STATE OF OREGON v. DERRICK DEAN COFFELT (2026)

This case is before us for a second time. Defendant was convicted of two counts of strangulation constituting domestic violence (Counts 2 and 4) and one count each of fourth-degree assault constituting domestic violence (Count 3), second-degree assault constituting domestic violence (Count 6), and coercion (Count 8). Based on our decision in State v. Coffelt, 326 Or App 654 (nonprecedential memorandum opinion), rev den, 371 Or 715 (2023) (Coffelt I), he was resentenced. Defendant appeals, raising four assignments of error. He contends that the sentencing court erred by (1) imposing a consecutive sentence on Count 6; (2) imposing a consecutive sentence on Count 8; (3) reconstituting his criminal history scores for Counts 6 and 8; and (4) failing to employ the shift-to-I rule on Counts 6 and 8. All four claims of error turn largely on whether some or all of defendant's crimes were part of the “same continuous and uninterrupted course of conduct” under ORS 137.123(2). As explained below, we conclude that the sentencing court erred only with respect to Count 8, and we remand for resentencing based on that error.

Background. After an earlier argument, K awoke to find defendant, her husband, strangling her. They grappled and ended up in the hallway. Defendant strangled K again. That conduct was the basis for Counts 2, 3, and 4. As stated in Coffelt I, those three crimes occurred in the same criminal episode. 326 Or App at 660-61.

At least six hours later, defendant was asleep on the couch with K's phone in his pocket. K tried unsuccessfully to retrieve her phone without waking him. Defendant was upset and pushed K into the corner of a wooden record table. That conduct was the basis for Count 6.

K immediately went upstairs and called 9-1-1. The police arrived a few minutes later. When he realized that the police were outside, defendant confronted K about calling 9-1-1. The police saw defendant and K talking as they approached the house. Defendant told K to go upstairs and lie in the bedroom while he talked to the police, which K understood as an implicit threat. That conduct was the basis for Count 8.

At resentencing, defendant argued that all his convictions arose out of the same continuous and uninterrupted course of conduct and therefore had to be sentenced concurrently, unless the court made the findings necessary for consecutive sentencing under ORS 137.123(5). Defendant further argued that, if the court imposed consecutive sentences on Counts 6 or 8, it had to apply the shift-to-I rule. The state disagreed. It argued that there were three distinct criminal episodes—the first involving Counts 2, 3, and 4, the second being Count 6, and the third being Count 8—and took the position that the court could impose consecutive sentences on Counts 6 and 8, could reconstitute defendant's criminal history scores for those counts, and did not need to apply the shift-to-I rule. The sentencing court agreed with the state that the crimes took place in three separate criminal episodes, not as part of a continuous and uninterrupted course of conduct. It noted that defendant had “time to contemplate and reflect before committing the next act,” “time to reconsider, maybe cool for a second,” and the opportunity to “calm[ ] down.” The court imposed consecutive sentences on Counts 6 and 8, reconstituted defendant's criminal history score, and did not apply the shift-to-I rule.

Analysis. Under ORS 137.123(4), a court must impose concurrent sentences “[w]hen a defendant has been found guilty of more than one criminal offense arising out of a continuous and uninterrupted course of conduct,” unless the court makes special findings under subsection (5), which provides:

“(5) The court has discretion to impose consecutive terms of imprisonment for separate convictions arising out of a continuous and uninterrupted course of conduct only if the court finds:

“(a) That the criminal offense for which a consecutive sentence is contemplated was not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious crime but rather was an indication of defendant's willingness to commit more than one criminal offense; or

“(b) The criminal offense for which a consecutive sentence is contemplated caused or created a risk of causing greater or qualitatively different loss, injury or harm to the victim or caused or created a risk of causing loss, injury or harm to a different victim than was caused or threatened by the other offense or offenses committed during a continuous and uninterrupted course of conduct.”

By contrast, when crimes “do not arise from the same continuous and uninterrupted course of conduct,” the court may impose either concurrent or consecutive sentences. ORS 137.123(2).

“We review a trial court's decision to impose consecutive sentences for errors of law and to determine whether the trial court's predicate factual findings are supported by any evidence in the record.” State v. Provancha, 293 Or App 169, 173, 428 P3d 916 (2018), rev den, 364 Or 407 (2019) (internal quotation marks omitted).

To begin, defendant argues that the trial court applied the wrong legal test in deciding whether to impose consecutive sentences. In defendant's view, the court's focus on his opportunity to reflect, contemplate, or reconsider between crimes shows that it was using the “sufficient pause” test for merger under ORS 161.067(3). We are unpersuaded. The court's task here was to determine whether defendant's criminal conduct was “continuous and uninterrupted” under ORS 137.123. Defendant is correct that that differs from deciding whether there was a sufficient pause between criminal acts to prevent merger under ORS 161.067(3). But it does not follow that any reference to time to reflect or reconsider alone establishes use of the wrong legal test. We have recognized, at least implicitly, that time to reflect and change course can be relevant to the “continuous and uninterrupted” analysis. See State v. Wolfgang, 278 Or App 781, 792, 379 P3d 759, rev den, 360 Or 465 (2016) (affirming the trial court's ruling that the defendant's conduct was not continuous and uninterrupted, which the court explained, at least in part, by observing that he had time between crimes to “reflect, reform a state of mind and intent”).

