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State v. McColly

Court of Appeals of Oregon

June 14, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
DAWN MARIE McCOLLY, Defendant-Appellant.

          Argued and Submitted December 22, 2015

         Tillamook County Circuit Court 14CR03429 Joel W. Stevens, Judge pro tempore.

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

          Jamie Contreras, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Shannon T. Reel, Assistant Attorney General.

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

         Case Summary: Defendant appeals a judgment of conviction for failure to appear in the second degree, ORS 162.195. On appeal, defendant raises two assignments of error. In her first assignment, defendant contends that the trial court erred when it denied her motion for judgment of acquittal because there was insufficient evidence that she had been released from "custody or a correctional facility" within the meaning of ORS 162.195. In her second assignment, she argues that the trial court erred when it refused to redact from defendant's release agreement admitted into evidence that the misdemeanors with which she had been charged were harassment and menacing, because that evidence was irrelevant and prejudicial. Held: The trial court did not err when it denied defendant's motion for judgment of acquittal because there is sufficient evidence that defendant was released from "custody" within the meaning of ORS 162.195. Even if the trial court erred when it failed to redact the specific misdemeanor charges, that error was harmless.

         Affirmed.

         [286 Or.App. 169] EGAN, J.

         Defendant appeals a judgment of conviction for failure to appear in the second degree. ORS 162.195. On appeal, defendant raises two assignments of error. In her first assignment, defendant contends that the trial court erred when it denied her motion for judgment of acquittal because there was insufficient evidence that she had been released from "custody or a correctional facility" within the meaning of ORS 162.195. In her second assignment, she argues that the trial court erred when it refused to redact from defendant's release agreement admitted into evidence, that the misdemeanors with which she had been charged were harassment and menacing, because that evidence was irrelevant and prejudicial. We conclude that the evidence was sufficient to establish that defendant was released from "custody or a correctional facility" for purposes of ORS 162.195. We also conclude that, even if the trial court erred when it failed to redact the specific misdemeanor charges, that error was harmless. Accordingly, we affirm.

         "When reviewing a trial court's denial of a motion for a judgment of acquittal, we view the evidence in the light most favorable to the state." State v. Werner, 281 Or.App. 154, 156, 383 P.3d 875 (2016), rev den, 361 Or. 312 (2017). On July 22, 2013, the trial court arraigned defendant-who was voluntarily present-on charges of menacing and harassment. The trial court released defendant based on a "conditional release" and ordered defendant to complete the "book and release" process by July 22, 2013-that same day. The "book and release" process is "the official process of being fingerprinted and [photographed] by the deputies." On July 22, 2013, defendant executed the conditional release agreement, which provided, in part, that she understood that she had been "released by the Court or the Court's release officer instead of being held in jail" and would "personally appear in Court on 8/19/13 at 9:30 a.m. and all other times ordered by the Court." She swore to that conditional release agreement before a clerk.

         On January 21, 2014, the trial court granted defendant's request for a set over of trial, and ordered defendant to appear for call on March 20, 2014. Defendant failed to [286 Or.App. 170] appear on March 20, 2014. Consequently, the trial court issued a bench warrant, and the state charged defendant with failure to appear in the second degree, ORS 162.195. Before trial, defendant objected to the admission of a portion of the release agreement that stated that she had been charged with menacing and harassment and asked the court to redact the reference to those charges. Defendant offered to make a judicial admission that she had been charged with two misdemeanors, but preferred that "the jury not hear the specific charges" because the identity of the misdemeanor charges was irrelevant and prejudicial. The trial court overruled defendant's objection and admitted the release agreement without redacting the reference to the menacing and harassment charges. At trial, the state referred once in its opening statement and twice in its closing statement to the evidence that defendant had been charged with menacing and harassment misdemeanors.

         At trial, after the state's case-in-chief, defendant moved for a judgment of acquittal, contending that the state had failed to prove that defendant had been "released from custody or a correctional facility, " as required by ORS 162.195. The state responded that the "book and release" process that defendant had completed qualified as being released from custody or a correctional facility. The trial court denied defendant's motion for judgment of acquittal, concluding that "the book and release process is sufficient to constitute constructive custody." The jury found defendant guilty of failure to appear in the second degree.

         On appeal, defendant reiterates her arguments from below. First, she argues that the state failed to show that defendant was released from "custody or a correctional facility, " as required by ORS 162.195. Second, she contends that the trial court erred when it admitted evidence that defendant had been ...


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