State v. Zelinka

• Decision Date: 24 January 1995
• Docket Number: P-3292
• Parties: STATE of Oregon, Respondent, v. Randy Daniel ZELINKA, Appellant. 90; CA A72874.
• Court: Oregon Court of Appeals

Page 624

882 P.2d 624

130 Or.App. 464

STATE of Oregon, Respondent, v. Randy Daniel ZELINKA, Appellant.

90P-3292; CA A72874.

Court of Appeals of Oregon.

Argued and Submitted July 27, 1993.

Decided Oct. 5, 1994.

Petitions for Review Denied Jan. 24, 1995.

[130 Or.App. 465-A] Peter Gartlan, Deputy Public Defender, argued the cause and filed the brief for appellant.

Janie M. Burcart, Asst. Atty. Gen., argued the cause for respondent. With her on the brief were Theodore R. Kulongoski, Atty. Gen., Virginia L. Linder, Sol. Gen., and Kaye M. Sunderland, Asst. Atty. Gen.

Before DEITS, P.J., and RICHARDSON, C.J., and HASELTON, ^* J.

HASELTON, Judge.

Defendant appeals his conviction, following a jury trial, for three counts of murder by abuse, ORS 163.115(1)(c), ¹ and criminal mistreatment. ORS 163.205(1)(a). ² Defendant was sentenced to life imprisonment with a mandatory minimum term of 25 years. We affirm the convictions and remand for merger of the murder by abuse convictions and for resentencing.

We view the evidence in the light most favorable to the state. State v. Tucker, 315 Or. 321, 325, 845 P.2d 904 (1993). Defendant and his domestic partner, Karen Tracy, had four children. The victim, Michelle, was 23 months old at the time of her death. Her siblings, Corrine, Samuel and Angela, were six years, five years and six months old, respectively.

Upon returning home from work on September 18, 1990, defendant saw Michelle on a table where she was not allowed to be. Defendant jerked her off the table and onto the floor, with Michelle possibly hitting the arm of a chair as she fell. Samuel testified that defendant stomped on Michelle, while she was on the floor. Defendant then kicked her and used his foot to lift her into a chair. Defendant also slapped Michelle. She suffered a rupture of her small intestine, an injury caused by trauma. She died the next day of peritonitis, an infection of the abdominal cavity caused by seepage of fecal matter from the small intestine.

An external examination of Michelle revealed bruises on her head, arm and back. An autopsy revealed more bruises and seven rib fractures in various stages of healing, including rib fractures near her spine, which suggested "violent compression" of the torso.

On the day of Michelle's death, defendant and Tracy were interviewed by Detective Stoelk at the police station, and the remaining children were taken into custody by Children's Services Division (CSD). Two days after Michelle's death, Stoelk contacted defendant and Tracy at a motel across from the police station, where they were staying, and Tracy accompanied him to the station for further questioning. Stoelk asked both defendant and Tracy to come to the station the next morning for further questioning.

The following morning Stoelk questioned Tracy and defendant separately at the station. During the course of a polygraph exam, Tracy said that defendant told her that he had kicked Michelle the night before she died. While alone with defendant, Stoelk told him the cause of Michelle's death and asked if she had suffered any injuries, specifically whether Michelle had been kicked. Defendant shook his head indicating "no" to questions about injuries and orally responded "no, no, she wasn't kicked." Defendant initially agreed to take a polygraph exam as well, but, after being read a consent form containing Miranda-like ³ warnings, defendant declined to take the exam without first consulting an attorney.

At that point, defendant left the police station. Approximately two hours later, Stoelk spoke with defendant at his motel room, and defendant admitted, "I did it, I kicked her." Stoelk told defendant that they needed to continue talking about the death at the police station. Defendant accompanied Stoelk to the station and gave two taped statements. Before the first, Stoelk reminded defendant that he had been read Miranda warnings earlier that day. Defendant said that he remembered. Before the second statement, defendant was specifically given Miranda warnings. In the statements, defendant admitted yanking Michelle off the table and then lifting her off the floor using his foot.

Defendant was indicted on four counts of aggravated murder by abuse ⁴ and two counts of criminal mistreatment in the first degree. He was convicted of murder by abuse, manslaughter and criminal mistreatment. Defendant demurred to the indictment on several grounds and assigns error to the trial court's disallowance of the demurrer.

