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State v. Ortiz-Saldana

Court of Appeals of Oregon

October 18, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
JOSE ORTIZ-SALDANA, Defendant-Appellant.

          Argued and submitted November 5, 2015

         Washington County Circuit Court C132952CR; Ricardo J. Menchaca, Judge.

          George W. Kelly argued the cause and fled the brief for appellant.

          Jamie Contreras, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Pamela J. Walsh, Assistant Attorney General.

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

         Case Summary: Defendant appeals a judgment of conviction for tampering with a witness, ORS 162.285, assigning error to the trial court's denial of his motion for judgment of acquittal based on insuffciency of the evidence. He contends that the record does not include evidence from which a reasonable fact-fnder could infer that he knowingly attempted to induce false testimony at an offcial proceeding. Held: The trial court erred when it denied defendant's motion for judgment of acquittal. The most the record supports is a reasonable inference that defendant believed that the complainant would be a witness in a hypothetical future proceeding, and that he hoped to induce the complainant to change her story to the police to stop any such proceeding before it started. The record does not support an inference that defendant was attempting to induce the complainant not to testify at such a proceeding, if it occurred.

         Reversed.

         [288 Or.App. 231] HADLOCK, C. J.

         Defendant appeals a judgment of conviction for tampering with a witness, ORS 162.285, assigning error to the trial court's denial of his motion for judgment of acquittal based on insufficiency of the evidence. Defendant contends, among other things, that the record does not include evidence from which a reasonable factfinder could infer that he knowingly attempted to induce false testimony at an official proceeding. We agree and, accordingly, reverse.[1]

         In reviewing a trial court's ruling on a motion for judgment of acquittal, we state the facts in the light most favorable to the state, reviewing those facts "to determine whether a rational trier of fact * * * could have found the essential element of the crime beyond a reasonable doubt." State v. Cunningham, 320 Or. 47, 63, 880 P.2d 431 (1994), cert den, 514 U.S. 1005 (1995). Applying that standard of review, we must determine whether the evidence is sufficient to support a factfinder's verdict of guilt beyond a reasonable doubt, not whether we believe that defendant is guilty. Id.

         At the time of the events in question, defendant, his wife, their sons, A and O, and O's then-girlfriend, the complainant, lived together. Following an incident between the complainant and A, the complainant left the house and reported to police that A had attempted to sexually assault her. Later that evening, the complainant returned to the house, where she spoke with defendant and his wife. During that conversation, defendant asked the complainant what had happened, but he and his wife also told the complainant that the assault was her fault. The complainant was scared and angry that defendant and his wife did not believe her, and she left.

         The next morning, O brought the complainant back to the house, where she had a second conversation with defendant and his wife. Defendant told the complainant that he wanted her to reconsider what had happened and to think [288 Or.App. 232] about what she would say to the police. The complainant told defendant that she had already spoken with the police and could not change the story. Defendant responded, "Well, just think for his sake. Because [A] just got out of prison and if he goes back, he's going to be in there for a longer time and just think how that's going to hurt us as * * * his parents if he goes back to prison." Defendant and his wife urged the complainant to call the police and say there had been a misunderstanding and that "it didn't happen like that." At some point during that conversation, defendant said, "what's done is done." As the complainant and O left, defendant told the complainant to let him know later that night if she had changed her mind about "what [she] had told the cops."

         That evening, defendant asked the complainant if she had considered changing her story. After she told him that she had not thought about it, defendant told her to "[l]et us know * * * because tomorrow's Monday."

         Later that same evening, the complainant again encountered defendant and his wife, who "were being hysterical." The pair told the complainant that the assault had never happened, that As story differed from hers, and that she was lying. Defendant also called the complainant a "cop caller" and physically charged at her, although O stepped between them. The complainant then called 9-1-1 and, later, the detective assigned to her case. Following her conversation with the detective, the complainant continued to receive calls and text messages from defendant's wife's phone. The calls continued on Monday and defendant's wife sent one more text message that Tuesday, but the complainant did not speak with either defendant or his wife about the incident after that, and that was the last time either of them pressured her about the case.

         A few days later, the detective assigned to the complainant's case arrested and interviewed defendant. Defendant acknowledged knowing that his son, A, was a suspect in a crime against the complainant. Although defendant denied attempting to get the complainant to drop the charges, he told the detective that A had told him that "the, in quotes, rape wasn't true." Defendant also acknowledged that he told the complainant that reporting that ...


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