State v. Meiser, 012121 ORCA, A166534

Docket Nº:A166534
Opinion Judge:DeVORE, P. J.
Party Name:STATE OF OREGON, Plaintiff-Respondent, v. ERIK JOHN MEISER, Defendant-Appellant.
Attorney:Daniel J. Casey argued the cause and fled the briefs for appellant. Leigh A. Salmon, Assistant Attorney General argued the cause and fled the brief for respondent. Also on the reply brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Judge Panel:Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.
Case Date:January 21, 2021
Court:Court of Appeals of Oregon

308 Or.App. 570

STATE OF OREGON, Plaintiff-Respondent,


ERIK JOHN MEISER, Defendant-Appellant.


Court of Appeals of Oregon

January 21, 2021

Argued and submitted February 11, 2020

Clackamas County Circuit Court CR1201547; Katherine E. Weber, Judge.

Daniel J. Casey argued the cause and fled the briefs for appellant.

Leigh A. Salmon, Assistant Attorney General argued the cause and fled the brief for respondent. Also on the reply brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.

[308 Or.App. 571] DeVORE, P. J.

Defendant was indicted on six counts of aggravated murder, ORS 163.095, two counts of first-degree robbery, ORS 164.415, one count of first-degree burglary, ORS 164.225, and two counts of second-degree burglary, ORS 164.215. Acting as factfinder, the trial court found defendant guilty of the lesser-included offense of murder, ORS 163.115 (2011), [1] and one count of second-degree burglary. The court found defendant guilty except for insanity (GEI) on the other counts. See ORS 161.295 (2011) (GEI defense).2

On appeal, defendant raises four assignments of error. In his first assignment, he disputes the trial court's rejection of his GEI defense to murder. Assuming his view of the defense is correct, he argues that there is insufficient evidence to permit a reasonable factfinder to find him guilty of murder. In his second assignment, he contends that the trial court erred in failing to provide factual findings and legal conclusions explaining the murder verdict despite the GEI defense. In his third assignment, defendant challenges his sentence for murder-life imprisonment with the possibility of parole after 25 years-as unconstitutionally disproportionate. In the same assignment, he also contends that the trial court erred by refusing to consider a belated defense of extreme emotional disturbance (EED), raised for the first time at sentencing. In his fourth assignment, he disputes the trial court's denial of his post-trial motion in arrest of judgment, challenging the sufficiency of the indictment's allegations of first-degree robbery. For the reasons that follow, we conclude that the trial court did not err, and we affirm.

[308 Or.App. 572] I. FACTS

We begin with an overview of the offenses and note additional facts in our discussion of particular issues. In determining whether defendant proved his affirmative defense as a matter of law, we review the evidence, including all reasonable inferences, in the light most favorable to the trial court's verdict. See Peters v. Belleque, 241 Or.App. 701, 712, 250 P.3d 456 (2011) (To warrant a judgment of acquittal "the evidence before the trial court, taken in the light most favorable to the state, must permit only one reasonable conclusion-that petitioner established each element of the defense."); State v. McCartney, 65 Or.App. 766, 769, 672 P.2d 1210 (1983), rev den, 296 Or. 638 (1984) (A motion for judgment of acquittal based on an affirmative defense may only be granted when there are no facts presented upon which "reasonable men could differ." (Internal quotation marks omitted.)).

Defendant was charged with aggravated murder arising out of an incident in which defendant murdered the victim, FH, during a home invasion gone wrong. Defendant arrived in Lake Oswego early on a September morning in 2012. Carrying a samurai sword that he had stolen from a martial arts facility, defendant walked a mile to find a neighborhood that he believed to be affluent. After identifying FH's home as one where he believed he might force the homeowners to wire him $40, 000, defendant hid next door and waited for the occupants to leave.

