State v. Morales

Citation307 Or.App. 280,476 P.3d 965
Decision Date21 October 2020
Docket NumberA167147
Parties STATE of Oregon, Plaintiff-Respondent, v. Angel Isaiah MORALES, Defendant-Appellant.
CourtCourt of Appeals of Oregon

Kyle Krohn, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

David B. Thompson, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Lagesen, Presiding Judge, and Powers, Judge, and Kistler, Senior Judge.

LAGESEN, P. J.

At the customer service desk of a WinCo, defendant told his mother, Santiago, that he had been hit by a car in the parking lot. Santiago called 9-1-1 and reported the incident. The police came and questioned defendant and the driver of the car, then, upon concluding that defendant had lied about being hit, arrested defendant for initiating a false report, ORS 162.375(1). At defendant's trial, the court instructed, among other things, that "[p]ersons can act in concert to initiate a false report." The jury returned a verdict of guilty. On appeal, defendant assigns error to that instruction. He argues that, under these circumstances, it was incorrect and misleading such that the jury could have based its verdict on legally erroneous grounds. The state argues in response that the jury instruction issue is unpreserved and unreviewable. We conclude that defendant's claim on appeal is preserved, that the instruction was erroneous, and that the erroneous instruction was not harmless. We therefore reverse and remand.

Defendant and his family parked in a WinCo parking lot, and Santiago went inside the store. A short time later, defendant and his younger brother headed toward the store and, while in the crosswalk leading to the front of the store, got into a confrontation with a driver, Tate. Defendant accused Tate of hitting him with her car, and Tate denied hitting him. Tate parked her car and entered the store.

Defendant entered the store and found Santiago, who was at the customer service desk. He told Santiago that he had been hit by Tate's car in the parking lot. A WinCo employee at the customer service desk overheard and suggested that Santiago call the police. Heeding that suggestion, Santiago called 9-1-1 and relayed defendant's description of what had happened in the parking lot. Defendant remained nearby for all or much of the phone call, then went outside to wait for the police.

Officer Wingfield arrived on the scene and asked defendant if he was injured. Defendant responded that he was not injured but that the car had hit him, according to Wingfield, on his upper thigh.1 Defendant asked Wingfield to "do something" about the incident, and Wingfield agreed to investigate. After Wingfield observed that the fender and bumper on Tate's car, which was still parked in the parking lot, were situated much lower to the ground than defendant's upper thigh, however, he became concerned that defendant was lying about being hit. He asked defendant, "Is it possible you overstated what happened?" Defendant answered, "No, I got hit, and I want you to help me on this."

Tate came out of the store and identified herself as the driver but denied hitting defendant. After speaking with Tate, Wingfield warned defendant that initiating a false report could result in a criminal investigation against him. Defendant was adamant that Tate had hit him. Meanwhile, a different police officer was in the store watching security footage of the confrontation in the parking lot, so Wingfield agreed to wait with defendant for the officer to finish watching the tape. A few minutes later, Wingfield spoke with the other officer about the security footage, then returned to defendant and again asked him to "be honest" about the incident. Defendant maintained that Tate had hit him. According to Wingfield, he offered to watch the video with defendant and Santiago, but they declined and began to leave.2 Wingfield then arrested defendant for initiating a false report.

Defendant was charged by information with initiating a false report, ORS 162.375.3 He exercised his right to a jury trial, and, at trial, the parties disputed how the jury should be instructed on the charge. The state requested that the jury be instructed as follows, adding the italicized wording (which it derived from our decision in State v. Velasquez , 286 Or. App. 400, 400 P.3d 1018 (2017) ) to the uniform instruction on the elements of initiating a false report:

"A person commits the crime of or the offense of initiating a false report if the person initiates or sets going a report to a law enforcement agency, knowing that such information is false. Persons can act in concert to initiate a false report ."

(Emphasis added.)

