HASELTON, S. J.
Remanded for resentencing; otherwise affirmed.
HASELTON, S. J.
Defendant pleaded guilty to several charges, including robbery in the first degree, ORS 164.415(1)(b), and unauthorized use of a motor vehicle (UUV), ORS 164.135(1) (a), arising from an incident in which he acquired the keys to a car after threatening the owner with a knife, and then drove away. He appeals the consequent judgment, asserting that the trial court, in imposing sentence, erred in directing that the sentence for UUV be served consecutively to, rather than concurrently with, the sentence for first-degree robbery. Specifically, defendant contends that the court erred in determining that the UUV was "not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious offense but rather was an indication of defendant's willingness to commit more than one criminal offense[.]" ORS 137.123(5)(a). For the reasons that follow, we conclude that the trial court so erred and, consequently, we remand for resentencing but otherwise affirm. ORS 138.222(5)(a).
The circumstances material to our review are simple and undisputed. Defendant approached the victim, Feist, who was putting his laptop into his car, which was parked on a street in Eugene. Defendant first asked Feist for some change, and Feist complied—and then, after a brief interchange, defendant demanded the keys to Feist's car. Feist initially refused, saying something akin to "Are you serious?" Defendant then pulled out a knife, brandishing it in Feist's face, and Feist gave defendant his keys. Defendant drove away in Feist's car, and the following day, while being pursued by a police officer and while under the influence of methamphetamine, defendant "slammed [Feist's car] into a brick wall outside a Wendy's" restaurant in Springfield.
Defendant was charged by indictment with a variety of crimes, including, as germane to our consideration, first-degree robbery (Count 1) and UUV (Count 2), and subsequently pleaded guilty to all charges.
On appeal, defendant's sole assignment of error pertains to the imposition of the consecutive, rather than concurrent, sentence for UUV. In that regard, defendant contends:
The state remonstrates:
(Internal quotation marks omitted.)
We agree with defendant. As we once observed, ORS 137.123(5)(a) "is, in many ways, amorphous—and perhaps inscrutable." State v. Anderson, 208 Or.App. 409, 415, 145 P.3d 245 (2006), rev den, 343 Or. 33 (2007). Nevertheless, if the conditions that statute prescribes for the imposition of consecutive sentences are to have any meaningful practical application, they must, in the absence of explicit evidence of multiple intents, preclude the imposition of consecutive sentences where, as here, the same act (obtaining the victim's keys through the use of a dangerous weapon), undertaken to achieve the same end (the exercise of control over the victim's car), concurrently violated both criminal statutes. In such circumstances, the two criminal offenses are so inextricably intertwined that the consecutively sentenced offense (here, the UUV) is, necessarily, "incidental" to the "more serious crime" (here, the first-degree robbery) and cannot be deemed "an indication of defendant's willingness to commit more than one criminal offense." ORS 137.123(5)(a).
Our conclusion derives from the relationship between the uncontroverted facts, with reasonable inferences necessarily viewed in the light most favorable to the trial court's findings, see Anderson, 208 Or App at 417; see also State v. Traylor, 267 Or.App. 613, 616, 341 P.3d 156 (2014), and the predicate criminal statutes. As pertinent here, a person commits first-degree robbery "if the person violates ORS 164.395 and the person * * * [u]ses or attempts to use a dangerous weapon." ORS 164.415(1)(b). ORS 164.395, in turn, provides in part:
ORS 164.135 provides that a person commits UUV when, inter alia, "[t]he person takes, operates, exercises control over, rides in or otherwise uses another's vehicle, boat or aircraft without consent of the owner[.]" ORS 164.135(1)(a). See generally State v. Civil, 283 Or.App. 395, 400-415, ___ P3d ___ (2017) (comprehensively addressing the statute's operation). The gravamen of "exercise control over" for purposes of UUV is to "deprive the rightful possessor of possession or to otherwise interfere with the rightful possessor's use of the vehicle." State v. Douthitt, 33 Or.App. 333, 338, 576 P.2d 1262 (1978); see also State v. Howell, 183 Or.App. 360, 366-67, 51 P.3d 706 (2002) (affirming UUV conviction under ORS 164.135(1)(a) where the defendant was found sleeping in a car parked in a residential garage with the "title to the car in his pocket and spare keys to the car in his lap").
