and submitted May 11, 2017
County Circuit Court 140431549; Jerry B. Hodson, Judge.
D. Robinson, Deputy Public Defender, argued the cause for
appellant. With him on the briefs was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Offce of Public Defense
Brown, Assistant Attorney General, argued the cause for
respondent. With him on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
DeVore, Presiding Judge, and James, Judge, and Haselton,
Senior Judge. [*]
Or.App. 808] Case Summary: Defendant appeals a judgment
convicting him on 17 counts of a variety of offenses for a
crime spree that spanned several days. On appeal, defendant
raises 15 assignments of error, including challenges to the
trial court's denial of his motion for judgment of
acquittal, in which he argued that defendant's connection
to the crimes alleged in Counts 21 and 26 and Counts 22 to 25
was solely through the testimony of his accomplices, without
extrinsic evidence connecting him to the crime as required by
ORS 136.440(1). Held: As to Counts 22 to 25, the
court erred in denying defendant's motion for judgment of
acquittal because the evidence presented was insufficiently
independent of the accomplice testimony. As to Counts 21 and
26, the court erred in denying defendant's motion for
judgment of acquittal because there was insufficient evidence
of the corpus delicti that a crime occurred at all.
of conviction on Counts 21 through 26 reversed; remanded for
resentencing; otherwise affirmed.
appeals a judgment convicting him on 17 counts of a variety
of offenses for a crime spree that spanned several days. For
purposes of our opinion, only three episodes in that spree
are relevant for discussion. Each episode is discussed in
detail below, but in summary, the first involves an attempted
kidnapping and robbery on April 2, 2014, (the Johnson
episode). There, the state alleged that the defendant and his
accomplices conspired to kidnap Johnson, a jewelry store
employee, with the intention of forcing Johnson to open safes
in various store locations using his employee keys. The
second involves an attempted robbery of a T-Mobile store on
April 15, 2014, (the T-Mobile episode). There, the state
alleged that defendant and his accomplices conspired to
perform a "strong arm" robbery on a T-Mobile store
as the employees were closing the store for the evening. The
third involves the burglary of a uniform supply store on
April 15, 2014, (the Blumenthal's episode). There,
officers observed suspects burglarizing the Blumenthal's
store and a chase ensued, which resulted in the apprehension
of defendant and two accomplices.
appeal, defendant raises 15 assignments of error including
challenges to the trial court's denial of his motion for
judgment of acquittal, in which he argued that
defendant's connection to the crimes alleged in Counts 21
and 26 (the T-Mobile episode) and Counts 22 through 25 (the
Johnson episode) was solely through the testimony of his
accomplices, without the extrinsic evidence connecting him to
the crime as required by ORS 136.440(1). We agree, and
accordingly reverse Counts 21 through 26.
defendant was apprehended following the Blumenthal's
episode, we relate the details of that incident first. In the
early morning hours of April 15, 2014, Portland [288 Or.App.
810] Police Officer Livingston learned that an alarm had gone
off at a Blumenthal's Uniform Store on Barbur Boulevard.
Upon checking the business he observed that the back door had
been damaged in a possible attempt to gain entry. He also
noticed that close by was a white Suburban. Ultimately, he
left the scene.
that morning, around 2:00 a.m., Livingston was driving around
that same area when he again saw the white Suburban in the
vicinity of Blumenthal's. He became suspicious and called
in other officers, who staged themselves in areas where the
suspects could no longer see them, but they could conduct
surveillance. Within 20 minutes the Suburban drove into the
back alleyway behind the Blumenthal's.
the officers walked past the alleyway and saw a person
wheeling a container from Blumenthal's to the Suburban.
Shortly thereafter, the vehicle drove away. Another officer
checked the back door and found that it was no longer
secured, and saw evidence of a burglary.
Holbrook fell in behind the Suburban and activated his
overhead lights, but the suspects did not stop. A chase
ensued involving the Suburban and three or four patrol cars.
During that chase the suspect vehicle crashed into a pole,
and the driver, Ropp, fled on foot
the Suburban, officers found Young and defendant, as well as
numerous firearms, explosives, Molotov cocktails, zip ties,
gloves, and binoculars.
quickly upon interrogation Young offered to assist the police
and testify at trial regarding the events of that night, as
well as various crimes he claimed that Ropp, himself, and
defendant had been involved in over the preceding months,
including the Johnson and T-Mobile episodes. Ultimately, both
Young and Ropp negotiated cooperation agreements and
testified for the state.
respect to the Johnson episode, the accomplices testified
that Ropp first formed the idea of kidnapping Johnson, an
employee at a chain of jewelry stores. Their [288 Or.App.
811] plan was to kidnap Johnson and force him to open the
safes at multiple store locations.
testified that the three men followed Johnson on several
occasions to learn his habits. They then broke into vehicles
at an animal shelter in Washington County, hoping to find
ketamine-an injectable sedative that could be used to
facilitate the kidnapping-and stole syringes, zip ties,
uniforms, and other equipment. They removed the middle row of
seats from an Astro van and affixed the zip ties where they
could be used to secure Johnson. Then, on April 2, 2014, they
parked in the parking garage where Johnson kept his vehicle,
and waited for him.
to the accomplice testimony, Ropp rode the elevator with
Johnson but, when a family with small children got on the
elevator, he decided to abort the kidnapping attempt.
However, by then, Young and defendant had already detonated
several smoke bombs on the floor where Johnson kept his
vehicle. When the elevator reached that floor, Johnson saw
the smoke and ran off.
respect to the T-Mobile episode, Ropp and Young testified
that defendant had previously worked at the T-Mobile store
and knew the closing procedures. They planned to enter the
store at closing with weapons and take money from the safe.
To that end, they had made thermite, a substance that,
through chemical reaction, creates very high temperatures
over a small surface area.
testified that on the evening of April 15, 2014, they drove
to the T-Mobile store in a Suburban SUV. Ropp and Young
waited outside the store while defendant stayed in the
vehicle as a lookout. All three were armed, and in contact
via walkie-talkie. However, as the store employees began to
leave a bicyclist rode up to an adjacent store. Not wanting
witnesses, the three abandoned their plans and drove away.
trial, defendant moved for a judgment of acquittal on Counts
21 through 26-the Johnson and T-Mobile episodes-arguing that
the accomplice testimony was insufficiently corroborated by
extrinsic evidence connecting the [288 Or.App. 812] defendant
to the alleged crime. The trial court denied the motion, and
ultimately convicted defendant on those counts following a
bench trial. On ...