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State v. Barbero

Court of Appeals of Oregon

May 1, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
DAVID JOEL BARBERO, Defendant-Appellant.

          Argued and submitted January 7, 2019

          Tillamook County Circuit Court 16CR43745; Carroll J. Tichenor, Senior Judge.

          Sarah De La Cruz, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. Also 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 for driving under the influence of intoxicants. ORS 813.010. He assigns error to the trial court's denial of his requested jury instruction on confession and corroboration, Uniform Criminal Jury Instruction (UCrJI) 1050. On appeal, defendant argues that he was entitled to the instruction, despite the trial court's legal ruling denying defendant's motion for judgment of acquittal and it's holding that defendant's statements were admissions and not confessions. In response, the state asserts that the trial court's ruling on the legal question of whether defendant's various statements were admissions, and not confessions acknowledging guilt that needed to be corroborated under ORS 136.425(2), was correct and unchallenged on appeal. Further, the state contends that, following the trial court's legal ruling, there was no fact finding role for the jury on the issue, thus rendering the instruction improper. The trial court instructed the jury on admissions and voluntariness as well as the state's burden of proof. Held: Because the trial court determined as a matter of law that defendant's statements were not made for the [297 Or.App. 373] purpose of acknowledging guilt, it could only have concluded that those statements were admissions and not confessions. ORS 136.425(2) requires corroboration only when the state relies on a confession. Without a confession, the trial court did not err when it determined that there was no basis for the instruction requiring corroboration. Affirmed.

         [297 Or.App. 374] JAMES, J.

         The common law concept of corpus delicti for the corroboration of confessions is codified at ORS 136.425(2). To assist courts in implementing that statute, the Uniform Criminal Jury Instructions committee of the Oregon State Bar created Uniform Criminal Jury Instruction (UCrJI) 1050, which reads as follows:

"A confession alone is not sufficient to support a conviction for a crime. There must be some additional evidence, other than the confession, from which you may draw an inference that tends to establish or prove that a crime has been committed.
"Not all statements by the defendant are confessions. A statement that is an admission rather than a confession may be used to corroborate a confession.
"A confession is an acknowledgement of guilt made by a person after an offense has been committed. An admission is a statement made for some purpose other than to acknowledge guilt."

         To date, corpus delicti decisions by this court, as well as the Oregon Supreme Court, have arisen exclusively in the context of motions for judgment of acquittal (MJOA) and have concerned whether the evidence was sufficient to meet the requirements of ORS 136.425(2) so as to allow the case to proceed to a jury. This case, however, concerns UCrJI 1050 and provides an opportunity to clarify when, if ever, the instruction is warranted. Specifically, this case presents the question of whether, after a trial court denies an MJOA raised on ORS 136.425(2) grounds, there remains any residual factual determination for the jury on corroboration so as to warrant an instruction. Here, defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010. He assigns error to the trial court's refusal to give UCrJI 1050, after the trial court's earlier denial of his MJOA, where the court held that his statements were admissions, not confessions. We conclude that the instruction was not warranted in this case after the trial court ruled defendant's statements were admissions. We, therefore, affirm.

         [297 Or.App. 375] "In reviewing the trial court's refusal to give a requested instruction, we view the record in the light most favorable to establishment of the facts necessary to require that instruction." State v. Egeland, 260 Or.App. 741, 742, 320 P.3d 657 (2014). "[A] trial court may refuse a requested jury instruction if the instruction does not accurately state the law as it applies to the case." State v. Snyder, 288 Or.App. 58, 61, 405 P.3d 175 (2017), rev den, 362 Or. 508 (2018). We begin with the following relevant facts.

         Deputy Ross was called to mediate a dispute between defendant and the camp host of the Wilson River RV Park, where defendant had his mobile home parked.

         Ross was wearing a body camera and recorded his interaction with defendant. Ross knocked on defendant's door and asked him about the disagreement defendant was having with the camp host regarding a package being held at the RV park office and defendant's application to stay at the park. Defendant explained that he had tried to retrieve his package from the office before 5:00 p.m., but the host had closed the office early. Ross then asked defendant if he had driven his vehicle to the office or around the park property. After some more back and forth between Ross and defendant, Ross told defendant, "So, obviously, I can smell a little bit of alcohol off of you." Ross asked, "So I guess my question is, is how much have you had to drink today?" and explained to defendant that he was concerned that defendant had been driving intoxicated. Defendant responded, "No, I'm not" and explained to Ross that earlier someone had "screamed out of [the RV park] * * * like the Tasmanian Devil" but that "no, I would never do that." Ross again asked defendant, "You never drove around?" Defendant responded, "No. Oh, yeah, I drove around but not like that."

         Ross read defendant his Miranda rights and informed him that he was under arrest for DUII. Defendant was arrested and charged with DUII. At the close of the state's case, defendant moved for judgment of acquittal, arguing:

"[DEFENSE COUNSEL]: [T]he state has insufficient evidence to establish driving of a vehicle. And there's a couple of points I want to make on this one.
[297 Or.App. 376] "Number one is that the driving in this case is established through [defendant]'s statement that he drove. And he never actually says he drove.
“* * * * *
"And what we have here is no corroboration of any kind other than the statement regarding driving."
In response, the prosecutor argued:
"[PROSECUTOR]: Defendant says he drove 25 minutes ago. When Deputy Ross told him he was concerned about his driving, he said, well, there's nothing recorded, but a couple days ...

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