and submitted January 7, 2019
Tillamook County Circuit Court 16CR43745; Carroll J.
Tichenor, Senior Judge.
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
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
Lagesen, Presiding Judge, and DeVore, Judge, and James,
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.
Or.App. 374] JAMES, J.
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
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.
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.
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.
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."
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