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State v. Berrellez

Court of Appeals of Oregon

October 15, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
JESUS IGNACIO BERRELLEZ, Defendant-Appellant

Submitted: March 26, 2014.

Page 965

Jackson County Circuit Court. 034917FE. Lorenzo A. Mejia, Judge.

Peter Gartlan, Chief Defender, and Neil F. Byl, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Karla H. Ferrall, Assistant Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, and DeVore, Judge, and Edmonds, Senior Judge.

OPINION

Page 966

[266 Or.App. 382] DEVORE, J.

Defendant appeals a judgment of conviction for one count of first-degree sexual abuse, ORS 163.427. We reject without discussion his challenge to the constitutionality of nonunanimous jury verdicts. Defendant also challenges the trial court's denial of his motion to dismiss, arguing that the state violated his statutory and constitutional rights to a speedy trial.[1] We review the denial of his motion for legal error. State v. Glushko/Little, 351 Or. 297, 305, 266 P.3d 50 (2011); State v. Rohlfing, 155 Or.App. 127, 129, 963 P.2d 87 (1998). " If we find that the evidence in the record sustains the trial court's factual findings, we do not disturb them." State v. Powell, 352 Or. 210, 212, 282 P.3d 845 (2012) (citing State v. Foster, 303 Or. 518, 529, 739 P.2d 1032 (1987)). To the extent that the trial court did not make explicit factual findings, we presume that the trial court decided the facts consistently with its conclusions. Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968). We affirm.

The relevant facts are not in dispute. In September 2001, eight-year-old J told her mother that defendant, the mother's boyfriend, had come into her room at night, closed and locked the door, and touched her vaginal area while J pretended to be asleep. In early October, Detective Ronald Walch received the report alleging defendant's conduct. A few weeks later, J participated in a video-recorded interview with Walch and Claudia Eliasen, a Child Advocacy Center employee, to discuss and recount the incident. Thereafter, J moved out of the state and did not return until 2003.[2] In the meantime, defendant had learned of J's allegation before the police report was filed, and he fled.

Defendant was indicted on October 6, 2003, after J became available to testify before a grand jury in Oregon.[3] No one was able to tell Walch where defendant had gone. [266 Or.App. 383] J's mother thought that he could be in California or Mexico. Upon issuance of the indictment, Walch issued an all-states arrest warrant through the Law Enforcement Data System (LEDS) and National Crime Information Center. Sometime during 2003, Walch received information, with a phone number and address, suggesting that defendant was in Los Angeles, California. Walch engaged the Los Angeles County Sheriff's Office to attempt to arrest and extradite defendant, but the attempt failed. The sheriff's office surveyed the home for some time and eventually contacted a woman living there, who identified herself as defendant's wife. Defendant was not present at the time. Shortly thereafter, both defendant and the woman disappeared. Walch did not have other leads as to defendant's whereabouts. He thought that defendant may have gone to Mexico and asked J's mother to keep him apprised of new information. Eventually, defendant was arrested and arraigned in November 2011.[4]

Walch retired some years before defendant's arrest. During a routine purge of his old files, Walch destroyed between four and six pages of notes that he had taken during the investigation. The pages included notes from the recorded interview with J and from his search for defendant. The " master case file," however, was unaffected; that file preserved all " official" police case reports and the recorded interview of J. Walch testified that any " substantive" evidence from his

Page 967

notes was preserved because they were incorporated into the ...


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