State v. Christian ( 2024 )

No. 500 July 17, 2024 815
This is a nonprecedential memorandum opinion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.
JEREMY JOSEPH CHRISTIAN,
Defendant-Appellant.
Multnomah County Circuit Court
17CR34550; A175029
Cheryl A. Albrecht, Judge.
Argued and submitted May 14, 2024.
Marc D. Brown, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Oregon Public
Defense Commission.
Leigh A. Salmon, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General; Benjamin Gutman, Solicitor
General; and Jennifer S. Lloyd, Assistant Attorney General.
Before Tookey, Presiding Judge, Egan, Judge, and Kamins,
Judge.
KAMINS, J.
Affirmed.
816 State v. Christian
KAMINS, J.
Defendant was convicted of various offenses, includ-
ing two counts of first-degree murder, arising out of two
violent incidents on the Portland MAX train. On appeal,
defendant raises 16 assignments of error, challenging the
trial court’s denial of his motion to change venue, the court’s
denial of his motions for judgment of acquittal, the court’s
refusal to instruct the jury on the duty to retreat, and the
court’s decisions at sentencing. For the reasons explained
below, we affirm.
This case involves two separate incidents: one in
which defendant threw a half-full 32-ounce Gatorade bot-
tle at a woman, striking her in the eye, and a second in
which defendant stabbed three people, killing two, RB and
TM, and seriously injuring a third. During both incidents,
defendant repeatedly directed racial epithets toward the
victims and bystanders. Defendant was later charged with
numerous offenses, and a jury found him guilty as charged.1
Following a sentencing enhancement trial, the trial court
imposed true-life sentences on defendant’s two first-degree
murder convictions and partially consecutive sentences on
his remaining convictions.
On appeal, in his first assignment of error, defen-
dant contends that the trial court erred in denying his
motion to change venue. He argues that he was entitled to a
change of venue because adverse pretrial publicity created a
presumption of prejudice. We review the denial of a change
of venue for an abuse of discretion, Praegitzer Industries v.
Rollins Burdick Hunter, 129 Or App 628, 633, 880 P2d 479(1994), and place “great weight upon a trial court’s determi-
nation that pretrial publicity was not prejudicial and that
the empaneled jurors would be impartial,” State v. Fanus,
336 Or 63, 79, 79 P3d 847 (2003), cert den, 541 US 1075(2004).
1
Defendant was convicted of two counts of murder in the first degree, ORS
163.107; one count of attempted murder in the first degree, ORS 163.107 and
ORS 161.405; one count of assault in the first degree, ORS 163.185; two counts of
unlawful use of a weapon, ORS 166.220; three counts of intimidation in the sec-
ond degree, ORS 166.155; two counts of menacing, ORS 163.190; and one count of
assault in the second degree, ORS 163.175.
Nonprecedential Memo Op: 333 Or App 815 (2024) 817
Here, we are not persuaded that the trial court
abused its discretion in denying defendant’s motion to
change venue. The pretrial publicity did not amount to pre-
sumed prejudice or deny defendant a fair trial, under state
statutes or the state or federal constitutions. See McDonnell
v. Premo, 309 Or App 173, 190, 483 P3d 640 (2021), rev den,
369 Or 507 (2022) (explaining that the change of venue
“standard is the same under both the state and federal con-
stitutions” as it is under ORS 131.355—“[a] change of venue
is required only when prejudice is so great that the defen-
dant cannot obtain a fair and impartial trial” (internal quo-
tation marks omitted)). Although the incidents received sub-
stantial media attention, that attention was focused on the
events that occurred, which were largely undisputed, rather
than on the possible legal defenses available to defendant
or the trial theories of the parties. See Fanus, 336 Or at 80(concluding that a defendant in a murder trial was not prej-
udiced where the “murder * * * was widely publicized and
* * * a source of sorrow and profound loss for many” but the
“record of publicity does not disclose a community sentiment
of deep and bitter prejudice against defendant” (internal
quotation marks omitted)).
Moreover, the hearings were orderly and focused
on the merits and inflammatory evidence was largely filed
under seal. And defendant does not argue that any of the
jurors in his case were actually prejudiced against him. Cf.
