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State v. Smith

Court of Appeals of Oregon

October 16, 2013

STATE OF OREGON, Plaintiff-Respondent,
v.
KURTIS CARL SMITH, aka Kurtis C. Smith, Defendant-Appellant.

Argued and submitted on January 25, 2013.

Multnomah County Circuit Court 100949886, Marilyn E. Litzenberger, Judge.

Elizabeth G. Daily, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Carson L. Whitehead, Assistant Attorney General, argued the cause for respondent. On the brief were John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Jeremy C. Rice, Assistant Attorney General.

Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.

NAKAMOTO, J.

Defendant appeals his conviction for interference with making a report, ORS 165.572. Under that statute, as relevant here, "[a] person commits the crime of interference with making a report if the person, by removing, damaging or interfering with a * * * telephone * * *, intentionally prevents or hinders another person from making a report to a * * * 9-1-1 emergency reporting system." Defendant assigns error to the trial court's denial of his motion for a judgment of acquittal, arguing that the state failed to introduce evidence that defendant's actions hindered the victim's 9-1-1 report. We reverse defendant's conviction for interference with making a report and remand with instructions to enter a judgment of conviction for attempted interference with making a report. Otherwise, we affirm.

In reviewing the denial of a motion for a judgment of acquittal, we view the evidence and all reasonable inferences that may be drawn from it in the light most favorable to the state to determine whether a rational trier of fact could find that the state proved each element of the offense beyond a reasonable doubt. State v. Hall, 327 Or 568, 570, 966 P.2d 208 (1998); State v. Lawrence, 231 Or.App. 1, 3, 217 P.3d 1084 (2009), rev den, 347 Or 533 (2010). Consistent with that standard, the facts are as follows.

Defendant and his fiancée had been fighting at their apartment. Defendant's fiancée called her friend, Russell, to help resolve the dispute. Russell arrived at the apartment and helped defendant move his belongings to his parents' house. Afterward, defendant told Russell that he had friends he could stay with but that they were at a bar near the apartment. Russell agreed to drop defendant off at the bar so long as defendant promised not to return to the apartment.

Defendant agreed, and, after dropping him off at the bar, Russell returned to the apartment. Upon arriving at the apartment, Russell plugged her cellular phone, which had died, into a wall charger. Russell and defendant's fiancée had talked for about 10 minutes when Russell realized that she had left her purse in her truck. Russell left the apartment to retrieve her purse and encountered defendant outside the apartment. Russell screamed at defendant, "I told you I would call the cops if you came back." Defendant and Russell scuffled outside the apartment door, with both of them eventually entering the apartment.

Once inside, Russell went for her cellular phone, and defendant went to talk to his fiancée. Russell picked up her phone, which was still plugged into the wall charger, dialed 9-1-1, and told defendant "I'm calling 9-1-1 on you." Defendant then approached Russell and, without touching her cellular phone, grabbed the charger cord and yanked on it. The charger cord disconnected from the phone, but defendant did not pull the phone out of Russell's hand. Russell continued with her call to 9-1-1 despite defendant's pulling on the charger cord, retaining her connection to 9-1-1 without redialing. Defendant then put the phone charger in his pocket, and as he left, he told Russell, "Good luck calling the cops now, bitch."

Defendant was charged with harassment, ORS 166.065, interference with making a report, ORS 165.572, and theft in the third degree, ORS 164.043. At the close of evidence at trial, defendant moved for a judgment of acquittal on the interference charge on the ground that there was no evidence that defendant had intentionally prevented or hindered Russell from making her 9-1-1 call. Defense counsel argued:

"Best case scenario for the State is still, [defendant] yanks a phone cord, doesn't get a phone out from [Russell's] hand, doesn't interfere with her making that call in any manner whatsoever."

The court denied defendant's motion. The jury acquitted defendant on the harassment charge but found him guilty on ...


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