State v. Egeland

• Decision Date: 29 January 2014
• Docket Number: 100494CR; A148669.
• Citation: 260 Or.App. 741,320 P.3d 657
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Shannon D. EGELAND, Defendant–Appellant.
• Court: Oregon Court of Appeals

260 Or.App. 741
320 P.3d 657

STATE of Oregon, Plaintiff–Respondent,
v.
Shannon D. EGELAND, Defendant–Appellant.

100494CR; A148669.

Court of Appeals of Oregon.

Submitted on Sept. 27, 2013.
Decided Jan. 29, 2014.

[320 P.3d 658]

Peter Gartlan, Chief Defender, and Stephanie J. Hortsch, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Carson L. Whitehead, Assistant Attorney General, filed the brief for respondent.

Before ARMSTRONG, Presiding Judge, and NAKAMOTO, Judge, and EGAN, Judge.

EGAN, J.

Defendant appeals a judgment of conviction for unlawful delivery of a controlled substance within 1,000 feet of a school, ORS 475.904, and one count of unlawful delivery of a controlled substance, formerORS 475.840(1)(c) (2009), renumbered as 475.752(1)(c) (2011). Defendant asserts that the trial court erred by refusing to give his requested jury instruction and argues that the error was not harmless. The state concedes the error, but argues that, in light of the jury instructions that were given and the other evidence presented at trial, the error was harmless. We accept the state's concession that the trial court erred; however, we conclude that the trial court's error in refusing to give the corroboration instruction likely affected the jury's verdict. ORS 138.230. Accordingly, we reverse and remand. ¹

We review the trial court's refusal to give a requested jury instruction for errors of law. State v. Worthington, 251 Or.App. 110, 113, 282 P.3d 24 (2012). In reviewing the trial court's refusal to give a requested instruction, we view the record in the light

[320 P.3d 659]

most favorable to establishment of the facts necessary to require that instruction. State v. Black, 208 Or.App. 719, 721, 145 P.3d 367 (2006). In light of that standard, the facts are as follows.

Defendant had legitimate prescriptions for the pain medication Oxycontin. ² Defendant's nurse practitioner, LM, told him that she had a patient being treated for cancer who needed assistance obtaining hydrocodone for pain relief. Defendant agreed to allow LM to prescribe hydrocodone to him, and, in turn, defendant would provide those medications to LM for that patient's use. Unbeknownst to defendant, LM, who was addicted to hydrocodone, kept the medications for her own consumption.

Defendant was charged with 21 counts of delivery of controlled substances arising over a 10–month period in 2009. Ten of the charges were dismissed because they related to defendant's legitimate prescription for Oxycontin. Defendant went to trial on the remaining charges relating to delivery of hydrocodone.

At defendant's trial, LM testified that she had prescribed hydrocodone to defendant between 2007 and late 2009. According to LM, she would perform medical services for defendant in exchange for hydrocodone. LM also testified about two specific instances in which she had allegedly received the prescription pills from defendant: once at a school book fair in September or October 2009 and again at a school volleyball game in October or November of 2009. LM stated that she had told defendant that she had lied about the cancer patient and disclosed her hydrocodone addiction to him in approximately September 2009. At that point, according to LM, defendant had agreed to continue to supply LM with pills to try to gradually wean her off of them.

During the testimony of the investigating officer, McKinley, the state played a tape recording of a telephone call between defendant and McKinley that occurred in mid-February 2010. In it, defendant stated that he and LM had never exchanged medical services for drugs. McKinley told defendant that his medical records were missing from LM's office and inquired several times as to whether he and LM had ever exchanged medical services for drugs. The two had the following exchange:

“MCKINLEY: How much do you think you've paid in the last year and a half?

“DEFENDANT: Uh, I haven't paid her anything.

“MCKINLEY: Well, I mean, paid for pills and then she reimbursed you.

“DEFENDANT: Oh, I'd imagine it was probably several thousand dollars.

“MCKINLEY: Okay. And I guess the reason I keep poking around the ... If she was doing this in exchange for medical practices, uh, it just shows whether she's lying to me or not, too. ‘Cause then she sent you a bill, I just find that amazing she sent you a bill, after what all I was told.”

