State v. Soto

• Decision Date: 19 October 2022
• Docket Number: A174899,A174900
• Citation: 322 Or.App. 449
• Parties: STATE OF OREGON, Plaintiff-Respondent, v. DEMETRIO MEDINA SOTO, aka Demetrio Soto, Defendant-Appellant.
• Court: Oregon Court of Appeals

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322 Or.App. 449

STATE OF OREGON, Plaintiff-Respondent, v. DEMETRIO MEDINA SOTO, aka Demetrio Soto, Defendant-Appellant.

A174899, A174900

Court of Appeals of Oregon

October 19, 2022

This is a Nonprecedential Memorandum Opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

Submitted June 24, 2022

Marion County Circuit Court 18CR75404, 18CR47005; Thomas M. Hart Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Rond Chananudech, Deputy Public Defender, Offce of Public Defense Services, fled the briefs for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael A. Casper, Assistant Attorney General fled the briefs for respondent.

Before James, Presiding Judge, and Aoyagi, Judge, and Joyce, Judge.

JOYCE, J.

Defendant appeals from judgments of conviction in two cases that were consolidated for a bench trial. In the first, the trial court convicted defendant of first-degree criminal trespass and telephonic harassment. In the second, the trial court convicted defendant of first-degree kidnapping, first-degree sodomy, first-degree burglary, strangulation constituting domestic violence, fourth-degree assault constituting domestic violence, and menacing. Defendant raises five assignments of error. For the reasons that follow, we affirm.

MOTION FOR JUDGMENT OF ACQUITTAL

In his first assignment of error, defendant contends that the trial court erred in denying his motion for judgment of acquittal (MJOA) on the first-degree kidnapping charge. On review of a denial of an M JOA, "we view the evidence in the light most favorable to the state to determine whether a rational trier of fact, making reasonable inferences, could have found the essential elements of the crime proved beyond a reasonable doubt." State v. Lewis, 266 Or.App 523, 524, 337 P.3d 199 (2014) (quoting State v Hall, 327 Or. 568, 570, 966 P.2d 208 (1998)). We conclude that the trial court correctly denied defendant's MJOA.

In the light most favorable to the state, the relevant facts are as follows. In October 2018, defendant forced himself inside the victim's apartment, wrapped his arms around her, carried her into the primary bedroom, and threw her onto the bed. Defendant then took her cellphone out of her hand, searched the apartment for other people, closed her children's bedroom door, shut the window in the primary bedroom, and turned up the volume of the music that was playing in the bedroom. Defendant dragged the victim into the bathroom by her hair, closed the door, and then proceeded to assault and sodomize her. Defendant punched the victim and told her to "be quiet" and "shut up" any time she made a noise. Defendant also told her to "sit back down" when she tried to stand up off the bathroom floor and "pushed [her] back into the [primary] bedroom" when she tried to escape. The state subsequently charged defendant with first-degree kidnapping. As to that charge, the state was required to prove that (1) defendant took the victim from one place to another, (2) with intent to interfere substantially with the victim's personal liberty, (3) without consent or legal authority, (4) with the purpose of causing her physical injury. ORS 163.225(1)(a); ORS 163.235(1)(c); State v. Walch, 346 Or. 463, 468, 213 P.3d 1201 (2009).

In his MJOA, defendant challenged two aspects of the state's evidence. He first argued that the state failed to prove that the victim's ending place-the bathroom-was qualitatively different from her starting place-the front door. Specifically, defendant claimed that the movement did not serve to increase the victim's isolation because both locations were within the same apartment and the victim was already isolated within her own apartment. See State v. Sierra, 349 Or. 506, 513, 254 P.3d 149 (2010), adh'd to as modified on recons, 349 Or. 604, 247 P.3d 759 (2011) (a defendant moves a victim from one place to another "only when the defendant changes the position of the victim such that, as a matter of situation and context, the victim's ending place is qualitatively different from the victim's starting place."); see also State v. Washington, 266 Or.App. 133, 138-39, 337 P.3d 859 (2014), rev den, 356 Or. 767 (2015) (an important consideration when determining whether two places are qualitatively different is "whether the movement served to limit the victim's freedom of movement and increase the victim's isolation" (quoting Walch, 346 Or at 475)). Defendant also argued that the state failed to adduce sufficient evidence that he intended to interfere substantially with the victim's personal liberty. The trial court denied the motion, concluding that the state had offered sufficient evidence as to both elements.

