State v. Cox ( 2023 )

228 November 22, 2023 No. 607
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
ANDREW STEVEN COX,
Defendant-Appellant.
Multnomah County Circuit Court
19CR49649; A176880
Judith H. Matarazzo, Judge.
Submitted March 17, 2023.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Francis C. Gieringer, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jon Zunkel-deCoursey, Assistant
Attorney General, filed the brief for respondent.
Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Jacquot, Judge.
AOYAGI, P. J.
Affirmed.
Cite as 329 Or App 228 (2023) 229
AOYAGI, P. J.
Defendant appeals a judgment of conviction for one
count of discharging a firearm in the City of Portland in
violation of Portland City Code (PCC) 14A.60.020. In his
first two assignments of error, he argues that the evidence
was legally insufficient to find him guilty of the offense and
that the trial court therefore erred in denying his motion
for a judgment of acquittal (MJOA) made at the close of
the state’s case-in-chief and again at the close of all evi-
dence.1 As explained below, we conclude that the evidence
was legally sufficient to go to the jury. In his third assign-
ment of error, which raises an unpreserved claim of error,
defendant argues that the trial court plainly erred in how it
instructed the jury on self-defense. We reject that claim of
error.2 Accordingly, we affirm.
We describe the facts in the light most favorable to
the state. State v. Simmons, 321 Or App 478, 479, 516 P3d
1203 (2022), rev den, 370 Or 740 (2023). In doing so, we do
not differentiate between evidence based on the timing of its
admission, because, on review of the denial of an MJOA, we
must consider all of the trial evidence, regardless of when
the motion was made. See id. (“Although defendant moved
at the close of the state’s case, we ‘must consider all of the
evidence and affirm the trial court if the record as a whole
contains sufficient evidence to support a verdict against the
defendant.’ ” (Quoting State v. Nix, 7 Or App 383, 384-85,
491 P2d 635 (1971).)).
One February morning, as defendant was getting
ready for work, a thief took defendant’s truck while it was
1
A criminal defendant may move for a judgment of acquittal, based on insuf-
ficient evidence, “after close of the state’s evidence or of all the evidence.” ORS
136.445. Here, defendant used the term “directed verdict” for his later motion,
but, in a criminal case, it is more accurately described as an MJOA, so we use
that term for both motions.
2
Given the unique combination of circumstances in this case, a discussion
of the third assignment of error would be of limited utility to the bench and bar.
It suffices to say that, on this record, we are unpersuaded that the court plainly
erred by giving the jury instructions that the parties requested or, if it did, that
these are appropriate circumstances in which to exercise our discretion to correct
a plain error. See ORAP 5.45(1) (allowing for discretionary review of an unpre-
served claim of error if the error is “plain”); State v. Vanornum, 354 Or 614, 629,
317 P3d 889 (2013) (requirements for plain-error review).
230 State v. Cox
parked, running to warm up, outside his house. It was a
single cab pickup with a canopy on the back. Defendant,
who had a concealed handgun license and a holstered 9mm
handgun on his hip, went outside and saw the thief driv-
ing away westbound down the alley. He chased after the
truck and yelled several times for the thief to stop. The thief
turned right (northward) onto a paved street. Defendant ran
after the truck into the middle of the street. While driving
north, the thief reached across his body and extended his
right hand through the driver’s side window or door.
Defendant fired his handgun once “at the truck.” The thief
continued driving and turned at the next street intersec-
tion, driving out of sight.
Defendant called 9-1-1 to report the theft of his
truck. He described the entire incident to the responding
officer from start to finish. As to the thief’s hand motion,
defendant described the thief as putting his right hand out
the driver’s side window, which defendant perceived as a
“threatening” move that “made him think the driver had a
weapon.” However, when the officer asked him specifically,
defendant stated that he had not seen a weapon, denied that
he had “felt threatened by what the driver was doing,” and
said that he “just wanted him to stop.” Defendant did not
know whether the bullet that he fired struck anyone in the
truck, the truck itself, or anything or anyone else. He admit-
ted that it probably “wasn’t very smart” to shoot, or some-
thing to that effect. Defendant estimated that the truck was
150 feet from him when he fired.
The officer found the spent 9mm shell casing on
the street. Later, the police recovered defendant’s truck and
found no bullet holes or any other indication that defendant’s
bullet hit the truck.
Defendant was charged with one count of discharg-
ing a firearm in the City of Portland, PCC 14A.60.020.3 The
charge was tried to a jury. The responding officer testified for
the state, and defendant testified for the defense. Defendant’s
testimony was generally consistent with what he had told the
3
Defendant was also charged with reckless endangerment, but that count
was dismissed on procedural grounds before trial.
