State v. Agee

• Decision Date: 12 November 2008
• Docket Number: 04C-52786.,05C-40967.,A128673.,A128672 (Control).
• Citation: 196 P.3d 1060,223 Or. App. 729
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Isaac Creed AGEE, Defendant-Appellant.
• Court: Oregon Court of Appeals

196 P.3d 1060

223 Or. App. 729

STATE of Oregon, Plaintiff-Respondent, v. Isaac Creed AGEE, Defendant-Appellant.

04C-52786.

05C-40967.

A128672 (Control).

A128673.

Court of Appeals of Oregon.

Argued and submitted on May 28, 2008.

Decided November 12, 2008.

David Ferry, Deputy Public Defender, argued the cause for appellant. With him on the briefs were Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Defender, Legal Services Division, Office of Public Defense

Services. Isaac Creed Agee filed a supplemental brief pro se.

David B. Thompson, Senior Assistant Attorney General, argued the cause for respondent. With him on the briefs were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before LANDAU, Presiding Judge, and SCHUMAN, Judge, and DEITS, Judge pro tempore.

SCHUMAN, J.

Defendant, high on methamphetamine, stole a pickup truck from a gas station and then intentionally drove it into an unsuspecting stranger who was taking his morning walk. While the victim was still pinned beneath the truck, defendant continued to drive it into nearby bushes before stopping. Defendant then got out and beat the victim with his fists, kicked him, and threw a tool at him. He was arrested at the scene and incarcerated. While in jail, he defecated and urinated into a cup and threw the mixture on three corrections officers. In a trial consolidating the charges related to the pickup incident with the charges related to the corrections officers, defendant was convicted of multiple offenses. He appeals from his convictions involving his assaults of the corrections officers, arguing that the trial court abused its discretion in allowing the state to reopen its case after defendant moved for a judgment of acquittal. Regarding the pickup incident and the assault, he advances several assignments of error challenging the sentences he received. We affirm.

Defendant's first four assignments of error concern his three convictions for third-degree assault on the corrections officers. He was indicted under ORS 163.165(1)(i), which provides,

"A person commits the crime of assault in the third degree if the person:

"* * * * *

"(i) Knowing the other person is a staff member, intentionally or knowingly propels any dangerous substance at the staff member while the staff member is acting in the course of official duty * * *."

A "staff member" includes a "corrections officer," ORS 163.165(3)(b)(A), defined as "an officer or member of a law enforcement unit who is employed full-time" supervising prisoners, ORS 181.610(5) (emphasis added). At the close of the state's case, defendant moved for a judgment of acquittal on those charges on the ground that the state had failed to establish an essential element of the offense, i.e., that each of the officers at whom he had propelled his feces and urine was employed full-time by the jail. The state did not respond, and the judge denied defendant's motion without comment or explanation. Thereafter, defendant put on no evidence. The parties made their closing arguments, and the judge retired to deliberate.

When the court reconvened the proceeding, but before it announced the verdict, the state moved to reopen its case to present evidence that the officers were, in fact, full-time employees. The following colloquy ensued:

"[DEFENSE COUNSEL]: * * * At this point, I would object to the state's reopening of the case. The testimony presented was an issue that I raised at the motion for judgment of acquittal. It was argued at that point. The state, after the motion for judgment of acquittal, had the opportunity to request the Court to reopen its case. It did not. We had closing arguments. At the conclusion of closing arguments, there was a discussion between counsel and I with regard[ ] to the statutes. At that point, I showed counsel the statute. Specifically ORS 181.610, which contained the definition of corrections officer, the requirement for full-time employment. And it is not until now, after the Court has been out deliberating, that the state has moved to reopen its case. So we would object, Your Honor.

"[THE COURT]: Well, I understand it's certainly a bit unusual. Had I rendered my decision, I think that at that point it would [have] come too late, but the motion is made prior to my rendering my decision. Exercising my discretion, I will allow [the state] to reopen for that limited purpose[.]"

The state then recalled one of the corrections officers and elicited testimony that all three officers were "full-time employees of the Marion County Sheriff's Office at the Marion County Jail." The court "agree[d] that there may have been an element missing before the case was reopened," but after hearing the additional evidence, found defendant guilty of three counts of third-degree assault.

