State v. Welsh
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FILED: November 19, 2014 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. DANIELLE ELIZABETH WELSH, Defendant-Appellant. Coos County Circuit Court 12CR0960 A153012 Richard L. Barron, Judge. Argued and submitted on September 23, 2014. Stephanie J. Hortsch, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services. Leigh A. Salmon, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General. Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge. SERCOMBE, P. J. Remanded for resentencing; otherwise affirmed. DESIGNATION OF PREVAILING PARTY AND AWARD OF COSTS Prevailing party: [ ] [ ] [ ] Appellant No costs allowed. Costs allowed, payable by Costs allowed, to abide the outcome on remand, payable by 1 SERCOMBE, P. J. 2 Defendant appeals her conviction by a jury of criminal trespass in the 3 second degree, attempted assault in the first degree, attempted assault of a public safety 4 officer, and various other criminal charges, raising two assignments of error. She first 5 contends that the trial court plainly erred in failing to enter a judgment of acquittal on the 6 criminal trespass charge. Defendant asserts that no rational juror could find that the state 7 proved a necessary element of that charge--that defendant entered or remained unlawfully 8 on the premises at issue. Even if the evidence was insufficient on the criminal trespass 9 charge, we decline to exercise our discretion to correct any error in the judgment because 10 defendant could have objected to the sufficiency of the evidence and additional evidence 11 could have remedied that objection. Defendant separately argues that the trial court 12 plainly erred in imposing consecutive sentences on the assault charges without making 13 the findings required under ORS 137.123(5). We agree that the failure to enter those 14 statutory findings was plain error and exercise our discretion to correct that error. 15 Accordingly, we remand the case for resentencing on the assault charges and otherwise 16 affirm. 17 Defendant's criminal charges arose from her suspicious behavior in the 18 front yards of several residences. In September 2012, an off-duty police officer 19 confronted defendant in the front yard of his house. Defendant appeared to be lost and 20 asked the officer "strange questions" about whether he knew certain people, owned a dog, 21 and had lived there long. Defendant stated she was looking for her children and then told 1 1 the officer, "Okay. I'm leaving." As she was leaving, Officer Kinney arrived at the scene 2 in a marked patrol car. He initiated a conversation with defendant because she was 3 "acting suspiciously, and leaving a yard that didn't belong to her." Kinney identified 4 himself as a police officer, asked defendant if she was well, and inquired why defendant 5 had been in the other officer's front yard. Defendant "seemed kind of upset" and told 6 Kinney that he had "no valid reason to contact her." Defendant then walked away. 7 Kinney was concerned about defendant, but resumed his patrolling in that 8 neighborhood. Very shortly thereafter, he observed defendant sitting on the sidewalk. 9 Still later, Kinney saw defendant "in another yard." He drove around that general area, 10 and returned to find defendant in yet another front "yard" of a single-family residential 11 building that was enclosed by a cyclone fence. Kinney described defendant's reaction: 12 "She saw me. And, basically, turned from walking towards the front door of the house to 13 walking down the sidewalk to the gate on the fence to leave." Kinney left the patrol car 14 and confronted defendant, who attempted to "push right past" him. Kinney told 15 defendant she was not free to leave and placed his hand on her arm. Defendant then 16 opened a folding knife and attempted to stab Kinney. Later, defendant screamed 17 obscenities, threatened to kill Kinney, and struggled as Kinney arrested her. 18 Following her arrest, defendant was charged with second-degree criminal 19 trespass, ORS 164.245; attempted assault of a public safety officer, ORS 163.208, ORS 20 161.405(2)(d); attempted first-degree assault, ORS 163.185, ORS 161.405(2)(b); and 21 other crimes. Defendant did not move for a judgment of acquittal on any of the charges, 2 1 2 and a jury convicted her of all counts. On appeal, defendant first contends that the trial court plainly erred in 3 entering a judgment of conviction for second-degree criminal trespass, because there was 4 no evidence in the record to support that conviction. Under ORS 164.245(1), "[a] person 5 commits the crime of criminal trespass in the second degree if the person enters or 6 remains unlawfully * * * in or upon premises." ORS 164.205(3)(a) defines the term 7 "[e]nter or remain unlawfully" as "[t]o enter or remain in or upon premises when the 8 premises, at the time of such entry or remaining, are not open to the public or when the 9 entrant is not otherwise licensed or privileged to do so[.]" Defendant argues that she did 10 not "[e]nter or remain unlawfully" on the premises in question. 