State v. Welsh

Under ORS 137.123(5), consecutive sentences must only be granted for convictions arising out of continuous and uninterrupted courses of conduct if the court finds that the violation was not merely an incidental violation, but actually an indication of defendant’s willingness to commit a separate crime, or that the offense created a risk of causing greater harm or injury to the victim.

Defendant appealed a conviction for second degree criminal trespass, first degree attempted assault, attempted assault on a public safety officer, as well as other charges. Defendant was walking around a neighborhood approaching houses. As she left one of the lawns and walked toward the sidewalk, an officer attempted to confront her and she pushed past him. She then pulled a knife on him when he grabbed her arm in an effort to confront her. Defendant argued the trial court erred by imposing consecutive sentences on the assault charges. Under ORS 137.123(5), the trial court is required to find that criminal conduct arose from a continuous and uninterrupted course of conduct only if the criminal offense was an indication of Defendant’s willingness to commit more than one criminal offense, or that it “caused or created a risk of causing greater or qualitatively different loss, injury or harm to the victim,” not merely that the incidents were incidentally related to one another. Exercising its discretion, the Court found that there was plain error in the trial courts determination that the assaults Defendant was charged with were separate acts because they were a continuous act directed towards a single individual. Remanded for resentencing; otherwise affirmed.