Argued and Submitted September 27, 2013
Multnomah County Circuit Court. 090331069. John A. Wittmayer, Judge.
Neil F. Byl, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Leigh A. Salmon, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Janet A. Klapstein, Senior Assistant Attorney General.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[265 Or.App. 31] NAKAMOTO, J.
Defendant appeals from a judgment of conviction for two counts of aggravated murder, ORS 163.095(1)(d), and one count of solicitation to commit aggravated murder, ORS 161.435. In his first three of eight assignments of error, defendant challenges his aggravated murder convictions because the trial court's conclusion that he committed two murders " in the same criminal episode" was in error. Defendant also contends that, in light of OEC 401 and OEC 403, the trial court erroneously allowed a prosecution witness to use a gun similar to the murder weapon as demonstrative evidence. Defendant further argues that the trial court committed evidentiary error when it refused to admit, under the " rule of completeness" in OEC 106, certain statements made by defendant during police questioning. For the reasons discussed below, we affirm on those five assignments. Defendant's three remaining assignments of error--regarding the validity of a " death-qualified" jury and non-unanimous juries--we reject without discussion.
I. " SAME CRIMINAL EPISODE"
We state the relevant background for each section separately, starting with the " same criminal episode" issue. We begin by introducing the framework of the parties' dispute regarding that issue, then describe the pertinent facts before proceeding to our analysis.
Pursuant to ORS 163.095(1)(d), the murder of more than one victim " in the same criminal episode as defined in ORS 131.505" constitutes aggravated murder. In turn, ORS 131.505(4) provides that, " '[c]riminal episode' means continuous and uninterrupted conduct that establishes at least one offense and is so joined in time, place and circumstances that such conduct is directed to the accomplishment of a single criminal objective." At the close of trial, defendant argued that the evidence was insufficient to prove that the two murders at issue occurred in the same criminal episode and, on that basis, moved for judgments of acquittal on both aggravated murder counts. The trial court denied the motions, concluding that there was sufficient evidence for the jury to decide that the murders were part of the same [265 Or.App. 32] criminal episode. Defendant later filed a motion for a new trial pursuant to ORCP 64 B(5) on the same ground. The trial court denied that motion as well.
Defendant's first three assignments of error challenge the trial court's denial of those motions. As explained further below, we conclude that the trial court properly denied defendant's motion for a new trial and correctly concluded that there was sufficient evidence to support the denial of defendant's motion for judgment of acquittal MJOA).
A. Motion for New Trial
At the outset, we dispose of defendant's challenge to the trial court's denial of his motion for a new trial. That assignment of error is not reviewable. Defendant filed his motion pursuant to ORCP 64 B(5), which provides in pertinent part that a court may grant a new trial for " [i]nsufficiency of the evidence to justify the verdict or other decision
* * *." As we previously noted in State v. Alvarez-Vega, 240 Or.App. 616, 619, 251 P.3d 199, rev den, 350 Or. 297, 255 P.3d 489 (2011):
" ORCP 64 B provides in pertinent part that a court may grant a new trial for, among other things, jury misconduct, ORCP 64 B(2), newly discovered evidence, ORCP 64 B(4), or an '[e]rror in law occurring at the trial and objected to or excepted to by the party making the application,' ORCP 64 B(6). In State v. Sullens, 314 Or. 436, 839 P.2d 708 (1992), the court examined the history of those provisions * * *. Ultimately, the court concluded that the denial of a motion for a new trial in a criminal case was reviewable on appeal only if the motion was based on alleged juror misconduct or newly discovered evidence. Id. at 442-43; see also State v. Grey, 175 Or.App. 235, 245, 28 P.3d 1195 (2001), rev den, 333 Or. 463, 42 P.3d 1245 (2002) (court could not review denial of motion for a new trial raised under ORCP 64 B(6) because it was not based on newly discovered evidence or jury misconduct); State v. Mayer, 146 Or.App. 86, 932 P.2d 570 (1997) (same)."
Brackets in original.) Defendant's motion for a new trial was not based on jury misconduct or newly discovered evidence, as required for reviewability. We therefore will not review defendant's assignment of error regarding his motion for a new trial.
[265 Or.App. 33] B. Motion for Judgment of Acquittal
We review a denial of an MJOA to determine whether, viewing the facts in the light most favorable to the state, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Cunningham, 320 Or. 47, 63, 880 P.2d 431 (1994), cert den, 514 U.S. 1005, 115 S.Ct. 1317, 131 L.Ed.2d 198 (1995). In the context of this appeal, that means that we will affirm the trial court's denial of defendant's MJOA unless a rational trier of fact viewing the evidence in the light most favorable to the state could not have found, beyond a reasonable doubt, that the murders were part of a course of " continuous and uninterrupted conduct that establishe[d] at least one offense and [was] so joined in time, place and circumstances that such conduct [was] directed to the accomplishment of a single criminal objective." ORS 131.505(4); see also State v. Yashin, 199 Or.App. 511, 514, 112 P.3d 331, rev den, 339 Or. 407, 122 P.3d 65 (2005) (holding, in a related context, that " [t]he legal determination that convictions arose out of separate criminal episodes is based on a factual finding[; ] specifically, the finding that the acts giving rise to the convictions were not part of continuous and uninterrupted conduct that * * * is so joined in time, place and circumstances that such conduct is directed to the accomplishment of a criminal objective" (internal quotation marks omitted; omission in original)). With that in mind, we turn to the facts.
Defendant sold illegal narcotics along with and on behalf of one of the murder victims, Anthony Cooper. Cooper was married to and lived with Melinda Kotkins, the other victim, who also participated in Cooper's narcotics business.
On June 2, 2008, Cooper, who had a prior felony conviction and, therefore, could not purchase a gun himself, enlisted a friend, O'Day, to buy him a gun. Defendant accompanied O'Day to purchase the gun, pointing out the precise make and model that Cooper desired, a .38 caliber Smith & Wesson Model 637 revolver equipped with a laser site. Defendant was with O'Day when O'Day delivered the gun to the victims. At the end of June 2008, another witness, Bastrica, observed defendant showing Kotkins how to use a small .38 caliber revolver with a laser sight on it. [265 Or.App. 34] Bastrica later testified that he thought that the pistol was kept in the townhouse that Cooper and Kotkins shared.
Later in June, Cooper was booked into the Multnomah County Detention Center. Defendant sold drugs for Cooper while Cooper was incarcerated. Cooper was released 30 days later, on the morning of July 24, 2008.
That same day, the victims were last seen alive by defendant, according to defendant's own statements. Defendant reported visiting Kotkins at her home at about 2:00 a.m. that morning to deliver drug proceeds to her. Defendant said that he left ...