State v. Millsap ( 2024 )

606 October 23, 2024 No. 750
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
NATHAN BALFOR MILLSAP,
Defendant-Appellant.
Washington County Circuit Court
20CR55451, 20CR55483; A180187 (Control), A180188
Theodore E. Sims, Judge.
Submitted August 29, 2024.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Carla E. Edmondson, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Christopher A. Perdue, Assistant
Attorney General, filed the brief for respondent.
Before Tookey, Presiding Judge, Egan, Judge, and Kamins,
Judge.
TOOKEY, P. J.
Remanded for resentencing in Case Nos. 20CR55451 and
20CR55483; otherwise affirmed.
Nonprecedential Memo Op: 335 Or App 606 (2024) 607
TOOKEY, P. J.
In this consolidated appeal, defendant appeals
a judgment convicting him of fourth degree assault, ORS
163.160, and stalking, ORS 163.732, and a judgment con-
victing him of harassment, ORS 166.065. Defendant raises
three assignments of error. We remand for resentencing and
otherwise affirm.
The relevant facts are undisputed. In October of
2020, defendant encountered a runner on the Fanno Creek
Trail in Washington County. He made bear-like growl-
ing noises at her, sprinted after her and pushed her to the
ground, causing injury to her hip and leg. The next day, when
she went for another run on the trail, defendant was pres-
ent in same spot. He once again made bear-like growling
noises and yelled threats at her. When defendant was taken
into custody later that day, he was behaving erratically and
appeared to be experiencing a mental health crisis.
Defendant waived his right to a jury trial, and
the state tried the case to the court. At trial, the victim, a
bystander, and the responding officer testified to defendant’s
behavior on the trail. In addition, two psychologists opined
on his mental state. The court ultimately found defendant
guilty of fourth-degree assault and stalking, and sentenced
him to three years of supervised probation.1
In his first and second assignments of error, defen-
dant challenges the sufficiency of the evidence for his two
convictions. He argues that expert testimony established
that he was unable to act “knowingly,” an element of both
offenses, because he lacked the capacity to knowingly cause
the victim physical injury and because he lacked the capac-
ity to knowingly alarm or coerce the victim. The state con-
tends first that the error is not preserved and argues that
the evidence of defendant’s conduct and the inferences that
may reasonably be drawn from it is sufficient to meet the
state’s burden to prove that he acted knowingly.
As an initial matter, we agree with defendant that
the error is preserved. Defendant argued in closing that
1
During the sentencing hearing, defendant pled guilty to the harassment
charge.
608 State v. Millsap
the state’s evidence was legally insufficient to prove that he
acted knowingly. In a bench trial, a closing argument chal-
lenging the legal sufficiency of the evidence is the equivalent
of a motion for judgment of acquittal. State v. Gonzalez, 188
Or App 430, 431, 71 P3d 573 (2003).
We review a challenge to the sufficiency of the evi-
dence by viewing the evidence “ ‘in the light most favorable
to the state, accepting reasonable inferences and reasonable
credibility choices that the factfinder could have made’ ” to
determine “ ‘whether a rational trier of fact could have found
the essential elements of the crime beyond a reasonable
doubt.’ ” State v. Madison, 303 Or App 737, 739, 466 P3d 92
(2020) (quoting State v. Derry, 200 Or App 587, 589, 116 P3d
248 (2005), rev den, 340 Or 34 (2006)). “Whether a defen-
dant’s act may form the basis for an inference of that defen-
dant’s mental state depends on the facts and circumstances
of a particular case[.]” State v. Rogers, 301 Or App 393, 399-
400, 457 P3d 363 (2019).
Consistent with that standard of review, we con-
clude that it was not legal error for the trial court to find
that defendant knowingly caused physical injury to the vic-
tim, and that he knowingly alarmed the victim by engaging
in repeated and unwanted conduct toward her. The record
shows that, during the first encounter, defendant turned his
attention to the victim as she was running down the path.
He then raised his arms and growled at her, which caused
her to speed up to a sprint in order to run away. He pursued
her while she was running at a full sprint for a significant
amount of time. He caught up to her and pushed her to the
ground while she was still running away. That fall caused
her injuries. He then pulled on her arm to help her up, tell-
ing her that she was safe and that she should come with
him, all while the victim was trying to physically push him
off of her so she could get away. During the second encoun-
ter, the evidence showed that defendant recognized the vic-
tim and targeted her by directing threats specifically at her
that referred to their previous encounter, before threaten-
ing bystanders who were attempting to help her. That evi-
dence supports an inference that defendant acted with an
awareness that his conduct was assaultive during the first
Nonprecedential Memo Op: 335 Or App 606 (2024) 609
encounter, and that his conduct was alarming to the victim
during both encounters. ORS 161.085(8) (defining “know-
ingly” as acting with “an awareness that the conduct of the
person is of a nature so described or that a circumstance so
described exists”).
In his third assignment of error, defendant contends
that the trial court erred when it imposed a special condition
of probation prohibiting defendant from knowingly associat-
ing with persons who use or possess controlled substances
illegally or frequenting places where such substances are
kept or sold because it failed to announce this prohibition
in his presence. The state concedes the error. This special
condition appears in both judgments. “A criminal defen-
dant has the right to have their sentence announced in
open court.” State v. Priester, 325 Or App 574, 581, 530 P3d
118 (2023) (citing ORS 137.030(1) and State v. Jacobs, 200
Or App 665, 671, 117 P3d 290 (2005)). Although the court
explained that it would impose “mental health and drug
packages,” that phrase was insufficient to apprise defendant
of the challenged condition. The record does not show what
the shorthand referred to or that the parties had the same
understanding of its meaning. See Preister, 325 Or App at
581 (when the court uses a shorthand phrase in sentenc-
ing, it must be apparent in the record that the parties had
the same understanding of the phrase and that the phrase
included the conditions that were listed in the written judg-
ment). We agree with the state’s concession that this was
error that requires resentencing.
Remanded for resentencing in Case Nos. 20CR55451
and 20CR55483; otherwise affirmed.