Cite as 329 Or App 228 (2023) 231
officer, with minor variations. As to the thief’s hand motion,
defendant testified that, when the truck was 80 to 100 feet
away, he “saw the driver’s side door open and the right arm
reach across with a pointing gesture,” was “not sure if it was
a weapon or his finger,” and “instantly drew [his] weapon
and fired a shot.” He was not asked at trial whether he felt
threatened at the time. He was asked what he was “trying
to do by firing the shot,” however, to which he responded,
“I just wanted the guy to stop. I just wanted my truck. I
was hoping he’d stop and run off basically.” Regarding the
timing of drawing his weapon, defendant was impeached on
cross-examination with his 9-1-1 call, during which he told
the operator that he took out his gun as soon as he saw the
thief get in the truck and drive off—before defendant called
“stop” or the thief moved his arm. Defendant testified that
he remembered saying that to the operator “but that’s not
exactly how it happened.”
Defendant moved for a judgment of acquittal at the
close of the state’s case and again at the close of all evidence.
The trial court denied both motions, and the jury ultimately
found defendant guilty. The question before us is whether
the court erred in denying defendant’s MJOAs.
Under PCC 14A.60.020 A, “[i]t is unlawful for
any person to discharge a firearm in the City or upon its
boundaries.” The law “does not apply to” people in certain
circumstances, however, including “[a] person discharging
a firearm in the lawful defense of person or property.” PCC
14A.60.020 B(1).
In terms of what constitutes the “lawful” defense
of person or property, a person may lawfully use reasonable
physical force, but not deadly force, to prevent the theft of
property. ORS 161.229 (“A person is justified in using phys-
ical force, other than deadly physical force, upon another
person when and to the extent that the person reasonably
believes it to be necessary to prevent or terminate the com-
mission or attempted commission by the other person of
theft or criminal mischief of property.”). A person may law-
fully use reasonable physical force, including deadly force,
in self-defense. ORS 161.209 (“[A] person is justified in using
physical force upon another person for self-defense * * * from
232 State v. Cox
what the person reasonably believes to be the use or immi-
nent use of unlawful physical force, and the person may use
a degree of force which the person reasonably believes to be
necessary for the purpose.”). Deadly force is “physical force
that under the circumstances in which it is used is readily
capable of causing death or serious physical injury.” ORS
161.015(3). The use of deadly force in self-defense is limited
to certain situations, one of which is when the person reason-
ably believes that someone is “[c]ommitting or attempting to
commit a felony involving the use or threatened imminent
use of physical force against a person.” ORS 161.219(1). As
to any use of physical force, the person must have an honest
subjective belief that is objectively reasonable that the use of
force is “necessary” under the circumstances. ORS 161.229;
ORS 161.209; see State v. Bassett, 234 Or App 259, 264, 228
P3d 590, rev den, 348 Or 461 (2010).
The parties agree that, once a defendant
raises the defense of “defense of person or property,”
PCC 14A.60.020 B(1), the state has the burden to prove
that the defendant did not act in lawful defense of person
or property.
Defendant argues that the court erred in denying
his MJOAs, because the evidence was legally insufficient
to prove a violation of PCC 14A.60.020 A. He argues that,
although he admittedly used force to defend his property, the
evidence was insufficient to prove that he used deadly force.
Alternatively, he argues that, even if the evidence allowed
a finding that he used deadly force, it was insufficient to
prove that he was not acting in self-defense, in response to
the thief’s threatening hand movement. The state counters
that the evidence was legally sufficient for the charge to go
to jury.
On review of the denial of a motion for judgment of
acquittal, our task is to examine the evidence “in the light
most favorable to the state to determine whether a rational
trier of fact, accepting reasonable inferences and reasonable
credibility choices, could have found the essential element of
the crime beyond a reasonable doubt.” State v. Cunningham,
320 Or 47, 63, 880 P2d 431 (1994), cert den, 514 US 1005(1995). While the state is entitled to reasonable inferences
Cite as 329 Or App 228 (2023) 233
that a rational factfinder could make from the evidence,
“speculation and guesswork” are not allowed. State v.
Bivins, 191 Or App 460, 467, 83 P3d 379 (2004). “Ultimately,
whether circumstantial evidence is sufficient to support a
given inference is a question of law.” Simmons, 321 Or App
at 483.
The first question that defendant raises is whether
the evidence was sufficient to prove that he used “deadly
force,” i.e., “physical force that under the circumstances
in which it is used is readily capable of causing death or
serious physical injury,” ORS 161.015(3). We agree with the
state that it was.
Defendant is correct that threatening the use of
deadly force—which might include firing a “warning shot”
in some circumstances—is different from actually using
deadly force. See State v. Taylor, 182 Or App 243, 248, 48
P3d 182 (2002) (where the defendant pointed a gun but did
not fire it, “there was no evidence that defendant actually
used deadly physical force”); State v. Burns, 15 Or App 552,
562, 516 P2d 748 (1973) (“The threat of deadly force does not
constitute the use of deadly physical force.”). Here, however,
defendant actually fired a gun from a distance of 150 feet.
