State v. Garibay ( 2020 )

722
Submitted December 30, 2019; in Case No. 17CR73083, conviction on Count 4
reversed, remanded for resentencing, otherwise affirmed; in Case No.
16CR43626, remanded for resentencing December 2, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
MARTIN GARIBAY,
Defendant-Appellant.
Marion County Circuit Court
17CR73083, 16CR43626;
A167368 (Control), A167369
478 P3d 1006
Defendant was a prospect to join a certain gang. He and two gang mem-
bers heard that three drunken men were at a particular location “talking a lot
of smack.” They drove to the location to tell the men to leave, understanding
that, “if a fight happens, a fight happens.” Upon arrival, they saw F. One of the
gang members jumped out of the truck and started chasing F. F’s cousin M tried
unsuccessfully to intervene. Defendant got out of the truck and shot M in the foot.
Defendant was subsequently tried and convicted of multiple crimes. On appeal of
the judgment of conviction, he challenges only his conviction for unlawful use of
a weapon, ORS 166.220, against F. Defendant contends that the trial court erred
in denying his motion for judgment of acquittal on that count, because there was
insufficient evidence to permit a finding that defendant intended to use the fire-
arm against F. To the extent that he prevails on that issue, defendant requests a
remand in a separate case in which probation was revoked. Held: The trial court
erred. The evidence was insufficient to allow a reasonable inference that defen-
dant intended to use the gun against F.
In Case No. 17CR73083, conviction on Count 4 reversed; remanded for resen-
tencing; otherwise affirmed. In Case No. 16CR43626, remanded for resentencing.
Tracy A. Prall, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kali Montague, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Christopher Page, Assistant Attorney
General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Aoyagi, Judge,
and Kistler, Senior Judge.
Cite as 307 Or App 722 (2020) 723
AOYAGI, J.
In Case No. 17CR73083, conviction on Count 4 reversed;
remanded for resentencing; otherwise affirmed. In Case No.
16CR43626, remanded for resentencing.
724 State v. Garibay
AOYAGI, J.
This is a consolidated appeal. In Case No.
17CR73083, defendant was convicted of four felony charges,
including Count 4, unlawful use of a weapon (UUW), ORS
166.220, aggravated by the use of a firearm, ORS 161.610.
In Case No. 16CR43626, defendant’s probation was revoked.
On appeal, defendant assigns error to the trial court’s
denial of his motion for judgment of acquittal on Count 4
in Case No. 17CR73083, seeking reversal of that conviction
and a remand for resentencing in both cases. For the rea-
sons that follow, we agree that the trial court erred in deny-
ing defendant’s motion for judgment of acquittal on Count 4.
Accordingly, we reverse defendant’s conviction on Count 4
in Case No. 17CR73083, remand for resentencing in both
cases, and otherwise affirm.
STANDARD OF REVIEW
In reviewing the denial of a motion for judgment
of acquittal, we “view the evidence in the light most favor-
able to the state to determine whether a rational trier of
fact, making reasonable inferences, could have found the
essential elements of the crime proved beyond a reasonable
doubt.” State v. Hall, 327 Or 568, 570, 966 P2d 208 (1998).
Where the state has sought to establish an element of the
crime by reasonable inference, “whether sufficient evidence
supports the inference” is a question of law for the court.
State v. Guckert, 260 Or App 50, 55, 316 P3d 373 (2013),
rev den, 354 Or 840 (2014).
FACTS
This case involves a gang-related shooting. On the
day in question, F went to a house in Woodburn where he
kennels his three dogs and occasionally stays. He went to
check on his dogs. Various people were at the house, includ-
ing Giron-Cortes, whom F recognized from high school. At
some point, F got into a fight with three unidentified men
in the backyard. The fight lasted about three minutes, until
someone told them to break it up, and everyone left. Giron-
Cortes heard about the fight but did not see it.
After the fight, F met up with two of his cousins, M
and P. F wanted revenge against the guys who had fought
Cite as 307 Or App 722 (2020) 725
him. P drove F and M to the Woodburn house, where F and
M went up to the house to see if the guys were still there,
while P stayed in the car. F and M did not see anyone, so,
after checking on F’s dogs, they began walking back to the
car.
