State v. Knight

• Decision Date: 12 May 1999
• Citation: 981 P.2d 819,160 Or.App. 395
• Parties: , 60 Or.App. 395 STATE of Oregon, Respondent, v. Douglas R. KNIGHT, Appellant. State of Oregon, Respondent--Cross-Appellant, v. Douglas R. Knight, Appellant--Cross-Respondent. State of Oregon, Respondent, v. Douglas R. Knight, Appellant. (961503M, 96CR0410, 96CR0411; CA A97417 (Control), A97418, A97425)
• Court: Oregon Court of Appeals

Page 819

981 P.2d 819

160 Or.App. 395, 60 Or.App. 395

STATE of Oregon, Respondent, v. Douglas R. KNIGHT, Appellant.

State of Oregon, Respondent--Cross-Appellant, v. Douglas R. Knight, Appellant--Cross-Respondent.

State of Oregon, Respondent, v. Douglas R. Knight, Appellant.

(961503M, 96CR0410, 96CR0411; CA A97417 (Control), A97418, A97425)

Court of Appeals of Oregon.

Argued and Submitted Nov. 12, 1998.

Decided May 12, 1999.

R.K. Cue, Ashland, argued the cause for appellant--cross-respondent. On the opening brief was Mark Burkhalter.

Jonathan H. Fussner, Assistant Attorney General, argued the cause for respondent--cross-appellant. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before EDMONDS, Presiding Judge, and ARMSTRONG and BREWER, ^* Judges.

BREWER, J.

Defendant appeals his convictions on three counts of first degree burglary, ORS 164.225, one count of second degree theft, ORS 164.045, eleven counts of a stalking order violation, ORS 163.750, and five counts of contempt, ORS 33.065. He seeks a new trial based on the trial court's refusal to grant him a continuance. He also assigns error to his conviction on one of the burglary counts, contending that the state failed to make a prima facie case against him. The state cross-appeals, asserting that the trial court sentenced defendant improperly. We affirm on appeal and remand for resentencing on cross-appeal.

Defendant's convictions resulted from a series of contacts he had with his former spouse, Rhonda Knight, between July 22 and October 8, 1996. During that period, defendant was subject to a stalking protective order that prohibited him from contacting Rhonda. Despite the order, defendant telephoned and sent notes and flowers to her on several occasions. On July 30, 1996, at 8 a.m., defendant entered the victim's residence while she was present. He told her that his car had broken down nearby and that he needed to use the bathroom to wash his hands. He then told her that he wanted to stay and talk but left when she asked. After he left, she unsuccessfully attempted to call the police and later discovered that the telephone had been unplugged. Defendant was convicted of first degree burglary (entering and remaining in the victim's dwelling with the intent to commit the crime of violating a court's stalking protective order therein), and violating the stalking order as a result of that incident.

Approximately two hours after the first incident on July 30, defendant returned to the residence. He again entered without permission. He ordered Rhonda to drop the stalking order. After 20 minutes, he left. That incident also resulted in convictions for first degree burglary and violation of a stalking order.

Just over a week later, defendant had parenting time with his three daughters for the weekend. (The children resided with their mother.) On the evening of August 9, he drove them to Rhonda's house. When they arrived, he asked his 14 year old daughter to go into the house to retrieve her mother's jewelry box. She complied. Defendant did not enter the residence at any time that night. Nevertheless, he was charged with and convicted of a further violation of the stalking order, first degree burglary, second degree theft, and contempt of court. During the week following the jewelry box incident, defendant initiated several additional contacts with Rhonda Knight that resulted in additional charges and eventual convictions for violation of the stalking order and contempt.

Trial began on January 15, 1997. At the outset, defendant's attorney requested a continuance. He stated that he was unprepared because the state had not provided timely discovery. The court denied defendant's motion. Defendant renewed the motion before the jury was impaneled, and the court again denied it. Defendant was found guilty and held in contempt, as previously indicated.

At sentencing, the state argued that the 8 a.m. burglary on July 30, 1996, should be treated as part of defendant's "criminal history" for purposes of sentencing on the 10 a.m. burglary on the same day, thus enhancing the second burglary to gridblock 8-D on the criminal history scale. The trial court disagreed and sentenced both offenses within gridblock 8-I. In addition, when sentencing defendant on the August 9 burglary conviction, the trial court treated the two July 30 burglaries as a single conviction for purposes of calculating defendant's criminal history.