Irvin v. Dowd, 366 US 717, 728, 81 S Ct 1639, 6 L Ed 2d
751 (1961) (holding that the defendant was denied a fair and
impartial trial where, among other facts, two-thirds of the
jurors who served on the case professed to having formed
opinions as to his guilt prior to trial). Under those circum-
stances, the pretrial publicity did not create a presump-
tion of prejudice such that defendant was denied a fair and
impartial trial under state statutes or the state or federal
constitutions.
In his second, third, and fourth assignments of
error, defendant argues that the trial court erred in deny-
ing his motions for judgment of acquittal on Count 1 (first-
degree murder), Count 2 (first-degree murder), and Count 3
(attempted first-degree murder). Defendant contends that
818 State v. Christian
the phrasing of the indictment required the state to prove
that the murders and attempted murder occurred in a par-
ticular order, and that the state failed to do so. By its plain
language, however, the indictment required proof only that
defendant had caused or attempted to cause the deaths of the
victims in the same criminal episode, not in any particular
order, which is consistent with ORS 163.107.2 And the state
adduced sufficient evidence, viewed in the light most favor-
able to the state, from which a rational trier of fact could
find that defendant caused the deaths of two victims and
attempted to cause the death of a third victim in the course
of the same criminal episode. See State v. Hedgpeth, 365
Or 724, 730, 452 P3d 948 (2019) (quoting State v. Clemente-
Perez, 357 Or 745, 756, 762, 359 P3d 232 (2015) (stating the
standard of review for the denial of a motion for a judgment
of acquittal)).
In his fifth and sixth assignments of error, defendant
contends that the trial court erred in denying his motions for
judgment of acquittal on Count 10 (second-degree assault)
and Count 11 (unlawful use of a weapon), because there was
insufficient evidence that defendant acted with the requisite
mens rea of knowledge with respect to the dangerous weapon
element of second-degree assault or the requisite mens rea
of intent with respect to the dangerous weapon element of
unlawful use of a weapon. ORS 163.175(1)(b) (second-degree
assault); ORS 166.220(1)(a) (unlawful use of a weapon). For
the second-degree assault charge, viewing the evidence in
the light most favorable to the state, Hedgpeth, 365 Or at
730, there is sufficient evidence from which a jury could
have reasonably inferred that, when defendant threw a half-
full 32-ounce plastic bottle directly at the victim’s eye with
enough force that it ricocheted off her face, he was aware
that the bottle, used in that manner, was readily capable
of causing serious physical injury. ORS 161.015(1) (defining
2
ORS 163.107 defines the crime of first-degree murder, and reads, in rele-
vant part:
“(1) ‘Murder in the first degree’ means murder in the second degree * * *
which is committed under, or accompanied by, any of the following circum-
stances: * * *
“(d) There was more than one murder victim in the same criminal epi-
sode * * *.”
Nonprecedential Memo Op: 333 Or App 815 (2024) 819
“[d]angerous weapon”); State v. Brosy, 326 Or App 631,
637, 533 P3d 378 (2023) (explaining that, for the danger-
ous weapon element of second-degree assault, “the jury
had to find defendant acted with an awareness that the
[item], under the circumstances in which defendant used it
against [the victim], was readily capable of causing * * * pro-
tracted disfigurement, protracted impairment of health, or
protracted loss or impairment of the function of any bodily
organ”).
Similarly, on the unlawful use of a weapon charge,
evidence that defendant threatened the victim’s life, pointed
the 32-ounce bottle at the victim’s face, and threw the bot-
tle at the victim’s head allowed a reasonable inference that
defendant formed an intent to unlawfully use the bottle as
a weapon against the victim. See State v. McAuliffe, 276
Or App 259, 265, 366 P3d 1206, rev den, 359 Or 847 (2016)
(affirming an unlawful use of a weapon conviction where the
defendant’s actions and reasonable inferences drawn from
them supported the requisite intent).
In his seventh assignment of error, defendant argues
that the trial court erred in denying his request for a spe-
cial self-defense jury instruction on “no duty to retreat.” We
disagree. The uniform jury instructions issued by the court
adequately covered the topic of self-defense, and defendant’s
requested instruction was not necessary for the jury’s under-
standing. State v. Harryman, 277 Or App 346, 356, 371 P3d
1213, rev den, 360 Or 401 (2016) (“[A] trial court does not err
in refusing to give a proposed instruction—even if legally
correct—if the substance of the requested instruction is
covered fully by other jury instructions given by the trial
court or if the requested instruction is not necessary * * *
to explain the particular issue or point of law to the jury.”