There was evidence that defendant aimed “at the truck.”
There was also evidence that, immediately after the inci-
dent, defendant did not know whether he had struck the
truck, anyone inside the truck, or anything or anyone else.
The state did not need to prove that defendant
aimed directly at the thief. A rational juror could find that
he aimed “at the truck,” which the thief was driving (with
his hand out the window or door), and could reasonably
infer that defendant aimed in such a manner that he did
not know whether he struck the thief.4 That evidence was
4
Defendant includes in his briefing a discussion of two cases involving con-
victions for recklessly endangering another person. “A person commits the crime
of recklessly endangering another person if the person recklessly engages in
conduct which creates a substantial risk of serious physical injury to another
person.” ORS 163.195(1). The cited cases address whether firing bullets into the
ceiling and front door of a duplex, State v. Harbert, 155 Or App 137, 963 P2d 710,
rev den, 327 Or 554 (1998), or sling-shooting a glass marble into an empty plexi-
glass bus shelter, State v. Wakefield, 292 Or App 694, 425 P3d 491 (2018), created
a “substantial risk of serious physical injury to another person.” We do not find
those cases particularly useful to our current analysis, but, to the extent that
234 State v. Cox
sufficient to create a jury question as to whether defendant
fired the gun in a manner readily capable of causing death
or serious physical injury.5 Because the evidence was suf-
ficient to allow a finding that defendant used deadly force,
he was not entitled to a judgment of acquittal based on the
defense-of-property defense.
We turn to the second question that defendant
raises, which is whether the evidence was sufficient to
prove that defendant did not act in self-defense. Defendant
argued to the trial court that he was entitled to a judgment
of acquittal based on self-defense because (1) defendant per-
ceived a threat and reasonably suspected that the thief had
a weapon, which justified the use of deadly force, and (2) no
rational juror could find that defendant was not stopping the
commission of first-degree robbery, “which is a violent felony
which would entitle [defendant] to use deadly force.” Neither
argument is well taken.
For defendant to have lawfully used deadly force in
self-defense, he had to reasonably believe that the truck thief
was “[c]ommitting or attempting to commit a felony involv-
ing the use or threatened imminent use of physical force
against a person,” ORS 161.219(1), and that “the degree of
force” that defendant used was “necessary” to defend him-
self, ORS 161.209.6 A jury looks to the “precise moment in
which defendant acted” to determine whether the use of
deadly force was reasonably necessary, i.e., “at the moment
he fired the gun.” State v. Harryman, 277 Or App 346, 359,
371 P3d 1213, rev den, 360 Or 401 (2016) (internal quotation
they have some relevance by analogy, the circumstances here are more like the
circumstances in Harbert than those in Wakefield.
5
On appeal, defendant additionally argues that, to prove that he used deadly
force, the state needed to prove that the bullet had sufficient “kinetic force” to
penetrate the truck body and the canopy and strike a person in the cab. We reject
that argument on procedural grounds—because it was not made to the trial
court—and would reject it in any event on the merits.
6
Another circumstance in which a person may be justified in using deadly
physical force is when the person reasonably believes that another person is
“[u]sing or about to use unlawful deadly physical force against a person,” ORS
161.219(3). Defendant identifies ORS 161.219(1) as the relevant provision, so we
discuss that provision, but we note that there seems to be little practical differ-
ence between ORS 161.219(1) and ORS 161.219(3) in these circumstances—given
that the only physical force that the truck thief could have used against defen-
dant from 80 to 100 feet away was firing a gun.
Cite as 329 Or App 228 (2023) 235
marks omitted; emphasis in original). A defendant’s subjec-
tive beliefs and their objective reasonableness are factual
issues for the jury. Warren v. Baldwin, 140 Or App 318, 333-
34, 915 P2d 1016, rev den, 324 Or 229 (1996).
Here, the evidence was sufficient for a rational juror
to find that defendant did not act in lawful self-defense. A
rational juror could find on this record that defendant fired at
the truck to try to stop the theft of his property, not because
he subjectively believed that it was necessary to protect his
person from physical injury. Defendant’s own statements to
the responding officer and at trial supported such a finding.
Indeed, it is debatable whether a rational juror could make
any other finding on this record. Alternatively, even if a
rational juror could find that defendant subjectively believed
that firing at the truck was necessary to protect his person,
a rational juror could also find that such a belief was objec-
tively unreasonable. Either way, the evidence was sufficient
to disprove self-defense.
In sum, there was sufficient evidence for the jury to
find that defendant’s discharge of a firearm within Portland
city limits was not done “in the lawful defense of person or
property,” PCC 14A.60.020 B(1). The trial court did not err
in denying defendant’s MJOAs.
Affirmed.