State v. Gilmore

1

336 Or.App. 706

STATE OF OREGON, Plaintiff-Respondent, v. TREVOR ALAN GILMORE, Defendant-Appellant.

A174480

Court of Appeals of Oregon

December 11, 2024

Argued December 11, 2023

Josephine County Circuit Court 18 C R78162; Matthew G. Galli Judge.

Erik Blumenthal, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

Robert M. Wilsey, Assistant Attorney General, argued the cause for respondent. Also on the briefs were Ellen F. Rosenblum Attorney General, and Benjamin Gutman, Solicitor General.

Before Shorr, Presiding Judge, Pagán, Judge, and Mooney Senior Judge.

PAGAN, J.

Defendant appeals from a conviction for first-degree manslaughter raising three assignments of error and three additional supplemental assignments of error. In his first assignment defendant argues that the trial court erred by denying his motion to reconsider the verdict. He argues that because the court found that he had been justified in using deadly force against one victim, it was legally impermissible for the court to also find that defendant had acted recklessly toward another victim in the same incident.

In his second and third assignments, defendant argues that the trial court erred by denying his motion to compel the prosecutor to obtain and disclose records of a child witness's therapy records, counseling records, and records relating to a forensic interview of the child at a Child Advocacy Center (CAC) in the state of Missouri. Further, in three supplemental assignments, defendant argues that the trial court violated his due process rights by convicting him of a lesser-included crime without sufficient notice; that he was entitled to a judgment of acquittal under ORS 161.209 and ORS 161.219; and that the trial court erred by convicting him of first-degree manslaughter. For the reasons explained below, we affirm.

I. FACTS

On Thanksgiving, November 22, 2018, defendant was staying at the apartment of his wife, Brandi, in Grants Pass, Oregon. The couple had two children, K and T T was 17 years old at the time and was dating A, the daughter of S. T typically stayed with S and S's wife, MeLisa, who lived nearby. S and MeLisa also had a young son and a daughter, G, who was eight years old. During that evening, A was babysitting the younger children with T when S and MeLisa returned from a bar with S's friend, L. S and MeLisa were in a heated argument, so T and A brought the children to Brandi's apartment. At some point, MeLisa also came to the apartment.

Shortly before 3:00 a.m., S and L arrived at Brandi's apartment, looking for MeLisa. S banged on the door and defendant let him in. S began yelling at MeLisa to leave. Defendant told S that he could not yell like that and told them to leave. S told defendant that he should stay out of it if he did not want to be "fucked up." At some point, T told defendant that he might want to go to his room because S was going to beat him up. Defendant went back to his bedroom and emerged with his semi-automatic handgun. Defendant went back down the hall, positioned behind the couch, and continued telling S and L that they needed to leave.

S went around the hallway couch toward defendant, saying something to the effect of "what are you going to do about it?" L was positioned behind S and was telling defendant to "be chill" and to "calm down." Defendant then fired multiple shots in a rapid sequence, striking both S and L. The two men staggered out of the apartment. S made it to the lawn outside where he collapsed and died. L collapsed and died just outside the front door.

The state charged defendant by indictment with two counts of aggravated murder with a firearm, ORS 163.095 (Counts 1 and 3) and three counts of unlawful use of a weapon with a firearm, ORS 166.220 (Counts 2, 4, and 5). During the bench trial, defendant raised a self-defense justification, contending that his use of deadly force was reasonable in the face of S and L committing felony crimes of coercion and burglary.

The court found defendant guilty on Count 3 of first-degree manslaughter with a firearm, ORS 163.118(1)(a),^[1] for recklessly causing L's death. Finding that defendant's use of deadly force against S was justified, the court acquitted defendant of the remaining charges. The court stated that defendant had recklessly caused L's death under circumstances manifesting extreme indifference to the value of human life because defendant fired his gun at S and L while those men were present in a crowded living room. Specifically, the court stated:

"I do believe, based upon the testimony of the individuals in the room, that * * * the state did meet its burden of proof in proving that it was not reasonable for a person to use deadly force against [L].

