State v. Parkins, CC CR0500337.

CourtSupreme Court of Oregon
Writing for the CourtLinder
Citation346 Or. 333,211 P.3d 262
Decision Date25 June 2009
Docket NumberCC CR0500337.,CA A130219.,SC S056356.
PartiesSTATE of Oregon, Respondent on Review, v. Steven Donald PARKINS, Petitioner on Review.
211 P.3d 262
346 Or. 333
STATE of Oregon, Respondent on Review,
v.
Steven Donald PARKINS, Petitioner on Review.
CC CR0500337.
CA A130219.
SC S056356.
Supreme Court of Oregon, En Banc.
Argued and Submitted February 9, 2009.
Decided June 25, 2009.

[211 P.3d 263]

On review from the Court of Appeals.*

Daniel J. Casey, Portland, argued the cause and filed the briefs for petitioner on review.

Paul L. Smith, Assistant Attorney General, Salem, argued the cause for petitioner on review. With him on the brief were John R. Kroger, Attorney General, and Erika L. Hadlock, Acting Solicitor General.

LINDER, J.


346 Or. 335

In this criminal case, defendant was convicted of, among others charges, one count of first-degree kidnapping and six counts of first-degree sexual abuse. On appeal to the Court of Appeals, defendant raised several challenges to his convictions and sentences. The Court of Appeals affirmed without opinion. State v. Parkins, 220 Or.App. 314, 185 P.3d 1132 (2008). We allowed defendant's petition for review, which raises two of the issues that defendant presented to the Court of Appeals. First, defendant contends that his kidnapping conviction should be overturned because the evidence failed to show that the victim was "secretly confine[d] * * * in a place where [she was] not likely to be found." ORS

211 P.3d 264

163.225(1)(b).1 Second, defendant contends that the trial court should have merged his separate convictions for first-degree sexual abuse because the six separate counts of the indictment represented different legal theories for proving three acts of sexual abuse. For the reasons we set forth below, we agree with both of defendant's arguments. We therefore reverse the Court of Appeals decision and remand the case to the trial court for further proceedings.

Because this appeal arises in part from the trial court's denial of defendant's motion for judgment of acquittal, we state the facts underlying defendant's conviction in the light most favorable to the state. State v. Casey, 346 Or. 54, 56, 203 P.3d 202 (2009). The incidents alleged in the indictment took place during the summer of 2003. The victim, who was 11 years old, lived with her mother, Furlow, and her older sister, in her mother's home. Defendant was a friend of Furlow's then-boyfriend, Olney, and visited the mother's home that summer.

One day during that summer, Furlow and Olney left defendant alone at the house with the victim and her older

346 Or. 336

sister. The victim's sister was on the porch smoking a cigarette, and defendant was in Furlow's bedroom. The victim asked her sister where she had gotten the cigarette, and her sister replied that defendant gave it to her. The victim then walked down the hall and passed by her mother's bedroom. Defendant offered the victim a cigarette. The victim went into the bedroom and grabbed a cigarette from the headboard of the bed. When the victim turned around to ask for a lighter, defendant shut and locked the bedroom door. Defendant pushed her onto the bed, climbed on top of her, and held her down by putting his knees on her shoulder. Defendant kissed the victim. When the victim screamed, defendant struck her in the face and threatened to burn her with his cigarette. Defendant put his hands under the victim's shirt and touched her breasts. At another point, he put his hand down the victim's pants and inserted his fingers into her vagina. Defendant also touched victim's buttocks. The victim tried to scream and to move, but defendant told her "to stop screaming because no one would hear [her] and no one would care." At some point, the victim's sister rattled the doorknob to the locked bedroom. Defendant let the victim up, and she unlocked the door and ran out of the room.

Based on those events, defendant was indicted in 2005 for one count of first-degree unlawful sexual penetration, one count of second-degree unlawful sexual penetration, six counts of first-degree sexual abuse, and one count of first-degree kidnapping. After a bench trial, the court found defendant guilty on all counts. The trial court sentenced defendant to 100 months' imprisonment for first-degree unlawful sexual penetration, 75 months' imprisonment for second-degree unlawful sexual penetration, 75 months' imprisonment for each count of first-degree sexual abuse, and 90 months' imprisonment for first-degree kidnapping, with all sentences to be served concurrently.

