State v. Garner

• Decision Date: 21 July 2004
• Citation: 94 P.3d 163,194 Or.App. 268
• Parties: STATE of Oregon, Respondent, v. Anthony Scott GARNER, Appellant.
• Court: Oregon Court of Appeals

94 P.3d 163

194 Or.App. 268

STATE of Oregon, Respondent, v. Anthony Scott GARNER, Appellant.

981296, 981307; A116412 (Control), A116413.

Court of Appeals of Oregon.

Argued and Submitted May 26, 2004.

Decided July 21, 2004.

Eric M. Cumfer, Senior Deputy Public Defender, argued the cause for appellant. On the brief were Peter A. Ozanne, Executive Director of Office of Public Defense Services, and Ingrid A. MacFarlane, Senior Deputy Public Defender.

Jennifer S. Lloyd, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before LANDAU, Presiding Judge, and ARMSTRONG and BREWER, Judges.

BREWER, J.

Defendant appeals his conviction of two counts of aggravated murder. ORS 163.095(1)(e), (2)(e). Defendant asserts that the trial court erred in denying his motion for judgment of acquittal that challenged the sufficiency of the evidence with respect to both aggravating factors.¹ We review the court's ruling for errors of law, viewing the evidence in the light most favorable to the state to determine whether any rational trier of fact could have found the aggravating factors proved beyond a reasonable doubt. State v. King, 307 Or. 332, 339, 768 P.2d 391 (1989). We affirm defendant's conviction for aggravated murder but reverse the judgment and remand to the trial court for entry of a judgment convicting defendant of only one count of aggravated murder.

In the summer of 1998, defendant lived on a boat owned by Warren Atha, whom defendant referred to as his "godfather." The boat was moored at a Warrenton marina. That summer, defendant befriended the victim, Dana Bailey, who moved in with defendant on Atha's boat. Bailey and defendant had a sexual relationship and used drugs together. Defendant's codefendant, Les Simpkins, was defendant's friend and drug supplier.

Defendant had a significant criminal past. He had served multiple prison terms, including sentences for a robbery conviction and related parole revocation, and convictions for criminally negligent homicide and attempting to elude. All told, defendant had served approximately 10 years in prison for those offenses. Defendant was afraid of police officers and was terrified of the prospect of returning to prison. On one occasion, defendant knocked Atha unconscious in a fight, and he threatened to kill Atha's girlfriend if she reported the incident to the police. On another occasion, during an argument between defendant and Atha's girlfriend, Atha called the police. Defendant grabbed Atha by the chest, held him above the floor, and said that he could not believe that Atha had reported him to the police.

Christopher Johns also was an associate of defendant. In 1998, Johns stole some property from his parents and sold it for drugs. Johns later tried to recover his parents' property. To facilitate that effort, Johns identified for the police the people who bought the property. As a result, the word in the local drug community was that Johns was a "snitch." Johns's reputation as a snitch made it difficult for him to buy drugs. Defendant himself accused Johns of being a snitch until he saw Johns use drugs. Defendant sold drugs to Johns and used drugs with him on the boat during the summer of 1998. On many occasions, however, defendant told Johns that, if he were a police informant, defendant would kill him. Defendant also asked Johns if Johns thought that Bailey was a "little snitch."

Johns met Bailey for the first time when he went to the boat with defendant. According to Johns, Bailey was very quiet and did not look "well." Johns stated that Bailey had small visible bruises and always "looked scared." Johns testified that defendant was argumentative with Bailey and that he would get angry with her and explode. Sometimes defendant would shove Bailey with his elbow. Defendant's volatile behavior frightened Johns.

James Caldwell lived with Bailey between 1996 and 1998. He saw Bailey a few times after she moved in with defendant. On the night of August 7, 1998, Caldwell saw defendant and Simpkins at the home of John and Cathy Blair. On that occasion, Simpkins told Caldwell that Bailey had to leave the boat because she was a police informer. Defendant was not present when Simpkins made that statement. However, during the same visit, defendant told Caldwell that Bailey was "driving him crazy."

Betty Songer knew Bailey and defendant. On the afternoon of August 8, Songer took defendant to a store to purchase liquor. Defendant told Songer that he thought that Bailey had stolen money from him, but he could not find it among her possessions. Defendant told Songer that he and Simpkins were going to "party." A few days later, after the murder, defendant called Songer collect from jail. Songer told defendant that he had "messed up." Defendant replied that "the only way I messed up is I didn't get rid of the body."