Meanwhile, someone reported to Giron-Cortes that
three drunken men were hanging around the Woodburn
house and “talking a lot of smack.” At the time, Giron-
Cortes was a high-ranking member of a particular gang in
Woodburn. Another gang member was Little Blue, whose
girlfriend lived at the Woodburn house, and defendant was
a gang prospect. Giron-Cortes, Little Blue, and defendant
were together when they heard about the men and decided
to go to the Woodburn house. Giron-Cortes drove his
extended-cab truck, with Little Blue in the passenger seat
and defendant in the backseat. They were going to tell the
men “to leave, and if a fight happens, a fight happens.”
When they arrived, Giron-Cortes saw someone
walking toward the street from the house. Giron-Cortes
could not see who it was in the dark, but it was in fact F.
Giron-Cortes stopped the truck, and Little Blue jumped out
and began either chasing F or fighting with F. According to
F, Little Blue had something like a machete, and F was try-
ing to draw Little Blue away for a one-on-one fight, when M
jumped at Little Blue and kneed him in the chest and Little
Blue responded by striking M on the arm with the machete.
M ran away toward some garbage cans, while Little Blue
continued either chasing F or fighting with F. Giron-Cortes
was outside his truck watching Little Blue and F—he did
not join in the fight, because the gang protocol was to let
people fight one-on-one and only join in if the situation
escalated—when defendant got out of the truck and shot M
once in the foot.1 Defendant shot M as soon as he got out
1
F and Giron-Cortes testified at trial, while M, P, Little Blue, and defen-
dant did not. Giron-Cortes and F gave differing accounts of what happened. For
example, Giron-Cortes denied seeing any machete, described Little Blue and F
as “throwing blows” in an even fight, and denied that anyone tried to intervene in
Little Blue and F’s fight, while F testified that he was trying to draw Little Blue
away for a one-on-one fight but that they never actually fought, that M kneed
Little Blue and that Little Blue struck M with a machete, and that M was run-
ning away from Little Blue and F when he was shot. The trial court sitting as
factfinder ultimately found Giron-Cortes more credible than F, at least in some
726 State v. Garibay
of the truck, while M was near the garbage cans. Giron-
Cortes heard the shot, turned, and saw defendant pointing
a gun toward the ground. He asked defendant, “What the
f*** did you do?” Defendant responded, “That’s what I do.”2
Giron-Cortes immediately got in his truck to leave, because
he was on zero-tolerance probation and not allowed to be
around firearms. Little Blue jumped in the cab, and defen-
dant jumped in the truck bed, and they left.
As a result of the incident, defendant was indicted
on five charges in Case No. 17CR73083: second-degree
assault of M; third-degree assault of F, on an aiding and
abetting theory; UUW against M; UUW against F (Count
4); and felon in possession of a firearm. All charges but the
last were alleged to be aggravated by the use of a firearm.
Defendant waived his right to a jury, and the case was tried
to the court. At the close of the state’s evidence, as relevant
here, defendant moved for a judgment of acquittal on Count
4. The state opposed the motion, arguing that defendant was
“standing by with a firearm” while Little Blue fought F and
“used that firearm when he s[aw] another person approach-
ing.” The court denied the motion.
Ultimately, the court acquitted defendant on the
charge of assaulting F, stating that, even if Little Blue and F
were fighting when defendant shot M, there was no evidence
that F was injured in that fight. See ORS 163.165 (identify-
ing various means of committing the crime of third-degree
assault, all of which require causing either “physical injury”
or “serious physical injury”). The court found defendant
guilty on the other four charges. As to Count 4, the court
stated that “it is unlawful to menace someone,” that “legally
it is menacing” to get “out of the truck and fire[ ] a shot at
[M] while [F] was present,” and that it was therefore finding
defendant guilty on Count 4.
regards, but the state correctly notes that later credibility findings are not rele-
vant in reviewing the denial of a motion for judgment of acquittal. We summarize
the facts in the light most favorable to the state’s theory of the case, based on a
combination of Giron-Cortes’s and F’s testimony.
