State v. Ockerman

• Docket Number: A176053
• Decision Date: 29 November 2023
• Parties: STATE OF OREGON, Plaintiff-Respondent, v. ROBERT EARL OCKERMAN, Defendant-Appellant.
• Court: Oregon Court of Appeals

1

329 Or.App. 343

STATE OF OREGON, Plaintiff-Respondent,
v.
ROBERT EARL OCKERMAN, Defendant-Appellant.

A176053

Court of Appeals of Oregon

November 29, 2023

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

Submitted February 27, 2023.

Lane County Circuit Court 19 CR 61723 Bradley A. Cascagnette, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Matthew Blythe, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Paul L. Smith, Deputy Solicitor General, fled the brief for respondent.

Before Ortega, Presiding Judge, and Powers, Judge, and Hellman, Judge.

[329 Or.App. 344] HELLMAN, J.

2

Defendant appeals his judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010. On appeal, he raises two assignments of error. In the first, defendant argues that the trial court erred when it refused to give the less-satisfactory-evidence instruction. In the second, defendant argues that the trial court erred when it imposed a mandatory minimum $2,000 fine because the jury did not make any findings as to defendant's blood alcohol content (BAC) as required for imposition of that fine. For the reasons below, we vacate the portion of the judgment imposing the $2,000 fine, remand for resentencing, and otherwise affirm.

Jury Instruction. Under ORS 10.095, the jury is "to be instructed by the court on all proper occasions" as follows:

"(7) That evidence is to be estimated, not only by its own intrinsic weight, but also according to the evidence which it is in the power of one side to produce and of the other to contradict; and, therefore

"(8) That if weaker and less satisfactory evidence is offered when it appears that stronger and more satisfactory evidence was within the power of the party, the evidence offered should be viewed with distrust."

What constitutes a "proper occasion" for giving an instruction under ORS 10.095 is a question of law. State v. Payne, 366 Or. 588, 607, 468 P.3d 445 (2020).

We have held that, "[t]he less-satisfactory-evidence instruction is to be given when (1) other evidence was reasonably available on a fact in issue, and (2) there is a basis for the jury to conclude that the other evidence is stronger and more satisfactory than the evidence...