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State v. Lucero

Court of Appeals of Oregon

September 4, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
FRANCIS BENITO LUCERO, Defendant-Appellant

Argued and Submitted August 20, 2013

Clackamas County Circuit Court No. CR1013801, Ronald D. Thom, Judge.

Affirmed.

Jonah Morningstar, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Paul L. Smith, Attorney-in-Charge, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Douglas F. Zier, Senior Assistant Attorney General.

Before Sercombe, Presiding Judge, and Hadlock, Judge, and De Muniz, Senior Judge.

OPINION

Page 1276

[265 Or.App. 329] DE MUNIZ, S. J.

Defendant appeals a judgment of conviction for one count of criminal trespass in the first degree, ORS 164.255, and one count of harassment, ORS 166.065(3). He argues on appeal that the trial court erred in excluding evidence supporting defendant's belief that the legal proceedings resulting in his eviction from a foreclosed property were unlawful. For the reasons that follow, we affirm the judgment of conviction.

We state the facts in the light most favorable to the state. State v. Williams, 313 Or. 19, 828 P.2d 1006 (1992). A bank obtained a foreclosure judgment and subsequently brought a forcible entry and detainer (FED) action to remove defendant from the foreclosed property. On November 19, 2010, Clackamas County Sheriff deputies Finn and Pownall went to the foreclosed property to serve a writ of execution and remove defendant from the property. Defendant opened the door to the residence slightly but refused to allow the deputies inside, asserting that the writ of execution was illegal. Pownall forced the door open, stepped into the entryway, and informed defendant that the judgment was being executed. Defendant responded that he was not going to leave, held out his hands, and demanded to be arrested. Pownall refused defendant's request, took defendant by the shoulders, and escorted him out of the house. The deputies told defendant that he was not to return and that returning to the premises would constitute a criminal trespass.

Defendant immediately returned to the front porch and attempted to enter the residence. Finn put his hand on defendant's chest to prevent defendant from entering and told defendant that he would be arrested if he went further. Defendant knocked Finn's hand away, argued that the deputies did not have authority to evict him, and told Finn that he was going to go back inside. Finn warned defendant that he would be arrested if he tried to enter and that he would also be arrested if he touched Finn again. Defendant put out both of his hands, lightly shoved Finn, and demanded to be arrested. At that point, defendant was taken into custody. The deputies posted an " Eviction Trespass Notice" on the front and rear doors of the residence and posted three copies [265 Or.App. 330] of the writ of execution on the front door. Defendant was released from custody that same day.

Page 1277

Oregon City Police officer Kramer was on patrol that evening and, because he knew about the eviction, he decided to check on the property. Kramer observed that there was no longer any notice posted on the door. Kramer heard a noise inside the premises, entered, and found defendant in the bathroom. Kramer arrested defendant for criminal trespass. Defendant was subsequently charged with two counts of criminal trespass in the first degree, one count of harassment, and one count of obstructing governmental administration, ORS 162.235.

Before trial, the state filed a motion in limine, seeking to prohibit defendant from introducing any evidence tending to show that the legal proceedings resulting in defendant's eviction were fraudulent and unlawful. At the hearing on the state's motion, defendant argued that the evidence was relevant and admissible with regard to whether defendant acted with the requisite mental-state element in the charged offenses. The trial court rejected defendant's argument and granted the state's motion. In an offer of proof at trial, defendant introduced two exhibits: a copy of an Oregonian article from June 30, 2011, which, according to defendant, was about an unrelated foreclosure case in which a Columbia County Circuit Court had dismissed an ...


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