State v. Hendershott

• Decision Date: 28 February 1995
• Citation: 887 P.2d 351,131 Or.App. 531
• Parties: STATE of Oregon, Respondent, v. Kenneth HENDERSHOTT, Appellant. 9202-30801; CA A78892.
• Court: Oregon Court of Appeals

Page 351

887 P.2d 351

131 Or.App. 531

STATE of Oregon, Respondent, v. Kenneth HENDERSHOTT, Appellant.

9202-30801; CA A78892.

Court of Appeals of Oregon.

Argued and Submitted Aug. 26, 1994.

Decided Dec. 7, 1994.

Review Denied Feb. 28, 1995.

Eric R. Johansen, Deputy Public Defender, argued the cause, for appellant. With him on the brief was Sally L. Avera, Public Defender.

Janet A. Klapstein, Asst. Atty. Gen., argued the cause, for respondent. With her on the brief were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen.

Before ROSSMAN, P.J., and De MUNIZ and LEESON, JJ.

De MUNIZ, Judge.

Defendant was convicted of attempted aggravated murder, ¹ ORS 163.095; attempted murder, ORS 163.115; attempted assault in the first degree with a firearm, ORS 163.185; fleeing or attempting to elude a police officer, ORS 811.540; reckless driving, ORS 811.140; robbery in the first degree, ORS 164.415; theft by extortion, ORS 164.075; unauthorized use of a motor vehicle, ORS 164.135; two counts of attempted burglary in the first degree, ORS 164.225; two counts of menacing, ORS 163.190; two counts of burglary in the first degree, 164.225; and felon in possession of a firearm. ORS 166.270. He assigns error to the court's denial of his motion to dismiss on the basis of the state's failure to preserve evidence, the court's refusal to give a "less satisfactory evidence" instruction and the court's imposition of various sentences. We affirm.

Because defendant was convicted after a jury trial, we state the facts in the light most favorable to the state. State v. Kolbe, 115 Or.App. 268, 270, 838 P.2d 612, rev. den. 315 Or. 644, 849 P.2d 525 (1992). On February 7, 1992, Keene and her eight-year-old granddaughter drove to a Fred Meyer store and parked on the top level of the parking lot. As they were getting out of the car, defendant approached and demanded Keene's keys. When Keene refused to give him the keys, defendant pointed a gun at Keene's granddaughter and warned Keene that, if she did not hand him the keys, he would shoot the girl. Keene gave defendant the keys, and he drove off in her car.

Sergeant Parks was on patrol nearby when he received a broadcast about the carjacking. Parks saw a car proceed through a red light. When Parks approached the car, he saw that the license plate number matched that of the stolen car. Parks called for additional officers and activated his siren and lights. A high-speed chase then ensued through a residential neighborhood.

Defendant eventually slowed the car and jumped out. As he fled, defendant fired one round at Parks from about 20-30 feet. Parks fired back and chased defendant between houses. In order to avoid a gunfight alongside several houses, Parks ended his pursuit and requested that the block be sealed, evacuated and searched.

Defendant then ran to Boxler's house and demanded entry. Boxler saw defendant's handgun, refused entry, and called the police. Defendant tried unsuccessfully to shoot the lock off the door. Another witness, Like, saw defendant running down the street carrying a handgun.

The special emergency reaction team (SERT) began to search the area. After noticing that the lock on the back door of a house appeared to have been tampered with, SERT officers entered the house. One of the officers found defendant standing in the bathtub fully clothed. He later denied breaking into the house and explained that his former girlfriend gave him permission to stay there. The resident of the house denied knowing defendant or giving him permission to enter the house.

Before trial, the police inadvertently returned the stolen car to Keene before examining it for evidence or allowing defendant to make a forensic examination of the car. The car was sold at least twice, and both defendant and the state were unable to locate it before trial.

Defendant first contends that the state's failure to preserve or provide the car for inspection violated the discovery statutes, as well as his due process rights. We address the statutory issue first. Although his argument is difficult to discern, defendant appears to contend that, because the state lost the car and did not process it for evidence, he was denied various reports and statements of experts that would have been routinely generated had the state conducted a forensic examination of the car. ORS 135.815 provides, in part:

"[T]he district attorney shall disclose to the defendant the following material and information within the possession and control of the district attorney:

" * * * * *

"(3) Any reports or statements of experts, made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments or comparisons which the district attorney intends to offer in evidence at the trial." (Emphasis supplied.)

Because the state did not process the car for evidence or undertake any forensic examination of it, no reports were made and, hence, there was no material or information to provide to the defense. Nothing the state did, or failed to do, violated defendant's statutory discovery rights. See State ex rel Beach v. Norblad, 308 Or. 429, 781 P.2d 349 (1989); State v. Walton, 311 Or. 223, 236, 809 P.2d 81 (1991).

Defendant also argues that the state's failure to preserve the car for forensic inspection violated his due process rights. He argues that forensic inspection of the car would have revealed the absence of any physical evidence connecting him to the car. Defendant however, has failed to show that a forensic inspection of the car would have produced any favorable evidence. More than mere speculation is necessary to support defendant's due process claim. Absent a showing that favorable evidence was lost or that the state acted in bad faith in failing to preserve the car, defendant's due process claim must fail. Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988).

In his second assignment, defendant contends that the court erred when it denied his request that the court give a less satisfactory evidence instruction. In general, we review the court's failure to give a jury instruction on evidentiary issues for abuse of discretion. State v. Shelley, 110 Or.App. 225, 228, 821 P.2d 1111 (1991). Defendant requested that the court give the following instruction:

"When you evaluate the evidence, you may consider the power of the state to gather and produce evidence. If the evidence offered by the state was weaker and less satisfactory than other stronger or more satisfactory evidence which the state could have offered, then you should view the weaker and less satisfactory evidence with distrust."

In State v. McNassar, 77 Or.App. 215, 218, 712 P.2d 170, rev. den. 300 Or. 704, 716 P.2d 758 (1986), we held that a less satisfactory jury instruction need not be given unless

"failure [to produce the evidence] could give rise to an inference that the evidence would be adverse to the party--that is when it appears that the party may be trying to hide something." (Emphasis in original.)

The party offering the instruction has the burden of showing that the evidence not presented was reasonably available and that that evidence was stronger than other evidence offered. State v. McDonnell, 313 Or. 478, 500, 837 P.2d 941 (1992). Here, defendant has not shown that any evidence from the car is stronger than the testimony from several eyewitnesses who implicated him.

In his third assignment of error, defendant contends that the court committed multiple...