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State v. Lopez-Minjarez

Court of Appeals of Oregon

December 20, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
PETRONILO LOPEZ-MINJAREZ, Defendant-Appellant.

          Argued and submitted September 26, 2017

         Washington County Circuit Court C053660CR; Rick Knapp, Judge.

          Shawn Wiley, 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.

          Greg Rios argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary: Defendant appeals from a judgment of conviction of one count of felony murder, ORS 163.115, one count of manslaughter, ORS 163.118, and one count of second-degree assault, ORS 163.115. The parties had exchanged multiple versions of a proffered instruction over the course of months. However, the defendant's final fling of the special instruction contained what all parties agree was an incorrect statement of the law. On appeal, defendant argues that the trial court erred when it denied his special requested jury instruction. Held: The trial court did not err. In reviewing jury instructions, the court is confined to the final written instruction submitted. Any word choice that affects the meaning of the instruction in a material way cannot be considered a typographical error. The instruction as proffered to the trial court was an incorrect statement of the law, and therefore the instruction was properly denied.

         Affrmed.

         [289 Or.App. 404] JAMES, J.

         Defendant appeals from a judgment of conviction of one count of felony murder, ORS 163.115, one count of manslaughter, ORS 163.118, and one count of assault in the second degree, ORS 163.175. On appeal, defendant raises four assignments of error. We reject the third and fourth without discussion. His first and second assignments raise a combined challenge to the trial court's denial of his special requested jury instruction. We conclude that the instruction proffered to the trial court was not a correct statement of law, and affirm.

         The facts underlying defendant's conviction were summarized by the Oregon Supreme Court in State v. Lopez-Miniarez. 350 Or. 576, 260 P.3d 439 (2011):

"The charges in this case arose after defendant and his father drove in defendant's truck to the home of a man who was having an extra-marital affair with defendant's mother. When defendant and his father arrived at the man's home, no one was there. The victim-the man's teen-aged son-arrived shortly thereafter. When victim arrived, defendant or his father, or the two of them together, pushed the victim into the house, where the victim was shot, but not killed. The victim was then forced into defendant's truck and taken to a remote area off a logging spur road, where he was killed. Police arrested defendant later that night at his home, after a neighbor reported seeing the victim abducted and gave police the license plate number of the truck in which he was taken. Defendant's father was never apprehended by authorities."

Id. at 578.

         Following a series of appeals, this case came back before the trial court for retrial. In advance of that retrial, the state, defense counsel, and the trial court engaged in an extensive discussion, over the course of several months, regarding the legal standard and proper instruction for felony murder. That back and forth discussion included multiple filings with the court. In his final filing, defendant set forth his latest version of his proposed instruction:

"Felony Murder requires a 'causal connection' between the felony the defendant was committing and the homicide. [289 Or.App. 405] If the felony was completed, terminated, or withdrawn from prior to the coparticipant's commission of the felony, this may be sufficient to break the causal connection between the felony and the homicide in a ...

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