We agree with the trial court. We reject defendant's argument that the victim's ending place was not qualitatively different than her starting place for the same reasons that we previously articulated in Washington. 266 Or.App. at 138-41 (a reasonable factfinder could find that the defendant increased the victim's isolation by moving her from the front door of her apartment, an area where neighbors might have seen her, to a more isolated place within her apartment before raping her). Here, as in Washington, a reasonable factfinder could find that defendant increased the victim's isolation by moving her from the front door of her apartment, an area where her children might have seen her, to the bathroom, a more isolated part of the apartment that could only be accessed through the primary bedroom, before assaulting and sodomizing her.

We also conclude that the record contained sufficient evidence that showed that defendant intended to interfere substantially with the victim's personal liberty. As to that element, "our review narrows to whether a rational jury could find that [the defendant] intended to interfere substantially with [the victim]'s personal liberty, including her 'freedom of movement', such that the abduction was not merely incidental to other related, but independent, crimes." State v. Worth, 274 Or.App. 1, 11-12, 360 P.3d 536 (2015), rev den, 359 Or. 667 (2016) (internal citations, quotations marks, and brackets omitted). Here, the state offered evidence that defendant physically restrained the victim by wrapping his arms around her when he moved her from the front door to the bedroom. He then confined the victim to the bathroom with the door closed,^[1] thwarting any escape attempts by punching her and telling her to "shut up" any time she made noise. He also told the victim to "sit back down" when she tried to stand up and he pushed her back into the bedroom when she tried to escape. Based on that evidence, a rational trier of fact could find that defendant intended to interfere substantially with the victim's personal liberty such that the abduction was not merely incidental to, or that it facilitate[d] and furthered] the commission of, defendant's other crimes.

CONSECUTIVE SENTENCES

In his second assignment of error, defendant contends that the trial court erred in ordering that a portion of the sentences on the first-degree kidnapping and first-degree sodomy convictions run consecutively to one another under ORS 137.123(5)(a) and (b).^[2] The trial court imposed partial consecutive sentences after finding that "the decision to commit the sodomy, while you were exercising power and control in the form of domestic violence with regard to the kidnap and the burglary, justifies a consecutive sentence[]"

We review a trial court's imposition of consecutive sentences for errors of law and determine whether the trial court's predicate factual findings are supported by "any evidence" in the record. State v. Traylor, 267 Or.App. 613, 615-16, 341 P.3d 156 (2014). With that standard of review in mind, we have reviewed the record and conclude that the trial court's imposition of consecutive sentences under subsection (5Xa) was proper.^[3]

MOTION TO SEVER

In his third and fourth assignments of error, defendant contends that the trial court erred in denying his motion to sever. In addition to the October incident, in July 2018,^[4] defendant entered the victim's apartment unannounced and without permission (in fact, the victim had told defendant earlier that day that he could not come over). The victim and her friend repeatedly asked defendant to leave the apartment, but he refused to do so until the friend called 9-1-1. When law enforcement arrived, the victim reported that defendant had been calling and messaging her excessively, despite her requests that he stop. On that day alone, defendant had called and messaged her at least twenty times, and he called her while the officers were taking her statement. The state subsequently charged defendant with first-degree criminal trespass and telephonic harassment.

On the state's motion, the trial court joined the July and October offenses. Defendant later challenged the joinder and moved to sever, arguing that, even if the cases were properly joined, he was substantially prejudiced by their joinder.^[5] Both of those issues are legal determinations that we review for errors of law. State v. Dewhitt, 276 Or.App. 373, 380, 368 P.3d 27, rev den, 359 Or. 667 (2016) (whether the charging instruments were properly joined); State v. Miller, 327 Or. 622, 629, 969 P.2d 1006 (1998) (whether joinder of the offenses was likely to cause prejudice).

We start by considering whether the charges were properly joined under ORS 132.560. ORS 132.560(2) provides that a trial court may consolidate two or more charging instruments if they meet the circumstances described in ORS 132.560(1)(b), which are as follows:

"* * * the offenses charged are alleged to have been committed by the same

...