State v. Caoile ( 2024 )

590 August 28, 2024 No. 597
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
MARK TIMMY CAOILE,
Defendant-Appellant.
Baker County Circuit Court
21CR10928; A179747
Matthew B. Shirtcliff, Judge.
Submitted May 31, 2024.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Matthew Blythe, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Adam Holbrook, Assistant Attorney
General, filed the brief for respondent.
Before Joyce, Presiding Judge, Lagesen, Chief Judge, and
Armstrong, Senior Judge.
JOYCE, P. J.
Affirmed.
Cite as 334 Or App 590 (2024) 591
JOYCE, P. J.
Defendant appeals from a judgment of conviction for
first-degree criminal mischief, tampering with physical evi-
dence, and second-degree criminal trespass. Those convic-
tions are based on defendant breaking into a secure police
lot and removing his box truck, which the trial court later
determined the police had unlawfully seized. On appeal,
defendant challenges the trial court’s denial of his motion
for judgment of acquittal (MJOA) on the tampering with
physical evidence charge and his subsequent conviction for
that charge. More specifically, defendant contends that the
trial court erred in denying his MJOA and in convicting him
of the tampering charge because the truck did not constitute
“physical evidence” for the purposes of the tampering stat-
ute. As explained below, we conclude that the truck consti-
tuted “physical evidence”; consequently, the trial court did
not err in denying defendant’s MJOA or in convicting defen-
dant of tampering with physical evidence. In an additional
assignment of error, defendant claims that the trial court
erred when it admitted testimony from a witness describing
criminal conduct as occurring on a date different from the
one alleged in the indictment. We conclude that defendant’s
argument is unpreserved, and defendant has not sought
plain error review. Accordingly, we affirm.
Motion for judgment of acquittal: In reviewing the
denial of an MJOA, we view the facts in the light most favor-
able to the state and evaluate whether a rational trier of fact
could have found all the elements of the offense beyond a
reasonable doubt. State v. Casey, 346 Or 54, 56, 203 P3d 202
(2009). We state the facts consistently with that standard.
In some respects, this case is procedurally anomalous—it
included a mid-trial motion to suppress and litigation of
what evidence, if any, would be suppressed—and we explain
those relevant procedural facts below because they bear on
the ultimate question of whether the truck was “physical
evidence.”
On February 21, 2021, defendant was riding as a
passenger in his box truck when an officer stopped him and
the driver. During the stop, the officer conducted a search
of defendant’s truck. As a result of the search, the officer
592 State v. Caoile
found illegal drugs and two saws that the officer determined
were stolen property. The traffic stop ultimately resulted in
the officer seizing defendant’s truck. The officer who seized
the truck told defendant that he would be seeking a search
warrant to further search the truck’s interior. Following the
stop, that officer took defendant’s truck to a secure police lot
and had the truck sealed with evidence tape.1
In the early hours of the following morning, defen-
dant went to the police lot and removed his truck. A trail
camera that had been set up to monitor the truck captured
footage of defendant walking around the truck at about
3:45 a.m. and again around 5:20 a.m. In the video, defendant
appeared to be wearing the same clothing that he had been
wearing during the traffic stop the previous day, except it
appeared that he had added electrical tape on his boots and
was wearing a wig.
When officers returned to the police lot the next
morning, they discovered that the truck was missing and
that the gated entrance to the lot had been smashed out
from the inside. At 5:52 a.m., a driver called the police to
report finding a truck on fire in the middle of a road. After
police arrived at the scene, they confirmed that it was the
same truck that had been taken from the police lot.
Based on those events, a grand jury indicted defen-
dant on one count of first-degree criminal mischief, ORS
164.365, one count of tampering with physical evidence,
ORS 162.295, one count of second-degree criminal trespass,
ORS 164.245, one count of unauthorized use of a vehicle
(UUV), ORS 164.135, and one count of second-degree arson,
ORS 164.315.
