State v. Odoms
| Decision Date | 09 December 1992 |
| Citation | 117 Or.App. 1,844 P.2d 217 |
| Parties | STATE of Oregon, Respondent, v. Donald Gonzales ODOMS, Appellant. C88-10-36961; CA A60041. |
| Court | Oregon Court of Appeals |
Howard Clyman, West Linn, for appellant.
Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., and Ann Kelley, Asst. Atty. Gen., Salem, for respondent.
Before BUTTLER, P.J., JOSEPH, C.J., and ROSSMAN, J.
Defendant was convicted by a jury of kidnapping in the first degree, ORS 163.235, rape in the first degree, ORS 163.375, sodomy in the first degree, ORS 163.405, compelling prostitution, ORS 167.017, promoting prostitution, ORS 167.012, robbery in the third degree, ORS 164.395, operating a motor vehicle while revoked under an habitual offender order, former ORS 811.185 (repealed by Or.Laws 1991, ch. 208, § 1), and felony driving while revoked. ORS 811.175. Some of his assignments of error were decided in State v. Odoms, 104 Or.App. 658, 803 P.2d 739 (1990), aff'd in part and rev'd in part 313 Or. 76, 829 P.2d 690 (1992). Now, on remand from the Supreme Court, we consider the remaining assignments.
Defendant assigns error to the trial court's denial of his motions for judgment of acquittal on the kidnapping, rape, sodomy and robbery charges. 1 We view the record in the light most favorable to the state to determine whether any rational trier of fact could have found the essential elements of each crime beyond a reasonable doubt. State v. Walton, 311 Or. 223, 241-42, 809 P.2d 81 (1991).
State v. King, 307 Or. 332, 339, 768 P.2d 391 (1989).
The charges arose from events that occurred over a period of three or four days in September, 1988. Early in the morning of September 24 or 25, the complaining witness, Kidwell, was kicked out of the house where she had been staying. She went to a restaurant to make a phone call. She did not make the call from there, however, because "there was like a lot of people there * * * [a]nd they were all just talking about pimp stuff," and she was "paranoid." While there, she was accosted in her car by a pimp. Defendant and another man offered to help her to get the pimp to leave her alone. She accepted their help. After that, the people in the area began "talking gross" to her. She ultimately left with defendant in his car. The record reflects that, when asked why she went with him, she replied:
Defendant and Kidwell then drove around in defendant's car until morning. When they returned to the restaurant, a window in Kidwell's car had been broken, and all of her belongings were missing. Defendant then took her to an apartment where some of his friends lived. That night, defendant instructed Kidwell about how to be a prostitute. The next day the two argued about Kidwell becoming a prostitute, and Kidwell tried to persuade defendant that she could do something else for him, such as sell drugs. When asked why she did not simply leave, she testified, "I was scared to."
Over the next two or three days, Kidwell had sexual intercourse with defendant, engaged in sodomy with him, worked as a prostitute for him and signed a paper that defendant used to sell her car. He kept the money for himself. During those days, defendant hit Kidwell on at least one occasion, because she had not brought him enough money. When asked whether that money was for committing sex acts with people, she testified,
At some point during the three days, defendant drove Kidwell from Portland to Salem so that she could pick up some clothes at her sister's house. She testified that she did not use that opportunity to escape from defendant, because she feared that he might hurt her sister or her nephew. On September 28, Kidwell was picked up by police. Her face was bruised. She told them what had happened.
Defendant argues that the state failed to prove that he took Kidwell from one place to another without her consent, because the record contains no evidence that he forced, threatened or deceived her. 2 Although there is no evidence that defendant used physical force when Kidwell first left the restaurant with him, there is evidence from which the jury could infer that he used threats or deception to induce her to go with him from one place to another on at least one occasion. See, e.g., State v. Amell, 303 Or. 355, 736 P.2d 561 (1987). He also argues that there is no evidence that his purpose was to cause physical injury or to terrorize Kidwell. The evidence supports an inference that his purpose was, at a minimum, to compel her into prostitution. That is enough. 3 See State v. Caldwell, 98 Or.App. 708, 780 P.2d 789 (1989); State v. Strickland, 36 Or.App. 119, 584 P.2d 310 (1978). The trial court properly denied the motion for judgment of acquittal on the kidnapping charge.
