Argued and Submitted March 22, 2013.
Multnomah County Circuit Court. 090130026. Adrienne C. Nelson, Judge.
Conviction for first-degree robbery with a firearm (Count 1) reversed and remanded with instructions to enter a conviction for first-degree robbery and for resentencing; otherwise affirmed.
Eric Johansen, Senior Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Andrew M. Lavin, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.[*]
[261 Or.App. 442] NAKAMOTO, J.
Following a jury trial, defendant was convicted of first-degree robbery with a firearm (Count 1), ORS 164.415, ORS 161.610; unlawful use of a weapon with a firearm (Count 2), ORS 166.220, ORS 161.610; and felon in possession of a firearm (Count 4), ORS 166.270. He appeals, raising four assignments of error. We reject without discussion defendant's third and fourth assignments of error and write only to address his first and second assignments. In his first assignment, defendant contends that the trial court erred in denying his motion to dismiss for lack of a speedy trial, arguing that dismissal was appropriate because the state failed to bring him to trial within a " reasonable period of time" as required by ORS 135.747. In his second assignment of error, defendant argues that the trial court erred in denying his motion for judgment of acquittal (MJOA) on Count 1 because, according to defendant, there was insufficient evidence to prove that he personally used or threatened to use a firearm during the robbery. For the reasons that follow, we conclude that the trial court did not err in denying defendant's motion to dismiss, but that it did err in denying defendant's MJOA. Accordingly, we reverse defendant's conviction on Count 1 and remand for further proceedings; otherwise, we affirm.
We begin with a brief overview of the events leading to defendant's convictions and
sentences. We later discuss relevant facts and procedural history in detail as we analyze defendant's assignments of error, which involve differing standards of review.
Defendant's convictions arose out of an armed robbery of a Portland cafe that he and his codefendant, Howard, committed in late October 2008. Howard entered the cafe while defendant remained in the car. Defendant suffered injuries when Howard attempted to elude police after the robbery, and defendant had to be taken to the hospital. Before the police could question defendant, he was released from the hospital. The police did not locate defendant until February 2009, when they discovered that he was in custody [261 Or.App. 443] at the Clark County Jail in Washington. Defendant was subsequently convicted of and sentenced on unrelated charges in Washington and was sent to a Washington state prison. Over the course of several months, the State of Oregon, through the Multnomah County District Attorney's Office, sought defendant's return to Portland under the Interstate Agreement on Detainers (IAD), ORS 135.775, for trial on the charges associated with the robbery. Eventually, the state secured defendant's return to Oregon in July 2010, and, after a jury trial in December 2010, defendant was convicted of the above-mentioned charges. Defendant now appeals.
In defendant's first assignment of error, he argues that the trial court erred in denying his motion to dismiss because the state failed to bring him to trial within a reasonable time as required by ORS 135.747. We review a trial court's conclusions regarding the reasonableness of state-caused delay under the speedy trial statute for errors of law. State v. Doak, 235 Or.App. 351, 356, 231 P.3d 1181, rev den, 349 Ore. 171, 243 P.3d 70 (2010). With that standard in mind, the facts relevant to defendant's first assignment of error are as follows.
A grand jury in Oregon indicted defendant on January 13, 2009, for charges arising out of the robbery. When the state located defendant at the Clark County Jail in February 2009, it placed a hold on him there, and defendant signed a waiver of extradition on February 25. Thereafter, defendant was convicted in Washington for unrelated crimes and sentenced to serve a prison term. In late September 2009, the state approved a formal detainer and forwarded it to the Multnomah County Sheriff's Office to be sent to the State of Washington Department of Corrections (WDOC). The state waited for defendant to file a request for final disposition under Article III of the IAD, but, after it did not receive a request from defendant, it initiated defendant's return under Article IV of the IAD on December 2, 2009. On January 22, 2010, the Multnomah County Circuit Court [261 Or.App. 444] approved the state's request to have defendant returned, and the next day the request was sent to WDOC. On May 24, defendant signed an agreement on detainers waiving extradition and submitting to his return to Oregon fore trial. In July, Washington returned defendant to the temporary custody of the Multnomah County District Attorney, and he was arraigned. After a number of continuances granted at the state's request, and one granted at defendant's request, defendant's trial was set for December 6, 2010.
Before trial, defendant moved to dismiss the charges, asserting a violation of his statutory speedy trial right under ORS 135.747. In his motion, he argued that the 22-month delay between his indictment and trial was attributable to the state and that the delay was unreasonable and warranted dismissal. The court conducted a pretrial hearing on the motion, at which it received testimony from Chitwood, a legal assistant for the Multnomah County District Attorney's Office who had been involved in administering defendant's return to Oregon. Chitwood testified that, although her office had placed a hold on defendant in February 2009, that hold had become ineffective once he was convicted and sentenced in Washington. As
a result, to have defendant returned to Oregon, the state had to file a formal detainer with WDOC after defendant had been sentenced in Washington. The state did so on September 22, 2009.
Chitwood further testified that in 99 percent of all cases, after a defendant learns that a detainer has been filed against him or her, the defendant will file a speedy-trial motion under the IAD. Chitwood explained that it was standard practice in IAD cases for the district attorney's office to wait for a defendant's response, and it did so in defendant's case after it filed the detainer in September. When defendant did not file a speedy-trial motion, the district attorney requested defendant's return to Oregon under the IAD in December 2009. Chitwood testified that, after that request was approved, the district attorney sent the state's request to WDOC on January 23, 2010.
Chitwood explained that the process to have a defendant returned under the IAD is more " expeditious" and " streamlined" when the defendant files a speedy-trial [261 Or.App. 445] motion, and that, in cases in which the state has to initiate the return process, returning a defendant essentially becomes an extradition, which can take longer. Anderson, another employee at the district attorney's office, testified that, once the state filed its request in January 2010, it could not do anything to accelerate the return process until defendant responded to the request, which defendant did on May 24, 2010, by waiving extradition. After hearing the evidence at the pretrial hearing, the trial court denied defendant's motion to dismiss for lack of a speedy trial, concluding that the time period and the state's efforts in bringing defendant to trial were reasonable.
On appeal, defendant argues that the delay attributable to the state in this case is approximately 22 months and that such a delay was not reasonable under ORS 135.747, because the state knew where he was at all times between February 2009 and July 2010 and only sought his return " dilatorily." In response, the state argues that only 16 months of delay can be attributed to the state because, under State v. Ayers, 207 Or.App. 668, 143 P.3d 251, rev den, 342 Ore. 253, 149 P.3d 1213 (2006), defendant waived his ability to invoke ORS 135.747 when he knowingly failed to assert his rights under the IAD in May 2010. The state argues that the 16-month delay, though longer than expected, was nonetheless reasonable. Alternatively, the state argues that, even if the full 22-month delay can be attributed to the state, it was nonetheless reasonable under the circumstances because the state proceeded according to the IAD, which would not have permitted it to secure ...