The morning of defendant’s bench trial, the state
moved in limine for the court to allow it to offer evidence
that the police had found illegal drugs and stolen property
in defendant’s truck. In particular, the state argued that
that evidence was “relevant for purposes of motive” because
it made it more probable that defendant took the truck and
burned it so that the state would be unable to use those items
1
The record is unclear as to whether any charges were ultimately brought
arising from the traffic stop and seizure of the truck, stolen property, and drugs.
That has no bearing on our analysis.
Cite as 334 Or App 590 (2024) 593
as a basis for future charges. Defendant objected to the admis-
sion of that evidence, arguing that admitting those items into
evidence would have an unfairly prejudicial effect on the fact
finder. The court granted the state’s motion, reasoning that
“its probative value outweigh[ed] the prejudicial effect.”
During trial, the officer who conducted the stop and
who seized defendant’s truck testified. After his testimony,
defendant made a motion to suppress, arguing that the offi-
cer had conducted an unlawful search of the truck during the
stop and had unlawfully seized the vehicle. Thus, defendant
contended that “any evidence gained from that seizure of prop-
erty should be suppressed.” Defendant further argued that, if
the court agreed that the officers unlawfully seized the truck,
then it would render the state unable to prove the UUV, arson,
and tampering charges because those charges were premised
on the state’s lawful possession of the truck and its contents.
The court delayed ruling on defendant’s motion to suppress
until the state concluded its presentation of evidence.
When the court revisited defendant’s motion to
suppress, the state ultimately conceded that the officer had
unlawfully extended the stop and unlawfully seized the
truck. The state further conceded that the appropriate rem-
edy was to “suppress any evidence of the drugs [and] the
stolen property.” The trial court agreed and issued a writ-
ten order that stated that “[t]he evidence seized through the
truck is suppressed. No evidence in the trial will be received
regarding that seized evidence, including, but not limited to,
evidence of the controlled substances and stolen property.”
On the record, the trial court clarified that its ruling related
back to the evidence it had considered in the state’s motion
in limine stating, “the Court has determined that * * * the
entire motion in limine is * * * disregarded and out, that evi-
dence is suppressed[.] * * * [T]he Court is agreeing and the
parties are stipulating to that, and so the [remaining] evi-
dence[,] * * * disregarding the motive evidence[,] is still all to
be considered by the Court.” Thus, although the court had
ruled to suppress the “evidence seized through the truck,” it
had not yet decided whether the truck itself was suppressed.
Following the state’s case-in-chief, defendant also
moved for a judgment of acquittal as to all of the charges,
594 State v. Caoile
arguing that the record did not support a nonspeculative
inference that defendant was the person who took the truck.
The trial court found that there was sufficient evidence in the
record to prove defendant’s identity as the person who drove
the truck out of the police lot; however, the court acknowl-
edged that the state’s concession that the truck had been
unlawfully seized could affect other elements of the charged
crimes. Thus, the court requested briefing and argument from
the parties addressing how, under Oregon law, the unlawful
seizure of the truck affected the remaining charges.
The following day, the trial court returned to the
two remaining motions—the motion to suppress the truck
itself and the MJOA on the charges of tampering, UUV, and
arson, arguments that were all based on the truck’s unlaw-
ful seizure. The state immediately moved to dismiss the
charges for UUV and arson.2 The court granted the state’s
motion to dismiss those two charges and then the parties
turned to the remaining issues.
With respect to defendant’s motion to suppress the
truck, the state argued that tampering with physical evi-
dence was an independent, intervening crime that atten-
uated the unlawful seizure of the truck itself. The court
agreed and concluded that defendant was not entitled to the
suppression of the truck as a result of the unlawful seizure
because defendant’s decision to commit a new crime after
the truck was unlawfully seized attenuated the illegality.
