S054997, Opinion — State v. Hagberg

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

Submitted on the record February 14, decision of Court of Appeals reversed;
judgment of circuit court reversed, and case remanded to circuit court for further
proceedings July 31, reconsideration denied October 3, 2008
STATE OF OREGON,
Respondent on Review,
v.
CHRISTOPHER LOUIS HAGBERG,
Petitioner on Review.
(CC 2004-13017; CA A128398; SC S054997)
190 P3d 1209

<!-- PageBreak -->

<!-- PageHeader="State v. Hagberg" -->
<!-- PageBreak -->

<!-- PageHeader="162-a" -->
<!-- PageHeader="Cite as 345 Or 161 (2008)" -->

# En Banc

On review from the Court of Appeals .*

\* Appeal from Lane County Circuit Court, Lauren S. Holland, Judge. 211 Or
App 712, 156 P3d 174 (2007).

<!-- PageBreak -->

<!-- PageHeader="State v. Hagberg" -->

Kendra M. Matthews, of Ransom Blackman LLP,
Portland, submitted the brief for petitioner on review.

Timothy A. Sylwester, Assistant Attorney General,
Salem, filed the brief for respondent on review. With him on
the brief were Hardy Myers, Attorney General, and Mary H.
Williams, Solicitor General.

GILLETTE, J.

The decision of the Court of Appeals is reversed. The judg-
ment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.

<!-- PageBreak -->

<!-- PageHeader="Cite as 345 Or 161 (2008)" -->

## GILLETTE, J.

This is a criminal case in which defendant was
charged with and convicted of eight sexual offenses commit-
ted against his girlfriend's daughter. All of the offenses were
subject to mandatory minimum sentences and, at sentencing,
the trial court imposed the mandatory minimum sentence for
each offense. However, the trial court also chose, over defen-
dant's timely constitutional objection, to make one of the sen-
tences consecutive to another, and to make those two sen-
tences concurrent with the other six. Defendant appealed to
the Court of Appeals, arguing that, under Oregon law, the
trial judge could not impose a consecutive sentence unless
the judge made certain factual findings. He acknowledged
that the judge had made the requisite findings, but he argued
that such fact-finding by a judge violated his right to a jury
trial under the Sixth Amendment to the United States
Constitution. The Court of Appeals affirmed defendant's con-
victions and sentences without opinion. State v. Hagberg, 211
Or App 712, 156 P3d 174 (2007). We allowed defendant's peti-
tion for review and now reverse the decision of the Court of
Appeals.1

The following facts are undisputed. In 2004, defen-
dant was charged with various crimes in an eight-count
indictment that included, among other things, two counts of
first-degree rape:

"[Count 1] The defendant, on or between January 1,
2001 to April 27, 2004, in Lane County, Oregon, did unlaw-
fully and knowingly engage in sexual intercourse with [the
victim], whose date of birth is November 6, 1996 * * *

"[Count 2] In an act and transaction separate and
distinct from that alleged in count 1, the defendant,
on or between January 1, 2001 to April 27, 2004, in Lane
County, Oregon, did unlawfully and knowingly engage in
sexual intercourse with [the victim], whose date of birth is
November 6, 1996 * * *. "

(Emphasis added.)

: In his petition for review, defendant raises certain other issues. However, as
we informed the parties when we allowed the petition for review, we limit our
review to whether the trial court erred in imposing a consecutive sentence.

<!-- PageBreak -->

<!-- PageHeader="State v. Hagberg" -->

At the close of the trial on those charges, the court
gave the jury a standard set of instructions describing the
jury's duties. With respect to Count 2, the court instructed
the jury as follows:

"Oregon law provides that a person commits the crime
of rape in the first degree if the person knowingly has sex-
ual intercourse with another person[,] and if the other per-
son is under 12 years old.

"In this case, to establish the crime of rape in the first
degree, Count 2, the State must prove beyond a reasonable
doubt, in a separate and distinct act from that alleged in
Count 1, the following four elements: * * *. "

The court instructed the jury as to the meaning of "know-
ingly" and "sexual intercourse," but it gave no instruction
defining the concept of "separate and distinct act." Neither
side asked for such an instruction and neither objected to the
failure to give one. The jury returned general verdicts finding
defendant guilty on both Count 1 and Count 2, as well as on
the other six counts. It did not return a special verdict on the
"separate and distinct act" allegation.

