State v. Reynolds

• Decision Date: 20 June 2012
• Docket Number: C081677CR, D065815M, D062475M, A142472 (Control), A142474,A142475.
• Citation: 280 P.3d 1046,250 Or.App. 516
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Margaret Anna REYNOLDS, aka Margaret Anne Reynolds, Defendant–Appellant.
• Court: Oregon Court of Appeals

250 Or.App. 516

280 P.3d 1046

STATE of Oregon, Plaintiff–Respondent,

v.Margaret Anna REYNOLDS, aka Margaret Anne Reynolds, Defendant–Appellant.

C081677CR, D065815M, D062475M, A142472 (Control), A142474, A142475.

Court of Appeals of Oregon, In Banc.

Argued and Submitted May 25, 2011.

Resubmitted en banc April 17, 2012.

Decided June 20, 2012.

Stephanie J. Hortsch, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Jennifer S. Lloyd, Assistant Attorney General, argued the cause for respondent. On the brief were John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Kristen G. Williams, Assistant Attorney General.

Before HASELTON, Chief Judge, and ARMSTRONG, WOLLHEIM, BREWER, SCHUMAN, ORTEGA, SERCOMBE, and NAKAMOTO, Judges.

SERCOMBE, J.

Defendant appeals a judgment of conviction for, among other offenses, two counts of assault in the third degree, ORS 163.165(1)(e). ¹ She raises several assignments of error, none of which are preserved. We write only to address her first assignment of error and reject the others without discussion. In her first assignment, defendant argues that the trial court erred in failing to enter a judgment of acquittal on one of the third-degree assault charges. Defendant contends that there was no evidence on which to base that conviction. Thus, defendant requests that we review the error as one apparent on the record under ORAP 5.45(1).² The state concedes that “the evidence in this record does not appear to support the conviction at issue” but argues that we should not exercise our discretion to correct the error under Ailes v. Portland Meadows, Inc., 312 Or. 376, 382, 823 P.2d 956 (1991). We conclude that the error was plain and exercise our discretion to correct it.

We state the relevant facts, which are few, in a light most favorable to the state. State v. Burgess, 240 Or.App. 641, 643, 251 P.3d 765 (2011). Defendant and Lemarroy stole money and drugs from the victim's apartment and fled the scene. The victim and his girlfriend, who discovered defendant and Lemarroy in the apartment during the commission of the crime, followed in hot pursuit. When the victim confronted the thieves, a fight broke out. The victim and Lemarroy, who had a knife, wrestled for control of the stolen property. Meanwhile, defendant and the victim's girlfriend fought nearby. Although the victim suffered multiple knife wounds, at no point during the melee did defendant inflict physical injury on the victim.³

Defendant was charged with numerous offenses for her involvement in those events. As relevant here, Count 13 of the indictment alleged that defendant committed third-degree assault against the victim, that is, that she “did unlawfully and knowingly cause physical injury to [the victim] while aided by another person actually present.” The case was tried to a jury. After the state had rested its case, defendant moved for a judgment of acquittal but advanced no specific argument in support of the motion:

“[DEFENSE COUNSEL]: Your Honor, I would be making a motion for judgment of acquittal at this time. I'm not making any argument.

“THE COURT: Okay. Any nonargument to the nonargument that you want to make on the record?

“[PROSECUTOR]: No, thank you.

“THE COURT: Okay. I believe, in the light most favorable to the state, there is sufficient evidence to send all counts to the trier of fact, so that will be to the jury. So the motion is denied.”

The jury ultimately convicted defendant of all charges.

Defendant now appeals, arguing that the trial court erred in failing to enter a judgment of acquittal on Count 13 because, at most, the evidence showed that she provided on-the-scene aid to another person (Lemarroy) who inflicted physical injury upon the victim. Defendant argues that, under State v. Merida–Medina, 221 Or.App. 614, 191 P.3d 708 (2008), rev. den.,345 Or. 690, 201 P.3d 910 (2009), that evidence is insufficient as a matter of law to prove that she committed third-degree assault. She acknowledges that her argument is unpreserved but contends that the error is plain and that we should exercise our discretion to correct it. The state argues that we should not review defendant's claim of error in light of the purposes of preservation.

Generally, we will not consider an unpreserved issue on appeal. State v. Wyatt, 331 Or. 335, 341, 15 P.3d 22 (2000). Nonetheless, we may review an unpreserved assignment of error as one “apparent on the record” under ORAP 5.45(1) if certain conditions are met: (1) the error is one of law; (2) the error is “apparent,” in that the “legal point is obvious, not reasonably in dispute”; and (3) the error appears “on the face of the record,” such that “[w]e need not go outside the record or choose between competing inferences to find it, and the facts that comprise the error are irrefutable.” State v. Brown, 310 Or. 347, 355, 800 P.2d 259 (1990). Even where those conditions are satisfied, we must determine whether to exercise our discretion to reach the error and correct it. Ailes, 312 Or. at 382, 823 P.2d 956.

