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State v. Parks

Court of Appeals of Oregon

August 29, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
DECHAVIEN JABBAR PARKS, aka Dechavien Jabar Parks, Defendant-Appellant.

          Submitted October 27, 2016

          Multnomah County Circuit Court 130632717; Christopher J. Marshall, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Shawn E. Wiley, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Susan G. Howe, Assistant Attorney General, fled the brief for respondent.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary:

         Defendant appeals a judgment of conviction, entered after a trial before the court, for eight counts of attempted aggravated murder, seven counts of first-degree burglary, two counts of fourth-degree assault, and one count each of first-degree rape, first-degree unlawful sexual penetration, first-degree sexual abuse, attempted first-degree sodomy, first-degree kidnapping, strangulation, menacing, attempted first-degree assault, and unlawful use of a weapon. Those charges, among others, were brought against defendant in a single indictment. On appeal, defendant argues that the basis for joining the charges was not apparent from the face of the indictment, and, thus, the trial court erred in denying his demurrer to the indictment. Defendant also argues on appeal that the trial court erred when it denied his motion for judgment of acquittal to the burglary counts and further erred when it entered guilty verdicts on those counts.

         Held:

         (1) The trial court erred in denying defendant's demurrer to the indictment, but, except with respect to the unlawful use of a weapon conviction, that error [293 Or.App. 515] was harmless. (2) Defendant failed to preserve his challenge to the burglary convictions, and, thus, those challenges are rejected.

         Conviction for unlawful use of a weapon reversed; remanded for resentencing; otherwise affirmed.

         [293 Or.App. 516] ARMSTRONG, P. J.

         Defendant appeals a judgment of conviction, entered after a trial before the court, for eight counts of attempted aggravated murder, seven counts of first-degree burglary, two counts of fourth-degree assault, and one count each of first-degree rape, first-degree unlawful sexual penetration, first-degree sexual abuse, attempted first-degree sodomy, first-degree kidnapping, strangulation, menacing, attempted first-degree assault, and unlawful use of a weapon. Those charges, among others, were brought against defendant in a single indictment that did not expressly allege a connection between the charges that demonstrated the charges could be joined in a single indictment, ORS 132.560. On appeal, defendant argues that the basis for joining the charges was not apparent from the face of the indictment and, thus, the trial court erred in denying his demurrer to the indictment. Defendant also argues on appeal that the trial court erred when it denied his motion for judgment of acquittal on the burglary counts and further erred when it entered guilty verdicts on those counts.

         For the reasons that follow, we conclude that, under State v. Poston, 277 Or.App. 137, 370 P.3d 904 (2016), adh'd to on recons, 285 Or.App. 750, 399 P.3d 488, rev den, 361 Or. 886 (2017), the trial court erred in denying defendant's demurrer to the indictment. However, we also conclude that, except with respect to the unlawful use of a weapon conviction, that error was harmless. We further conclude that defendant failed to preserve his challenge to the burglary convictions that he now raises on appeal and, therefore, we reject those assignments of error. Accordingly, we reverse defendant's conviction for unlawful use of a weapon, remand for resentencing, and otherwise affirm.

         For purposes of reviewing the denial of a motion for judgment of acquittal (MJOA), we view the facts in the light most favorable to the state to determine whether "a rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt." State v. Bilsborrow, 230 Or.App. 413, 415, 215 P.3d 914 (2009). Additionally, for purposes of determining whether an erroneous joinder of charges in an indictment is harmless, as discussed under [293 Or.App. 517] Poston, we look at the evidence the state presented at trial in support of its case. 277 Or.App. at 146. With those standards in mind, the relevant facts are as follows.

         In June 2013, 18-year-old M was living with her mother, Dean, and her 14-year-old brother, D. M's cousin, Harris, also stayed at the house, but he "didn't really stay there a lot." M's friend J also slept at the house frequently.

         Harris and defendant had been roommates until they lost their apartment. After that, defendant stayed with his girlfriend. On June 24, after an argument, defendant's girlfriend told defendant that he could no longer stay at her place, and she dropped defendant off at Dean's house with his duffel bag. Neither M nor Dean had met defendant or knew that he had been in their house on June 26 before the events that occurred in the early hours of June 27.

         On June 26, M and Dean were out of the house for most of the day. It was Harris's 21st birthday, and he threw a party at the house while M and Dean were gone, without their knowledge. Dean would not have allowed a party at her house, if she had known about it. By the time that M and Dean returned home, at about 11:00 to 11:30 p.m., the party had ended, and J, D, and M's "cousin" W were the only people at the house. Dean took some extra-strength Tylenol and went to bed. Later, D and W left the house. After they left, M and J watched some movies, had sex, and then fell asleep on the living room couch while watching TV. When she fell asleep, M was wearing only a shirt and bra and was covered with a blanket.

         Around 5:00 or 5:30 am, M awoke to the sound of the front door slamming, but she did not look up because she assumed that it was Harris or D. Defendant, whom M had never before met, pulled the blanket off of M and dragged her off of the couch by her hair. M ran up the stairs towards Dean's room, but defendant followed her and dragged M by her hair into M's bedroom. M screamed at defendant to get away from her, but no one else in the house heard her. Defendant got on top of M and held her arms down while he penetrated her vagina with his penis. M fought defendant, hitting him in the face and splitting his lip. ...


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