State v. Belleque

Decision Date14 July 2021
Docket NumberA169979
Citation313 Or.App. 339,494 P.3d 1004
CourtOregon Court of Appeals
Parties STATE of Oregon, Plaintiff-Respondent, v. Daniel Albert BELLEQUE, aka Daniel Albert Bellegue, aka David Albert Gonzles, Defendant-Appellant.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Stacy M. Du Clos, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Christopher A. Perdue, Assistant Attorney General, filed the brief for respondent.

Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.


Defendant appeals a conviction for unlawful use of a weapon (UUW), a felony. The state charged defendant with two misdemeanors and UUW, ORS 166.220 (Count 1), by information of the District Attorney. Defendant did not waive a preliminary hearing and the matter was thus presented to the trial court for a determination of probable cause. The court concluded that there was probable cause for the state to proceed to trial, defendant waived a jury trial, and, after a bench trial, defendant was found guilty of all counts.

Defendant assigns error to the trial court's finding of probable cause at the preliminary hearing, arguing that the court "expressly declined to consider the affirmative justification defenses of self-defense, defense of premises, and defense of property." According to defendant, the court thus engaged in a "flawed probable cause analysis" because it did not require the state to disprove beyond a reasonable doubt that defendant was justified in the defensive use of the weapon. He argued that, because of that "flawed" analysis, the court was without subject matter jurisdiction to conduct a trial and convict defendant of the charged crime. For the reasons that follow, we conclude that the court was not deprived of subject matter jurisdiction and that it was not deprived of its authority to enter a judgment of conviction thereafter.

We draw the uncontested facts from the preliminary hearing transcript.1 Defendant was camping at Laurelhurst Park in northeast Portland across the street from S's house. S confronted him early in the morning to ask if he knew that the park was a "no-camping" zone and that he was blocking a running path. Defendant said that he did not know and that he would leave soon. S drove his wife to work and, when he returned, S again confronted defendant and asked why he had not yet left. Defendant again said that he would leave, but, at that point, S walked up to defendant's tent and began asking about the tarp that covered the area where defendant slept. S indicated that the tarp looked similar to one that had recently been stolen from his garage, and he asked defendant, "Do you have your name on it?"

At that point, defendant emerged from his tent with a half-gallon jug of urine and splashed it toward S while he cursed at him. S responded with "two can play at that game," and he walked closer to the tent. S testified that he "just stood there," about "a foot" or "three feet" away from the tent, but defendant testified that S threatened to urinate in retaliation. Defendant stated that, at that point in the interaction, he told S that he would "cut his dick off" if he did so. But S described that moment differently when he testified that, at that point, defendant reached into his tent and "came out with—what looked like a machete and he said ‘I'm going to kill you, motherfucker[.] " S backed away from defendant and called 9-1-1.

Officer Oldham responded to the 9-1-1 call and met defendant. He told defendant that he was detaining him while investigating a possible unlawful use of a weapon. Defendant immediately told Oldham that an individual had come across the street to bother him. Oldham read defendant his Miranda rights and confirmed that defendant understood those rights. Defendant then described the events in much the same way as he did when he later provided a statement at the preliminary hearing: that, when S touched his tent and threatened to urinate on it, defendant brandished his knife and told him that "[i]f you piss on my shit, I'll chop your dick off." Oldham testified that defendant estimated that S was about "four and a half feet" away from S, but that his knife was in its sheath during the interaction and kept by his waist. Oldham arrested defendant for unlawful use of a weapon and seized his knife. He testified that it was a "large hunting knife," with about a "12-inch blade" that was "capable of causing serious physical injury." He further testified that defendant was cooperative and conversational throughout the encounter.

In addition to that evidence, during defendant's statement to the court, he stated that he felt "very threatened" by S and that "[y]ou don't approach a homeless person in any state, period," and that S should have let "the cops handle it[.]" He stated that he believed that S was retaliating because "maybe somebody did break into his stuff *** but you can't take it out on somebody else." Finally, he speculated that S probably "doesn't like the homeless around him," but "[t]hat doesn't give him a right to take that anger out on the next person."