11 In most cases, approaching a front door and knocking is not a trespass 12 because the home occupant implicitly consents to that intrusion. As we explained in 13 State v. Ohling, 70 Or App 249, 253, 688 P2d 1384, rev den, 298 Or 334 (1984): 14 15 16 17 18 19 20 "Going to the front door and knocking was not a trespass. Drivers who run out of gas, Girl Scouts selling cookies, and political candidates all go to front doors of residences on a more or less regular basis. Doing so is so common in this society that, unless there are posted warnings, a fence, a moat filled with crocodiles, or other evidence of a desire to exclude casual visitors, the person living in the house has impliedly consented to the intrusion." 21 "The scope of a homeowner's implied consent to approach the home is limited to those 22 acts reasonably undertaken to contact the residents of the home; such consent does not 23 extend, for instance, to an exploratory search of the curtilage." State v. Cardell, 180 Or 24 App 104, 108, 41 P3d 1111 (2002). Defendant asserts that she was walking toward the 3 1 front door of the house with the implicit consent of the occupant of the house, and, 2 therefore, her conduct was beyond the reach of ORS 164.245(1). 3 Defendant recognizes, however, that, because she did not move for a 4 judgment of acquittal or otherwise preserve the issue of the sufficiency of the evidence to 5 support a conviction for trespass in the second degree, she must show that any error in the 6 entry of the judgment of conviction was plain error. See ORAP 5.45(1) ("No matter 7 claimed as error will be considered on appeal unless the claim of error was preserved in 8 the lower court * * * provided that the appellate court may consider an error of law 9 apparent on the record."). Although the state acknowledges that the evidence of "whether 10 a trespass occurred is quite slim," it argues that "the evidence was not so obviously 11 insufficient as to require the trial court to interject itself into the proceedings" and that, if 12 the trial court did commit plain error, we should not exercise our discretion to correct the 13 error. 14 An error is plain under ORAP 5.45 when: (1) the error is one of law; 15 (2) the error is "apparent," in that the "legal point is obvious, not reasonably in dispute"; 16 and (3) the error appears "on the record," such that "[w]e need not go outside the record 17 or choose between competing inferences to find it, and the facts that comprise the error 18 are irrefutable." State v. Brown, 310 Or 347, 355, 800 P2d 259 (1990). Even when those 19 conditions are satisfied, we then must decide whether to exercise our discretion to correct 20 the error. In Ailes v. Portland Meadows, Inc., 312 Or 376, 382 n 6, 823 P2d 956 (1991), 21 the Supreme Court set out some of the relevant considerations in the exercise of that 4 1 2 3 4 5 6 discretion, including "the competing interests of the parties; the nature of the case; the gravity of the error; the ends of justice in the particular case; how the error came to the court's attention; and whether the policies behind the general rule requiring preservation of error have been served in the case in another way * * *." 7 Other considerations include whether the defendant in some way encouraged the trial 8 court to make the error; whether the defendant made a strategic choice not to object; and 9 whether the error could have been remedied if raised below. State v. Fults, 343 Or 515, 10 523, 173 P3d 822 (2007). 11 Guided by the considerations in Ailes and Fults, we have, in certain 12 circumstances, exercised our discretion to review a plainly erroneous judgment of 13 conviction. In State v. Reynolds, 250 Or App 516, 524, 280 P3d 1046, rev den, 352 Or 14 666 (2012), for example, we chose to review a plainly erroneous judgment of conviction 15 because 16 17 18 19 20 "the irrefutable fact of [the] defendant's lack of guilt distinguishe[d] [the] case from the more common scenario of an unpreserved claim as to the sufficiency of the evidence--situations where the deficiency in proof is happenstance, where not all of the evidence that could be adduced was introduced into the record." 