Argued and submitted April 29, 2014
Crook County Circuit Court. MI100579. Daniel Joseph Ahern, Judge.
Lindsey Burrows, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Karla H. Ferrall, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.
[265 Or.App. 141] Defendant was convicted of tampering with physical evidence, ORS 162.295, and appeals the judgment of conviction. She assigns error to the trial court's denial of her motion for a judgment of acquittal. Defendant argues that there was insufficient evidence that she intended to tamper with evidence that was to be introduced in " an official proceeding which is then pending or to the knowledge of such person is about to be instituted," as ORS 162.295 requires. We review challenges to the sufficiency of evidence
to determine whether, viewing the evidence in the light most favorable to the state, a rational factfinder could find the elements of the offense 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). We reverse.
The facts are undisputed. Defendant petitioned for and was granted a temporary restraining order against her ex-boyfriend, Coffman. A hearing on whether to continue the order was scheduled for July 22, 2010. The day before the hearing, defendant reported to Officer Peterson that Coffman had violated the temporary order and that she wanted the order to be enforced by the police. In the course of her report, defendant told Peterson that Coffman had broken her lamp in the trailer where she and Coffman lived. Peterson arrived at the trailer a short while later, but no one was home. He peered into an open window and saw an undamaged lamp that matched defendant's description, in the middle of the living room floor. Peterson took a photo of the lamp through the window. Later that day, the trailer park manager heard " a bunch of smashing and breaking" in the trailer, went to see what the noise was, and found defendant inside.
Defendant told the manager that she was waiting for the police. She was " shocked" to learn that Peterson had already come and left. On July 26, Peterson returned to the trailer and saw that the lamp had been smashed on the living room floor. Defendant was charged with initiating a false report, ORS 162.375, and tampering with physical evidence, ORS 162.295. As to tampering, the charging instrument alleged that defendant " unlawfully and knowingly [altered] physical [265 Or.App. 142] evidence, to-wit: a lamp, thus impairing its veracity, with the intent that it be used in an official proceeding which to the knowledge of * * * defendant was about to be instituted, to-wit: arraignment." Defendant opted for a bench trial and moved for a judgment of acquittal on both counts. Defendant argued, among other things, that there was no " official proceeding" that she knew was pending or about to be instituted, as required by ORS 162.295. Defendant pointed out that the state alleged " an arraignment" in the charging instrument but had not indicated whose arraignment was at issue. The state responded that defendant knew that there was an official proceeding the following day--the hearing on the restraining order--and that it was insignificant that the charging instrument " says arraignment" because " [a]ny official proceeding includes potential future proceedings." The trial court denied the motion, determining that,
" I think when you tamper with physical evidence * * * the issue is at the time you tampered with it * * * what was the intention. And * * * [an] arraignment is what happens to people after they're charged with a crime. The initiating a report was to hold somebody in violation of a restraining order, which would have been a contempt, which would have been a proceeding for arraignment.
" The fact that the state later decided not to arraign somebody can't be a defense to tampering with * * * physical evidence or they'd never be able to convict somebody of that because as soon as they decide they were tampering and that's the only reason they had it charged, they wouldn't bring the charge. You'd have a complete defense."
At the conclusion of trial, defendant was convicted of tampering with physical evidence and acquitted ...