At sentencing, the trial court imposed concurrent
sentences on Counts 3 through 8. Respecting the first two
counts, however, the court stated:

"It's the finding of this court as follows and the court's
order as follows:

"With regard to Count 1, Rape in the First Degree, you'll
be sentenced to 100 months in the Department of
Corrections.

"In Count 2, Rape in the First Degree, you'll be sen-
tenced to 100 months in the Department of Corrections.
The court analysis is that Blakely does not apply in this
case.

"At the same time, the court, having read the jury
instructions that Count 2 is a separate and distinct act from
Count 1, the court makes that finding that it is a separate
and distinct act as well.

"The jury has made that finding in fact. And the court is
sentencing you on Count 2 as consecutive to Count 1."

<!-- PageBreak -->

<!-- PageHeader="Cite as 345 Or 161 (2008)" -->

Defendant appealed, assigning error to, among other
things, the consecutive sentences. The Court of Appeals
affirmed without opinion.

Before this court, defendant argues that, under the
United States Supreme Court's decisions in Apprendi v. New
Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000)
and Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159
L Ed 2d 403 (2004), and this court's decision in State v. Ice,
343 Or 248, 170 P3d 1049 (2007), cert granted_US_,
128 S Ct 1657, 170 L Ed 2d 353 (2008), any fact that increases
a penalty beyond that otherwise permissible under state law,
including any fact necessary to impose a consecutive sen-
tence, must be admitted by the defendant or found by a jury
beyond a reasonable doubt.2 In this case, he contends, the
jury did not make any of the findings that the applicable stat-
ute makes essential to the imposition of a consecutive sen-
tence and, therefore, the trial court's ruling requiring the
sentence on Count 2 to run consecutive to the sentence
imposed on Count 1 is unlawful.

In Oregon, a trial court's authority to impose consec-
utive sentences is limited by statute. That statute, ORS
137.123, begins by stating the general (default) rule in ORS
137.123(1), which provides:

"A sentence imposed by the court may be made concur-
rent or consecutive to any other sentence which has been
previously imposed or is simultaneously imposed upon the
same defendant. The court may provide for consecutive sen-
tences only in accordance with the provisions of this section.
A sentence shall be deemed to be a concurrent term unless
the judgment expressly provides for consecutive sentences."

(Emphasis added.) The statute then describes the various cir-
cumstances under which the sentencing court may impose
one or more consecutive sentences:

2 In 2005, the Oregon legislature enacted a statute, now codified at ORS
136.760 to 136.792, which provides procedures for notifying defendants of the
state's intent to use "enhancement facts" to increase the sentence that may be
imposed for a conviction, and for submission of such facts to the jury. This case was
tried before the effective date of that statute, and it therefore plays no role in our
analysis.

<!-- PageBreak -->

<!-- PageHeader="State v. Hagberg" -->

"(2) If a defendant is simultaneously sentenced for
criminal offenses that do not arise from the same continu-
ous and uninterrupted course of conduct, * * * the court
may impose a sentence concurrent with or consecutive to
the other sentence or sentences.

***** *

"(4) When a defendant has been found guilty of more
than one criminal offense arising out of a continuous and
uninterrupted course of conduct, the sentences imposed for
each resulting conviction shall be concurrent unless the
court complies with the procedures set forth in subsection
(5) of this section.

"(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 vio-
lation of a separate statutory provision in the course of the
commission of a more serious crime but rather was an indi-
cation of defendant's willingness to commit more than one
criminal offense; or

"(b) The criminal offense for which a consecutive sen-
tence 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."