21 We further explained that the "insufficiency of evidence could not have been cured by a 22 contemporaneous objection." Id. at 523. That is, Reynolds was "not a case where, if the 23 error had been timely raised, the state could have reopened its case and corrected the 24 deficiency in its proof." Id. 25 But our more common approach--and the one that is appropriate here--is to 5 1 not "invoke plain error review where a defendant has failed to move for a judgment of 2 acquittal[.] * * * That is because the trial court has not, consistently with the purposes of 3 preservation, been apprised of the issue and given an opportunity to avoid the error by 4 allowing supplemental evidence to be introduced." Id. at 521; see also State v. Campbell, 5 266 Or App 116, 120, ___ P3d ___ (2014) (declining to correct error in failing to acquit 6 the defendant of charges because, if the defendant "had adequately raised his objection in 7 the trial court, the court could have remedied the error by allowing the state to reopen its 8 case to produce additional evidence"). 9 Here, Kinney testified that he saw defendant in a fenced "yard," 10 immediately after having observed defendant's presence in two other yards with no 11 apparent or articulated purpose. Defendant's abandonment of her course of travel when 12 she was spotted by Kinney suggests an illegitimate purpose in her occupation of the 13 property. While Kinney did specify that he saw defendant on the "sidewalk" of the yard 14 leading to the front door, it is not clear if that was the full extent of defendant's activities 15 in the yard. It may be that a more full description of defendant's conduct would prove 16 that she had engaged in unlicensed or unprivileged acts, such as searching the yard for 17 her children, that were not "reasonably undertaken to contact the residents of the home" 18 under Cardell. If so, defendant would have unlawfully remained upon the property under 19 ORS 164.205(3)(a) during the time of the unlicensed conduct. Even if the state's 20 evidence of trespass was insufficient, because any insufficiency of the evidence to show 21 trespass plausibly might have been cured by a contemporaneous objection, we decline to 6 1 2 exercise our discretion to correct any error in the entry of the judgment of conviction. Defendant also contends that the court erred in failing to enter findings to 3 justify the consecutive sentences on the first-degree attempted assault and attempted 4 assault of a peace officer charges. Under ORS 137.123(5), a court "has discretion to 5 impose consecutive terms of imprisonment for separate convictions arising out of a 6 continuous and uninterrupted course of conduct only if the court finds" that the criminal 7 offense for which a consecutive sentence is contemplated was "not merely an incidental 8 violation * * * but rather was an indication of [the] defendant's willingness to commit 9 more than one criminal offense" or that it "caused or created a risk of causing greater or 10 qualitatively different loss, injury or harm to the victim [or a different victim]." Here, the 11 state concedes, and we agree, that the trial court erred in not making the required finding. 12 Consecutive sentences are not appropriate because the two offenses arose from a 13 continuous and uninterrupted course of conduct and from the same acts of the defendant 14 directed to a single victim. The error is plain and correction of the error would not result 15 in the same sentence. 16 The state also concedes that it is appropriate to correct that plain error 17 because consecutive sentences could not be justified. When reviewing plain sentencing 18 errors, considerations relevant to exercising discretion to correct error include "whether a 19 defendant encouraged the trial court's imposition of the erroneous sentences, the 20 possibility that the defendant made a strategic choice not to object to the sentences, the 21 role of other sentences in the case, and the interests of the judicial system in avoiding 7 1 unnecessary and repetitive sentencing proceedings." State v. Sosa, 224 Or App 658, 663- 2 64, 199 P3d 346 (2008). Here, we agree with the state that we should exercise our 3 discretion to correct the error. Plain error review would not undermine the purposes of 4 the preservation rule because, if the matter had been brought to the trial court's attention, 5 the trial court could not have made the necessary findings. Compare State v. Bucholz, 6 317 Or 309, 321, 855 P2d 1100 (1993) (declining to correct plain error in not making 7 statutorily required findings because, "had the matter been called to the sentencing court's 8 attention, applicability of [the statute] might easily have been established"). The 9 sentencing error affects the duration of defendant's incarceration and the ending date for 10 her post-prison supervision. The state has no interest in having defendant serve an 11 unlawful sentence, and proper sentencing of defendant serves the ends of justice. The 12 court's burden in reviewing and correcting the error is minimal; the error is most 13 efficiently corrected by remand. Defendant had no plausible strategic reason not to 14 object to the consecutive sentences. 15 Remanded for resentencing; otherwise affirmed. 8
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