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State v. Miller

Court of Appeals of Oregon

December 13, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
MICHAEL EDWARD MILLER, aka Michael Miller, Defendant-Appellant.

          Argued and Submitted March 29, 2017

         Tillamook County Circuit Court Nos.15CR13286, 15CR25535 Jonathan R. Hill, Judge.

          Kyle Krohn, Deputy Public Defender, argued the cause for appellant. With him on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Lauren P. Robertson, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Ortega, Presiding Judge, and Egan, Judge, and Lagesen, Judge.

          LAGESEN, J.

         In A160386, order to pay supervision fees reversed; otherwise affrmed. In A160387, judgment of conviction on Count 2 reversed; order to pay supervision fees on Count 1 reversed; otherwise affrmed.

         Case Summary: This is a consolidated appeal of two judgments of conviction for multiple counts of violation of a court's stalking protective order (SPO). In case A160387, defendant assigns error to the trial court's denial of his motion for judgment of acquittal on the charge of "unlawfully and recklessly coming within 25 feet" of the Coliseum Theater in Tillamook (Count 2), in violation of the SPO. In both cases (A160387 and A160386), defendant assigns error to the court's imposition of supervision fees after it found that defendant had no ability to pay. Held: The trial court erred in both instances. First, there was insuf-fcient evidence to support defendant's conviction on Count 2 in case A160387.

         [289 Or. 354] Second, although defendant's challenges to the imposition of supervision fees were unpreserved, the state conceded that imposition of the fees was erroneous, given the trial court's explicit finding that defendant lacked the ability to pay. Consequently, the Court of Appeals exercised its discretion to correct that error in both cases.

         In A160386, order to pay supervision fees reversed; otherwise affrmed. In A160387, judgment of conviction on Count 2 reversed; order to pay supervision fees on Count 1 reversed; otherwise affrmed.

         [289 Or. 355] LAGESEN, J.

         This is a consolidated appeal of two judgments of conviction for multiple counts of violation of a court's stalking protective order (SPO), ORS 163.750. In case number A160387, defendant was convicted in a bench trial of two counts of violating a court's SPO. In that case, defendant assigns error to the trial court's denial of his motion for judgment of acquittal on the count in which defendant was charged with "unlawfully and recklessly coming within 25 feet" of the Coliseum Theater in Tillamook (Count 2), in violation of the SPO to which defendant was subject. He also assigns error to the trial court's imposition of supervision fees in connection with his sentence on Count 1, arguing that the court erred in imposing the fees after it found that defendant had no ability to pay fees. In case number A160386, defendant was convicted in a bench trial of one count of violating the SPO, and acquitted on the remaining count. In that case, he again assigns error to the trial court's imposition of supervision fees. We conclude that there is insufficient evidence to support defendant's conviction on Count 2 in the first case (case number A160387) and therefore reverse the conviction on that count and remand for entry of judgment of acquittal on that count. And, accepting a concession of error by the state, we also reverse the trial court's imposition of supervision fees in both matters.

         By way of background, defendant is subject to an SPO that generally prohibits him from being within 25 feet of the Tillamook Coliseum Theater, although defendant lives in an apartment above an antique store that is in the same block as the theater and is permitted under the terms of the SPO to be within 25 feet of the theater for the purpose of using the staircase to access his residence. The conviction at issue in this appeal arose from defendant's act of parking his car on the street in front of the antique store, and near the theater, following a trip to the grocery store with another person, Sims. One of the theater owners contacted police after noticing ...


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