State v. Miranda

290 Or.App. 741

417 P.3d 480

STATE of Oregon, Plaintiff-Respondent,

v.Joshua Albert MIRANDA, Defendant-Appellant.

A159582 (Control)

A159583

Court of Appeals of Oregon.

Argued and submitted December 21, 2016.

March 14, 2018

Andrew D. Robinson, Deputy Public Defender, argued the cause for appellant. With him on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Peenesh Shah, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Ortega, Presiding Judge, and Egan, Chief Judge, and Lagesen, Judge.

LAGESEN, J.

This consolidated appeal involves two criminal cases that were tried separately but sentenced together. In one case, A159583 (the drug case), defendant seeks reversal of his conviction for unlawful delivery of methamphetamine as a commercial drug offense, ORS 475.890(2). He contends that a key witness against him was his accomplice and that the trial court erred when it concluded otherwise and refused to instruct the jury that an accomplice's testimony should be viewed with distrust. In the other case, A159582 (the burglary case), defendant seeks reversal of his conviction for first-degree burglary, ORS 164.225, his conviction for identity theft, ORS 165.800, and his convictions for two counts of endangering the welfare of a minor, ORS 163.575. There, he asserts that the trial court erred in denying his motion for judgment of acquittal on the burglary charge because there was insufficient evidence for a rational trier of fact to find that defendant intended to commit theft, as the indictment alleged defendant intended, when he made the unlawful entry into a house that led to the charge. Defendant also asserts that the trial court erred when it did not instruct the jury that, on the charges of burglary, identity theft, and endangering a minor, at least 10 jurors would have to concur as to whether defendant was liable as the principal or as an accomplice.

For the reasons that follow, we conclude that the trial court erred when it denied defendant's motion for judgment of acquittal on the burglary charge, and that it plainly erred when it did not provide a concurrence instruction with respect to the charge of identity theft. Therefore, in A159582, we reverse defendant's burglary conviction and remand with instructions to enter a judgment of conviction for first-degree criminal trespass, reverse and remand defendant's conviction for identity theft, and remand for resentencing, but otherwise affirm the judgments on appeal.

I. THE DRUG CASE

In defendant's drug case, he was convicted of two drug offenses: delivery of methamphetamine as a commercial drug offense (Count 1) and possession of methamphetamine (Count 2). As to Count 1, the state asserted that the evidence was sufficient to prove a Boyd delivery: a theory of delivery that defendant possessed a large amount of methamphetamine with the intent to sell or otherwise transfer it. See State v. Villagomez , 362 Or. 390, 395, 412 P.3d 189 (2018) (describing the theory of delivery that we held in State v. Boyd , 92 Or. App. 51, 756 P.2d 1276 (1988), was sufficient to prove delivery of a controlled substance). In support of that theory, the state introduced evidence that defendant was found in possession of a backpack containing user amounts of methamphetamine, drug packaging materials, a scale, and customer lists. To further make its case that defendant intended to transfer the methamphetamine found in his possession, the state introduced testimony from defendant's acquaintance, Kolln. Kolln testified generally that, on past occasions, she had obtained methamphetamine from defendant in exchange for driving him around to deliver methamphetamine to other customers and for arranging communications between defendant and other customers.

Contending that Kolln qualified as an "accomplice" within the meaning of ORS 10.095(4), defendant asked the trial court to instruct the jury that it should view an accomplice's testimony with distrust under that provision.¹ The trial court denied the request. It concluded that Kolln would only qualify as an accomplice for purposes of the instruction if she could be prosecuted for the same Boyd delivery for which defendant was being prosecuted, but that there was no evidence that would support charges against Kolln for that particular delivery.

On appeal, defendant assigns error to the trial court's refusal to instruct the jury that it should view the testimony of an accomplice with distrust. The state responds that the trial court correctly declined to give the instruction because there was no evidence that would allow a finding that Kolln was defendant's "accomplice" for purposes of ORS 10.095(4). Because there is no question that defendant's proposed instruction correctly states the law, we review by viewing the record in the light most favorable to defendant, the requesting party, to determine whether there is evidence to support the delivery of the instruction. State v. Black , 208 Or. App. 719, 723, 145 P.3d 367 (2006). In this case, the disputed issue is whether the evidence is sufficient to establish that Kolln was an accomplice witness within the meaning of ORS 10.095.