The trial court initially was hesitant to grant the state's request, indicating that it was concerned that the "in concert" instruction could be misleading. It explained, "I don't mind instructing the jury that that is—that they can act together to initiate. But it's more than just being involved somehow in a false report. I think that's—I think that could be misleading to the jury." Defendant informed the court that he too thought that the "in concert" instruction was misleading. To remedy the issue, he proposed adding other instructions designed to "counterweigh and balance out" the state's "in concert" instruction, should the court elect to deliver it, suggesting two specific possible instructions in the course of discussions.

Ultimately, despite its initial misgivings, the court sided with the state over defendant's objection. It included the "in concert" instruction and declined to qualify it with either of defendant's suggested clarifying instructions.

During the state's closing argument, after describing defendant's confrontation with Tate, the state contended that defendant's conduct, alone or when taken together with his mother's act of calling 9-1-1, constituted initiating a false report:

"[C]riminal conduct is what happened next.
"[Defendant] went inside, went and found his mom at the WinCo. He told her what he said happened. And based upon that information, she called 911. He was there when she called 911. You heard during the 911 phone call she's talking to him, giving him instructions not to move.
"* * * * *
"So, based upon this 911 call, officers were dispatched. Officer Wingfield testified that he was the first one on the scene. Defendant was outside waiting for him. He was waiting for him, called him over. ‘Hey, I'm the one you're looking—I'm the one. I was the one hit by the car.’ Officer Wingfield said, ‘Do you want to file a report? Do you want us to investigate?’ And the defendant said, ‘Yes. Yes. I was hit by this car, I was hit intentionally. Yes, I want to file a report.’ That's why we're here today. These are the facts that show that the defendant initiated a false report that day [.]"

(Emphasis added.)

The instructions to the jury included the "in concert" wording. The jury returned a verdict of guilty.

Defendant appeals. He assigns error to the trial court's instruction that "[p]ersons can act in concert to initiate a false report." Much as he did below, defendant argues that that instruction was incomplete and inaccurate, and that it could have permitted the jury to reach a legally erroneous result.4 Defendant points out that the instruction, as taken from Velasquez , omits from the "in concert" wording the other qualifying words in that opinion—"in concert and simultaneously ."5 286 Or. App. at 405, 400 P.3d 1018 (emphasis added). The state contends that defendant's argument is unpreserved and unreviewable because defendant did not point out below that the instruction omitted "simultaneously."

We begin by addressing the state's contention that defendant's argument is unpreserved. Under ORAP 5.45(1), to preserve an issue for appellate review, a party typically must offer "an explanation of his or her objection that is specific enough to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately." State v. Wyatt , 331 Or. 335, 343, 15 P.3d 22 (2000). "The primary purposes of the preservation rule are to allow the trial court to consider a contention and correct any error, to allow the opposing party an opportunity to respond to a contention, and to foster a full development of the record." State v. Laune , 303 Or. App. 541, 547, 464 P.3d 459 (2020) (citing Peeples v. Lampert , 345 Or. 209, 219-20, 191 P.3d 637 (2008) ).

Reviewing the trial court record below, we conclude that defendant's assignment of error is preserved. His assignment of error is that the court should not have included the "in concert" wording in its instructions to the jury because that wording was incorrect under the law and misleading. Below, defendant and the court (and the state) discussed how the "in concert" instruction "could be misleading to the jury." Defendant therefore offered, at two separate points in the discussion, clarifying instructions designed to "balance out" the state's proposed instruction: one clarifying that defendant's conduct needed to be "proactive rather than reactive" to support a conviction for initiating a false report, and the other clarifying that merely lying in response to police questioning could not support such a conviction. See State v. Vanornum , 354 Or. 614, 632 n 11, 317 P.3d 889 (2013) ("[T]he terms of a requested, but refused, instruction may sometimes go a long way to putting a trial court on notice of the deficiency in the trial court's instructions if the requested instruction is not given."). More importantly, when the court indicated that it intended to include the state's proposed instruction, defendant objected. He argued that the instruction was "not an accurate statement of the law, because it...

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    ...on fraudulent concealment. We review whether the trial court erred in instructing the jury for legal error. State v. Morales , 307 Or. App. 280, 287, 476 P.3d 965 (2020).Defendants contend that the following two instructions regarding half-truths and concealment improperly omit a legally re......
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