State v. Powe

• Decision Date: 22 September 2021
• Docket Number: A172584
• Citation: 314 Or.App. 726,497 P.3d 793
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Deonte Ahmad POWE, Defendant-Appellant.
• Court: Oregon Court of Appeals

314 Or.App. 726

497 P.3d 793

STATE of Oregon, Plaintiff-Respondent,

v.Deonte Ahmad POWE, Defendant-Appellant.

A172584

Court of Appeals of Oregon.

Submitted May 21, 2021.

September 22, 2021

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Laura A. Frikert, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Julia Glick, Assistant Attorney General, filed the brief for respondent.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.

AOYAGI, J.

Defendant was convicted of coercion constituting domestic violence, ORS 163.275 (Count 1), and fourth-degree assault constituting domestic violence, ORS 163.160 (Count 2). He was acquitted of interference with making a report, ORS 165.572 (Count 3). On appeal, defendant contends that the trial court erred in denying his motion for judgment of acquittal (MJOA) on the coercion charge. He also challenges both of his convictions on Sixth Amendment grounds. We conclude that the trial court erred in denying defendant's MJOA and, accordingly, reverse the coercion conviction. As for the assault conviction, we reverse and remand, because the conviction was based on a nonunanimous verdict in violation of the Sixth Amendment.

SIXTH AMENDMENT

Defendant asserts that the trial court violated the Sixth Amendment by instructing the jury that it could find him guilty by nonunanimous verdict and then by accepting the jury's verdicts. The jury was polled, establishing that defendant was found guilty of assault by nonunanimous verdict (10-2) and guilty of coercion by unanimous verdict (12-0). Under Ramos v. Louisiana , 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020), the trial court erred in convicting defendant of assault based on a nonunanimous verdict, the state concedes the error, and we reverse and remand that conviction. We reject defendant's Sixth Amendment argument as to the coercion conviction, however, for the reasons stated in State v. Flores Ramos , 367 Or. 292, 334, 478 P.3d 515 (2020), and State v. Kincheloe , 367 Or. 335, 339, 478 P.3d 507 (2020), cert. den. , ––– U.S. ––––, 141 S. Ct. 2837, ––– L. Ed. 2d ––––, No. 20-8126 (June 21, 2021).

MJOA - COERCION

Defendant asserts that the trial court erred in denying his motion for judgment of acquittal on the coercion charge, because the evidence was insufficient as a matter of law to convict him of that crime. We review the denial of a motion for judgment of acquittal to determine whether, viewing the facts and all reasonable inferences that may be drawn therefrom in the light most favorable to the state, a rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. State v. Wakefield , 292 Or. App. 694, 695, 425 P.3d 491 (2018). We state the facts in accordance with that standard.

Defendant and H had previously dated and were "still talking." One evening, they met at a bar, and, at the end of the night, defendant agreed to give H a ride home. They argued during the car ride. Upon arriving outside H's home, defendant told H to get out of the car. As H gathered her belongings, defendant "got mad" and told her that it was taking too long. H responded that she would not get out of the car until she had her shoes on (which she had removed during the ride) and her belongings. Defendant got out of the car, walked to the passenger side, and opened the door. He grabbed H by the hair, dragging her out of the car and down the sidewalk for a distance of about a car length. Defendant threw H's belongings onto the ground and gave H her dog, who had been in the hatchback area with defendant's dog. Believing defendant had driven away, H called 9-1-1. Within 30 seconds into the call, defendant reappeared, took the phone from H's hand, and smashed it to the ground. Defendant punched H hard in the eye, causing an orbital fracture

, and then drove away.

H passed out for a few seconds. When she came to, defendant was gone, and she called out for help as she lay on the sidewalk. A passing bicyclist stopped to help her. H was in pain and needed assistance to get up. An ambulance transported H to the hospital. She had scratches, bruises, and abrasions, and she required surgery for her orbital fracture

.

Defendant was indicted on charges of coercion, fourth-degree assault, and interference. As to coercion, the indictment charged that defendant "did unlawfully and knowingly compel and induce [H] to engage in conduct from which [H] had a legal right to abstain, by means of instilling in [H] fear that if [H] refrained from the conduct compelled and induced, defendant would unlawfully cause physical injury to [H]."

