State v. Brockway

544 P.3d 433

330 Or.App. 640

STATE of Oregon, Plaintiff-Respondent,

v.Shawn Mitchell BROCKWAY, Defendant-Appellant.

A176595

Court of Appeals of Oregon.

Argued and submitted November 15, 2023.

February 14, 2024

Clackamas County Circuit Court, 20CR27780; Amy B. Lindgren, Judge.

Daniel C. Silberman, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Jon Zunkel-deCoursey, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

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

AOYAGI, P. J,

₆₄₂Defendant appeals a judgment of conviction for harassment, ORS 166.065(3). He raises four assignments of error, arguing that the trial court erred by (1) denying his motion for a continuance; (2) failing to sua sponte give a concurrence instruction to the jury; (3) denying his motion for a judgment of acquittal; and (4) ordering him to perform community service as part of his sentence. We conclude that the court properly denied the motion for a judgment of acquittal. However, we agree with defendant that the court abused its discretion when it denied defendant’s request for at least a short continuance to investigate information provided by the state on the morning of trial, as relevant to the complaining witness’s potential bias. We therefore reverse and remand for a new trial. Given our disposition, we need not address the second and fourth assignments of error.

FACTS

The harassment charge against defendant arises from an incident that took place on a rural property where defendant resides with his elderly mother and selves as the caretaker. Defendant discovered F sleeping in an outbuilding on the property, called 9-1-1 to report the trespass, and took action to remove F from the outbuilding. There is conflicting evidence as to exactly what defendant did to remove F.

According to the state’s version of events, around 5:30 a.m., defendant awoke F by yelling at him and shining a flashlight in his eyes, then sprayed mace or pepper spray at F’s face. After stepping outside to call 9-1-1, defendant returned, again told F to leave, began physically removing him, sprayed F again, and, once outside, threw a metal object at F’s head. F walked down the hill, where he met the police, who arrested him for trespassing. Defendant was somewhat uncooperative with the police. Defendant denied to the police that he had used pepper spray on F, but admitted pushing F, hitting F with a flashlight, and throwing a container at F.

According to the version of events most favorable to defendant, defendant opened the outbuilding door and yelled at F to get out, called 9-1-1 multiple times, never entered the ₆₄₃outbuilding, never had any physical contact with F, never sprayed anything at F, yelled at F to leave when F exited the out-building without his belongings and tried to shake defendant’s hand, and threw a plastic milk crate and a flashlight at F.

MOTION FOR JUDGMENT OF ACQUITTAL

[1] Defendant raised the defense-of-premises defense at trial. That defense provides that "[a] person in lawful possession or control of premises is justified in using physical force upon another person when and to the extent that the person reasonably believes it necessary to prevent or terminate what the person reasonably believes to be the commission or attempted commission of a criminal trespass by the other person in or upon the premises." ORS 161.225(1). Once the defense was raised, the state had the burden of disproving it beyond a reasonable doubt. ORS 161.055(1). Defendant moved for a judgment of acquittal on the defense-of-premises defense, arguing that the evidence was legally insufficient for the state to disprove the defense.

[2] Our task on review of the denial of a motion for judgment of acquittal is to examine the evidence "in the light most favorable to the state to determine whether a rational trier of fact, accepting reasonable inferences and reasonable credibility choices, could have found the essential element of the crime beyond a reasonable doubt." State v. Cunningham, 320 Or, 47, 63, 880 P.2d 431 (1994), cert. den., 514 U.S. 1005, 115 S.Ct. 1317, 131 L.Ed.2d 198 (1995).

Viewing the record in the light most favorable to the state, a rational trier of fact could find that defendant used a greater degree of physical force than was reasonably necessary to remove F from the premises. See ORS 161.225(1) (permitting the use of physical force only "to the extent that the person reasonably believes it necessary" to terminate an act of criminal trespassing); Warren v. Baldwin, 140 Or App 318, 333, 915 P.2d 1016, rev. den., 324 Or. 229, 925 P.2d 908 (1996) (recognizing that the defense-of-premises defense requires both a reasonable belief that a person is committing a qualifying crime and a reasonable belief that the degree of force used is "necessary under the circumstances"). That is not the only ₆₄₄finding that a jury could make, but it is one that this record allows, when the record is viewed in the light most favorable to the state. The trial court therefore did not err in denying the motion for a judgment of acquittal.

