State v. Barbero

• Decision Date: 01 May 2019
• Docket Number: A164307
• Citation: 442 P.3d 224,297 Or.App. 372
• Parties: STATE of Oregon, Plaintiff-Respondent, v. David Joel BARBERO, Defendant-Appellant.
• Court: Oregon Court of Appeals

297 Or.App. 372

442 P.3d 224

STATE of Oregon, Plaintiff-Respondent,

v.David Joel BARBERO, Defendant-Appellant.

A164307

Court of Appeals of Oregon.

Argued and submitted January 7, 2019.

May 1, 2019

Sarah De La Cruz, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

JAMES, J.

The common law concept of corpus delicti for the corroboration of confessions is codified at ORS 136.425(2). To assist courts in implementing that statute, the Uniform Criminal Jury Instructions committee of the Oregon State Bar created Uniform Criminal Jury Instruction (UCrJI) 1050, which reads as follows:

"A confession alone is not sufficient to support a conviction for a crime. There must be some additional evidence, other than the confession, from which you may draw an inference that tends to establish or prove that a crime has been committed.

"Not all statements by the defendant are confessions. A statement that is an admission rather than a confession may be used to corroborate a confession.

"A confession is an acknowledgement of guilt made by a person after an offense has been committed. An admission is a statement made for some purpose other than to acknowledge guilt."

To date, corpus delicti decisions by this court, as well as the Oregon Supreme Court, have arisen exclusively in the context of motions for judgment of acquittal (MJOA) and have concerned whether the evidence was sufficient to meet the requirements of ORS 136.425(2) so as to allow the case to proceed to a jury. This case, however, concerns UCrJI 1050 and provides an opportunity to clarify when, if ever, the instruction is warranted. Specifically, this case presents the question of whether, after a trial court denies an MJOA raised on ORS 136.425(2) grounds, there remains any residual factual determination for the jury on corroboration so as to warrant an instruction. Here, defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010. He assigns error to the trial court’s refusal to give UCrJI 1050, after the trial court’s earlier denial of his MJOA, where the court held that his statements were admissions, not confessions. We conclude that the instruction was not warranted in this case after the trial court ruled defendant’s statements were admissions. We, therefore, affirm.

"In reviewing the trial court’s refusal to give a requested instruction, we view the record in the light most favorable to establishment of the facts necessary to require that instruction." State v. Egeland , 260 Or. App. 741, 742, 320 P.3d 657 (2014). "[A] trial court may refuse a requested jury instruction if the instruction does not accurately state the law as it applies to the case." State v. Snyder , 288 Or. App. 58, 61, 405 P.3d 175 (2017), rev. den. , 362 Or. 508, 424 P.3d 726 (2018). We begin with the following relevant facts.

Deputy Ross was called to mediate a dispute between defendant and the camp host of the Wilson River RV Park, where defendant had his mobile home parked.

Ross was wearing a body camera and recorded his interaction with defendant. Ross knocked on defendant’s door and asked him about the disagreement defendant was having with the camp host regarding a package being held at the RV park office and defendant’s application to stay at the park. Defendant explained that he had tried to retrieve his package from the office before 5:00 p.m., but the host had closed the office early. Ross then asked defendant if he had driven his vehicle to the office or around the park property. After some more back and forth between Ross and defendant, Ross told defendant, "So, obviously, I can smell a little bit of alcohol off of you." Ross asked, "So I guess my question is, is how much have you had to drink today?" and explained to defendant that he was concerned that defendant had been driving intoxicated. Defendant responded, "No, I’m not" and explained to Ross that earlier someone had "screamed out of [the RV park] * * * like the Tasmanian Devil" but that "no, I would never do that." Ross again asked defendant, "You never drove around?" Defendant responded, "No. Oh, yeah, I drove around but not like that."

Ross read defendant his Miranda rights and informed him that he was under arrest for DUII. Defendant was arrested and charged with DUII. At the close of the state’s case, defendant moved for judgment of acquittal, arguing:

"[DEFENSE COUNSEL]: [T]he state has insufficient evidence to establish driving of a vehicle. And there’s a couple of points I want to make on this one.

"Number one is that the driving in this case is established through [defendant]’s statement that he drove. And he never actually says he drove.