Turning to the merits, we conclude that the trial court did not err in determining that Counts 6 and 8 were not part of the same continuous and uninterrupted course of conduct as Counts 2, 3, and 4. There was a break of at least six hours between the conduct underlying Counts 2, 3, and 4 and the conduct underlying Counts 6 and 8. See Wolfgang, 278 Or App at 792 (affirming a finding that two assaults separated by, at most, a 15-minute break were not a continuous and uninterrupted course of conduct). And, during that time, defendant left for a hotel, returned to the house, and slept on the couch for hours, rather than engaging in acts in furtherance of a single criminal objective. See State v. Tooley, 265 Or App 30, 43, 333 P3d 348, rev den, 356 Or 575 (2014) (two murders committed 12 hours apart could be found to be part of a continuous and uninterrupted course of conduct, where the defendant spent the 12 hours acting “in service of his overarching objective” to kill both victims and acted as quickly “as practicably possible” (emphases omitted)). That resolves defendant's first assignment of error and the part of his second and third assignments of error pertaining to Count 6.

The more difficult question is whether Counts 6 and 8 involve a continuous and uninterrupted course of conduct, albeit separate from the conduct six or more hours earlier, such that part of defendant's second assignment of error is well-taken. Those two crimes occurred within minutes of each other, with the only intervening events being K going upstairs to call 9-1-1 and the police arriving a few minutes later.

The parties agree that crimes committed in a single “criminal episode” as defined in ORS 131.505(4) are necessarily part of a “continuous and uninterrupted course of conduct” for purposes of ORS 137.123. That is because, by definition, a “criminal episode” requires “continuous and uninterrupted conduct.” ORS 131.505(4) (defining “criminal episode” to mean “continuous and uninterrupted conduct that establishes at least one offense and is so joined in time, place and circumstances that such conduct is directed to the accomplishment of a single criminal objective”). Here, defendant argues that Counts 6 and 8 were committed in a single criminal episode and therefore were necessarily part of a continuous and uninterrupted course of conduct. Defendant points out that the trial court itself described the act of coercion as reflecting the same desire to exercise “power and control” over K as defendant's physical acts of domestic violence, as relevant to the “single criminal objective” aspect of the definition of “criminal episode.”¹

We ultimately conclude that the acts underlying Counts 6 and 8 were part of a single criminal episode and so should have been treated as a continuous and uninterrupted course of conduct for sentencing purposes. The two crimes were closely connected in time, only a few minutes apart. They occurred in the same place, the downstairs of the house. And both were directed toward the criminal objective of controlling K, as the trial court recognized, even if the coercion was also motivated by a desire to avoid getting caught. See State v. Witherspoon, 250 Or App 316, 322-25, 280 P3d 1004 (2012) (discussing “single criminal objective”). “[T]he concept of a single criminal objective is not narrow” and is satisfied when two criminal acts “reasonably can be seen to be directed toward a single overarching criminal objective.” State v. Burns, 259 Or App 410, 422, 314 P3d 288 (2013) (internal quotation marks omitted). Here, Counts 6 and 8 are reasonably viewed as directed toward a single overarching criminal objective of controlling K. That defendant also sought to avoid apprehension by police “does not mean that crimes committed while attempting to avoid apprehension are part of a separate criminal episode where, as here, a defendant's initial criminal objective continues during the course of all events.” State v. Taylor, 293 Or App 460, 469, 428 P3d 939 (2018) (internal quotation marks omitted).

The sentencing court therefore erred in imposing the sentence on Count 8 consecutively to the sentence on Count 6 based on those crimes not being part of a continuous and uninterrupted course of conduct and thus subject to ORS 137.123(2). Because Counts 6 and 8 were part of a continuous and uninterrupted course of conduct, the court could impose the sentence on Count 8 consecutively to that on Count 6 only if it made one of the findings described in ORS 137.123(5). We do not understand the court to have made any such findings—and express no opinion on whether it could. Accordingly, we remand for resentencing.

Our resolution of defendant's first and second assignments of error effectively disposes of his third and fourth assignments of errors. With respect to Count 6, the sentencing court did not err by reconstituting defendant's criminal history and not applying the shift-to-I rule, because Count 6 is not part of the same criminal episode as Counts 2, 3, and 4. With respect to Count 8, that count will be resentenced in accordance with this opinion, obviating the need to address how it was previously sentenced.

Remanded for resentencing; otherwise affirmed.

FOOTNOTES

1.   We note that it appears to be an open question whether “continuous and uninterrupted course of conduct” in ORS 137.123 is synonymous with “criminal episode” as defined in ORS 131.505(4) or, conversely, whether the latter is a subset of the former. See Wolfgang, 278 Or App at 792 (leaving that issue open). That is, it is an open question whether the “single criminal objective” requirement in ORS 131.505(4) is separate from or part of the “continuous and uninterrupted” requirement. Defendant assumes that they are synonymous, and it does not affect the result here, so we proceed on that assumption.

AOYAGI, P. J.