The court reasoned, citing State v. Suppah, 358 Or 565, 369
P3d 1108 (2016), and State v. Jordan, 308 Or App 547, 481
P3d 1017 (2021), that “the commission of a new crime cre-
ates a pretty strong attenuation” and that “the alleged tam-
pering with [the truck was] a new offense that [did not] flow
from the illegality” of the state’s unlawful seizure:
“[T]he commission of a new crime creates a pretty strong
attenuation and that’s what I find here[.] [T]here’s a line
in every piece of evidence at the roadside either the State
didn’t introduce or wouldn’t have been able to be used in the
case, but as it sits that night February 21st or 22nd, that
the government is at that point it’s a new crime and the
2
The state explained that in its view, the “potential risk” of including those
charges as part of the case “outweigh[ed] what the state perceive[d] to be a rela-
tively minor benefit of having them be part of the case.”
Cite as 334 Or App 590 (2024) 595
alleged tampering with that is a new offense that doesn’t
flow from the illegality earlier, it stops at the point that a
new offense occurs, and that piece of evidence, whether it’s
behind a locked gate or not, if the defendant believes it’s a
piece of evidence, the government certainly thinks it can
be, then it can be a new offense, and so I find that under
Jordan and Suppah that there is a bright line and there’s
sufficient attenuation because there’s a new crime[.]”
Thus, the trial court denied defendant’s motion to suppress
the truck itself.
With respect to his remaining MJOA as to the tam-
pering charge, defendant argued that there was no longer
evidence in the record to support a conviction for tampering
with physical evidence because the truck was not “physical
evidence” as that term is used in the tampering statute.
Specifically, defendant argued that the tampering charge
“require[d] that evidence * * * to be evidentiary” and that
“[h]ere the evidence isn’t evidence—it isn’t evidence at all
because it hasn’t been seized.” In response, the state argued
that the truck met the definition of “physical evidence” as
it relates to the tampering statute because that definition
“doesn’t have anything to do with ownership, who has it, [or]
possession.”
The court denied defendant’s MJOA as to the charge
of tampering with physical evidence. The court reasoned
that the truck met the definition of evidence despite the fact
that the officers illegally seized it:
“[I]t’s evidence [in] the sense * * * that either a defendant
can think it’s evidence potentially * * * [or] the State * * *
doesn’t have to believe it’s evidence, but it has to be some-
thing the court deems was potentially evidence, whether
it’s in the police’s custody or not[.]”
The trial court ultimately found defendant guilty of
the remaining charges.
On appeal, defendant challenges the trial court’s
denial of his MJOA on the tampering with physical evi-
dence charge and his subsequent conviction for that charge.
More specifically, defendant renews his argument that “the
truck did not meet the definition of ‘physical evidence’ ” as
that phrase is used in the tampering statute, ORS 162.295.
596 State v. Caoile
Where, as here, the dispute “centers on the meaning of the
statute defining the offense,” we review for errors of law.
State v. Rexroad, 318 Or App 498, 500, 508 P3d 520 (2022)
(internal quotation marks omitted).
We begin with a discussion of the tampering statute
and the definition of “physical evidence.” ORS 162.295(1), in
relevant part, states that a person tampers with physical
evidence if the person “conceals or removes physical evidence
impairing its verity or availability” with intent that the evi-
dence be “unavailable in an official proceeding which is then
pending or to the knowledge of such person is about to be
instituted.” (Emphasis added.) In the context of the tamper-
ing statute, the legislature has defined “physical evidence”
as “any article, object, record, document or other evidence of
physical substance.” ORS 162.225(3) (emphasis added). We
have clarified that “evidence” in that context is “any species
of proof or probative matter that may assist in the determi-
nation of a matter of fact in pending or immediately impend-
ing official proceedings.” State v. Martine, 277 Or App 360,
378, 371 P3d 510 (2016) (internal quotation marks omitted).
Thus, “to constitute ‘physical evidence,’ an ‘article, object,
record, document’ or other item of physical substance must
have at least some plausible, nonspeculative relationship to
a factual matter to be determined in a pending or immedi-
ately impending proceeding.” Id. (quoting ORS 162.225(3)).