On August 8, Cindy McEwen was working as a bartender at a Warrenton bar. Simpkins came into the bar and told McEwen that he had witnessed a murder. Simpkins told McEwen that defendant had committed the murder. Simpkins stated that defendant had used Simpkins's knife to commit the murder. When Simpkins went to the bathroom, McEwen called her boss and asked her to call the police.

While Simpkins was in the bathroom at the bar, he spoke to a patron, Lincoln Jackson. Simpkins told Jackson that "[t]his girl just tried to off herself with my knife." Simpkins then removed a bloody knife from a sheath on his hip and rinsed it in the sink. Jackson also saw blood smeared on Simpkins's pants.

Police officers later came to the bar. Simpkins told the officers that he had witnessed a murder, that defendant had committed the murder, and that the victim's body was on the boat. The officers went to the marina but did not immediately accost defendant. An officer eventually saw defendant standing naked on the boat, carrying a small bundle. The officers tried to talk to defendant who, at one point, said that he had "tried to help her." Defendant ultimately threatened to blow up the boat unless he could talk to Atha. Soon thereafter, the officers heard a series of explosions, and the boat caught fire. Defendant jumped off the boat, and the officers pulled him from the water. Defendant had a lighter in his hand. The officers found Bailey's body on the boat, and they arrested defendant.

The forensic evidence showed that Bailey's body was charred after her death. Bailey was face-down when the fire started. Her death was caused by one or both of two stab wounds, one to her chest and the other to her head. The chest wound penetrated the lower lobe of Bailey's left lung. That wound was inflicted while Bailey was alive. According to the pathologist who performed the autopsy on Bailey's body, such a wound would cause the victim to gasp for breath as a result of air leakage from the lungs into the chest cavity. The stab wound to Bailey's head penetrated the skull into the temporal lobe of her brain. According to the pathologist, that wound, too, was inflicted while Bailey was alive, and it would not have been instantly fatal. Bailey suffered a third, less serious, stab wound to the back of her neck. That wound did not penetrate her skull or injure her spinal cord. According to the pathologist, each of the wounds would have been very painful, and Bailey could have lived for up to an hour after they were inflicted.

After defendant's arrest, Atha had several telephone conversations with defendant at the jail. Atha was curious about Bailey's death, and he frequently shared with defendant the various rumors that he had heard. Defendant usually refused to discuss the matter with Atha. However, on one occasion, Atha stated that he had heard that defendant and Bailey had had an altercation over the purchase of drugs. According to the rumor, Bailey had asked defendant to "front"² her some drugs until she could get her next paycheck. Bailey purportedly had threatened to "turn in" Simpkins, defendant's supplier, if defendant refused to front the drugs. At first, defendant was reluctant to respond to Atha's account of the rumor, but he eventually replied, "[W]ell, something like that[.]" Then defendant said, "[P]ersonally, I can't talk about it."

Defendant was charged with two counts of aggravated murder. In count one, the state charged that defendant and Simpkins intentionally caused Bailey's death by "stabbing and slashing her, as a result of intentional maiming[.]" Count two alleged that defendant and Simpkins intentionally caused Bailey's death "in an effort to conceal the commission and identity of a perpetrator of the crimes of possession and delivery of controlled substances." A jury found defendant guilty of both counts. The trial court entered a judgment convicting defendant of both counts, but the judgment provided that, "[f]or purposes of sentencing, Count 2 merges with Count 1." Defendant appeals from that judgment.

In his first assignment of error, defendant asserts that the trial court erred in denying his motion for judgment of acquittal on count two because of "insufficient proof of the aggravating factor." In count two, the state sought to prove that defendant murdered Bailey to conceal his or Simpkins' drug possession or delivery.³ According to defendant, the evidence would permit a reasonable factfinder to determine that "defendant was responsible for Bailey's murder, either as a principal or as an aider and abettor. It could not determine a reason for the murder beyond a reasonable doubt, however." Defendant contends that the circumstantial evidence of his motive adduced by the state was not reliable because there were other possible explanations for each piece of evidence.

The statutory phrase "the murder was committed in an effort to conceal" means that "the murder must have been committed for the purpose of hiding the fact of the commission of the separate crime."...