On appeal, defendant raises three assignments of error relating to the trial court's denial of his motion for judgment of acquittal based on the insufficiency of the evidence on each of his three charges for third-degree assault. He also assigns error to the court's grant of the state's motion to reopen the case. The parties agree that the evidence presented before the motion to reopen was not sufficient to support the convictions. They also agree that the uncontradicted evidence presented after the motion was granted, if properly admitted, rectified the insufficiency. The assignments, therefore, all resolve to a single issue: whether the court erred in granting the motion to reopen.

Defendant bases his argument on ORS 136.445, which provides:

"In any criminal action the defendant may, after close of the state's evidence or of all the evidence, move the court for a judgment of acquittal. The court shall grant the motion if the evidence introduced theretofore is such as would not support a verdict against the defendant. The acquittal shall be a bar to another prosecution for the same offense."

(Emphasis added.) According to defendant, the statute by its plain and unambiguous terms requires the court to consider only the evidence that has been presented at the time that the motion for judgment of acquittal is made. Thus, defendant argues, the court abused its discretion by allowing the state to reopen its case to present additional evidence, because doing so was not among the court's lawful options. See State v. Rogers, 330 Or. 282, 312, 4 P.3d 1261 (2000) (court has no discretion to choose unlawful option).

The Supreme Court, however, has recognized that trial courts have discretionary authority in criminal cases to allow, under appropriate circumstances, the state to reopen its case after the defendant has moved for a judgment of acquittal. The most direct statement of that authority occurred before the enactment of ORS 136.445. In State v. Eppers, 138 Or. 340, 346, 3 P.2d 989 (1931), on reh'g, 138 Or. 340, 6 P.2d 1086 (1932), the court held that when, after denying the defendant's motion for a judgment of acquittal, the court allowed the prosecution to reopen its case in order to adduce necessary but theretofore unadduced evidence of venue, "it was not error for the court to reopen the case for the purpose stated. The discretion vested in the court by law was not abused." After enactment of ORS 136.445, the court confirmed the continuing vitality of Eppers in State v. Cervantes, 319 Or. 121, 873 P.2d 316 (1994), albeit in dictum. In that case the state moved to reopen its case, in order (as in Eppers) to prove venue. The court concluded that additional evidence was not necessary, because venue was adequately established by circumstantial evidence. Id. at 124, 873 P.2d 316. In a, the court stated:

"Because the trial court concluded that there was sufficient evidence for the jury to find venue, the court did not expressly rule on the state's motion [to reopen]. The trial court had discretion to grant the state's motion to reopen its case and allow it to prove venue by ordinary evidentiary means. See State v. Eppers[.]"

Id. at 124-25 n. 3, 873 P.2d 316.

It might appear that Eppers and Cervantes cannot be squared with the plain meaning of ORS 136.445. On closer analysis, however, the cases and the statute do not clash. ORS 136.445 literally precludes the court from considering evidence adduced "after close of the state's evidence or of all the evidence." It does not address, directly or indirectly, the court's authority to reopen a case in order to present additional evidence. That authority is well established. See, e.g., Jett v. Ford Motor Company, 192 Or.App. 113, 124, 84 P.3d 219, rev. den., 337 Or. 160, 94 P.3d 876 (2004) ("We review rulings on motions to reopen a case in order to present additional evidence for abuse of discretion."); Angus v. Joseph, 60 Or.App. 546, 551, 655 P.2d 208 (1982), rev. den., 294 Or. 569, 660 P.2d 683, cert. den., 464 U.S. 830, 104 S.Ct. 107, 78 L.Ed.2d 109 (1983) ("It is well established that the reopening of a case at any time for the introduction of additional evidence rests in the sound discretion of the trial court[.]") (internal quotation marks omitted); State v. Sage, 20 Or.App. 368, 372-73, 531 P.2d 707 (1975) ("[T]he trial court has the discretionary authority in a criminal case to allow under appropriate circumstances a party to reopen his case."). If a court lawfully exercises its discretion to reopen a case and the state subsequently presents additional evidence, then the first occasion on which the state announced that it rested was not, in that event, the "close of the state's evidence." That is what reopening means; what was once closed is closed no longer. Thus, in the present case, the evidence of the corrections officers' full-time employment occurred before the final and operative "close of the state's evidence."

The only question remaining, then, is whether the court's decision to allow the state's motion to reopen its case was an abuse of discretion. We conclude that it was not. The reopening did not deprive defendan...