Here, by obtaining the victim's car keys through the use of a dangerous weapon, defendant concurrently, by a single act, violated both ORS 164.415(1)(b) and ORS 164.135(1)(a). That is, in the totality of the circumstances of this case, defendant (1) in taking the victim's car keys, "interfer[ed] with the rightful possessor's use of the vehicle," Douthitt, 33 Or App at 338, thus "exercis[ing] control over * * * another's vehicle * * * without consent of the owner," ORS 164.135(1)(a); and (2) by virtue of his concomitant use of a dangerous weapon to effectuate that taking, concurrently committed first-degree robbery. To be sure, because of defendant's use of a dangerous weapon, the first-degree robbery was the "more serious crime," ORS 137.123(5)(a), but, given that the robbery, which was undertaken to obtain possession of the keys (and, hence, the car), concurrently effectuated the UUV, the violation of ORS 164.135(1)(a) was, on this record, necessarily incidental to the violation of ORS 164.395(1)(a). See State v. Garcia-Mendoza, 225 Or.App. 497, 498, 202 P.3d 191 (2009) (consecutive sentences for first-degree assault and attempted aggravated murder imposed under ORS 137.123(5)(a) were improper when both convictions were premised on a single gunshot to a single victim, in the absence of other facts demonstrating that the defendant had a willingness to commit both assault and murder); State v. Warren, 168 Or.App. 1, 6, 5 P.3d 1115, rev den, 330 Or. 412 (2000) (same).
That conjunction dispositively distinguishes this case from others in which we have sustained the imposition of consecutive sentences under ORS 137.123(5)(a). For example, in State v. Martinez, 270 Or.App. 423, 428, 348 P.3d 285, rev den, 357 Or. 640 (2015), where the defendant had been convicted of attempted aggravated murder and first-degree robbery based on conduct arising out of a continuous and uninterrupted course of conduct, we affirmed the imposition of a consecutive sentence on the robbery conviction, reasoning that, because the defendant had "committed robbery before he tried to kill the victim, * * * the actions that constituted the two offenses were distinct both temporally and qualitatively," rendering the robbery "not `merely incidental' " to the attempted aggravated murder. (Emphasis in original.) Accord Anderson, 208 Or App at 422-23 (affirming imposition of consecutive sentence for second-degree assault committed in the course of a first-degree robbery where, in the totality of the circumstances, the record permitted a reasonable inference that, in assaulting the victim, the defendant consciously elected to do so more severely than necessary to discourage pursuit, evincing the requisite willingness to commit separate offenses).
The state, responding to one of defendant's propositions, see 284 Or App at ___, contends that the imposition of a consecutive sentence for UUV was nevertheless permissible because defendant "did not have to rob the victim of his car keys to be able to use the victim's vehicle." Whatever the factual validity of that assertion,
Thus, here, the ultimate inquiry is not whether defendant could have committed UUV without committing the robbery—but, instead, whether defendant could have committed the robbery without committing UUV. Given the concurrence of the two crimes committed by the same act, and in the absence of any evidence permitting a reasonable inference of the requisite "multiple `willingness,'" Anderson, 208 Or App at 422, the record is legally insufficient to support a determination that, in these circumstances, defendant was willing to commit UUV in addition to first-degree robbery. See, e.g., Garcia-Mendoza, 225 Or App at 498. Accordingly, the trial court erred in imposing a consecutive sentence for UUV (Count 2).
Remanded for resentencing; otherwise affirmed.
The state did not, in this case, suggest that a consecutive sentence for UUV could be alternatively imposed under ORS 137.123(5)(b), which provides, inter alia, for the imposition of a consecutive sentence for an offense committed during the same "continuous and uninterrupted course of conduct" where that offense "caused * * * greater or qualitatively different loss, injury or harm to the victim" than others committed during that same course of conduct.
208 Or App at 418-19 (emphases in original).