Defendant first assigns error to the trial court's denial of his motion for a continuance. We review the trial court's denial of such a motion for abuse of discretion. State v. Moore, 324 Or. 396, 410, 927 P.2d 1073 (1996); State v. Parker, 317 Or. 225, 231, 855 P.2d 636 (1993). Defendant argues that the right to counsel includes the right to effective counsel and cites Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932). He claims that the denial of a continuance thwarted his counsel's effectiveness for two major reasons: (1) because the state did not disclose its expert witnesses, two tapes of the defendant's statements, and a photograph until the day before trial, counsel could not adequately meet the state's evidence; and (2) his attorney was unable to contact ten defense witnesses before trial.

Under the circumstances presented here, we cannot say that the trial court abused its discretion or denied defendant adequate (or effective) representation by refusing to postpone the trial. Defendant's discovery problems were both minor and reasonably avoidable. The state made defendant's recorded statements available to his attorney for copying before trial. However, defendant's attorney did not provide a blank tape for copying. Defense counsel did not show that he was unable to provide a blank tape or otherwise procure the discovery before the day of trial. The state did not receive the photograph until the morning of trial and immediately turned it over to defense counsel. The court found that it was delivered late but that the issue was "not sufficient to postpone the trial." Furthermore, defendant does not show how his lack of access to his own statement and to the photograph prejudiced him.

Defendant also argues that the state's delay in disclosing its expert justified a continuance. The expert testified concerning the cycle of domestic violence in order to counter evidence that the victim continued to see the defendant despite his abusive behavior. The state's decision to call the witness was prompted by defendant's apparent plan to argue that the victim's occasionally accommodating behavior towards him justified his violation of the stalking order. That strategy was revealed shortly before trial as a result of defendant's tardy disclosure of his own witness list, including people who would testify about the ongoing contact. In addition, the expert was scheduled to testify near the end of a multiple day trial. Defendant did not show that he had insufficient time to prepare for the expert's testimony or that denying a continuance would prejudice him with respect to that testimony.

Finally, defendant argues that the trial court should have granted his motion because he was unable to contact ten witnesses (in addition to the eleven who did testify for him) by the trial date. In order to reverse the trial court's denial on this ground, defendant must show that he could have produced the witnesses for trial and that the witnesses would testify to a material fact in the case. Moore, 324 Or. at 410, 927 P.2d 1073. Defendant did neither. The trial court made extensive findings on the record to justify its denial of defendant's motion, not the least of which was defendant's own vehement insistence on the day before trial that trial proceed as scheduled. The trial court did not abuse its discretion in denying defendant's motion. State v. Beaty, 127 Or.App. 448, 456, 873 P.2d 385, rev. den. 319 Or. 406, 879 P.2d 1285 (1994).

Defendant next assigns error to the trial court's denial of his motions for judgment of acquittal and for new trial on the August 9 burglary count. He contends that the state failed to prove a statutory element of burglary, namely, unlawful entry. Entry into the residence on that occasion was effected by defendant's daughter; he did not enter the premises himself.

The state responds that the error is not preserved because defendant "expressly declined to argue the proposition that [he] * * * did not himself enter the residence." Defendant's attorney made the following argument to the trial court in his motions against the August 9 burglary count:

"Burglary is a specific intent statute. There are not very many of them, but in order to commit burglary it has to be proved that the defendant intended to commit a crime when he entered the premises. And I understand aid and abet theory with regard to entering the premises. I'm not arguing that. The point is, in order to commit the crime of burglary you must have the intent to steal." (Emphasis added.)

However, defendant contends that this excerpt of his argument fails to tell the whole story. Defendant was charged with four offenses for the August 9 incident: first degree burglary (for the unlawful entry with intent to commit theft and to violate the stalking order), second degree theft (for removing the jewelry), violation of a stalking order (for the unlawful entry), and contempt (for violating a restraining order). During argument on the motion for judgment of acquittal with respect to the August 9 burglary, defendant argued that he could not have committed the offense because Rhonda had previously consented to give him the items taken. After his attorney concluded his argument on the burglary count, the court denied the motion for judgment of acquittal on that count. Several minutes later during argument on his motions with respect to other counts, defendant's attorney made the following argument with...