MOTION FOR CONTINUANCE

[3–6] We next consider the denial of defendant’s motion for a continuance. We review that ruling for abuse of discretion. State v. Powell, 322 Or App. 37, 44, 518 P.3d 949 (2022), rev. den., 370 Or. 740, 524 P.3d 98 (2023). "In reviewing the denial of a motion for continuance, we determine the propriety of the motion by examining the circumstances of the case and the reasons presented to the court at the time that it denied the request." State v, Stull, 281 Or App 662, 667, 386 P.3d 122 (2016), rev. den., 360 Or. 752, 388 P.3d 726 (2017). If the trial court’s decision "is within the range of legally correct choices and produces a permissible, legally correct outcome, then the trial court did not abuse its discretion." State v, Ferraro, 264 Or App 271, 281, 331 P.3d 1086 (2014) (internal quotation marks omitted). "Additionally, we will not overturn a denial of a defendant’s motion for a continuance unless the defendant demonstrates prejudice." Id.

[7] On the morning of trial, about 15 minutes before the proceedings began, the state disclosed to defense counsel that the district attorney’s office had a pre-charge referral for F for fourth-degree assault. That information was potentially relevant to bias, if F had a motive to curry favor with the state by testifying favorably for the prosecution in defendant’s trial. See State v. Nacoste, 272 Or App 460, 468, 356 P.3d 135 (2015) ("One well-recognized category of bias evidence is evidence that a witness has a reason to curry favor with the prosecution, or is under the influence of the prosecution, because of the witness’s own criminal conduct or custody status."). F was the alleged victim and thus a key witness for the state. Indeed, the state’s only other witness was a police officer who arrived after the incident was over.

Defense counsel requested an OEC 104 hearing to ask F about the potential charge, because he did not want to "look foolish" asking about it at trial if F was just going to deny knowledge of it. See OEC 104 (allowing the court to hold ₆₄₅a hearing to determine preliminary questions concerning certain evidentiary matters). At the hearing, F denied any recent arrest for fourth-degree assault, denied any arrest at all in the last 90 days, denied any knowledge of anyone recently making assault allegations against him, denied any awareness of pending charges, and denied any negotiations with the state. After hearing F’s testimony, defense counsel requested a continuance. He argued that he was ethically obligated to investigate the new information, even though he was "incredibly hesitant" to request a continuance. He noted that the police report would likely reveal whether F "should know something" about the potential charge. If F was being dishonest, then he could impeach F as relevant to showing bias, or it might reveal that "there’s just no basis for him to be potentially biased." The prosecutor had already represented that he had no information about the referral, other than its existence.¹

The trial court denied the continuance. The court had previously ruled, before the OEC 104 hearing, that it would "allow impeachment examination [of F] on the theory that bias is always relevant." The court denied the continuance request, however, citing the fact that it was only a referral and might not actually be charged, and the fact that F had testified under oath that he did not have any knowledge of it.

The trial court’s stated reasons for denying, a continuance do not survive scrutiny. For bias purposes, the desire to avoid a criminal charge altogether would seem to be as powerful a potential motivator as the desire to get favorable treatment on an existing charge. See State v. Valle, 255 Or App 805, 811, 298 P.3d 1237 (2013) ("[I]t is error for a trial court to exclude evidence from which a jury could reasonably infer that a prosecution witness has a motive to curry favor with the state. Such evidence includes evidence that the witness is on probation, has pending charges, or is the subject of a criminal investigation."); State v. Presley, ₆₄₆84 Or App 1, 5-6, 733 P.2d 452 (1987) (holding that it was error not to allow the defendant to cross-examine the state’s informant about the informant’s pending theft charge that was later dismissed, because the pending charge was relevant bias evidence); see also Jaynes v. Cain, 319 Or App 669, 668, 511 P.3d 58 (2022) ("A witness can have bias resulting from benefits he may subjectively expect or hope to receive, whether or not those perceived benefits are grounded in reality"). The state has not presented any argument or cited any case law to the contrary.

As for F’s...