FH and his wife, MH, left their home around 5:30 a.m. to take their dogs for a walk. Defendant entered their home, swapping the sword for a machete he found in the garage. He believed that the machete would be "more intimidating" and allow him to "control the situation better." The couple returned home about an hour later. MH picked up the newspaper, while FH attended to the dogs in the backyard. When MH entered the kitchen, she looked up from her newspaper to see defendant with fabric covering his head and holding a knife in one hand and a machete in the other. He held the knife up to his lips and whispered, "Shh, I don't want to hurt you." MH screamed. FH ran toward the kitchen to see what was wrong. Upon seeing the intruder, FH and [308 Or.App. 573] MH ran outside. MH called 911 from the side of the house, while FH ran down the driveway, but fell backwards into bushes. As FH laid on the ground, defendant struck FH four times with the machete. Three blows were lethal. Defendant struck until FH stopped making noise. Defendant ran back into the couple's home to get his backpack in order not to leave evidence behind, then escaped through the backyard. MH ran around the side of the house and found her husband. He died moments later.

Defendant ran through the neighborhood looking for a vehicle that he could use to escape. Defendant entered a neighbor's garage to take a bicycle, but he left it because it had a fiat tire. Defendant ran to another vacant house where he changed his clothes, showered, and took a nap. At 9:00 a.m. the same morning, defendant was seen sitting at a bus stop in Lake Oswego. An officer approached him looking for suspects. The officer asked defendant if he knew anything about the incident. Defendant appeared calm, normal, and on the "happy side." He did not arouse the officer's suspicion. The officer checked defendant's ID and spoke with defendant for about five minutes.

Defendant remained in the Portland area for a couple of days. He alternated sleeping on buses, in a U-Haul, in an airstream trailer, and possibly in an abandoned house. Three days after the murder, police identified defendant from fingerprints left at the scene and announced his identity at a press conference. To change his appearance, defendant shaved off his beard at a gas station. He took a bus to Salem and made his way to Corvallis, walking along back-roads. Defendant bought food and paid his expenses with money his wife wired to him through a credit union. He learned that there was a warrant out for his arrest. He used an alias to check into a motel in Corvallis. Five days after the murder, police located him using his cellphone data. They arrested defendant without incident at the motel.

During interviews with the police, defendant said that he had a "dual purpose" for the home invasion. One purpose was "restitution" for himself and one purpose was to "set [his] son free." We describe those two purposes before retelling defendant's narrative.

[308 Or.App. 574] First, defendant explained that he believed that he had been "systemically persecuted" by a "large portion of American society," that he had been unable to find work because he had been "blacklisted," and that there were "people out there who really believe[d] that their prosperity is *** better off without [his]." He had attempted to enroll in college and believed he had been "roadblocked" when trying to get financial aid. Because he believed people were making it impossible for him to "get in" to society, he wanted to "go a step further and try to take the money that society [had] * * * taken away from [him]." He developed a plan to force an affluent person to perform a "mediocre balance transfer" of $40, 000 so that he could put a down payment on a condo and get a "toehold in society" as a property owner. He viewed the $40, 000 as "restitution" and "reparations" for what "had been done to [him]."

Second, defendant explained that he had heard voices, whom he referred to as real people. He said that, beginning in 2006, they followed him everywhere he went and told him to do things or his children would be killed. He believed that the voices had made him a drug addict, had made him think that he needed to have sex with random women, and had been poisoning him, as evidenced by the dark circles under his eyes. The voices told him that he had been "deleted" from society and that all information regarding his existence had been removed from "the system." When he got to Lake Oswego, he said that the voices "told [him] that if [he] didn't kill that guy, that they would murder * * * my son and turn my little infant daughter into a cannibal when she grew up." The voices did not identify the specific person that he was supposed to kill or how he was supposed to kill the person.

Defendant said that he arrived in Lake Oswego after randomly jumping on buses "looking for affluency." He said that he broke into the martial arts studio because there was a Corvette parked outside. He thought that the Corvette's owner would be inside and be the type of person from whom he could get the $40, 000 wire transfer. Finding no one inside the studio, he decided to take the samurai sword.

[308 Or.App. 575] Defendant said, when he chose the couple's home next, he initially "never wanted to hurt anybody." Consistent with his "dual purposes," he "simply wanted a balance transfer" that would be "enough for [him] to get a toehold in society and *** to protect [his] family." Entering the couple's home, he said, he checked to make sure that there were no children in the house. He looked at bank statements in the couple's office to confirm that they were wealthy. His plan was to sit down with the couple and "have a discussion about the ailments of society and * * * that [their] generation had an obligation to [him]."

Defendant said that, when the couple ran, he realized he "was going to fail, once again" and was not going to get his "mediocre balance transfer." At that point, defendant...

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