The court issued an amended judgment dismissing the charge of aggravated murder, and it imposed a mandatory 300 month sentence without the possibility of parole for murder (Count 2) under ORS 137.700. The state appealed, asserting that, in light of our decision in State v. Dasa , 234 Or.App. 219, 227 P.3d 228, rev. den. , 349 Or. 173, 243 P.3d 468 (2010), the trial court erred in granting defendant's motion in arrest of judgment and in vacating the original judgment with the aggravated murder conviction and sentence of true life. Tate , 254 Or.App. at 510, 295 P.3d 683. Defendant cross-appealed, raising seven assignments of error regarding the guilt phase of his trial. Id .
October 21, 2010. On review from the 234 Or. App. 219. Petitions for Review Denied.
Because a burglar generally will be present when committing the crime of burglary, the legislature's choice of wording indicates that the term "a person" may not include the perpetrator. See State v. Dasa , 234 Or.App. 219, 230–31, 227 P.3d 228, rev. den. , 349 Or. 173, 243 P.3d 468 (2010) ("[T]he threshold of ambiguity is a low one. It does not require that competing constructions be equally tenable. It requires only that a competing construction not be wholly implausible." (Internal quotation marks omitted.)).
A jury convicted defendant of aggravated felony murder, ORS 163.095(2)(d); murder, ORS 163.115, and first-degree burglary, ORS 164.225. The trial court later granted defendant's motion in arrest of judgment with respect to the aggravated murder conviction, vacated that conviction, and entered an amended judgment dismissing that charge. The state appeals, asserting that, in light of State v. Dasa, 234 Or.App. 219, 227 P.3d 228,rev. den.,349 Or. 173, 243 P.3d 468 (2010), the trial court erred in granting defendant's motion in arrest of judgment and in dismissing the aggravated felony murder charge. Defendant cross-appeals and raises seven assignments of error.
Because defendant was convicted, we state the few necessary contextual facts in the light most favorable to the state. State v. Dasa, 234 Or.App. 219, 221, 227 P.3d 228, rev. den., 349 Or. 173, 243 P.3d 468 (2010). Defendant's ex-girlfriend, Weeks, and her new boyfriend, Jacob, were sleeping in Weeks's bedroom above the garage at her grandparent's home when defendant—upset that Weeks was with another man—and Messick, who was a friend of defendant, decided to throw eggs at Jacob's car, which was parked below Weeks's bedroom window.
Most courts, consistent with Lewis and Ager, reject that approach. State v. Moore, 222 Ariz. 1, 213 P.3d 150, 163 (2009); Makthepharak, 78 P.3d at 418; State v. Contreras, 118 Nev. 332, 46 P.3d 661, 664 (2002); State v. Dasa, 234 Or.App. 219, 227 P.3d 228, 239 (2010); see also United States v. Loonsfoot, 905 F.2d 116, 118 (6th Cir. 1990) (citing cases); LaFave, supra, Substantive Criminal Law § 14.5(g), at 470-71 n. 28 (citing cases following this "majority view"). Compare Commonwealth v. Claudio, 418 Mass. 103, 634 N.E.2d 902, 905-06 (1994) (following "majority, . . . better reasoned view" that burglary with intent to assault can be felony murder predicate), with Commonwealth v. Gunter, 427 Mass. 259, 692 N.E.2d 515, 525-27 (1998) (crime of armed assault within dwelling normally not sufficiently independent of resulting death to be a felony murder predicate).