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State v. Welsh

Court of Appeals of Oregon

November 19, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
DANIELLE ELIZABETH WELSH, Defendant-Appellant

September 23, 2014, Argued and Submitted

12CR0960. Coos County Circuit Court. Richard L. Barron, Judge.

Remanded for resentencing; otherwise affirmed.

Stephanie J. Hortsch, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Leigh A. Salmon, Senior 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 Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.

OPINION

Page 133

[267 Or.App. 9] SERCOMBE, P. J.

Defendant appeals her conviction by a jury of criminal trespass in the second degree, attempted assault in the first degree, attempted assault of a public safety officer, and various other criminal charges, raising two assignments of error. She first contends that the trial court plainly erred in failing to enter a judgment of acquittal on the criminal trespass charge. Defendant asserts that no rational juror could find that the state proved a necessary element of that charge--that defendant entered or remained unlawfully on the premises at issue. Even if the evidence was insufficient on the criminal trespass charge, we decline to exercise our discretion to correct any error in the judgment because defendant could have objected to the sufficiency of the evidence and additional evidence could have remedied that objection. Defendant separately argues that the trial court plainly erred in imposing consecutive sentences on the assault charges without making the findings required under ORS 137.123(5). We agree that the failure to enter those statutory findings was plain error and exercise our discretion to correct that error. Accordingly, we remand the case for resentencing on the assault charges and otherwise affirm.

Defendant's criminal charges arose from her suspicious behavior in the front yards of several residences. In September 2012, an off-duty police officer confronted defendant in the front yard of his house. Defendant appeared to be lost and asked the officer " strange questions" about whether he knew certain people, owned a dog, and had lived there long. Defendant stated she was looking for her children and then told the officer, " Okay. I'm leaving." As she was leaving, Officer Kinney arrived at the scene in a marked patrol car. He initiated a conversation with defendant because she was " acting suspiciously, and leaving a yard that didn't belong to her." Kinney identified himself as a police officer, asked defendant if she was well, and inquired why defendant had been in the other officer's front yard. Defendant " seemed kind of upset" and told Kinney that he had " no valid reason to contact her." Defendant then walked away.

[267 Or.App. 10] Kinney was concerned about defendant, but resumed his patrolling in that neighborhood. Very shortly thereafter, he observed defendant sitting on the sidewalk. Still later, Kinney saw defendant " in another yard." He drove around that general area, and returned to find defendant in yet another front " yard" of a single-family residential building that was enclosed by a cyclone fence. Kinney

Page 134

described defendant's reaction: " She saw me. And, basically, turned from walking towards the front door of the house to walking down the sidewalk to the gate on the fence to leave." Kinney left the patrol car and confronted defendant, who attempted to " push right past" him. Kinney told defendant she was not free to leave and placed his hand on her arm. Defendant then opened a folding knife and attempted to stab Kinney. Later, defendant screamed obscenities, threatened to kill Kinney, and struggled as Kinney arrested her.

Following her arrest, defendant was charged with second-degree criminal trespass, ORS 164.245; attempted assault of a public safety officer, ORS 163.208, ORS 161.405(2)(d); attempted first-degree assault, ORS 163.185, ORS 161.405(2)(b); and other crimes. Defendant did not move for a judgment ...


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