Defendant told McKinley that he would purchase the drugs and deliver them to LM, usually once a month, but sometimes more often, and LM would reimburse him with cash. McKinley asked defendant, “When did you quit paying for [the drugs]?” Defendant responded, “Urn, probably the last, probably the last year and a half.” He told McKinley that LM had never told him about her drug addiction. Defendant stated that he would not deliver the pills to LM's office, but would arrange with LM to meet at different locations or drop them in her mailbox. McKinley and defendant then had the following exchange:

“MCKINLEY: Would she ever do any, urn, medical procedures for you in exchange for the pills?

“DEFENDANT: No. Nope. Never did that. Never, uh, ... I never gave her pills up at the office, uh, or anything like that. She's done stuff on me, you know, for, uh ... removed some moles and some tumor things, you know, but never, um ... nothing like that.

“MCKINLEY: Okay.

“DEFENDANT: It was all just straight exchange.

“MCKINLEY: But never at the office?

[320 P.3d 660]

“DEFENDANT: No, I'd um ... no, I'd meet her at * * * her house or she'd meet me at Chester's or something like that, you know, as I was coming through.

“MCKINLEY: Okay.

“DEFENDANT: I mean, I came through there and went to her office, you know, and had stuff done * * * as I was coming through, but she wouldn't, um, have me give her pills at the office, or you know ...

“MCKINLEY: Okay.

“DEFENDANT: I met her at [the school] one time when I came through late at night, she was up there for a volleyball game.

“MCKINLEY: So it was just wherever you happened to run into each other, it sounds like?

“DEFENDANT: Yeah, it would just be, you know ... [inaudible] a lot of time my schedule would change, so I came through at midnight, so I'd put them in her mailbox.”

McKinley asked defendant to tell him the last time that he had delivered pills to LM. Defendant responded, “[P]robably right at the end of November, first of December.”

Defendant then testified that he had delivered the medications to LM in 2007 but not in 2008 or 2009. According to defendant, he had met LM at the school on one occasion, but that, contrary to LM's testimony, he had met her in the parking lot of the school to receive results from a cancer test. Defendant stated that he had planned to meet LM at her office to hear the results, but they later decided to meet at the school. According to defendant, he had never exchanged the drugs for medical services, and instead, testified that he had paid out of pocket for his medical procedures, but his medical records had “gone missing” from LM's office. Defendant testified that LM had disclosed her addiction to him in late 2009, but he did not provide her with any hydrocodone after the initial period of a few months in 2007. Instead, defendant stated that when LM spoke with him about her addiction, he had offered her advice on how to taper off of the medications.

Defendant's girlfriend also testified. She stated that she had accompanied defendant to the school parking lot to receive the results of the cancer test and had overheard the entire conversation between LM and defendant; she testified that drugs were not exchanged during that encounter. She also testified that she had never been to a book fair at the school.

At the close of testimony, defendant requested that the trial court give multiple instructions regarding accomplice-witness testimony. The trial court instructed the jury about the definition of an accomplice witness, and the definition of aiding and abetting. It also informed the jury that defendant had the burden to prove that LM was an accomplice witness, and if the jury found LM to be an accomplice, then her testimony should be viewed with distrust. The trial court, however, declined to give defendant's requested “corroboration” instruction, Uniform Criminal Jury Instruction (UCrJI) 1056, which states:

“The testimony of an accomplice in and of itself is not sufficient to support a conviction. There must be in addition some evidence other than the testimony of an accomplice that tends to connect the defendant with the commission of the crime.

“This other evidence, or corroboration, need not be sufficient by itself to support a conviction but it must tend to show something more than just that a crime was committed. It must also connect or tend to connect the defendant with the commission of the crime.”

Defendant objected to the court's refusal to give the instruction, arguing that “[t]he question of corroboration[,] I think[,] is a jury issue.” As support for its decision that defendant was not entitled to that instruction, the trial court stated, “This case has plenty on corroboration. Quite frankly, the audio tape of [defendant]'s own statements certainly is corroboration. This is not a case that relies solely on an accomplice's testimony, so that's the court's ruling there.”

The jury found defendant guilty of three of the 11 counts submitted to the jury: delivery of a controlled...