State v. Shields

• Decision Date: 22 November 2017
• Docket Number: A160497
• Citation: 289 Or.App. 44,407 P.3d 940
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Paul Kay SHIELDS, Defendant-Appellant.
• Court: Oregon Court of Appeals

289 Or.App. 44
407 P.3d 940

STATE of Oregon, Plaintiff-Respondent,
v.
Paul Kay SHIELDS, Defendant-Appellant.

A160497

Court of Appeals of Oregon.

Argued and submitted April 21, 2017.
November 22, 2017

Erica Herb, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Erin K. Galli, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Armstrong, Presiding Judge, and Shorr, Judge, and Wollheim, Senior Judge.

SHORR, J.

289 Or.App. 46

Defendant appeals a judgment convicting him of burglary in the first degree, ORS 164.225 ; robbery in the second degree, ORS 164.405 ; identity theft, ORS 165.800 ; and possession of methamphetamine, ORS 475.894. Defendant assigns error to the trial court's refusal to instruct the jury on the guilty except for insanity (GEI) defense, ORS 161.295, and to the trial court's refusal to include a GEI defense option on the jury verdict form. We conclude that the trial court did not err in either respect. Therefore, we affirm.

"We review the record to determine whether defendant presented any evidence to support the defenses he sought to assert and evaluate that evidence in the light most favorable to defendant." State v. Miles , 197 Or. App. 86, 88, 104 P.3d 604, rev. den. , 338 Or. 488, 113 P.3d 435 (2005).

The undisputed facts on appeal are as follows. Defendant first broke into a home, confronted the homeowners with a gun, and demanded cash, a debit card, and the "PIN" code for the card. He then used the card to withdraw money from an automated teller machine. Two days later, defendant robbed an adult video store. He was arrested at a bus stop after a police officer responding to the robbery recognized him based on a description that had been provided by one of the video store's owners. Defendant was carrying a waist pack containing needles and methamphetamine, and a backpack containing, among other things, items stolen from the store. The state subsequently charged defendant by indictment with burglary, robbery, identity theft, and possession of methamphetamine.

At the request of defense counsel, defendant was evaluated by Dr. Truhn, a psychologist licensed by the Oregon Board of Psychological

407 P.3d 942

Examiners to perform aid-and-assist evaluations and mental defense evaluations. Truhn evaluated defendant twice for the purpose of offering his opinion on whether defendant could aid and assist in his defense, first about one month after defendant's arrest and again several months later. In the interim, defendant was remanded to the Oregon State Hospital. Once the trial court found defendant fit to aid and assist in his own defense,

289 Or.App. 47

Truhn evaluated defendant a third time, again at defense counsel's request, for the purpose of offering testimony at trial in support of a potential GEI defense.

At trial, defendant requested that the court give the uniform criminal jury instruction on the GEI defense, Uniform Criminal Jury Instruction 1121-22, and include a GEI defense option on the verdict form. The trial court refused. The jury later found defendant guilty of all charges.

On appeal, defendant assigns error to the trial court's refusal to instruct the jury on GEI and to provide a GEI defense option on the verdict form. Defendant argues that he presented sufficient evidence from which a jury could find that he was guilty but insane, as defined by ORS 161.295, at the time of his crimes. In the state's view, defendant failed to provide any evidence from which a jury could find the requisite elements of the GEI defense.

Whether the evidence entitles a defendant to a jury instruction on an affirmative defense is governed by the statutory requirements for establishing the defense. We review a trial court's ruling not to give an instruction on an affirmative statutory defense for legal error, "viewing the record in the light most favorable to defendant to determine whether a jury permissibly could find the statutory elements of the defense from the facts or evidence contained in the record." State v. Freih , 270 Or. App. 555, 556, 348 P.3d 324 (2015). The trial court may withhold an affirmative defense to a criminal charge from the jury only if there is no evidence in the record to support one or more elements of the defense. Id.

A defendant seeking to establish a GEI defense under ORS 161.295 must show that, at the time of the crime, as a result of a mental disease or defect (which does not include a personality disorder or general antisocial behavior), the defendant lacked the substantial capacity to appreciate the criminality of his conduct or to conform that conduct to the requirements of law.¹

289 Or.App. 48

State v. Peverieri , 192 Or. App. 229, 232, 84 P.3d 1125 (2004). The issue here is whether defendant presented "any evidence" of each of the foregoing elements.

The primary source of evidence from which a jury could find the statutory elements of the GEI defense in this case was Truhn's trial testimony. Truhn based his testimony on his two aid-and-assist evaluations, each of which comprised a series of sessions, and one GEI evaluation of defendant.² At trial, Truhn testified that, based on the tests that he administered to defendant during his first aid-and-assist evaluation, defendant's intelligence scores were "relatively uniform and very low." He explained that defendant was in the "second percentile," or the "extremely low range of abilities," for verbal comprehension, which "takes into account abstract reasoning, general fund of knowledge and long-term memory, [and] knowledge of common sense reasoning and ability to solve day-to-day problems." In addition, defendant was in the twelfth percentile, or the "low average range of abilities," for perceptual reasoning, and the fourth percentile for processing

407 P.3d 943

speed. Truhn agreed that he "found [defendant] very low functioning overall."

Truhn also explained that, during his initial evaluations, defendant was "consistently humming, snorting, [and] making clicking noises." When he asked defendant about those behaviors, defendant explained that they were in response to voices in his head, which Truhn believed to be "persistent auditory hallucinations." Truhn explained that defendant's "intellectual and cognitive functioning [might have been] impaired due to psychotic symptoms." Truhn noticed similar symptoms in his later aid-and-assist evaluations, but noted that they had decreased. He could not say

289 Or.App. 49

whether that decrease could be attributed to antipsychotic medication administered by the state hospital, discontinuation of regular methamphetamine use, both, or neither.

When asked about his specific diagnoses, Truhn testified that he initially diagnosed defendant, under the criteria listed in the American Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) (DSM-5), with "unspecified schizophrenic spectrum and other psychotic disorder," and "stimulant use disorder, severe, amphetamine-type substance," as well as "rule-outs" for "schizoaffective disorder, bipolar type," "post traumatic stress disorder," "borderline personality features," and "unspecified neurocognitive disorder."³...