State v. Mastne

RICHARDSON, J. In these cases, consolidated for trial and appeal, defendants appeal their convictions for robbery in the second degree. The only assignment is that the court erred in imposing dangerous offender sanctions. ORS 161.725. We affirm. A court may impose an increased term of imprisonment under the dangerous offender statute if it finds that, because of the dangerousness of the defendant, an extended period of imprisonment is necessary. However, before a defendant can be treated as “dangerous,” the sentencing must be for either (1) a class A felony or (2) a lesser felony that “seriously endangered the life or safety of another” and, in either case, the defendant must “be suffering from a severe personality disorder indicating a propensity toward criminal activity.” ORS 161.725(1), (2). Defendants contend only that there is no basis for a finding that the class B felonies which they committed seriously endangered the life or safety of the victim. Both defendants waived trial by jury, and the trial to the court was based partly on a stipulation and partly on testimony of the victim. Defendants stipulated that theyboth had participated in the robbery of the victim, a bookkeeper for a business, and that the robbery was accomplished “by threatening the immediate use of physical force upon [the victim] by pointing a weapon at her.” The victim testified that defendant Passer came to her place of employment, pointed a gun at her and said, “This is a robbery.” He took her to a back room where she had been counting some currency and had her put the money in a bag. He taped her hands, bound her to a chair and put tape over her mouth. He said to her, after he noted that she was frightened, “I’m not going to hurt you.” Defendant Mastne came into the room as Passer was tying the victim to the chair. He picked up the money bags, and both men left. Defendants were charged with robbery in the first degree, and the issue for trial was whether the state proved that the gun was loaded in order to establish the indicted charges. The court found both defendants guilty of the lesser included offense of robbery in the second degree. [34] After the court pronounced its decision, the prosecutor notified the court that the state would request that both defendants be examined by psychiatrists to determine if they should be sentenced under the dangerous offender statute. Defendants filed identical motions seeking denial of the state’s request for psychiatric evaluation on the basis that they were being sentenced for a class B felony that did not “seriously [endanger] the life or safety of another.” ORS 161.725. The trial court denied the motion after finding that the life or safety of the victim was seriously endangered. See State v. Follett, 88 Or App 512, 746 P2d 236 (1987). Defendants argue, first, that the facts do not support the court’s finding. They note that robbery in the second degree does not contain, as an element, the requirement that the victim be endangered. In State v. Allen, 68 Or App 5, 680 P2d 997, rev den 297 Or 547 (1984), we rejected a similar argument: “The focus of the statute is on the circumstances surrounding the commission of the felony, not on its statutory definition. Under [ORS 161.725(2)] the proper inquiry is whether, intended or not, someone’s life or safety was in fact endangered. See Commentary to Oregon Criminal Code § 85 (1971).” 68 Or App at 9. (Emphasis in original.) Defendants also emphasize that the victim was not harmed and that, when Passer noted that she was frightened, he told her that he was not going to hurt her. The evidence allowed the court to find that two men, one armed with a weapon, accosted a woman, threatened her, bound her to a chair, gagged her and, after stealing the money with which she was entrusted, left her bound in the chair. We conclude that there was sufficient evidence to support the court’s finding under ORS 161.725(2). See State v. Allen, supra. Mastne additionally argues that, because the evidence does not show that he had a gun or threatened the victim and that he only participated by picking up the money, he did not personally endanger the victim. Essentially, his argument is that he cannot be held vicariously liable for Passer’s conduct for the purposes of determining if he is a dangerous offender. The argument is premised on State v. Hicks, 38 Or App 97, 589 P2d 1130 (1979), where the defendant was convicted with a co-defendant for first degree robbery and [35] first degree rape. He was given an additional sentence under ORS 166.230, which provides for an additional penalty for “[a]ny person who commits or attempts to commit any felony * * * while armed with any pistol, revolver, machine gun * * * >> The co-defendant was armed during the commission of the crimes, but the defendant was not. We held that, because the defendant was not armed with a gun, he was not subject to the enhanced penalty provision. The statutory scheme involved in Hicks, ORS 166.230, is different from the enhanced penalty provisions of the dangerous offender statute. The former describes the particular conduct that can support an enhanced penalty: committing a felony while armed with a gun. Under the dangerous offender statute, ORS 161.725(2), the type of crime for which the defendant is being sentenced is the predicate for determining whether the enhanced penalty is appropriate. One of two types of felony triggers the dangerous offender inquiry. If a defendant is being sentenced for a class A felony, the court may address the other required findings without having to analyze the dangerousness of the crime. ORS 161.275(1). A defendant who is guilty of a class A felony as an aider or abetter, ORS 161.150, may be sentenced as a dangerous offender without regard to what he actually did during commission of the class A felony. Similarly, ORS 161.725(2) relates to the nature of the lesser felony for which the defendant is sentenced and not to the nature of the defendant’s involvement. If the felony seriously endangered another’s life or safety, it is irrelevant whether a defendant directly caused that danger. The court did not err in imposing a sentence under ORS 161.725(2). Affirmed.