As noted, defendant appealed to the Court of Appeals, which affirmed without opinion. Defendant then petitioned for review, raising two issues: (1) whether a person is "secretly confine[d] * * * in a place where the person is not likely to be found," as required for the kidnapping charge (ORS 163.225(1)(b)), when another person knew where

346 Or. 337

the victim was located; and (2) whether defendant's six convictions for first-degree sexual abuse should have been merged into three convictions, when those convictions were based on different legal theories for proving three acts of sexual abuse. We address each issue in turn.

In considering the legal sufficiency of the evidence on the first-degree kidnapping charge, we first address the state's contention that defendant did not preserve his challenge to the first-degree kidnapping charge.

211 P.3d 265

At the close of the state's case, apparently anticipating that defendant would move for a judgment of acquittal, the state alerted the trial court to the Court of Appeals opinion in State v. Montgomery, 50 Or.App. 381, 386-87, 624 P.2d 151 (1981). In doing so, the state described Montgomery as "an important case with regard to the kidnapping charge," because that opinion analyzed the "secretly confined" and "place not likely to be found" elements of ORS 163.225(1)(b). After the state called the court's attention to Montgomery, the trial court recessed briefly. When the proceedings resumed, defendant moved for a judgment of acquittal.

In moving for a judgment of acquittal, defendant discussed Montgomery and attempted to distinguish that case:

"I know [the state] referred, before the break, to State v. Montgomery, which is a case regarding a person being secreted. And although I would factually distinguish the present case from the Montgomery case in that the individual that this took place — that the individual who did secret or attempt to secret or hold [the victim], did not follow the dictates set out I think in Montgomery in that there wasn't any attempt to secret her in the sense of when somebody rattled the door, people exited the room apparently. There were other people — at least one other person, no matter what version you believe, in the trailer, which was certainly by all accounts not difficult to hear throughout, and the sister, being the only one there, her being present in the trailer or at the furthest, present on the porch, which in some respects may even be closer to physically to the room that [the victim] claims this took place in, was certainly within ear shot, and any cry would have been heard and could have been heard, seems to defeat the secreting aspect that is referred to in Montgomery."

346 Or. 338

Immediately after that statement, defendant continued, "However, as the Court knows from the entire case from opening statement to now, that's not our issue. Our issue is not a nit-picking argument regarding specific elements and specific crimes." (Emphasis added.) Defendant explained that he was "simply saying that there's insufficient evidence, as a whole" to conclude that defendant committed any criminal acts as charged. That was consistent with defendant's overall theory of the case, which was that the abuse either had not occurred at all or that the perpetrator had been someone else who sometimes visited the family, and who better matched the victim's description of the perpetrator. The trial court thereafter denied defendant's motion for judgment of acquittal. In doing so, the trial court specifically stated:

"I do believe that there's sufficient evidence on the Kidnapping count to support the allegations set forth in the Indictment, particularly the evidence that was brought up by the State, that there were attempts by [the victim] to seek help and to scream, but that the Defendant told her that nobody would hear and nobody would care. And, in light of that evidence, I believe that that charge is legally sound in this case."

(Emphasis added.)

In arguing that defendant did not preserve the argument that he now makes, the state points to defendant's statements after his discussion of Montgomery and asserts that those statements steered the trial court away from the legal issue of whether the alleged conduct constituted "secret confine[ment] * * * in a place where the person is not likely to be found," as that phrase is used in ORS 163.225(1)(b). According to the state, defendant urged the trial court to focus instead on whether there was sufficient evidence to establish that any crime occurred and, if one had occurred, whether defendant was the person who had committed it. In the state's view, the trial court did not have an adequate opportunity to consider the argument that defendant now presses.

The general rule is that claims of error that have not been raised in the trial court will not be considered on appeal. State v. Wyatt, 331 Or. 335, 341, 15 P.3d 22 (2000); ORAP 5.45.