A witness qualifies as an accomplice for purposes of the instruction authorized by ORS 10.095(4) if the evidence demonstrates that the witness could be charged with the same offense (or offenses) for which the defendant is on trial. Black , 208 Or. App. at 723-24, 145 P.3d 367 (citing State v. Hull , 286 Or. 511, 515-16, 595 P.2d 1240 (1979) ); see also State v. Weston , 109 Or. 19, 32, 219 P. 180 (1922) (explaining that the test for whether a witness is an accomplice is whether the witness could be indicted for "the offense for which the defendant was indicted and tried"). In other words, the evidence must be sufficient to support a finding of "probable cause to charge the witness with the offense for which defendant is on trial." Hull , 286 Or. at 516, 595 P.2d 1240. Under the circumstances of this case, that means we must decide whether "there is a substantial objective basis for believing that, more likely than not," the offense of delivery of methamphetamine was committed, and that Kolln aided or abetted in its commission. Black , 208 Or. App. at 724, 145 P.3d 367.

Before us, defendant does not dispute that the evidence is insufficient to give rise to charges against Kolln for the particular Boyd delivery for which the state elected to prosecute defendant. Instead, as we understand his argument, defendant contends that the indictment was broad enough to encompass other deliveries by defendant and that the evidence was sufficient to support charges against Kolln for those deliveries. He asserts: "It makes no difference that the state chose to rely on conduct that Kolln did not aid and abet, because the evidence was sufficient to support an indictment for conduct that she did aid and abet." The state takes a narrower view, arguing that, for defendant to be entitled to the requested instruction, the evidence must be sufficient to show that Kolln could be charged with the same alleged criminal conduct on which, as a factual matter, the charge against defendant hinged, and that the record would not support a reasonable inference that, more likely than not, Kolln aided or abetted the Boyd delivery for which, as a factual matter, defendant was being prosecuted.

We agree with the state for two reasons. First, although there are no published cases that address that precise issue, longstanding Oregon case law indicates that a witness qualifies as an accomplice only if the evidence implicates the witness in the particular conduct for which the defendant is being tried, and does not qualify as an accomplice merely because there are other crimes involving the defendant for which the witness could be tried. In State v. Walters , 105 Or. 662, 209 P. 349 (1922), the Supreme Court concluded that the trial court correctly declined to instruct the jury that an accomplice's testimony should be viewed with distrust in the defendant's trial for homicide, where the evidence demonstrated that the putative accomplice had participated in three robberies with the defendant "but the record [did] not disclose a word of evidence having the slightest tendency to show that he participated in or was connected with the homicide" for which the defendant was on trial. Id. at 670, 209 P. 349. That suggests that, even if a particular witness would qualify as a defendant's accomplice for other criminal acts, the witness does not qualify as the defendant's accomplice for purposes of the instruction unless there is evidence implicating the witness in the particular conduct for which the defendant is on trial.

Second, the purpose for the instruction that an accomplice's testimony should be viewed with distrust (and the other instructions regarding the evaluation of accomplice testimony) is to address the concern that "criminals may falsely accuse others * * * to minimize their own culpability." State v. Simson , 308 Or. 102, 110, 775 P.2d 837 (1989). But, "[t]his concern is not present when the alleged accomplices are not, in fact, trying to shift blame." Id. That, too, suggests that, where there is no evidence linking a witness to the particular conduct for which, as a factual matter, a defendant is on trial, the witness does not qualify as an accomplice for purposes of the instruction. That is because, where there is no evidence that a witness participated in the particular conduct for which a defendant is on trial, there is no reason to think that the witness is attempting to minimize their own culpability by shifting blame to the defendant.

In sum, the trial court correctly concluded that Kolln was not an accomplice for purposes of the instruction under ORS 10.095(4) that an accomplice's testimony should be viewed with distrust. Accor...