable laws, including 
the constitutions, statutes, and rules of 
procedure and evidence, and in a decision based 
on a dispassionate consideration of the evidence 
rather than bias, emotion, or other improper 
criteria * * * constitutes * * * 'prejudice' 
within the meaning of ORS 132.560(3)." Id. at 627-28.






7. As to the Romania fire, defendant proposed to 
stipulate to facts establishing his guilt of 
criminal mischief in the first degree and to be 
tried to the court on factors elevating that 
crime to arson in the first degree and on factors 
elevating arson in the first degree to a Measure 11 crime.

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8. Indeed, defendant does not contend that the 
trial court erred in incorporating its ruling from the earlier case.

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9. We understand the trial court to have meant to 
refer to an instruction regarding Marshall's 
failure to "comment" on the charges arising out 
of not the Tyree Oil case but the Romania case, 
as to which he proposed to waive jury trial on 
all facts except the facts elevating first-degree 
arson to a Measure 11 offense.

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10. Article I, section 9, provides:
"No law shall violate the right of the people to 
be secure in their persons, houses, papers, and 
effects, against unreasonable search, or seizure; 
and no warrant shall issue but upon probable 
cause, supported by oath, or affirmation, and 
particularly describing the place to be searched, 
and the person or thing to be seized."

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11. The Fourth Amendment provides:
"The right of the people to be secure in their 
persons, houses, papers, and effects, against 
unreasonable searches and seizures, shall not be 
violated, and no Warrants shall issue, but upon 
probable cause, supported by Oath or affirmation, 
and particularly describing the place to be 
searched, and the persons or things to be seized."

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12. Although defendant argues that the court 
erred in not suppressing evidence discovered 
during a warrantless search of defendant's 
vehicle, his argument appears to be that 
suppression was necessary because the search was 
the "fruit" of an unlawful detention; defendant's 
brief contains no argument that the search itself 
was unlawful. In any event, the only evidence 
that derived from the search of the vehicle was a 
pair of gloves. Defendant does not explain how 
that evidence was prejudicial, and we perceive no 
way in which it was. Thus, even if the search was 
unlawful and it was error not to suppress the 
gloves--a conclusion we explicitly do not reach--any error was harmless.

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13. ORS 166.382 describes the crime of unlawful 
possession of a destructive device and, as 
discussed more fully below, defines what 
constitutes a destructive device. ORS 166.384 
describes the crime of unlawful manufacture of a 
destructive device, incorporating by reference 
the definition of a destructive device contained in ORS 166.382.

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14. The witnesses included a Eugene Police 
Department arson detective and an agent of what 
was then called the United States Bureau of Alcohol, Tobacco, and Firearms.

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15. State ex rel Juv. Dept. v. Garrett, 193 Or 
App 629, 91 P3d 830 (2004), is not to the 
contrary. In that case, we interpreted the term 
"bomb" as used in ORS 166.382 to mean a "device 
carrying an explosive charge," as defined in 
Webster's. Id. at 633. However, we also 
identified that interpretation as the one that 
was pertinent to that particular case, which 
involved a youth's modification of a lawful 
firework into one with greater explosive 
capability. See id. We note that, in other 
respects, the device here was consistent with the 
definition in Webster's of a bomb: the device was 
"set into position" at the Romania dealership 
and, by design, had the effect of "fire-flinging."

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16. The three counts of arson in the first degree 
were based on ORS 164.325(1)(b), set out in the 
discussion below, and alleged that defendant 
"unlawfully and intentionally damage[d] certain 
property of Joe Romania Chevrolet, motor 
vehicles, by starting a fire or explosion," 
thereby (1) recklessly placing protected 
property, the ODOT building, in danger of damage; 
(2) recklessly placing protected property, the 
Romania office, in danger of damage; and (3) 
recklessly placing another (unspecified) person 
in danger of physical injury. The two attempted 
arson counts also were based on ORS 164.325(1)(b) 
and alleged that defendant attempted to damage 
property, a Tyree Oil fuel truck, by attempting 
to start a fire or cause an explosion, thereby 
(1) recklessly placing a Tyree Oil office 
building in danger of damage; and (2) recklessly 
placing another (unspecified) person in danger of physical injury.

