State v. Threlkeld

314 Or.App. 433

496 P.3d 1147

STATE of Oregon, Plaintiff-Respondent,

v.James Joseph THRELKELD, Defendant-Appellant.

A172263

Court of Appeals of Oregon.

Argued and submitted July 23, 2021.

September 9, 2021

David Sherbo-Huggins, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before James, Presiding Judge, and Kamins, Judge, and Kistler, Senior Judge.

KAMINS, J.

Defendant appeals a judgment of conviction for carrying a concealed weapon, specifically a dagger. ORS 166.240. During defendant's bench trial, the arresting officer testified that the item that defendant carried in his back pocket was a knife designed for stabbing. Defendant contends that the testimony was improperly admitted as expert testimony and that it affected the verdict.¹ We agree with defendant and reverse.

Officers responded to reports of defendant standing in front of a pharmacy "rambling and holding a knife." After a pat-down search, the arresting officer discovered a sheathed knife concealed in defendant's back pocket. The knife was about five inches long, was sharpened on both sides, and contained the words "black label tactical blade" and "letter opener 125 BL." Defendant was charged with carrying a concealed weapon, specifically, a dagger.

At trial, the arresting officer testified in detail about the attributes and function of the knife. The officer explained that learning about knives was "woven into" a week-long portion of his basic corrections academy training approximately twenty years earlier. That training covered defensive tactics, including the type of weapons that individuals may carry on their person, what type of damage those weapons can do, and how to defend against them. He also testified that his annual police training involves a defensive tactics refresher training, which, at times, has included the use of knives. Defendant objected to the officer's qualifications to provide an expert opinion about the design and purpose of the knife, but the trial court overruled that objection, concluding that the state had laid a proper foundation.

The officer further testified that the knife found in defendant's pocket "is specifically designed to cause serious physical injury and trauma." He opined as to the existence of a raised portion of the knife known as "blood groove," a feature typically located on military knives and bayonets specifically designed to cause "trauma to whatever the knife is stabbed into." Additionally, according to the officer, the sharpened blades on both sides of the knife were for the purpose of causing trauma and the handgrip was designed to facilitate a stabbing motion. On cross-examination, the officer acknowledged that he was "not, by any means, a professional on knives," nor was he a "knife expert."

At the close of the state's evidence, defendant moved for a judgment of acquittal, arguing that the state had failed to present sufficient evidence to conclude that the item in defendant's pocket was a "dagger." The trial court denied the motion, relying on our decision in State v. McJunkins , 171 Or. App. 575, 579, 15 P.3d 1010 (2000), which described a dagger as "generally slender, straight, and coming to a point. Its function is to stab, historically to pierce armor." Because the knife met that physical description, and the officer testified that the knife's function was to stab, the court denied the motion for judgment of acquittal.

On appeal, defendant renews his argument that the officer was not qualified to testify as an expert under OEC 702. We review for legal error whether a trial court properly applied OEC 702 in deciding whether an expert is qualified to testify. Mall v. Horton , 292 Or. App. 319, 323, 423 P.3d 730, rev. den. , 363 Or. 744, 430 P.3d 563 (2018).

Defendant challenges the arresting officer's qualifications to provide expert testimony about the function of the item in his pocket. OEC 702, which serves a "gatekeeping function" for the admission of expert testimony, Mall , 292 Or. App. at 323, 423 P.3d 730, provides:

"If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise."

Defendant argues that the record does not support a finding the officer was qualified as an expert by knowledge, skill, experience, training, or education. To make that determination, we look to "the knowledge of the expert" rather than the expert's particular degree or specialty." State v. Wendt , 294 Or. App. 621, 626, 432 P.3d 367 (2018). Specifically, an expert on a given subject is a person who "has acquired certain habits of judgment based on experience or special observation that enable[ ] him or her to draw from the facts inferences that are uniquely beneficial to the [factfinder]." Mall , 292 Or. App. at 324, 423 P.3d 730. That experience must provide knowledge beyond a "general familiarity." State v. Brown , 294 Or. App. 61, 69, 430 P.3d 160 (2018) ; see also State v. Dunning , 245 Or. App. 582, 591, 263 P.3d 372 (2011) (stating that expertise is more than what "any literate person with access to a library or an Internet connection" can learn about a subject "over one long weekend"). A witness's competency to testify must be evaluated in relation to the particular topic about which the witness is asked. Wendt , 294 Or. App. at 625, 432 P.3d 367.

The topic on which the officer opined was the function of a knife. The officer's expertise draws from two sources: (1) a week-long corrections academy training during which knives were "woven into" defensive tactics training, and (2) annual police trainings that "at times" cover defensive tactics relating to knives. Essentially, the officer's training went to defensive tactics in response to various weapons, including knives. The officer, however, did not testify as to how to defend against a knife or how a knife could be used as a weapon. Rather, he opined as to the purpose of a specific knife. This record does not contain sufficient qualifications to provide "specialized knowledge" as an expert on that specific question. See id . at 626, 432 P.3d 367 (recognizing that general training in nursing here is insufficient to establish "relevant training or education to form a basis for specialized knowledge about the specific question" relating to mixing antiseizure medication and alcohol).

The state does not vigorously defend the admission of the testimony under OEC 702, but rather argues that it was not required to present expert testimony of the function of the knife at all...