2
When asked at trial if Little Blue’s answer meant something to him, Giron-
Cortes answered, “Uh, no, it just means something dumb that happened.” Asked
if Little Blue could have meant “something like that’s what I do as a gang mem-
ber,” Giron-Cortes responded, “I mean it could be.”
Cite as 307 Or App 722 (2020) 727
Defendant appeals the judgment of conviction in
Case No. 17CR73083, assigning error to the trial court’s
denial of his motion for judgment of acquittal on Count 4.3
He does not challenge his other convictions in that case.
Defendant also appeals a related probation-revocation judg-
ment in a separate case, Case No. 16CR43626, requesting
resentencing if we reverse his conviction on Count 4.
ANALYSIS
As relevant here, a person commits the crime of UUW
if the person “[a]ttempts to use unlawfully against another,
or carries or possesses with intent to use unlawfully against
another, any dangerous or deadly weapon.” ORS 166.220(1)(a)
(emphasis added). Because carrying or possessing a danger-
ous or deadly weapon with the intent to use it unlawfully
against another constitutes UUW, actual use of the weapon
is unnecessary for a conviction. State v. McAuliffe, 276 Or
App 259, 263, 366 P3d 1206, rev den, 359 Or 847 (2016) (“As
the text of the statute makes clear, a person can commit
UUW without actually ‘using’ a weapon.”). As for what con-
stitutes an unlawful “use” (attempted or intended), “use” as
used in ORS 166.220(1)(a) refers to “employment of a weapon
to inflict harm or injury” or “employment of a weapon to
threaten immediate harm or injury.” State v. Ziska / Garza,
355 Or 799, 811, 334 P3d 964 (2014).
Count 4 of the indictment in Case No. 17CR73083
alleged that, on the date of the incident, defendant pos-
sessed a gun with the intent to use it unlawfully against
F. Defendant contends that the trial court erred in denying
his motion for judgment of acquittal on that count, because
no rational trier of fact, making reasonable inferences,
could find the essential elements of the crime to have been
proved beyond a reasonable doubt. For purposes of appeal,
defendant does not contest that he possessed a gun, that he
used it to shoot M, and that F was present when he shot M.
Defendant argues only that the evidence was insufficient to
allow a finding that he possessed the gun with the intent to
3
Defendant also assigns error to the trial court’s denial of his motion for
judgment of acquittal as to the aggravating firearm element on Count 4. Given
our disposition of the first assignment of error, we do not reach the second assign-
ment of error.
728 State v. Garibay
use it against F. Defendant argues that there is no evidence
connecting his possession of the weapon with any intent to
use it against F.
The state maintains that the evidence was suffi-
cient to convict defendant on Count 4. Specifically, the state
argues that there was evidence that defendant was in pos-
session of a firearm, that he had gone with Giron-Cortes
and Little Blue to stand up for the gang, and that that
objective “took a particular focus—F”—when Giron-Cortes
parked after seeing F and Little Blue jumped out of the car
to chase F. The state further points to the gang protocol of
not intervening in one-on-one fights, unless the situation
escalates, and to F’s testimony indicating that M had inter-
vened in Little Blue’s fight with F by kneeing Little Blue
in the chest as he chased F. In the state’s view, a rational
trier of fact could reasonably infer that defendant shot M
to “assist” Little Blue in his fight with F. Thus, the state
argues, defendant possessed the gun with the intent to use it
against F.
Intent is rarely proved by direct evidence. State v.
Rose, 311 Or 274, 282, 810 P2d 839 (1991). It is entirely per-
missible for the state to “rely on circumstantial evidence and
reasonable inferences flowing from that evidence” to prove a
person’s intent. State v. Bivins, 191 Or App 460, 466, 83 P3d
379 (2004). At the same time, a conviction may not be based
on speculation. Guckert, 260 Or App at 55. The line between
a reasonable inference that may permissibly be drawn from
the facts in evidence and impermissible speculation is “not
always a bright one.” Id. at 56. It is ultimately a line “drawn
by the laws of logic,” however, rather than “by judicial idio-
syncrasies.” Bivins, 191 Or App at 467. “If there is an experi-
ence of logical probability that an ultimate fact will follow a
stated narrative or historical fact, then the jury is given the
opportunity to draw a conclusion because there is a reason-
able probability that the conclusion flows from the proven
facts.” Id. “Whether a defendant’s act may form the basis
for an inference of that defendant’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), and is
a question of law, Guckert, 260 Or App at 55.