The sufficiency of the evidence is a question of law, and we need not go outside the record or choose between competing inferences to resolve the issue in this case. See, e.g., State v. Inloes, 239 Or.App. 49, 243 P.3d 862 (2010) (reviewing sufficiency of the evidence argument as plain error). There is no evidence in the record that defendant personally inflicted physical injury on the victim. Thus, the question is whether she can nonetheless be found liable—either directly or as an accomplice—for her conduct and, if not, whether that legal point is obvious.

In State v. Pine, 336 Or. 194, 207, 82 P.3d 130 (2003), the Supreme Court held that

“the fact that a defendant provided on-the-scene aid to another person who inflicted physical injury upon a victim does not, in itself, render the defendant [directly] liable for third-degree assault * * *. Rather, such a defendant either must have inflicted physical injury directly himself or herself, or must have engaged in conduct so extensively intertwined with infliction of the injury that such conduct can be found to have produced the injury.”

Subsequently, in Merida–Medina, we held that, “in an assault in which the assailant is aided by another person who is actually present,” the aiding person cannot be found guilty of third-degree assault as an accomplice. 221 Or.App. at 616, 619–20, 191 P.3d 708. Those cases were both decided before trial in this case, and the legal points that they establish are not reasonably in dispute. Because defendant could not be held liable as an accomplice for third-degree assault, and because there was no evidence that her conduct was “so extensively intertwined with infliction of the injury” that she could be held directly liable, she was entitled to a judgment of acquittal on that third-degree assault charge. Cf. State v. Nefstad, 309 Or. 523, 543, 789 P.2d 1326 (1990), cert. den.,516 U.S. 1081, 116 S.Ct. 793, 133 L.Ed.2d 742 (1996) (restraining the victim while he was being stabbed constituted “personally” committing the homicide); State ex rel. Juv. Dept. v. K.C.W.R., 235 Or.App. 315, 230 P.3d 973 (2010) (youth's conduct in attacking the victim while a third person struck the victim with a bat was so extensively intertwined with the infliction of the injury that youth could be held directly liable for third-degree assault). Thus, the trial court committed plain error in entering a judgment of conviction on Count 13.

The question remains whether we should exercise our discretion to correct the error. Among the considerations relevant to that determination are

“the competing interests of the parties; the nature of the case; the gravity of the error; the ends of justice in the particular case; how the error came to the court's attention; and whether the policies behind the general rule requiring preservation of error have been served in the case in another way * * *.”

Ailes, 312 Or. at 382 n. 6, 823 P.2d 956. Related considerations may include whether the defendant in some way encouraged the trial court to make the error; whether the defendant made a strategic choice not to object; and whether the error could have been remedied if raised below. State v. Fults, 343 Or. 515, 523, 173 P.3d 822 (2007).

We have often declined to invoke plain error review where a defendant has failed to move for a judgment of acquittal, Inloes, 239 Or.App. at 54, 243 P.3d 862 (so noting), or where such a motion is unspecific as to its theory, State v. Schodrow, 187 Or.App. 224, 231 n. 5, 66 P.3d 547 (2003) (same). That is because the trial court has not, consistently with the purposes of preservation, been apprised of the issue and given an opportunity to avoid the error by allowing supplemental evidence to be introduced. See Peeples v. Lampert, 345 Or. 209, 219–20, 191 P.3d 637 (2008) (explaining that the policy reasons underlying the rule of preservation are procedural fairness to the opposing parties, development of a full record to facilitate review, and promotion of judicial efficiency). The state contends that the same restraint should be exercised when a defendant moves for, but does not argue in favor of, a judgment of acquittal.

Nonetheless, we conclude that there are sound reasons to correct the error in this case. First, the gravity of the error—an additional felony conviction based on insufficient evidence—is substantial. Defendant has a strong interest in having a criminal record that accurately reflects the nature and extent of her conduct. State v. Valladares–Juarez, 219 Or.App. 561, 564, 184 P.3d 1131 (2008) (so noting in the context of a failure to merge convictions); see also State v. Ryder, 230 Or.App. 432, 435, 216 P.3d 895 (2009) (imposition of additional felony conviction “strongly militates in favor of the exercise of discretion”).

Indeed, the error—entry of a criminal...