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State v. Litscher

Court of Appeals of Oregon

May 17, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
KEVIN DUANE LITSCHER, Defendant-Appellant.

          Argued and submitted October 27, 2015 McLoughlin High School, Milton-Freewater.

         Harney County Circuit Court 1309347CR; W. D. Cramer, Jr, Judge.

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

          Peenesh H. Shah, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

          Before Armstrong, Presiding Judge, and Hadlock, Chief Judge, and Egan, Judge.

         Case Summary:

         Defendant appeals a judgment convicting him of multiple crimes, including kidnapping in the first degree, felon in possession of a firearm, and unlawful use of a weapon. On appeal, defendant makes an unpreserved argument that the trial court should have acquitted him of kidnapping, because the record does not include evidence showing that he "secretly confined" the victim in a place where the victim was "not likely to be found, " as required for a conviction under ORS 163.235. Defendant also makes unpreserved arguments regarding the length of his sentences for felon in possession of a firearm and unlawful use of a weapon.

         Held:

         The trial court did not plainly err in entering a judgment of conviction for first-degree kidnapping and, therefore, defendant's unpreserved argument that he was entitled to a judgment of acquittal presents no basis for reversal. In addition, because the challenged sentences are concurrent with- and shorter than-defendant's sentence for kidnapping and defendant has not explained any way in which he is prejudiced by the imposition of those sentences, the Court of Appeals declines to exercise its discretion to address defendant's unpreserved sentencing arguments.

         Affirmed.

          HADLOCK, C. J.

         Defendant was convicted of multiple crimes, including first-degree kidnapping. On appeal from the judgment of conviction, he makes an unpreserved argument that the trial court should have acquitted him of kidnapping because the record does not include evidence showing that he "confine [d]" the victim "in a place where [she was] not likely to be found." ORS l63.225(1)(b). As we explain below, the trial court did not plainly err in entering a judgment of conviction for first-degree kidnapping. Accordingly, defendant's unpreserved argument that he was entitled to a judgment of acquittal presents no basis for reversal. In addition, we decline to exercise our discretion to address defendant's unpreserved sentencing arguments. Accordingly, we affirm.

         In assessing defendant's argument that he was entitled to a judgment of acquittal on the kidnapping charge, we view the facts in the light most favorable to the state. State v. Rader, 348 Or 81, 83, 228 P.3d 552 (2010). We summarize the pertinent facts of this case in accordance with that standard.

         Defendant's parents have two homes, their residence in Burns and a cabin in Harney County. The cabin is miles out of town and the closest neighbor is eight to 10 miles away. The area is wooded and the cabin is not visible from the road. Defendant's parents have an antenna that allows them to get cell-phone service at a ...


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