On appeal, defendant, citing to our definition of “evi-
dence” in Martine, argues that the truck was not “evidence”
under the tampering statute because “the [truck] and all its
contents were suppressed at trial” and therefore could not
be used as proof that may “assist in the determination of a
matter of fact in pending or immediately impending official
proceedings.”3 277 Or App at 378.
Defendant’s argument is not supported by the
record. Although the trial court entered an order suppress-
ing “[t]he evidence seized through the truck,” the trial court
did not rule that the truck itself was suppressed. To the
3
Defendant’s arguments in support of his claims of error are entirely based
on the trial court’s suppression ruling; defendant does not develop any argument
that, considering all of the evidence in the record, the truck was not evidence in
any pending or impending proceeding.
Cite as 334 Or App 590 (2024) 597
contrary, the trial court concluded that defendant was not
entitled to the suppression of the truck because defendant’s
decision to commit a new crime after officers unlawfully
seized the truck attenuated the illegality. See, e.g., Jordan,
308 Or App at 563 (concluding that defendant was not enti-
tled to suppression of evidence as a result of an unlawful
search because the “defendant’s decision to commit a new
crime following the unlawful police conduct * * * trans-
form[ed] the nature of the causal connection between the
unlawful police conduct and the disputed evidence such that
it [could not] be properly viewed as a product of the unlaw-
ful conduct”). Defendant is not challenging the trial court’s
determination that the state proved attenuation, and there-
fore the court’s ruling on that issue is binding on appeal.
The trial court’s conclusion that the state had proved
attenuation and that defendant was not entitled to suppres-
sion of the truck ultimately resolves defendant’s challenge
to the trial court’s denial of his MJOA and his conviction
for tampering with physical evidence. Because the trial
court did not suppress the truck, the truck was a “species of
proof” that was available to “assist in the determination of a
matter of fact in pending or immediately impending official
proceedings.” 4 Martine, 277 Or App at 378. Thus, the truck
meets the definition of “physical evidence” as that phrase is
used in ORS 162.295. The trial court did not err in denying
defendant’s MJOA or in convicting defendant of tampering
with physical evidence.
Admission of witness testimony: We turn to defen-
dant’s remaining claim of error, in which defendant argues
that, under Article VII (Amended), section 5(3), of the
Oregon Constitution, the trial court erred in admitting wit-
ness testimony that described criminal conduct as occur-
ring on a date that was different from the one alleged in the
indictment. Defendant concedes that he did not make the
particular argument to the trial court that he now raises on
4
To be clear, we express no opinion on the issue of whether “any article,
object, record, document” or other “species of proof” must be admissible for it to
constitute “evidence” within the meaning of the tampering statute. Rather, we
conclude that, contrary to defendant’s argument, the trial court determined that
the object at issue in this case was admissible in a criminal trial and, on the
facts of this case, that is sufficient for us to conclude that the object constituted
“evidence” for purposes of the tampering statute.
598 State v. Caoile
appeal but contends that the purposes of the preservation
requirement were served when the trial court ruled on a
separate issue. We conclude that defendant’s argument is
unpreserved and, because defendant does not request plain-
error review, we reject defendant’s claim of error.
The facts of defendant’s remaining assignment of
error are procedural and undisputed. A grand jury indicted
defendant on one count of first-degree criminal mischief, one
count of tampering with physical evidence, and one count of
second-degree criminal trespass, for criminal conduct that
occurred “on or about March 3, 2021.” On the morning of
trial, the state moved to amend the indictment to replace
“March 3, 2021,” with “February 22, 2021”—a motion that is
not at issue on appeal but provides context for some of defen-
dant’s arguments. The state told the trial court that the
March 3 date was a typographical error and that the alleged
criminal conduct had occurred on February 22. Defendant
objected, arguing that the new date would “materially
change certain aspects of the * * * crime.” The court denied
the state’s motion. The trial court ruled that “this date in
th[e] indictment was found by the grand jury” and that it
was “always reluctant to amend indictments unless it’s just
a misspelling or something because now you’re intervening
with the grand jury as opposed to something the prosecu-
tor filed”; however, the court ultimately denied the state’s
motion because it reasoned that changing the date “could
have some prejudice to the Defense * * * at this point in their
preparation.”
