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State v. Steele

Court of Appeals of Oregon

August 7, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
JEREMY MICHAEL STEELE, Defendant-Appellant.

          Argued and submitted July 31, 2018.

          Crook County Circuit Court 16CR21942. Annette C. Hillman, Judge.

          Sara F. Werboff, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

          Peenesh Shah, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge. [*]

         Case Summary: Defendant appeals from a judgment of conviction for first-degree failure to appear, ORS 162.205, and second-degree failure to appear, ORS 162.195, for violating the terms of release agreements stemming from two separate cases. He argues that the state "implicitly elected" to try him for violating a particular release agreement, among several that were admitted into evidence, and that the trial court then erred by convicting him for violating different release agreements that were not the focus of the state's case. The state responds that defendant's argument was not preserved and that defendant's claimed error does not merit plain error review. Held: Defendant did not preserve his "implicit election" argument for appeal. Any error that the trial court may have committed by convicting defendant based on a factual theory not robustly argued below by the state was not obvious. Therefore, it is not reversible as plain error.

         Affirmed.

         [298 Or.App. 726] ORTEGA, P. J.

         Defendant appeals from a judgment of conviction for first-degree failure to appear, ORS 162.205, and second-degree failure to appear, ORS 162.195, for violating the terms of release agreements stemming from two separate cases. He argues that the state "implicitly elected" to try him for violating a particular release agreement, among several that were admitted into evidence, and that the trial court then erred by convicting him for violating different release agreements that were not the focus of the state's case. We conclude that defendant's argument is unpreserved and does not constitute plain error, and we therefore affirm.[1]

         Defendant was charged with crimes in two separate cases: a felony in case number 15CR53510, and a misdemeanor in case number 12FE0120. On December 3, 2015, the trial court released defendant pursuant to a conditional release agreement in the felony case; on December 9, 2015, the trial court released defendant pursuant to a conditional release agreement in the misdemeanor case. Collectively, we refer to those as the December release agreements. Although the record is unclear why, a warrant was issued for defendant on December 14, 2015, and he was arrested and taken into custody.

         At a hearing on January 13, 2016, the trial court set a future appearance date for both cases for March 16, 2016, and ordered defendant "to comply with your release agreement." Defendant was then again released from jail on January 31, 2016, pursuant to a third conditional release agreement, for both the misdemeanor and felony cases, with a future appearance date of March 16, 2016 (hereinafter referred to as the January release agreement).

         Defendant did not appear at the March 16 hearing, in violation of all three release agreements. The trial court issued a bench warrant in both cases. The state later charged defendant with one count of first-degree failure to appear in the felony case and one count of second-degree failure to appear in the misdemeanor case.

         [298 Or.App. 727] At defendant's bench trial on those charges, the trial court, at the state's request, took judicial notice of "the underlying proceedings and documents contained in" both cases. Included in those documents were defendant's December release agreements, but not the January release agreement. The prosecutor referenced the January release agreement but not the December release agreements in his opening statement, and the state admitted the January release agreement into evidence in its case in chief and called Deputy Curfman to testify about its issuance. At the close of the state's case, defendant made a motion for judgment of acquittal on the charges of both first- and second-degree failure to appear, arguing that the state had failed to present evidence of a valid release agreement because, in his view, Curfman was not authorized to execute an enforceable release agreement. The court asked the state if it had any proof that the deputy had authority to execute the January release agreement, and the state responded that it did not have any direct evidence of such authority but noted that, during its case in chief, the state had played an audio recording of the January 13, 2016, hearing and a separate "release agreement was referenced in the January 13th court proceeding." Presumably, the state was referring to the December release agreements. The court responded that no evidence had "been tendered to the court to support that." The state then pointed out that the court files, which had been admitted into evidence through judicial notice, contained the December release agreements. The court asked that the parties take a recess and return with an argument as to whether the deputy was authorized to execute the January release agreement. After returning and hearing arguments on the issue, the court denied defendant's motion for a judgment of acquittal.

         Defendant again argued in his closing statement that the state had not satisfied its burden of proof as to the existence of a valid release agreement because Curfman was not authorized to execute a "sworn writing" as required by ORS 135.230(9). Therefore, according to defendant, the ...


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