State v. Vaughan-France, A155485

• Decision Date: 29 June 2016
• Docket Number: A155485
• Citation: 379 P.3d 766,279 Or.App. 305
• Parties: State of Oregon, Plaintiff–Respondent, v. Demetrius Lavel Vaughan–France, aka Demetrius Lavell Vaughanfrance, Defendant–Appellant.
• Court: Oregon Court of Appeals

279 Or.App. 305

379 P.3d 766

State of Oregon, Plaintiff–Respondent,

v.Demetrius Lavel Vaughan–France, aka Demetrius Lavell Vaughanfrance, Defendant–Appellant.

A155485

Court of Appeals of Oregon.

Argued and submitted January 27, 2016.

June 29, 2016

David O. Ferry, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Doug M. Petrina, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Armstrong, Presiding Judge, and Egan, Judge, and Shorr, Judge.

SHORR

, J.

Defendant appeals a judgment convicting him of various crimes that arose out of defendant's attack and confinement of his then-girlfriend at a Eugene-area motel. He raises nine assignments of error. We initially divide those assignments of error into two groups, those that assign error to the trial court's decisions during trial and those that assign error to the court's post-trial sentencing decisions.

In the first group, defendant raises three assignments of error. Defendant first contends that the trial court erred when it failed to dismiss a prospective juror for cause for actual bias. In his second assignment, defendant claims that the trial court erred when it denied defendant's motion for a judgment of acquittal on a first-degree kidnapping charge. In his third assignment, defendant claims that the trial court also erred when it denied defendant's motion for a judgment of acquittal on a second-degree assault charge. We write to address the first and second assignments of error and, as discussed below, we affirm the trial court with respect to those assignments of error. With respect to the third assignment of error, we reject that assignment without further discussion.

As to the fourth through ninth assignments of error, relating to sentencing issues, the state concedes in response to the fourth assignment of error that the trial court erred when it imposed an upward departure on Count 3 (coercion) based, in part, on the mere existence of a pending Washington state arrest warrant. We agree that the trial court so erred and accept the state's concession. Because we remand for resentencing on the fourth assignment of error, we do not reach defendant's remaining assignments of error five through nine relating to additional sentencing issues. Accordingly, we affirm defendant's convictions, but remand for resentencing.

We state the facts that gave rise to the convictions below in the light most favorable to the state. State v. King , 307 Or. 332, 339, 768 P.2d 391 (1989)

. On the night of May 6, 2013, the victim was staying in a Eugene-area motel room with defendant, who was her boyfriend at the time. Three acquaintances and the manager of the hotel were at least aware that she was staying in the motel room that night.

During the night, defendant saw a text on the victim's phone from a male friend. Defendant did not like the content of the text and started raising his voice and arguing with the victim. Defendant then took the victim's phone and started hitting her on the side of the head with it. The victim got up to leave, but defendant pulled out a knife and threatened her. Defendant continued to hit her and move the knife around her, which the victim assumed caused the bleeding on her head. After noticing that the victim was bleeding, defendant grabbed her by the hair and dragged her into the shower. While the victim was in the shower, defendant started to kick her in the back. During the attack, defendant threatened the victim that he would assault her family if she got him in trouble.

As a result of defendant hitting the victim with her cell phone, it shattered and was rendered inoperable. At some point during the night, defendant also unplugged the motel room phone.

Later during the attack, defendant appeared to calm down and the victim made her way toward the door. Defendant grabbed a knife, brought it up the victim's back and cut her leg in the process. Defendant forced the victim back onto the bed in the motel room. At various points, he also strangled and bit the victim. During the attack, defendant kept two knives open and out in one of his hands. He kept the knives near the victim for hours and occasionally pushed them against her.

At some point during the attack, a man came to the door to ask for his television remote control back. Defendant told the victim to hide in the bathroom. The victim thought about trying to run out at that point, but was scared that defendant would follow through on his threats to harm her family. Defendant and the victim had, earlier in the evening, met the man who had come to the door and had borrowed the remote control from him.

At another point in the night, likely earlier in the evening, a person from the neighboring room heard yelling from defendant. The neighbor came over to defendant and the victim's room to check on things. Defendant visited with the neighbor outside the motel room. During the ordeal, the victim was told to be quiet and understood that, if she made a noise, her throat would be slit.

The victim believed the attack in the hotel room lasted from roughly midnight to 6:00 a.m. Defendant finally stopped his attack and began to calm down around dawn the next morning when the victim began telling defendant things he wanted to hear. The victim then told defendant that they should change motel rooms because someone had probably heard the commotion and yelling in their room. She told defendant that he should go ahead of her to the next motel so as not to raise suspicions in light of her physical condition. After defendant left the motel room, the victim contacted the motel manager and went back to her room to call 9–1–1.

With those background facts in view, we turn to a discussion of the applicable law. As noted, among other charges, the state charged defendant with first-degree kidnapping. ORS 163.235(1)(d)

provides that a person is guilty of the crime of first-degree kidnapping if he commits second-degree kidnapping, defined in ORS 163.225, with the purpose “[t]o terrorize the victim or another person.” ORS 163.225(1), in turn, provides, in part:

“A person commits the crime of kidnapping in the second degree if, with intent to interfere substantially with another's personal liberty, and without consent or legal authority, the person:

“ * * * * *

“(b) Secretly confines the person in a place where the person is not likely to be found.”

The state's theory, based on the facts recounted above, is that defendant violated ORS 163.225(1)(b)

by secretly confining the victim in the motel room in general and in the bathroom in particular so she would not be seen or heard, even by a visitor to the room, while assaulting her and threatening her and her family if she spoke.

At the close of the state's case, defendant moved for a judgment of acquittal on the first-degree kidnapping charge. Among other things, defendant argued that the state did not present evidence that the victim was secretly confined in a place where she was unlikely to be found because a few people were aware she was staying in the motel room. Defendant also argued that any purported confinement or interference with the victim's liberty was merely incidental to the other criminal conduct at issue and, as a result, could not give rise to the separate crime of kidnapping. The trial court denied defendant's motion for judgment of acquittal on the first-degree kidnapping charge, concluding that there was sufficient evidence from which a reasonable juror could find that defendant intended to secretly confine the victim away from people, particularly when he forced her into the bathroom and threatened her to remain silent in an effort to hide her from a visitor.

THE MOTION FOR JUDGMENT OF ACQUITTAL ON THE FIRST–DEGREE KIDNAPPING CHARGE

As noted, defendant assigns error to the trial court's denial of his motion for judgment of acquittal on the first-degree kidnapping charge. Defendant raises some of the same arguments that he raised below, primarily focusing on the argument that the state did not present evidence of confinement “in a place where [the victim] was not likely to be found,” ORS 163.225(1)(b)

, and that any purported kidnapping was merely incidental to the other charged crimes.

In reviewing a denial of a motion for judgment of acquittal, we view the evidence in the light most favorable to the state, resolving any conflicts in the evidence in favor of the state, and then draw all reasonable inferences in the state's favor. State v. Walker , 356 Or. 4, 6, 333 P.3d 316 (2014)

. After doing so, we then determine if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” King , 307 Or. at 339, 768 P.2d 391. “Our decision is not whether we believe defendant is guilty beyond reasonable doubt, but whether the evidence is sufficient for a jury so to find.” Id .

We begin our analysis with the text of the relevant statute, ORS 163.225(1)(b)

, and its context. State v. Gaines , 346 Or. 160, 166, 206 P.3d 1042 (2009). Under the state's secret-confinement theory, the state was required to prove that defendant “[s]ecretly confine[d] the person in a place where the person is not likely to be found.” ORS 163.225(1)(b). Defendant claims that, because several people—including the motel staff, a mutual friend who had visited before the attack, and the acquaintance who returned the remote—were aware that the victim was staying in the motel room that evening, defendant could not have “secretly” confined her in the motel room or the bathroom within the motel room, because the motel room was the location where she was “likely to be found.”

Both we and the Supreme Court have examined the text of ORS 163.225(1)(b)

and interpreted the phrase “[s]ecretly confine[d] * * * in a place where the person is not likely to be found.” See ...