During trial, the state called a police officer as a
witness, and the officer testified that the criminal conduct
occurred on February 22. Defendant objected “to any tes-
timony that change[d] th[e] date” from the one charged in
the indictment. In response, the state argued that the date
was not a material element of any of the charges. The court
overruled defendant’s objection because it concluded that
the date was not a material element and because everything
alleged was within the statute of limitations. Although the
court allowed the witness to testify as to the date that the
conduct occurred, the court told defendant that he could
“make [an] argument about how the conflicting date may be
Cite as 334 Or App 590 (2024) 599
an issue.” Defendant then made a continuing objection, and
the trial court noted for the record that defendant’s objection
to “a police officer testifying about the date in question” is a
“running objection,” which “preserves that issue * * * for all
witnesses that are investigation witnesses.” Defendant did
not any make further argument.
On appeal, defendant contends that the trial court
erred when it admitted evidence of “criminal conduct occur-
ring on a date different than the one alleged in the indict-
ment without requiring the prosecutor to establish that the
grand jury indicted defendant based on that same conduct.”
More specifically, defendant argues that the trial court
violated Article VII (Amended), section 5(3), of the Oregon
Constitution, which provides that, apart from certain excep-
tions, “a person shall be charged in a circuit court with the
commission of any crime punishable as a felony only on
indictment by a grand jury.” Defendant contends that that
provision required the state to prove that the grand jury
indicted defendant based on the same conduct for which he
was convicted and that the state failed to do so. Defendant
concedes that he did not make the particular argument to
the trial court that he now raises on appeal but contends
that his claim of error is nevertheless preserved because the
trial court rejected the state’s motion to amend the indict-
ment on that basis. The state responds that defendant failed
to preserve the constitutional argument that he makes on
appeal, and, in any event, the trial court did not err.
We agree with the state that defendant’s claim is
not preserved, and we disagree with defendant that our
decisions in State v. Chandler, 293 Or App 705, 707, 430 P3d
186 (2018), and State v. Smith, 252 Or App 707, 714-15, 288
P3d 974 (2012), rev den, 353 Or 429 (2013), compel a different
conclusion. In both of those cases, the defendant made an
argument on appeal that the defendant had not presented
to the trial court. Chandler, 293 Or App at 707; Smith, 252
Or App at 714-15. However, because the trial court or the
state had raised that argument at trial, the state had an
adequate opportunity to address it, and the trial court had
explicitly ruled upon it, we concluded that, in both cases, the
600 State v. Caoile
purposes of the preservation requirement had been served.
Chandler, 293 Or App at 707; Smith, 252 Or App at 714-15.
Here, in contrast, it is not clear that the trial court
raised the issue that defendant argues on appeal, the state
did not address the issue, and the court did not base its rul-
ing on the issue that defendant presents on appeal. Although
the trial court made statements that referred to the grand
jury—for example, stating that the “date in the indictment
was found by the grand jury” and stating that the court
was generally reluctant to amend indictments “because now
you’re intervening with the grand jury as opposed to some-
thing the prosecutor filed”—the trial court did not mention
defendant’s rights under Article VII (Amended), section 5(3),
of the Oregon Constitution, either expressly or by short-
hand reference, and did not invite the parties to discuss
that point. As a result, the state was not given an adequate
opportunity to address the issue. Furthermore, the court
did not base any of its rulings on the particular argument
that is at issue on appeal; rather, the court denied the state’s
motion to amend the indictment based on possible “preju-
dice to the Defense” and it overruled defendant’s objection
to the witness testimony because it concluded that the date
was not a material element and because everything alleged
was within the statute of limitations.
Accordingly, we conclude that defendant’s argument
is not preserved and, because defendant does not request
plain error review, we do not engage in that analysis.
Affirmed.