Defendant's assignments regarding rape, sodomy and robbery are all similarly based on an apparent, but mistaken, belief that the evidence had to show that some specific act of violence was associated with each event. "Forcible compulsion," as used in ORS 163.375(1)(a) and ORS 163.405(1)(a), includes "a threat, express or implied, that places a person in fear of immediate or future death or physical injury to self or another person." ORS 163.305(2). (Emphasis supplied.) Similarly, to satisfy that element of robbery in the third degree, the state must prove only that a defendant used or threatened to use physical force. ORS 164.395. The record contains evidence from which a rational jury could infer that defendant threatened, expressly or impliedly, to use physical force against Kidwell on each of the occasions for which a crime was charged. The trial court did not err.
Defendant assigns error to the trial court's decision to sentence him as a dangerous offender 4 and to impose consecutive dangerous offender sentences. There is no reason why a court cannot impose consecutive dangerous offender sentences, State v. Piazza, 41 Or.App. 465, 602 P.2d 280, rev. den. 288 Or. 141 (1979), but his other argument merits discussion.
Before it can impose a dangerous offender sentence, the court must first
"declare that [it] has reason to believe that because of the dangerousness of the defendant an extended period of confinement is required for the protection of the public and make appropriate findings on the record to justify that belief." State v. Huntley, 302 Or. 418, 437, 730 P.2d 1234 (1986).
It must also find that
"the defendant is being sentenced for a Class A felony or a felony that seriously endangered the life or safety of another and has been previously convicted of a felony not related to the instant crime as a single criminal episode." 302 Or. at 437.
Then the judge must order a presentence report and psychiatric examination and hold a presentence hearing (unless the defendant waives that right) to consider the presentence and examination reports and the evidence in the case or the evidence presented at the presentence hearing. ORS 161.735(6); State v. Huntley, supra. The court then must find whether
"(1) the defendant is dangerous, (2) because of the dangerousness of the defendant an extended period of confinement is required for the protection of the public, and (3) the defendant is suffering from a severe personality disorder indicating a propensity toward criminal activity." 302 Or. at 437.
The trial court made those findings, but defendant argues that they were not supported by the record, because the state's expert had not evaluated him personally since 1980. The expert's opinion was based in part on his conclusion that defendant had been convicted of assaults before, on police...
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State v. Hall
...the robbery. Therefore, defendant committed four separate offenses." 34 Or.App. at 941-42, 580 P.2d 567. Second, in State v. Odoms, 117 Or.App. 1, 5, 844 P.2d 217 (1992), rev. den. 316 Or. 529, 854 P.2d 940 (1993), we affirmed a conviction for robbery in the third degree and, in so doing, c......
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State v. Parkerson
...part that the offender may serve, but from which the offender may be released to post-prison supervision." (Emphases in original.)). [2] In Odoms, the argued on appeal that the trial court's dangerous offender findings "were not supported by the record, because the state's expert had not ev......
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State v. Jimenez
...and in fact did, compel the victim to submit to sexual intercourse with him against her will when he requested it. Cf. State v. Odoms, 117 Or.App. 1, 844 P.2d 217 (1992), rev. den., 316 Or. 529, 854 P.2d 940 (1993) (setting forth circumstances under which a rational jury could infer that th......
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State v. Trice
...Dangerous Offenders, Council of Judges of the National Council on Crime and Delinquency (2d ed 1974). See also State v. Odoms, 117 Or.App. 1, 7, 844 P.2d 217 (1992) (sentencing court is not bound by psychiatric expert's We conclude that the trial court made the findings required by the stat......