At trial, upon defendant's request, the trial court required the state to make an election on the coercion count, i.e. , to specify the conduct that defendant had allegedly compelled H to engage in by instilling fear that he would physically injure her if she refrained from it. The state elected H's being pulled out of the car and dragged down the street. Specifically, the state told the court that defendant had compelled and induced H

"through the act of pulling her out of a car and dragging her down the street. She had a legal right to abstain from either of those acts, and she was in one act pulled out of the car and dragged down the street, and he instilled a fear that if she didn't do that, that he would be violent towards her. He instilled that fear by actually being violent towards her."

Soon thereafter, defendant moved for a judgment of acquittal, arguing that the evidence was insufficient as a matter of law to establish coercion. The state opposed the motion, reiterating its position that defendant had coerced H to be dragged down the sidewalk by dragging her down the sidewalk:

"She says, ‘Wait a minute, I'm trying to get my belongings. I'm trying to get my shoes, I'm trying to get my purse.’ She was not ready to leave that car, and she made that clear to Mr. Powe. He then acted, by pulling her out of that car. I asked her, ‘Did you want to go down that sidewalk?’ She said, ‘No.’ She was engaged in moving down that sidewalk as a result of his behavior, as a result of his act. She went approximately a car length down the sidewalk being dragged by her hair. This is something that she was compelled to do, she had no other choice but to do this, because of his act."

The trial court denied the MJOA, stating without elaboration that the evidence was sufficient to go to the jury. The jury subsequently found defendant guilty of coercion.

ORS 163.275(1) defines the crime of coercion as follows:

"A person commits the crime of coercion when the person compels or induces another person to engage in conduct from which the other person has a legal right to abstain, or to abstain from engaging in conduct in which the other person has a legal right to engage, by means of instilling in the other person a fear that, if the other person refrains from the conduct compelled or induced or engages in conduct contrary to the compulsion or inducement, the actor or another will:

"(a) Unlawfully cause physical injury to some person;

"(b) Unlawfully cause physical injury to some animal;

"(c) Unlawfully cause damage to property;

"(d) Engage in conduct constituting a crime;

"(e) Falsely accuse some person of a crime or cause criminal charges to be instituted against the person; "(f) Cause or continue a strike, boycott or other collective action injurious to some person's business, except that such a threat is not deemed coercive when the act or omission compelled is for the benefit of the group in whose interest the actor purports to act;

"(g) Testify falsely or provide false information or withhold testimony or information with respect to another's legal claim or defense; or

"(h) Unlawfully use or abuse the person's position as a public servant by performing some act within or related to official duties, or by failing or refusing to perform an official duty, in such manner as to affect some person adversely."

Thus, coercion requires a person to use fear of a particular consequence as a means to "influence or persuade a victim to alter his or her course of conduct—to do something that the victim otherwise would not have done or to not do something which the victim otherwise would have done." State v. Pedersen , 242 Or. App. 305, 312, 255 P.3d 556, rev. den. , 351 Or. 254, 264 P.3d 1285 (2011) (emphases added). As the Supreme Court said about a prior version of the coercion statute, "[t]he target of the law is the effective use of fear to induce compliance with a demand." State v. Robertson , 293 Or. 402, 418, 649 P.2d 569 (1982).

In State v. Phillips , 206 Or. App. 90, 96-97, 135 P.3d 461, rev. den. , 341 Or. 548, 145 P.3d 1109 (2006), we affirmed the denial of motions for judgment of acquittal on two coercion charges where there was evidence that two child victims complied with the defendant's demands to stay at his apartment because he had instilled in them a fear that he would physically injure them if they did not comply. Similarly, in State v. McNair , 290 Or. App. 55, 59, 413 P.3d 1017, rev. den. , 362 Or. 860, 418 P.3d 761 (2018), the evidence was sufficient for a coercion charge to go to the jury where the defendant ordered the victim to sit on a couch, and she...