State v. Witherspoon

Two criminal counts which arose from continuous, uninterrupted conduct that were joined in time, place, and circumstances are not separate criminal episodes for the purpose of calculating defendant's criminal history score.

Defendant appealed his criminal convictions. One evening, Defendant pulled his wife’s (M) hair, which aggravated a bulging disc in her neck; attempted to force M to stab Defendant; prevented M from calling the police; threw M against a book shelf; and smashed C’s (M’s son) face into a ladder. The State charged, inter alia, and convicted Defendant of misdemeanor fourth-degree assault, menacing, and fourth-degree assault. The State then argued, and the Trial Court agreed, that there was a break in time between the knife incident and when Defendant threw M into the bookshelf and, therefore, Defendant’s criminal history score on the latter incident should be “D” rather than “I” pursuant to OAR 213-004-0008. Defendant appealed and the Appellate Court held that there was no evidence to support the trial court’s conclusion that the series of events was interrupted, which would allow a calculation of Defendant’s criminal history score as “D” instead of “I.” Remanded for resentencing; otherwise affirmed.