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State v. Riley

Supreme Court of Oregon

May 31, 2019

STATE OF OREGON, Petitioner on Review,
v.
JEMAELL DIAMOND RILEY, aka Jemaell Diamondomi Riley, Respondent on Review.

          Argued and submitted November 5, 2018.

          On review from the Court of Appeals. (CC 140431549), (CA A160143) [*]

          Jacob Brown, Assistant Attorney General, Salem, argued the cause and fled the briefs for petitioner on review. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Andrew D. Robinson, Deputy Public Defender, Offce of Public Defense Services, Salem, argued the cause and fled the brief for respondent on review. Also on the brief was Ernest G. Lannet, Chief Defender.

          Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Nelson, and Garrett, Justices, and Baldwin, Senior Justice pro tempore. [**]

         [365 Or. 45] Case Summary:

         Defendant was convicted of committing multiple crimes with two accomplices. His convictions for six of those counts depended almost entirely on the testimony of his accomplices, who had entered into a cooperation agreement with the state. Defendant contended that he was entitled to a judgment of acquittal on those counts, because the accomplice testimony had not been corroborated by "other evidence" as required by ORS 136.440(1). The Court of Appeals agreed with defendant and reversed his convictions on those counts. Held: (1) The corroborative evidence required by ORS 136.440(1) must connect the defendant to the crime independently of the testimony of the accomplice; and (2) in this case, without making reference to the accomplice testimony, the available evidence did not connect the defendant with the commission of the six counts at issue.

         The decision of the Court of Appeals is affirmed. The judgment of conviction of the circuit court is affirmed in part and reversed in part, and the case is remanded to the circuit court for further proceedings.

         [365 Or. 46] BALDWIN, S. J.

         Defendant was convicted of committing multiple crimes with two accomplices. His convictions for six of those counts depended almost entirely on the testimony of his accomplices, who had entered into a cooperation agreement with the state. Defendant contended that he was entitled to a judgment of acquittal on those counts, because the accomplice testimony had not been corroborated by "other evidence" as required by ORS 136.440(1). The Court of Appeals agreed with defendant and reversed his convictions on those counts. State v. Riley, 288 Or.App. 807, 407 P.3d 946 (2017). On review, we affirm the Court of Appeals. We reverse the relevant portions of the circuit court's judgment of conviction and remand to that court for further proceedings.

         I. BACKGROUND

         The legal issue in this case turns on the proper interpretation of ORS 136.440(1). That statute provides:

"A conviction cannot be had upon the testimony of an accomplice unless it is corroborated by other evidence that tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances of the commission."

         The issue for determination is whether the evidence was legally sufficient, as required by that statute, to support defendant's convictions for several of the charged crimes. Specifically, we must decide whether the accomplice testimony against defendant had been sufficiently corroborated by other evidence tending to connect defendant with those offenses.

         On denial of a motion for judgment of acquittal, we construe all facts in favor of the state. See, e.g., State v. Garcia, 361 Or. 672, 674, 399 P.3d 444 (2017). The following facts are supported by testimony of defendant's accomplices. However, under ORS 136.440(1), those facts are not legally sufficient to convict defendant unless we conclude that they were sufficiently corroborated by "other evidence."

         Defendant was arrested on April 16, 2014. Defendant, Paul Ropp, and Steven Young had broken into a uniform [365 Or. 47] store and stolen ballistic vests and police uniforms. They left in an SUV and were pursued by police. After a chase, defendant and his accomplices crashed the SUV. Defendant and Young were pulled from the vehicle and arrested. Ropp fled on foot with an assault rifle; he shot a police officer and killed a police dog before being arrested. For purposes of our review, it is undisputed that, two days earlier, the group had been involved in another crime. Defendant, Ropp, and Young had scaled a fence and broken into two Comcast vans, stealing various items.

         After their arrests, Ropp and Young negotiated cooperation agreements with the state. At defendant's trial, they offered testimony that the group-including defendant- had engaged in a much larger set of crimes. Two of those criminal plans are at issue here.

         The first criminal plan involved an attempted kidnapping and robbery. According to the accomplices, the group had planned to rob a jewelry store chain. They intended to kidnap the manager of the chain and force him to open safes at various store locations. The group followed the manager on several occasions to learn his habits. Then they broke into an animal shelter hoping to find an injectable sedative to aid in the kidnapping. They did not locate a sedative, but they stole syringes and uniforms. They obtained a van and removed the middle seat, tying zip ties and rope to the seat anchors so they could secure the manager. They planned to wait in a parking deck near the manager's car and grab him after setting off smoke bombs. In the end, the plan fell apart at the last minute-and only after a smoke bomb had been detonated-because a family had entered the parking deck elevator with the manager.

         The second criminal plan was an attempted robbery of a T-Mobile store. The armed group planned to enter the store at closing time and burn the safe open with thermite. The group waited outside the store in an SUV-the one that would be wrecked early the next morning. When a bicyclist arrived at a nearby business, however, the group abandoned the plan and drove away. The accomplices testified that they then went to the uniform store to carry out the burglary that ultimately led to their arrest.

         [365 Or. 48] Defendant was charged with 18 counts of various crimes. One count was later dismissed; defendant was convicted on the remaining 17 counts. Of those 17 counts, only six are at issue here. Four of those counts related to the attempted jewelry store robbery and kidnapping, and two counts related to the T-Mobile episode. At the end of the state's case, defendant moved for judgment of acquittal on those six counts. He argued that the only evidence connecting him to those crimes was the testimony of Ropp and Young and that there was insufficient evidence to corroborate their testimony as required by ORS 136.440(1). The trial court denied defendant's motion for judgment of acquittal and convicted him on all of the 17 remaining counts.

         The state argues that the ruling below was correct because the accomplice testimony had been sufficiently corroborated under ORS 136.440(1). It itemizes the following evidence as corroborating the testimony of the accomplices and argues that this evidence supports the trial court's ruling: (1) the SUV itself in which defendant was arrested; (2) firearms (defendant had a pistol on his person, and other weapons had been found in the SUV); (3) walkie-talkies (when Young was arrested in the SUV, he had a walkie talkie on his person); (4) thermite (the SUV contained thermite and magnesium strips that could be used to ignite the thermite); and (5) an animal shelter jacket and syringes.

         On defendant's appeal to the Court of Appeals, however, that court agreed with defendant. Riley, 288 Or.App. at 807. Explaining that the statute had been materially unchanged since it was originally enacted, (citing General Laws of Oregon, Crim Code, ch XXII, § 217, p 478 (Deady 1845-1864)), the court stated that the statute "reflects the long-standing policy that the testimony of one implicated in the crime is inherently untrustworthy." 288 Or.App. at 812. Corroboration requires only "slight or circumstantial evidence" that connects the defendant with the crime. Id. at 812 (internal quotation marks and citation omitted). The corroborative evidence must ...


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