State v. Litscher
| Citation | 397 P.3d 511,285 Or.App. 508 |
| Decision Date | 17 May 2017 |
| Docket Number | A156081 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Kevin Duane LITSCHER, Defendant-Appellant. |
| Court | Court of Appeals of Oregon |
285 Or.App. 508
397 P.3d 511
STATE of Oregon, Plaintiff-Respondent,
v.
Kevin Duane LITSCHER, Defendant-Appellant.
A156081
Court of Appeals of Oregon.
Argued and submitted October 27, 2015.
May 17, 2017
Marc D. Brown, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Peenesh H. Shah, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Armstrong, Presiding Judge, and Hadlock, Chief Judge, and Egan, Judge.
HADLOCK, C.J.
Defendant was convicted of multiple crimes, including first-degree kidnapping. On appeal from the judgment of conviction, he makes an unpreserved argument that the trial court should have acquitted him of kidnapping because the record does not include evidence showing that he "confine[d]" the victim "in a place where [she was] not likely to be found." ORS 163.225(1)(b). As we explain below, the trial court did not plainly err in entering a judgment of conviction for first-degree kidnapping. Accordingly, defendant's unpreserved argument that he was entitled to a judgment of acquittal presents no basis for reversal. In addition, we decline to exercise our discretion to address defendant's unpreserved sentencing arguments. Accordingly, we affirm.
In assessing defendant's argument that he was entitled to a judgment of acquittal on the kidnapping charge, we view the facts in the light most favorable to the state. State v. Rader , 348 Or. 81, 83, 228 P.3d 552 (2010). We summarize the pertinent facts of this case in accordance with that standard.
Defendant's parents have two homes, their residence in Burns and a cabin in Harney County. The cabin is miles out of town and the closest neighbor is eight to 10 miles away. The area is wooded and the cabin is not visible from the road. Defendant's parents have an antenna that allows them to get cell-phone service at a particular spot inside their cabin; cell service may not be available elsewhere on the property.
In September 2013, defendant and his parents were staying at the cabin. Late one morning, while defendant's father was at work, defendant's mother and defendant both were outside after breakfast. Defendant went into the cabin, then came back outside holding his parents' shotgun at eye level, with his
finger on the trigger. Defendant said to his mother, "Which is it going to be? You or me or both of us?" Defendant's mother said that she needed to use the bathroom, but defendant pointed the gun at her face, pushed her into a chair, and said that she "could just sit there and piss [her] pants." Defendant's mother did not say much more after
that; she "didn't want to get [defendant] agitated or upset." Defendant's mother remained seated while defendant sat on the porch and held the gun in his lap, pointed in her direction. Based on how defendant was acting, his mother thought that he was capable of pulling the gun's trigger, and she believed that she "was probably done." While she and defendant sat there, she thought about how she did not want defendant's father "to come up and find a bloody mess in the front yard."
After about 20 minutes, defendant put down the gun and went into the cabin. Defendant's mother took the gun, got into her car, and left. She did not stop to retrieve her purse or her cell phone because those were inside the cabin; she "didn't even consider going in and grabbing them." Defendant's mother drove to a ranch several miles away and, at about noon, called defendant's father and left a message for him. Defendant's father did not immediately retrieve that message, as he was still working—he explained at trial that he and his coworkers "usually shut down [their equipment] at 1:00." Thus, it was not until defendant's father returned to the cabin at about 1:30 that afternoon and got cell-phone reception that he retrieved the message from defendant's mother. By that time, defendant had left the cabin to go to his own job. Defendant's father called the sheriff.
The sheriff and some deputies found defendant at his work site. Defendant threatened to beat the sheriff to death and declared that the only way that he would be taken into custody was if he were dead. However, defendant allowed himself to be taken into custody after a deputy told him to "get on the ground" or the deputy would "release [a police dog] on him."
At trial, defendant's mother testified that she did not believe that she could have left the property any earlier than she did (after defendant put down the shotgun and went back inside the cabin). She did not believe that anybody could have heard her if she had called for help. She also described an encounter that she had had with defendant a few weeks before the incident at the cabin. During that earlier encounter, defendant had looked at an axe, then said to
his mother, "I could kill you and me and set this place on fire."
Based on those events, defendant was charged with five crimes: first-degree kidnapping (with a firearm), felon in possession of a firearm, unlawful use of a weapon, menacing constituting domestic violence, and pointing a firearm at another. The case was tried to a jury. Defendant's mother was the primary witness with respect to the kidnapping charge. Defendant testified on his own behalf, asserting, essentially, that most of the events described above never happened. The prosecutor argued in closing that defendant was guilty of kidnapping because he secretly confined his mother in a place where she was not likely to be found "[b]y not letting her leave and keeping her in that chair." The prosecutor emphasized that the cabin was eight miles from the nearest neighbor, that nobody would have found defendant's mother other than her husband (who was not home), and that nobody could have heard her had she called for help. Defendant took a broader approach in his closing argument. Instead of focusing on the elements of the charged crimes, defendant emphasized discrepancies in his mother's testimony and attempted to persuade the jury that her description of events was not plausible.
The jury found defendant guilty of all counts charged. After a sentencing hearing, the jury also found that the state had proved several enhancement facts. The trial court imposed an upward departure sentence of 144 months' incarceration, plus 36 months' post-prison supervision, on the kidnapping conviction and imposed shorter, concurrent sentences on the four other convictions. Defendant appeals from the resulting judgment.
In his first assignment of error, defendant challenges his conviction for first-degree kidnapping. Although the kidnapping statutes set out several ways in which a person may
commit that crime, as charged in this case, defendant could be convicted of first-degree kidnapping only if the state proved that (1) defendant secretly confined his mother in a place where she was not likely to be found, (2) defendant acted with intent to substantially interfere with his mother's personal liberty, and without consent or
legal authority, and (3) defendant had the purpose of terrorizing his mother or another person. ORS 162.225(1)(b) ; ORS 162.235(1)(d).1
Defendant focuses on the first of those elements, arguing that the evidence in this case "was insufficient for a reasonable factfinder to find that defendant held his mother in a place where she was not likely to be found." Defendant points out that he did not conceal his mother by putting her inside a room or by insisting that she not yell for help. Because his mother "was outside in her own front yard," he asserts, she was not "secretly confined" anywhere. Moreover, he argues, the state did not prove that the cabin's yard was a location where his mother was not likely to be found, given that she lived there with her husband. Accordingly, defendant contends, the trial court should have acquitted him of the kidnapping charge. In response, the state emphasizes the remote location of the cabin and that nobody—including defendant's father—was likely to find defendant's mother at the cabin during the 20-minute period when defendant kept the shotgun aimed at her.
As defendant acknowledges, he did not move for a judgment of acquittal on the kidnapping charge and his argument is, therefore, not preserved for appeal. Nonetheless, he asks us to address the unpreserved argument because, in his view, it establishes that the trial court plainly erred by not acquitting him of kidnapping.
In general, when reviewing the denial of a motion for judgment of acquittal, we consider "whether there was
sufficient evidence in the record from which a reasonable trier of fact could find the elements of the crime beyond a reasonable doubt," giving the state "the benefit of all reasonable...
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