If a defendant is simultaneously sentenced for two
convictions that "do not arise from the same continuous and
uninterrupted course of conduct," the court "may," in the
court's discretion, impose the sentences consecutively. ORS
137.123(2) (emphasis added). On the other hand, if two con-
victions do arise out of a "continuous and uninterrupted
course of conduct," the sentences on those convictions "shall
be concurrent" unless certain other facts are present. ORS
137.123(4). In summary: A trial court's decision to impose
consecutive sentences requires a particular factual underpin-
ning, viz., whether the two crimes did not arise out of a con-
tinuous and uninterrupted course of conduct, or whether

<!-- PageBreak -->

<!-- PageHeader="Cite as 345 Or 161 (2008)" -->

they did. But-and this is a key to this case-there is no
factual default assumption in the statutory arrangement:
The particular factual predicate for consecutive sentences
must be found specifically.

In Ice, this court considered whether and to what
extent ORS 137.123 operates to permit judicial, as opposed to
jury, factfinding in a manner that violates the Sixth Amend-
ment to the United States Constitution. In that case, the
defendant was convicted of twice committing first-degree
burglary by entering the apartment of the victim, an 11-year-
old child, with the intent to commit sexual abuse therein. The
jury also found the defendant guilty of four counts of first-
degree sexual abuse, based on allegations that, during each
burglary, defendant committed two acts of first-degree sex-
ual abuse by touching different parts of the child's body. In
sentencing the defendant, the trial court found that the first
burglary charge and the two related sexual abuse charges
occurred within a single criminal episode, which ordinarily
would require that the sentences on those convictions be con-
current unless the court made certain additional factual find-
ings. The trial court determined, however, that consecutive
sentences were appropriate, because it found that the bur-
glary and the sexual abuse were not merely incidental viola-
tions of a separate statutory provision but, rather, indicated
the defendant's willingness to commit more than one crimi-
nal offense. The trial court also found that the defendant
caused or created a risk of causing greater or qualitatively
different loss, injury or harm to the victim when he commit-
ted first-degree sexual abuse than he had done in committing
burglary. In addition, the trial court found that the second
burglary was a "second separate incident" from the first and,
thus, did not "arise from the same continuous and uninter-
rupted course of conduct." The court then ordered that the
sentence on that conviction run consecutively to the other
sentences. Finally, it ordered the sentence on one of the sex-
ual abuse convictions during that second burglary to run con-
secutive to the sentence for the second burglary, applying the
same reasoning that it had used in connection with the first
burglary. Ice, 343 Or at 250-53.

In considering the constitutionality of those sen-
tences, this court observed that, in Apprendi, the United

<!-- PageBreak -->

<!-- PageHeader="State v. Hagberg" -->

States Supreme Court held that, under the Sixth Amend-
ment, ""[o]ther than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.'" Ice, 343 Or at 262, quoting
Apprendi, 530 US at 490. After reviewing how the Supreme
Court applied that rule in subsequent cases, particularly in
Blakely and in United States v. Booker, 543 US 220, 125 S Ct
738, 160 L Ed 2d 621 (2005), this court held in Ice that the
Apprendi rule applies to Oregon's consecutive sentencing
scheme as well:

"[C]onsecutive sentencing as it occurred in the present case
clearly implicates the principles expressed in Apprendi,
Blakely, and Booker, even if it does not mirror the specific
circumstances in those cases. It is important to recognize,
in that regard, that, under ORS 137.123, consecutive sen-
tencing in this state is not simply a matter of judicial discre-
tion, but can be imposed only after the sentencing judge has
made certain legislatively required findings. * * * At least
with respect to offenses that arise out of the same continu-
ous and uninterrupted course of conduct, the jury's issu-
ance of multiple guilty verdicts will only support concurrent
sentences, unless the judge makes those required findings.

"As we have suggested, that arrangement conflicts with
the principles underpinning Apprendi, Blakely, and Booker,
if not with the Apprendi rule itself. Under the [consecutive
sentencing] statutes that we just have described, the maxi-
mum aggregate sentence that may be imposed, based solely
on the jury's verdicts and without judicial factfinding, when
a defendant is convicted of multiple offenses, assumes that
all the sentences run concurrently. But, under the same
statutes, additional factfinding-judicial factfinding-is
required to justify consecutive sentencing. Under that
arrangement, a consecutive sentence necessarily 'expose[s]
the defendant to a greater punishment than that author-
ized by the jury's guilty verdict,' Apprendi, 530 US at 494,
120 S Ct 2348, based on judicial factfinding, and thereby
violates the principles discussed in Apprendi and Blakely."