Cite as 307 Or App 722 (2020) 729
In State v. Rose, 109 Or App 378, 380, 382, 819 P2d
757 (1991), we held that there was sufficient evidence for a
rational trier of fact to find that the defendant had intended
to use a pistol against a police officer who stopped the car
in which she was travelling. There was evidence that, just
before the officer stopped the car, the defendant removed a
.22 caliber pistol from her purse and placed it—unholstered,
loaded, and cocked—on the seat next to her, under her purse.
Id. at 380. When the defendant lifted her purse during the
stop, the officer caught sight of the holster and asked if she
had a weapon. Id. She admitted that she did and handed
over the pistol. Id. On that record, we held that a rational
trier of fact “could have found that defendant intended to
use the pistol against” the officer. Id. at 382.
Similarly, in McAuliffe, 276 Or App at 265, we held
that the evidence was sufficient to allow a finding that the
defendant had intended to unlawfully use a shotgun against
the pilot of a small plane that flew over his house. There
was evidence that the defendant told an airport operations
manager that he would “take matters into his own hands”
if they did not do something about the low-flying plane; that
the defendant later called 9-1-1 and told the dispatcher that
he was “sitting here with a shotgun” and that the plane had
been bothering him all summer; that, when police officers
arrived at the defendant’s house, there was a shotgun on
his porch, and, when he was later arrested and interviewed
by the police, the defendant asked, “What do I have to do,
shoot him down to get him off of me?” and admitted to hav-
ing seriously thought about shooting at the plane; and that
the defendant held a shotgun shell up as the plane flew by
“to send [the pilot] a message to stop flying over his house.”
Id. at 260-61. On that record, a rational trier of fact could
find that the defendant carried or possessed the shotgun
on his porch with the intent to shoot it at the plane or to
threaten to shoot it at the plane. Id. at 265.
The state argues that Rose and McAuliffe support
the trial court’s denial of defendant’s motion for judgment of
acquittal in this case. Those cases are not entirely on point,
however, in that, in both Rose and McAuliffe, there was no
question as to who the defendant intended to use the firearm
730 State v. Garibay
against—if he or she intended to use it—but only whether
he or she intended to use it at all. Recall that “use” refers to
employment of a weapon either “to inflict harm or injury” or
“to threaten immediate harm or injury.” Ziska/ Garza, 355
Or at 811. In Rose, the only person who the defendant could
have intended to use the pistol against was the officer, and
the evidence—including that the defendant was concealing
a recently-retrieved, unholstered, loaded, and cocked pis-
tol in arm’s reach during the traffic stop—was sufficient to
allow an inference that she intended to use it, either to harm
the officer or to threaten him. In McAuliffe, the only person
who the defendant could have intended to use the shotgun
against was the pilot, and the evidence—including what the
defendant said to the airport operations manager, the 9-1-1
dispatcher, and the police officers—was sufficient to allow
an inference that he intended to use it, either to harm the
pilot or to threaten him.
Here, by contrast, there is certainly evidence that
defendant had a gun when he went to the Woodburn house,
and there is certainly evidence that, at some point, he formed
the intent to use it against M. But we agree with defen-
dant that the evidence was insufficient to allow a reasonable
inference that he also intended to use the gun against F.
Between the trial court and the state, various ratio-
nales have been articulated as to why the evidence was suf-
ficient for a conviction. In denying defendant’s motion for
judgment of acquittal, the trial court referred to defendant
“standing by with a firearm” while Little Blue and F fought
as sufficient to establish UUW against F. We disagree. The
fact that defendant was in possession of a gun while sitting
inside Giron-Cortes’s truck, without more, does not allow
a reasonable inference that defendant intended to use the
gun against F. Later, in rendering its verdict, the trial court
explained that it was finding defendant guilty of UUW
against F because defendant had unlawfully “menaced” F by
shooting at M “while [F] was present.” If defendant used or
intended to use the gun to threaten F with immediate harm
or injury, that would certainly constitute UUW against F.