"* * * * *

"And what we have here is no corroboration of any kind other than the statement regarding driving."

In response, the prosecutor argued:

"[PROSECUTOR]: Defendant says he drove 25 minutes ago. When Deputy Ross told him he was concerned about his driving, he said, well, there’s nothing recorded, but a couple days ago, you know, someone was driving crazy.

"That’s direct evidence. And the fact he was driving, it’s an admission. It doesn’t need corroboration."

The arguments then focused on whether defendant’s statements constituted admissions or confessions. Defense counsel argued:

"[DEFENSE COUNSEL]: Well, and, Your Honor, with the confession corroboration instruction, it instructs the jury on kind of the difference between a confession or an admission. And the fundamental difference between the two is the intent of the person making the statement."

The state responded:

"[PROSECUTOR]: Yeah. I think [ State v. ] Anderson [, 103 Or. App. 436, 797 P.2d 1072 (1990), rev. den. , 311 Or. 60, 803 P.2d 732 (1991) ] gives us a couple of points of law. One being subjective intent of the defendant controls.

"The defendant in the video shows at the end while he’s in the car, he says, ‘I don’t even know why I’ve been arrested,’ while he’s leaving a voice mail.

"So all of the statements he made up to that point I don’t think it’s possible to find that he had the subjective intent to confess to a crime. And so I think that qualifies as admissions. Admissions don’t take—don’t require corroboration."

The trial court denied defendant’s MJOA, reasoning that "this is not a confession case" because defendant "didn’t actually admit to impairment," which is an element of the charged crime. The court ruled:

"[COURT]: [T]his is not a confession case. Anderson discusses it at detail. And the facts of Anderson are very similar to this case.

"There is a vehicle here, as there was in Anderson there. Anderson ’s an ATV. Here, it’s a car. Defendant points out his car and talks about the engine and the horsepower and all sorts of things.

"He admits to driving. And that’s all done in the context of dispute, I think was referred to.

"So, based on that, motion for judgment of acquittal will be denied."

That ruling—the denial of defendant’s MJOA—is not before us on appeal, as defendant has not assigned error to it. Instead, on appeal, defendant focuses on what occurred after that ruling. Defendant requested UCrJI 1050, arguing:

"[DEFENSE COUNSEL]: I think that that comes down to a jury question and that the—if a juror—there’s evidence which would support a jury determining there’s a confession. There’s evidence where a jury could believe it was an admission.

"At JOA, it goes in the light most favorable to the state but not at a jury instruction level."

The trial court refused to give the instruction, ruling:

"[COURT]: All right. So at the jail he refused breathalyzer because he said he didn’t realize he’s being arrested for DUI. I don’t think there ever was a confession. There’s a lot of admissions throughout that.

"But based on Anderson , I—I don’t think there’s a basis for confession jury instruction.

"* * * * *

"And so I don’t think based on Anderson we could give corroboration—confession corroboration just because there’s not a legal basis to find that there was a confession."

Ultimately, the court instructed the jury, in relevant part, as follows:

"[COURT]: You have heard evidence that the defendant made a statement that you may find is an admission. You may not consider such statement unless you first decide:

"(1) The statement actually was made by the defendant, and if so,

"(2) The statement was made voluntarily by the defendant.

"The state must prove that the statement was actually made and that it was made voluntarily. Consider all the evidence about the statement including the circumstances under which it was given.

"You must make your decision as to whether or not the statement was made voluntarily without considering the truth or falsity of the statement. You are the sole and exclusive judge of the weight, if any, to be given to such statement."

At the conclusion of deliberations, the jury returned a unanimous guilty verdict.

On appeal, defendant assigns error to the trial court’s denial of his requested jury instruction on confession and corroboration, UCrJI 1050. Defendant argues that he was entitled to the instruction as long as the instruction correctly stated the law and the evidence in the record supported giving the instruction. According to defendant, despite the court’s ruling, the jury was entitled to make its own determination as to whether his statements were admissions or confessions, and, if confessions, whether such confessions were corroborated. In response, the state asserts that the trial court’s ruling on the legal question of whether defendant’s various statements were admissions, and not confessions that needed to be corroborated, was correct and unchallenged on appeal. Further, following that legal...