Ice, 343 Or at 265-66 (footnotes omitted; emphases in
original).

As is evident from the foregoing quotation, the trial
court in Ice principally was relying on ORS 137.123(4) and

<!-- PageBreak -->

<!-- PageHeader="Cite as 345 Or 161 (2008)" -->

(5), which deal with the imposition of consecutive sentences
in cases in which two offenses are part of one continuous and
uninterrupted course of conduct. However, the trial court in
Ice also imposed consecutive sentences on the two burglaries,
which the trial court purported to do based on ORS
137.123(2) because, the trial court found, those burglaries did
not arise out of one continuous and uninterrupted course of
conduct. On review, this court reversed both kinds of consec-
utive sentences on the ground that none of the facts that the
trial court used to support either kind of sentences had been
found by the jury beyond a reasonable doubt, as the court
understood the Sixth Amendment to require. Id. at 267. In so
holding, this court acknowledged the possibility that certain
facts could be viewed as implicit in the jury's verdict, which
arguably would render certain of the consecutive sentences
lawful. However, in the circumstances of that case, the court
declined to address that possibility. The court stated,

"One might argue that the trial court's finding that the
two burglary counts did not arise from the same continuous
and uninterrupted course of conduct inheres in the very fact
that the jury found defendant guilty of two separate counts
of the same crime. However, given that the indictment did
not specify particular dates or otherwise distinguish
between the two counts, we do not choose to analyze the
case that way."

Id. at 267 n 7.

In summary, the facts that serve as the foundation
for consecutive sentences imposed under ORS 137.123 must
have been submitted to the jury and proved beyond a reason-
able doubt. That means that, in cases in which the trial judge
purports (as the trial judge here did) to be sentencing defen-
dant under ORS 137.123(2), the predicate fact that the two
crimes did not "arise from the same continuous and uninter-
rupted course of conduct" must have been found by the jury
beyond a reasonable doubt. In so stating, however, we note
that, in a particular case, it may be possible to determine
from a jury's verdict that the jury actually did find those
facts. Put differently, and notwithstanding the circumstance
that the trial court purported to base the consecutive sen-
tences in this case on its own factual findings, the question
before the court is whether the jury itself either made the

<!-- PageBreak -->

<!-- PageHeader="State v. Hagberg" -->

necessary findings explicitly or, if it did not, whether it is per-
missible to determine from the jury's guilty verdicts on
Counts 1 and 2 that it implicitly found facts that would sup-
port the imposition of consecutive sentences under ORS
137.123(2). That is, did the jury, in finding defendant guilty
on both those counts, necessarily find, inter alia, that the two
crimes did not arise out of the same continuous and uninter-
rupted course of conduct? Defendant maintains that the jury
did not make that finding.

As we have noted, the trial court purported to find
facts that would bring this case under ORS 137.123(2). As to
that inquiry, defendant acknowledges that the jury was
instructed that it was required to find, beyond a reasonable
doubt, that the acts alleged in Count 2 were "separate and
distinct" from the acts alleged in Count 1. He contends, how-
ever, that the fact that two acts were "separate and distinct"
does not necessarily mean that they did not occur in the same
continuous and uninterrupted course of conduct. Persons
convicted of crimes, he asserts, routinely commit multiple
"separate and distinct" criminal acts during the same contin-
uous and uninterrupted course of conduct. Defendant argues
that the most that can be gleaned from the jury's verdict,
given the way in which the jury was instructed, is that the
jury believed that defendant had committed two separate
and distinct crimes of first-degree rape. And, defendant goes
on, such a verdict reveals nothing about whether the jury
believed that defendant committed those two rapes in one
continuous and uninterrupted course of conduct. It follows,
defendant reasons, that, because defendant had not admitted
that the two rapes occurred in separate criminal transactions
and the jury did not find that they did, the trial court erred in
imposing consecutive sentences for Counts 1 and 2.3

3 Defendant made that point to the trial court in his sentencing memorandum.
However, the trial court appears to have rejected it, insofar as it based its decision
to impose consecutive sentences on its own finding-that the acts alleged in Count
2 were "separate and distinct" from the acts alleged in Count 1. The trial court
stated:

"At the same time, the court, having read the jury instructions that Count
2 is a separate and distinct act from Count 1, the court makes that finding that
it is separate and distinct act as well.

