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State v. Lunetta

Court of Appeals of Oregon

March 4, 2015

STATE OF OREGON, Plaintiff-Respondent,
v.
NICHOLAS EMILIO LUNETTA, Defendant-Appellant

Argued and Submitted, Molalla High School, Molalla January 14, 2015

Multnomah County Circuit Court. 120934141. John A. Wittmayer, Judge.

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

Jennifer S. Lloyd, Attorney-in-Charge, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Rebecca M. Auten, Assistant Attorney General.

Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.

OPINION

Page 466

[269 Or.App. 514] EGAN, J.

Defendant appeals a judgment of conviction for five counts of robbery in the first degree, ORS 164.415; one count of burglary in the first degree, ORS 164.225; and four counts of kidnapping in the first degree, ORS 163.235.[1] He assigns error to the trial court's denial of his motion for judgment of acquittal (MJOA) on all counts, arguing that the state failed to present legally sufficient evidence to support a guilty verdict on each of the counts because a reasonable trier of fact could not conclude that other evidence corroborated accomplice testimony. See ORS 136.440(1) (set out below). Defendant also argues that the evidence does not show that defendant moved the victims to a qualitatively different place, and therefore does not support guilty verdicts for the crime of kidnapping. The state concedes that the evidence is legally insufficient to support defendant's convictions for kidnapping. We agree and accept that concession and, accordingly, reverse those convictions. On the remaining counts, the state argues that the evidence has a tendency to connect defendant to the charged crimes independent of any accomplice testimony and, therefore, the court did not err when it denied defendant's MJOA. We agree and affirm on those counts.

We review a trial court's denial of an MJOA to determine whether, viewing the evidence in the light most favorable to the state, a rational trier of fact could have found that the state proved all the essential elements of the offense beyond a reasonable doubt. State v. Kaylor, 252 Or.App. 688, 691, 289 P.3d 290 (2012).

The facts are undisputed. Four men entered a home where five people resided and stole property. Around 12:30 a.m., a man displaying a gun entered the attached garage where three residents of the house were socializing. The armed man said that he was robbing the house and ordered the residents to lie on the ground, which they did. Shortly thereafter, the man with the gun ordered a resident [269 Or.App. 515] to go with him to one of the bedrooms, where another resident was sleeping. Three other men joined the man with a gun. A resident would testify at trial that one of the robbers had a similar build to defendant. When the men left the home, they took a gun safe--which contained guns, alcohol, medication, and pornography--a necklace, two televisions, a telephone, a computer, and a purse.

Within hours of the robbery, a girlfriend of one of the accomplices heard a loud bang in the living room of her apartment about five minutes after her boyfriend had returned home. She lived with her boyfriend--an accomplice--in the apartment, and defendant stayed with them approximately three days a week. She walked into the living room and saw her boyfriend, two other men, and defendant. She also saw a gun safe and observed that the four men were divvying up its contents. Her boyfriend and defendant each took guns, another man took alcohol, and another man took pornography. Months later when the police eventually searched the apartment, they discovered the gun safe in

Page 467

the bedroom where defendant slept and found letters addressed to him lying on top of it.

At trial, one of the accomplices testified that defendant participated in the robbery. While awaiting trial, defendant wrote two letters that are relevant here. In one letter, he discussed the accomplice's girlfriend, who had identified him to a grand jury, and her ...


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