Defendant first argues that aggravated murder by abuse is not a crime and that the indictment is, therefore, "void ab initio," invalidating his convictions for the lesser included offenses of murder by abuse and manslaughter. However, we do not decide whether aggravated murder by abuse is a crime.

"[W]here a defect related to an allegation [in an indictment] does not affect the validity of the conviction on any properly alleged underlying offense, the appropriate remedy is to affirm the conviction on the underlying offense and remand for resentencing."

State v. Ferrell, 315 Or. 213, 224, 843 P.2d 939 (1992). There is no dispute that defendant's indictment properly alleged the lesser included offenses of murder by abuse and manslaughter. Any defect in charging aggravated murder by abuse did not affect the validity of defendant's convictions on those underlying offenses. See State v. Ferrell, supra.

Defendant next argues that the murder by abuse statute is unconstitutionally vague under Article I, sections 20 and 21 of the Oregon Constitution, and under the Fourteenth Amendment to the United States Constitution. Because the statute does not implicate First Amendment rights, the appropriate inquiry is "whether the statute is constitutional as applied to defendant under these circumstances." State v. Butterfield, 128 Or.App. 1, 8, 874 P.2d 1339, rev. den. 319 Or. 625 (1994). As in Butterfield, defendant makes no argument that the statute is vague as applied to him. Accordingly, we do not consider his challenge.

Defendant also argues that ORS 163.115(1)(c) is unconstitutionally overbroad because it, hypothetically, encompasses fact situations beyond those intended by the legislature. ⁵ That is not an "overbreadth" challenge.

"A claim of 'overbreadth' cannot properly assert that the words of the law, read literally, are broader than the lawmaker intended, for that is an issue to be resolved by interpretation." State v. Robertson, 293 Or. 402, 410, 649 P.2d 569 (1982).

Defendant's final challenge to the indictment is that it fails to specify the prior incidents of assault or torture constituting the requisite "pattern or practice." ⁶ An indictment must contain:

"[a] statement of the acts constituting the offense in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended[.]" ORS 132.550(7).

The functions of an indictment are:

"(1) to inform the defendant of the nature of the crime with sufficient particularity to enable him to make his defense, (2) to identify the offense so as to enable the defendant to avail himself of his conviction or acquittal thereof if he should be prosecuted further for the same cause, and (3) to inform the court of the facts charged so that it may determine whether or not they are sufficient to support a conviction." State v. Montez, 309 Or. 564, 597, 789 P.2d 1352 (1990).

Generally, an indictment in the language of the relevant statute is sufficiently definite and certain. State v. Montez, supra, 309 Or. at 597, 789 P.2d 1352.

Defendant, however, argues that under State v. Kincaid, 78 Or.App. 23, 714 P.2d 624 (1986), an indictment charging an individual with a crime requiring proof of predicate offenses must allege those predicate offenses with particularity. Defendant's reliance on Kincaid is misplaced. In that case, the defendant was charged with unlawful racketeering activity in violation of the Oregon Racketeer Influenced and Corrupt Organization Act (ORICO). To prove the crime charged in the indictment, the state was required to prove two predicate offenses. The predicate offenses alleged in the indictment were "thefts in the first degree." The defendant argued that the indictment failed because, without information as to which incidents of theft the state intended to prove, he could not prepare a defense. We agreed with the defendant in that case for two reasons, neither of which is present here. First, the ORICO statutory language was insufficient to apprise the defendant of the particular circumstances that made his conduct criminal. Second, the availability of discovery in that case, because of its large volume, was unlikely to inform the defendant of the specific criminal conduct the state intended to prove.

In this case, the indictment sufficiently apprised defendant of the particular circumstances that made his conduct criminal. Unlike Kincaid, the indictment alleged that defendant "previously engaged in a pattern or practice of assault or torture" on his individually named children. ⁷ Moreover, it would be unworkable to require the state to particularize incidents of assault. The young ages of the victims (and Michelle's death) made it impossible for the state to identify the times more precisely, and the date of the past incidents is not a material element of the offense. See State v. Wood, 112 Or.App. 61, 69, 827 P.2d 924, rev. den., 313 Or. 355, 833 P.2d 1284 (1992). Finally, in this case, the discovery provided to defendant ⁸ was likely to adequately inform him of the instances of assault on which the state would rely. The court did not err in disallowing defendant's demurrer to the indictment.

Defendant's second assignment of error is that the trial court improperly permitted the state to use acts committed before the enactment of ORS 163.115(1)(c) to prove defendant's "pattern or practice of assault or torture." Defendant contends that this violates...