The trial court ruled in favor of the state, finding probable cause, and explained that requiring the state to disprove self-defense beyond a reasonable doubt at a preliminary hearing is "inconsistent with the purpose and the burden" that the state bears at the preliminary stage of the proceedings. Defense counsel then attempted to make a different argument, but the court stated that it had ruled and that it would not allow further arguments. Defense counsel asked if she could ask questions that were relevant to defendant's self-defense theory, and the court responded:

"So—okay, so you're asking the question in the guise of having further debate, and so I'll allow you to do that. So go ahead and make your argument as opposed to asking me a question."

At that point, defense counsel stated that she was "happy to just proceed with the hearing, ask my questions; have [the prosecutor] object at that point." However, the state did not object to the self-defense evidence and that evidence was, therefore, before the court at the preliminary hearing.

Defendant argues that the constitutional purposes of a preliminary hearing were not served because the trial court "incorrectly concluded that self-defense was not pertinent to its probable cause determination[.]" According to defendant, "because the court did not engage in a lawful preliminary hearing procedure," it did not have "jurisdiction" to try or convict him. The state correctly notes that challenges to the sufficiency of the evidence presented at grand jury proceedings are not reviewable. State v. Guse , 237 Or. 479, 482, 392 P.2d 257 (1964). It argues that the same rule should apply to preliminary hearings. The Supreme Court has stated that, in the grand jury setting, such challenges are not reviewable because

"no useful purpose is served by an investigation of the sufficiency of the evidence taken before the grand jury. If the accused is acquitted the matter is moot. If he is convicted, it is irrelevant. The sufficiency of the evidence to convict may always be tested at the trial by the motion for a directed verdict. Judicial review of the trial court's ruling on that motion is available through the statutory right of appeal."

Id. The state argues that the same logic should apply here because any insufficiency of the evidence before the court at the preliminary hearing was rendered irrelevant once defendant was tried and convicted.

We begin with the Oregon Constitution. The circuit courts have subject matter jurisdiction over all legal actions, including criminal cases, unless subject matter jurisdiction has been vested in some other court by the constitution or a statute or rule of law that is consistent with the constitution. State v. Terry , 333 Or. 163, 186, 37 P.3d 157 (2001), cert. den. , 536 U.S. 910, 122 S.Ct. 2368, 153 L.Ed.2d 189 (2002) ; see also Or. Const., Art. VII (Amended), § 2 ("The courts, jurisdiction, and judicial system of Oregon, except so far as expressly changed by this amendment, shall remain as present constituted until otherwise provided by law."); Or. Const., Art. VII (Original), § 9 ("All judicial power, authority, and jurisdiction not vested by this Constitution, or by laws consistent therewith, exclusively in some other Court shall belong to the Circuit Courts[.]").

Article VII (Amended), section 5 (3)-(5), defines how felony charges may be initiated and it mandates the use of two components in that process: (1) "an accusatory instrument, either an indictment or an information" and (2) "a check on the district attorney's charging authority." State v. Keys , 368 Or. 171, 176, 489 P.3d 83 (2021).2 It is undisputed that the district attorney initiated this criminal case with an information charging defendant with UUW. Defendant does not contend that the information was defective. And the validity of a waiver is not in question, because defendant did not waive his right to a preliminary hearing. The question before us is whether the circuit court lacked subject matter jurisdiction to try and, therefore, the authority to convict defendant, if the evidence presented at the preliminary hearing was insufficient to support probable cause.

Article VII (Amended), section 5 (5), provides:

"The district attorney may charge a person on an information filed in circuit court if, after a preliminary hearing before a magistrate, the person has been held to answer upon a showing of probable cause that a crime punishable as a felony has been committed and that the person has committed it , or if the person knowingly waives preliminary hearing."

(Emphasis added.) "[T]he preliminary hearing is designed to make it possible for an accused to avoid defending against an unjustified charge." State v. Clark , ...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT