State v. Werdell

• Decision Date: 26 October 2005
• Docket Number: 01CR0750; A119326.
• Citation: 122 P.3d 86,202 Or. App. 413
• Parties: STATE of Oregon, Respondent, v. Lee Scott WERDELL, Appellant.
• Court: Oregon Court of Appeals

122 P.3d 86

202 Or. App. 413

STATE of Oregon, Respondent, v.Lee Scott WERDELL, Appellant.

01CR0750; A119326.

COURT OF APPEALS OF OREGON.

Argued and Submitted March 17, 2004.

Decided October 26, 2005.

Robert J. McCrea, Eugene, argued the cause for appellant.With him on the briefs was McCrea, P.C.

Joanna L. Jenkins, Assistant Attorney General, argued the cause for respondent.With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before LANDAU, Presiding Judge, and ORTEGA, Judge, and KANTOR, Judge pro tempore.

KANTOR, J. pro tempore.

Defendant's son, Everts, was arrested in Curry County.Everts's girlfriend, Hagen, found a gun at a campsite in Curry County where Everts had been camping at the time of his arrest.Everts was a convicted felon and was on probation; he was not permitted to possess any firearms.ORS 166.270(1).Hagen took the gun to her house.Shortly thereafter, she called defendant at his home and told him about the gun.Defendant drove to Hagen's house, took the gun to Applegate Lake, and threw it into the deepest part.Defendant's home, Hagen's home, and Applegate Lake are all in Jackson County.Defendant was charged with, and convicted of, hindering prosecution.¹On appeal, he contends that Curry County was the wrong venue in which to bring the charge against him because all of his actions took place in Jackson County.He also argues that, because Everts was already in police custody, his actions could not have hindered Everts's "discovery or apprehension."On review for errors of law, we affirm.

The underlying facts are not in dispute.On October 13, 2000, Everts and Vigil were camping in Curry County and fishing in a drift boat near the mouth of the Rogue River.They took the boat out into the ocean despite storm conditions and rough seas.The boat capsized; Vigil drowned.After being rescued, Everts admitted that he had been drinking alcohol at the campground.The police did not believe that they had probable cause to arrest him for boating under the influence of intoxicants, but he was taken into custody for violating probation by consuming alcohol.He was lodged in the Curry County jail.On October 15, the investigating officer concluded that there was probable cause to arrest Everts for boating under the influence and reckless operation of a motorboat, so he issued Everts citations for those crimes.

Meanwhile, on October 14, Hagen and her son retrieved Everts's truck from the boat landing.They also went to the campsite where Everts and Vigil had been staying.While gathering their belongings, Hagen found a gun in a container that she and Everts owned.She and her son took all of the belongings and Everts's truck to her home.While unloading the truck, she found a bottle of tequila behind the seat.The bottle had been opened; part of the contents were gone.The following day, Hagen spoke with defendant on the telephone and told him about the gun and the liquor.Defendant drove to her house and asked her for those items.When she showed him where they were, defendant told her, "You never saw this."When he left, he took the gun and the liquor.Defendant threw the liquor into the garbage and then disposed of the gun at Applegate Lake.From the time that he spoke with Hagen on the telephone until he disposed of the gun, defendant never left Jackson County.²

Sometime thereafter, Everts was released from jail for the probation violation.The boating-related charges were still pending against him.The relationship between Everts and Hagen ended after Everts assaulted her and was charged with assault in Jackson County. Law enforcement officials in Curry County learned about the assault charge and contacted Hagen.She informed them about the gun and the tequila.

A Curry County grand jury subpoenaed defendant to testify about Everts's possession of the gun.Defendant testified truthfully about what had happened.The grand jury returned an indictment charging defendant with two counts of hindering prosecution by disposing of the liquor and the gun.

Defendant demurred to the indictment on the ground that venue was not alleged in either count.The trial court denied the demurrer.The case then was tried to a jury.At the close of the state's case-in-chief, defendant moved for judgment of acquittal on both counts.He argued that the state had not established venue because, he contended, none of his actions had taken place in Curry County.Defendant also asserted that ORS 162.325, the hindering prosecutionstatute, did not apply because, in his view, neither the gun nor the liquor could have aided in the discovery or apprehension of Everts because, when defendant disposed of them, Everts was already in custody.The court rejected defendant's venue argument, ruling that, under ORS 131.315(10),³ the charges could be brought either in the county where Everts committed the underlying offenses or in the county where defendant's hindering actions took place.With respect to defendant's second argument, the court concluded that a jury could not find that the tequila might have aided in the discovery or apprehension of Everts; it granted the motion for judgment of acquittal on that count.However, the court denied the motion as to the other count.It reasoned that, although Everts was already in custody when defendant disposed of the gun, his involvement with the justice system was unrelated to his having been a felon in possession of a firearm.The court concluded that a jury could find that the gun, had it been available, could have aided in Everts's apprehension for that crime.At the close of trial, defendant renewed the motion, again without success.After the jury returned a guilty verdict, the court entered a judgment of conviction.This appeal followed.

Defendant makes two assignments of error, in which he renews the arguments that he made before the trial court.In the first, he argues that the court erred in concluding that venue was proper in Curry County.Specifically, he contends that ORS 131.315(10) violates Article I, section 11, of the Oregon Constitution, which provides, in part, that a criminal trial must be held "in the county in which the offense shall have been committed[.]"In his second assignment of error, defendant again argues that ORS 162.325 does not prohibit the destruction of evidence in a situation such as the one here.Because defendant's second assignment of error presents nonconstitutional grounds upon which we might resolve this case, we address that assignment first.State v. Doern,156 Or.App. 566, 571, 967 P.2d 1230(1998), rev. den.,328 Or. 666, 987 P.2d 515(1999).

As noted, ORS 162.325(1)(e) criminalizes destruction of evidence if, "with intent to hinder the apprehension, prosecution, conviction or punishment of a person who has committed a crime punishable as a felony," the actor conceals, alters, or destroys evidence that "might aid in the discovery or apprehension of such person."Defendant argues that the statute does not apply because, at the time that he destroyed or concealed the firearm, Everts already was known to the authorities and, in fact, was confined at the Curry County Jail, albeit on other charges.The state responds that the fortuity of Everts being in a police station at the moment that defendant destroyed or concealed the firearm does not relieve defendant of responsibility for interfering in Everts's "discovery or apprehension" for the underlying felony that he had committed.According to the state, the statutory reference to interfering with the "discovery or apprehension" of a person necessarily refers to discovery or apprehension for the relevant underlying offense.For the following reasons, we agree with the state.

The parties' dispute turns on the meaning of ORS 162.325, which we determine by examining the text of the statute in context and, if necessary, legislative history and other aids to construction in an effort to determine the meaning most likely intended by the legislature.PGE v. Bureau of Labor and Industries,317 Or. 606, 610-12, 859 P.2d 1143(1993).

ORS 162.325 provides, in part,

"(1) A person commits the crime of hindering prosecution if, with intent to hinder the apprehension, prosecution, conviction or punishment of a person who has committed a crime punishable as a felony, or with the intent to assist a person who has committed a crime punishable as a felony in profiting or benefiting from the commission of the crime, the person:

"* * * * *

"(e) Suppresses by an act of concealment, alteration or destruction physical evidence which might aid in the discovery or apprehension of such person[.]"

"Discovery," as the term is used in this context, refers to "the act, process, or an instance of gaining knowledge of or ascertaining the existence of something previously unknown or unrecognized."Webster's Third New Int'l Dictionary 647 (unabridged ed. 2002)."Apprehension," as the term is used in this context, ordinarily refers to "the taking by legal, esp. criminal, process : ARREST."Id. at 106.

At the outset, we note that the statute applies when a person suppresses evidence that might aid in the discovery or apprehension of another.Thus, it is not, as defendant appears to suggest, required that the suppression actually have interfered in the discovery or apprehension of the other person.

Aside from that, the statute applies when there is suppression of evidence that might aid in the discovery or apprehension of "such person."The reference to "such person" is clearly to the provision in the opening subsection of the statute, that is, "a person who has committed a crime punishable as a felony."The statute thus focuses on the suppression of evidence that might link a person with the commission of a particular crime, not with merely identifying and arresting the person, without regard to the reason.A person who is in custody for an unrelated offense — say, a...