"The jury has made that finding in fact. And the court is sentencing you on
Count 2 as consecutive to Count 1."

<!-- PageBreak -->

<!-- PageHeader="Cite as 345 Or 161 (2008)" -->

The state responds that the indictment charging
defendant with offenses in this case alleged that defendant
committed the crime alleged in Count 2 "[i]n an act and
transaction separate and distinct from that alleged in count
1," and that that wording "effectively alleged that [defen-
dant] committed those crimes during separate 'criminal epi-
sodes.'" That phrase, "criminal episode," is defined in ORS
131.505(4), for purposes of the former jeopardy statutes, to
mean "continuous and uninterrupted conduct that estab-
lishes at least one offense and is so joined in time, place and
circumstances that such conduct is directed to the accom-
plishment of a single criminal objective." And, in State v.
Boyd, 271 Or 558, 564, 533 P2d 795 (1975), this court held
that the phrase "criminal episode" is synonymous with the
phrase "same act or transaction" as used in the permissive
joinder statute, now codified at ORS 132.560(1)(b)(B). The
state then concludes from the foregoing that the phrase "sep-
arate act or transaction" means "not part of the same contin-
uous and uninterrupted course of conduct" for purposes of the
consecutive sentencing statute.

Whatever the merits of that argument might be in
the abstract, it is beside the point here. As this court held in
Ice, our determination of the propriety of the court's imposi-
tion of consecutive sentences in a case like this depends on
what facts the jury necessarily found when it found defen-
dant guilty of the charged crimes. The instruction that the
court gave the jury on Count 2 in this case did not use the
same wording that was used in the indictment. Instead, it
required only that the jury find that the acts committed in
Count 2 were "separate and distinct" from the acts committed
in Count 1. That instruction controlled the jury's
deliberations.

We agree with defendant that, as a matter of plain
English, the fact that the instruction on Count 2 required the
jury to find that the acts alleged in one count are "separate
and distinct" from the acts alleged in another count merely
establishes that the jury found that defendant committed
two distinct crimes. It does not convey any information about
whether the jury found the statutory prerequisite to consec-
utive sentencing under ORS 137.123(2) that those two

<!-- PageBreak -->

<!-- PageHeader="State v. Hagberg" -->

crimes "did not arise from the same continuous and uninter-
rupted course of conduct." It follows that that finding is insuf-
ficient to support the court's imposition of consecutive sen-
tences under that statutory subsection.4

The state argues in the alternative that, even if the
trial court did not have authority under ORS 137.123(2) to
impose consecutive sentences, the sentences are proper
under ORS 137.123(5)(a),5 which provides:

"The court has discretion to impose consecutive terms of
imprisonment for separate convictions arising out of a con-
tinuous 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 vio-
lation of a separate statutory provision in the course of the
commission of a more serious crime but rather was an indi-
cation of defendant's willingness to commit more than one
criminal offense."

The state reasons that, because the criminal offense
in Count 1 was the same as the criminal offense in Count 2,
that offense, by definition, cannot have been "merely an inci-
dental violation of a separate statutory provision in the
course of the commission of a more serious crime." According
to the state, if the two crimes for which consecutive sentences
are contemplated are equally serious, the trial court always
has authority to impose consecutive sentences; no additional
factfinding is necessary.

The state's argument under ORS 137.123(5)(a) is
abstractly interesting, but it ignores or assumes away two
separate Ice-related concerns. The first concern arises under
ORS 137.123(4) and the introductory sentence to subsection
(5). Those subsections state that a consecutive sentence

4 We reject the state's contention that defendant did not object to the instruc-
tion that the jury was given or complain that it did not parrot the statutory wording
and, therefore, should not be heard to complain now if the instructions were
unclear. Defendant was under no obligation to ensure that the jury decided facts
that would support a consecutive sentence. In all events, his argument is not that
the instruction was unclear, but that it did not require the jury to find the facts nec-
essary to support the imposition of consecutive sentences.