346 Or. 339

"The purpose of the preservation rule is the practical one of requiring a defendant to provide an explanation of his or her position `specific enough to ensure that the [trial] court can identify its alleged error

211 P.3d 266

with enough clarity to permit it to consider and correct the error immediately, if correction is warranted.'"

State v. Amaya, 336 Or. 616, 629, 89 P.3d 1163 (2004) (quoting Wyatt, 331 Or. at 343, 15 P.3d 22).

The state relies on State v. Chavez, 335 Or. 44, 48, 56 P.3d 923 (2002), as a case arising on analogous facts in which this court held that defendant had...

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113 practice notes
  • State v. Weaver, CC CR1400331 (CA A161899) (SC S066636)
    • United States
    • Supreme Court of Oregon
    • September 3, 2020
    ...17 State v. Clemente-Perez , 357 Or. 745, 359 P.3d 232 (2015) ; State v. Walker , 350 Or. 540, 258 P.3d 1228 (2011) ; State v. Parkins , 346 Or. 333, 211 P.3d 262 (2009). This is manifestly not such a case. Defendant raised the issue of Orren's plea agreement before the trial court. He retu......
  • State v. Nelson, A154617
    • United States
    • Court of Appeals of Oregon
    • November 30, 2016
    ...opinion to "sexual abuse" when referencing those three guilty verdicts.5 The state argues in its answering brief that State v. Parkins , 346 Or. 333, 211 P.3d 262 (2009), reflects that approach. Nevertheless, the state acknowledged at oral argument that Parkins did not address the precise i......
  • State v. Sanelle, A156503.
    • United States
    • Court of Appeals of Oregon
    • September 7, 2017
    ...particular record of a case, the court concludes that the policies underlying the rule have been sufficiently served." State v. Parkins , 346 Or. 333, 341, 211 P.3d 262 (2009). Moreover, the"fact that the level of detail or thoroughness with which a party articulates a position may leave so......
  • State v. Bray, CC 11FE1078
    • United States
    • Supreme Court of Oregon
    • July 5, 2018
    ...particular record of a case, the court concludes that the policies underlying the rule have been sufficiently served." State v. Parkins , 346 Or. 333, 341, 211 P.3d 262 (2009).Here, we conclude that the state raised, at least in a general sense, in both the trial court and the Court of Appe......
  • Request a trial to view additional results
113 cases
  • State v. Weaver, CC CR1400331 (CA A161899) (SC S066636)
    • United States
    • Supreme Court of Oregon
    • September 3, 2020
    ...17 State v. Clemente-Perez , 357 Or. 745, 359 P.3d 232 (2015) ; State v. Walker , 350 Or. 540, 258 P.3d 1228 (2011) ; State v. Parkins , 346 Or. 333, 211 P.3d 262 (2009). This is manifestly not such a case. Defendant raised the issue of Orren's plea agreement before the trial court. He retu......
  • State v. Nelson, A154617
    • United States
    • Court of Appeals of Oregon
    • November 30, 2016
    ...opinion to "sexual abuse" when referencing those three guilty verdicts.5 The state argues in its answering brief that State v. Parkins , 346 Or. 333, 211 P.3d 262 (2009), reflects that approach. Nevertheless, the state acknowledged at oral argument that Parkins did not address the precise i......
  • State v. Sanelle, A156503.
    • United States
    • Court of Appeals of Oregon
    • September 7, 2017
    ...particular record of a case, the court concludes that the policies underlying the rule have been sufficiently served." State v. Parkins , 346 Or. 333, 341, 211 P.3d 262 (2009). Moreover, the"fact that the level of detail or thoroughness with which a party articulates a position may leave so......
  • State v. Bray, CC 11FE1078
    • United States
    • Supreme Court of Oregon
    • July 5, 2018
    ...particular record of a case, the court concludes that the policies underlying the rule have been sufficiently served." State v. Parkins , 346 Or. 333, 341, 211 P.3d 262 (2009).Here, we conclude that the state raised, at least in a general sense, in both the trial court and the Court of Appe......
  • Request a trial to view additional results

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