“*****

"I find that [L] was shot in the course of [defendant] defending himself against [S]. I struggled with whether this was intentional. Whether I could find some intent in these-in this-in the ballistics, in anything. I can't.

"But firing a weapon in close quarters at another person when you do not have essentially a safe backstop is reckless. It is a risk *** [of] such the nature and degree that disregarding that risk would constitute a gross deviation from the standard of care that someone should exercise.

"I also find that because this is a firearm and there were people close by, and I think we're all thankful that this tragedy wasn't compounded with the death of a nine-year-old girl. Like a seven-year-old girl maybe at the time.

"But that shooting under those circumstances did constitute an extreme indifference to the value of human life as is defined.

"And, so, based upon that, I find that beyond a reasonable doubt that [defendant] caused recklessly, with an extreme indifference to the value of human life, the death of [L], find him guilty of the lesser included offense of Manslaughter in the First Degree."

Defendant filed a motion to reconsider the verdict. He contended that if self-defense in using deadly force is not disproved by the state, and defendant committed his acts in a single incident, then the justified use of force carried over to the harm caused to L. Defendant reiterated this position at oral argument, contending that the court's ruling presupposed that defendant acted reasonably and recklessly at the same time. He also contended that the court could not reach the appropriate certainty of guilt given those conflicting findings.

The court declined reconsideration. Defendant was sentenced to 120 months in prison with three years of post-prison supervision and he was ordered to pay $5,000 as restitution.

II. ANALYSIS

A. Transferred Intent

We begin by addressing defendant's first assignment of error, which contends that the trial court erred by denying defendant's motion to reconsider the verdict.^[2] We also address defendant's second and third supplemental assignments of error, where defendant contends that the trial court erred by denying his motion for a judgment of acquittal on all of the charges of aggravated murder, and also erred by convicting him of first-degree manslaughter for the killing of L.

Defendant raises two arguments in support of these assignments. First, he argues that the doctrine of "transferred intent" should apply to the use of deadly force under ORS 161.219. Specifically, defendant asserts that his justification for shooting S transferred to his shooting of L because "[a]n innocent intent transfers exactly like a guilty one." In other words, defendant argues that because the trial court found that his use of deadly force against S was reasonable and justified under ORS 161.219, that intentional act "follow[ed] the bullet" and justified his killing of L. Thus, defendant contends that the trial court's legal finding that he acted recklessly toward one victim, L, was legally impermissible and therefore the court erred by not acquitting defendant. Second, defendant argues that the state failed to prove that L had not been engaged in the conduct described by ORS 161.219(1) to (3), and also failed to prove that defendant's belief that L was engaged in that conduct was unreasonable.

As a preliminary matter, a judgment of acquittal is appropriate if the evidence is insufficient to support a verdict. State v. Cunningham, 320 Or. 47, 61-62, 880 P.2d 431 (1994), cert den, 514 U.S. 1005 (1995); State v. Newkirk, 319 Or.App. 131, 133, 509 P.3d 757, rev den, 370 Or. 214 (2022). We review questions of the sufficiency of the evidence following a conviction by examining the evidence in the light most favorable to the state to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Palomo, 256 Or.App. 498, 503, 301 P.3d 439 (2013).

A person may lawfully use reasonable physical force, including deadly force, in self-defense. ORS 161.209.^[3]The use of deadly force in self-defense is limited to certain situations outlined in ORS 161.219:

"Notwithstanding the provisions of ORS 161.209, a person is not justified in using deadly physical force upon another person unless the person reasonably believes that the other person is:

"(1) Committing or attempting to commit a felony involving the use or threatened imminent use of physical force against a person; or

"(2) Committing or attempting to commit a burglary in a dwelling; or

"(3) Using or about to use unlawful deadly physical force against a person."

Self-defense "does not negate the intent element of a crime; instead it provides a legal justification for what would otherwise constitute a criminal act." State v. Bracken, 174 Or.App. 294, 301, 23 P.3d 417, rev den, 333 Or. 162 (2001). ...