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17. Crotsley and other cases cited herein were 
decided under former ORS 161.062, repealed by Or 
Laws 1999, chapter 136, section 1, the 
predecessor to ORS 161.067. For our purposes, the 
statutes are identical, and we refer only to ORS 161.067.

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18. The defendant in Bell was charged with 
intentionally setting a fire and thereby (1) 
damaging a dwelling (a motel); (2) damaging a 
dwelling (the motel) and its contents, thereby 
recklessly placing the dwelling in danger; and 
(3) damaging a dwelling (the motel) and its 
contents, thereby recklessly placing the 
employees and occupants of the dwelling in danger. 181 Or App at 457.

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19. In State v. Beason, 170 Or App 414, 429-30, 
12 P3d 560 (2000), rev den, 331 Or 692 (2001), we 
concluded that where the prefatory language of 
subsection (1) of the murder statute, ORS 
163.115, referred to acts that "constitute[] 
murder," that fact suggested that each of the 
following paragraphs merely described separate 
ways of committing that single offense. Here, 
defendant was convicted of three counts of arson 
based on ORS 164.325(1)(b). Thus, we need not, 
and do not, decide whether ORS 161.067(1) would 
require merger of convictions based on different 
paragraphs of subsection (1) of the first-degree arson statute.

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20. The trial court made the quoted finding in 
the context of the first arson count; it made 
similar, albeit more generally stated, findings 
in relation to the second and third arson counts.

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21. The other specified crimes include theft; 
unauthorized use of a vehicle; criminal 
possession of rented or leased personal property; 
burglary; criminal trespass; and forgery and related offenses.

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22. One count of manufacture and one count of 
possession were based on the Tyree Oil incident; 
the other counts--one of each--were based on the Romania fire.

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23. We need not consider whether, as the state 
argues, ORS 161.067(3) precludes merger of those 
convictions by reason of "a sufficient pause in * 
* * defendant's criminal conduct to afford * * * 
defendant an opportunity to renounce the criminal 
intent." That is because subsection (3) applies 
when the same conduct or criminal episode 
violates only one statutory provision. Here, as 
discussed, defendant seeks merger of two different statutory provisions.

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24. Moreover, based on the trial court's error in 
failing to merge the relevant convictions, we 
necessarily remand the entire case for 
resentencing. ORS 138.222(5); see also State v. 
Rodvelt, 187 Or App 128, 136, 66 P3d 577, rev 
den, 336 Or 17 (2003) (failure to merge 
convictions is an error requiring resentencing for purposes of ORS 138.222(5)).

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25. Defendant understands that the trial court 
thereby made two findings: that the degree of 
harm or loss attributed to the crime was 
significantly greater than typical for such an 
offense, as provided in OAR 
213-008-0002(1)(b)(J), and that defendant not 
only possessed the device but also ignited it. 
Defendant argues that the former impermissibly 
relies on potential harm. As to the latter, 
defendant argues that it also impermissibly 
focuses on the risk of harm; in addition, to the 
extent that the trial court believed that 
igniting the device aggravated the crime beyond 
mere possession, that circumstance was captured 
in defendant's conviction for arson in the first 
degree. Alternatively, defendant argues that his 
ignition of the device was used as evidence of 
his possession of it and therefore was "captured 
as an element" of the offense; accordingly, it 
was improper also to use it as a departure factor.

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The Civil Liberties Defense Center
Lauren C. Regan, Attorney at Law
Executive Director
259 East 5th Avenue, Suite 300 A
Eugene, Oregon 97401
541.687.9180 phone
541.686.2137 fax

Email: lregan at cldc.org

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