& In fact, the state indicates in its brief on the merits that it "prefers" that this
court affirm the trial court under that subsection, rather than under subsection (2).

<!-- PageBreak -->

<!-- PageHeader="Cite as 345 Or 161 (2008)" -->

under ORS 137.123(5) may be imposed only if "a defendant
has been found guilty of more than one criminal offense aris-
ing out of a continuous and uninterrupted course of conduct."
That predicate is factual and it may be necessary that a jury
find it beyond a reasonable doubt. But no finding even resem-
bling that factual predicate was found by the jury here.6

That factual predicate aside, application of subsec-
tion (5)(a) or (b) to justify consecutive sentences requires
additional factfinding that neither the trial judge nor the jury
addressed. Because there is no arguable basis for asserting
that either the trial judge or the jury decided that defendant's
crimes did not arise out of a continuous and uninterrupted
course of conduct, or that they even thought about the issues
that had to be decided under ORS 137.123(5), the state's
argument fails.

Finally, the state-returning to ORS 137.123(2)-
argues that any error in failing to formally submit the issue
of a continuous and uninterrupted course of conduct to the
jury is harmless, because this court may infer from the testi-
mony in this case and the manner in which the case was tried
that the jury necessarily found that the two rapes occurred on
different days, which means as a matter of law that the two
crimes were not a part of one continuous and uninterrupted
course of conduct.

The state's theory is as follows: The victim, who was
very young when the crimes occurred, testified about a num-
ber of sexual encounters, but she could not identify the spe-
cific dates on which defendant molested her. She could, how-
ever, describe the circumstances and the location of various
events. The state elected to distinguish the incidents from
one another by their location: Count 1, the state indicated,
referred to an incident that the victim said occurred in the
living room of her residence, while Count 2 referred to an
incident that the victim said occurred in her mother's bed-
room. The victim also testified that those events occurred on
"different" days. The state argued the case to the jury under
that formulation.

6 We do not here hold that the predicate finding under ORS 137.123(4) must be
made by a jury. The answer one way or the other is debatable. We simply note here
that the state has not addressed the issue.

<!-- PageBreak -->

<!-- PageHeader="State v. Hagberg" -->

We agree with the state that the foregoing evidence
might have permitted the jury to find that the defendant's
criminal acts occurred on separate days. There are at least
two difficulties with that approach, however, The first is that
the jury was never told that it needed to find that fact, in con-
nection with assessing defendant's guilt on the two counts of
rape.7 Thus, the jury did not decide, beyond a reasonable
doubt, that the two rapes actually did occur on separate days.
Second, and of at least equal importance, is the fact that the
victim's testimony, taken as a whole, is too vague and dis-
jointed for this court to be able to say that, if the question had
been put to it, the jury necessarily would have found beyond
a reasonable doubt that the two rapes occurred on different
days.8 We therefore cannot hold that the error in failing to
submit the issue to the jury was harmless beyond a reason-
able doubt, as we would have to find in order for the state to
prevail. See State v. Bray, 342 Or 711, 724-25, 160 P3d 983
(2007) (describing standard).

In this case, the trial court, over defendant's objec-
tion, imposed consecutive sentences based on its own factual
finding and not on facts necessarily found by the jury beyond
a reasonable doubt. Imposing consecutive sentences in that
manner violated defendant's rights under the Sixth Amend-
ment to the United States Constitution. The trial court's
error was then sustained by the Court of Appeals, when it
affirmed that judgment without opinion. The case must be
remanded to the trial court for resentencing.

The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.

7 And, as we already have explained, the jury's finding that the rape in Count
2 was a "separate and distinct" act from the rape in Count 1 did not constitute such
a finding.

8 Our holding in this respect, which is limited to the arguments of the parties,
should not be read as agreeing with the idea that, as a matter of law, criminal
offenses committed on different days cannot be part of a continuous and uninter-
rupted course of conduct. They can be, depending on the attendant circumstances.