Ziska / Garza, 355 Or at 811. However, to the extent that
the trial court meant “menacing” to refer to using the gun to
Cite as 307 Or App 722 (2020) 731
threaten F, there is no evidence that defendant ever threat-
ened F with the gun. The only evidence is that defendant
meant to shoot and did shoot M—whose physical proximity
to F at the time of the shooting is unclear. As for defendant
intending to threaten F with the gun, there is no evidence
from which a nonspeculative inference can be drawn that
defendant intended to threaten F with the gun.
The state advances its own argument for why the
evidence was sufficient. It contends that, once Giron-Cortes,
Little Blue, and defendant arrived at the Woodburn house,
defendant’s general objective to stand up for the gang “took
a particular focus—F”—when Giron-Cortes parked after
seeing F and Little Blue jumped out of the car to chase F.
The state argues that it is reasonable to infer that, at that
point, defendant formed the “specific intent to assist Little
Blue in his fight with F by using [his gun] if the situation
escalated or if Little Blue started losing the fight.” The state
further argues that, when M “broke the rule” about one-on-
one fights by intervening in Little Blue and F’s fight, defen-
dant took action, consistent with the gang protocols.
We do not understand the state to argue that defen-
dant going to the Woodburn house to confront three men,
while in possession of a gun, would be enough in and of itself
to convict defendant of three counts of UUW (one for each
of the three men expected to be there), without any other
evidence of defendant’s intent relative to use of the gun.4
Instead, we understand the state’s argument to turn on
the circumstantial evidence of defendant’s intentions once
he, Giron-Cortes, and Little Blue arrived at the Woodburn
house. The difficulty with the state’s argument is that it
conflates defendant’s attention, which a rational factfinder
could infer was directed towards Little Blue and F, with his
intentions regarding use of the gun, which there is no evi-
dence were directed toward Little Blue or F.
Although it is reasonable to infer that defendant
would want Little Blue to “win” his fight with F, given the
parties’ relationships, in order to obtain a conviction on
4
We note that there is no evidence as to why defendant was carrying a gun
on the day in question, whether he typically carried a gun, or how long that day
he had been carrying the gun.
732 State v. Garibay
Count 4, the state had to prove that defendant intended to
use the gun to inflict harm or injury to F or to threaten
F with immediate harm or injury. Ziska / Garza, 355 Or at
811. Using a gun to injure M was UUW against M. Using
a gun to injure M, so as to prevent M from intervening (or
intervening further) in the fight between Little Blue and F,
so as to improve Little Blue’s chances of winning, might be
some kind of crime against F—such as aiding and abetting
assault (if F had been injured)—but it is not the crime of
UUW. To commit UUW against F, defendant had to have
intended to use the gun to inflict harm or injury to F or to
threaten immediate harm or injury to F.
In sum, to obtain a conviction for UUW under the
portion of the statute at issue in this case, the state had to
prove that defendant intended to use a dangerous or deadly
weapon against the specified victim. ORS 166.220(1)(a).
That is, the state had to prove that defendant intended to
use a dangerous or deadly weapon to inflict harm or injury
to the specified victim or to threaten immediate harm or
injury to the specified victim. Ziska / Garza, 355 Or at 811.
Defendant’s intent, including both his intent to use the
weapon at all and who he intended to use it against, may
be inferred from circumstantial evidence and reasonable
inferences flowing therefrom. It may not be the subject of
speculation, however, and, in this case, it would be specula-
tive to find that defendant intended to use the gun to inflict
harm or injury to F or to threaten F. Because that is not
a reasonable inference on this record, the trial court erred
in denying defendant’s motion for judgment of acquittal on
Count 4.
In Case No. 17CR73083, conviction on Count 4
reversed; remanded for resentencing; otherwise affirmed.
In Case No. 16CR43626, remanded for resentencing.