(Internal quotation marks omitted; omission in Harryman.)).
And nothing in the instructions implied a duty to retreat. Id.
at 358 (upholding the trial court’s denial of the defendant’s
request for a duty to retreat instruction where the “defendant
identifies nothing in the instructions, arguments, or evi-
dence suggesting that the jury would be inclined to think—
erroneously—that there was a duty to retreat”).
820 State v. Christian
In his eighth, ninth, and tenth assignments of
error, defendant advances three arguments challenging
the constitutionality of the statutory sentencing scheme
for first-degree murder, ORS 163.107.3 Two of defendant’s
arguments—that the sentencing scheme contained in ORS
163.107 violates the Sixth Amendment, and that ORS
163.107 does not authorize a trial court to empanel a jury
to find sentence enhancement facts—are foreclosed by our
decision in State v. Johnson, 329 Or App 588, 635-37, 542
P3d 467 (2023).
Defendant’s third argument is that ORS 163.107
is unconstitutionally vague, because it allows a sentencing
court to increase a first-degree murder sentence for any rea-
son.4 Although ORS 163.107 provides a sentencing court with
broad discretion to increase a first-degree murder sentence,
requiring only that the court “state on the record the reasons
for imposing the sentence,” ORS 163.107(2)(b), a sentencing
statute is not unconstitutionally vague where it grants the
court discretion to impose a sentence from a range of pos-
sible punishments for the crime. Here, the statute provides
for a minimum of 30 years without the possibility of parole
or release, and a maximum of life imprisonment without the
possibility of parole (for defendants over 18 years of age at
the time of the offense). See Beckles v. United States, 580
US 256, 264, 137 S Ct 886, 197 L Ed 2d 145 (2017) (Federal
“cases have never suggested that a defendant can success-
fully challenge as vague a sentencing statute conferring
discretion to select an appropriate sentence from within a
statutory range, even when that discretion is unfettered.”);
3
The state raises a cross-assignment of error relating to the imposition of
defendant’s sentence pursuant to ORS 163.107, which is rendered moot by our
resolution of defendant’s eighth, ninth, and tenth assignments of error.
4
ORS 163.107(2) provides, in relevant part:
“(a) Except as otherwise provided * * *, the court shall sentence a person
convicted of murder in the first degree, who was at least 15 years of age at the
time of committing the murder, to life imprisonment. The court shall order
that the defendant be confined for a minimum of 30 years without possibil-
ity of parole or release to post-prison supervision except as provided in ORS
144.397 * * *.
“(b) The court may sentence the person to life imprisonment without the
possibility of parole if the person was at least 18 years of age at the time of
committing the murder. The court shall state on the record the reasons for
imposing the sentence * * *.”
Nonprecedential Memo Op: 333 Or App 815 (2024) 821
Miller v. Lampert, 340 Or 1, 12, 125 P3d 1260 (2006) (“The
Oregon Legislature * * * could * * * create[e] wide sentencing
ranges that it deemed appropriate and allow[ ] sentencing
courts to impose sentences within that range after making
any findings that it deemed relevant[.]”). Moreover, a sen-
tencing court is not afforded unfettered discretion under
ORS 163.107, because the considerations on which the court
may rely in imposing a sentence are limited by the Eighth
Amendment to the United States Constitution and Article I,
sections 15 and 16, of the Oregon Constitution. See U.S.
Const, Amend VIII (prohibiting “cruel and unusual pun-
ishments”); Or Const, Art I, § 15 (requiring that criminal
sentences “shall be founded on these principles: protection
of society, personal responsibility, accountability for one’s
actions and reformation”); Or Const, Art I, § 16 (also prohib-
iting “[c]ruel and unusual punishments” and requiring that
“all penalties shall be proportioned to the offense”).
Finally, in his eleventh through sixteenth assign-
ments of error, defendant raises various concerns regard-
ing findings on three sentencing enhancement factors.
Regarding the first finding—that the probability is high that
defendant cannot be rehabilitated—defendant advances
vagueness challenges as to the terms “high probability” and
“rehabilitated,” and contests the sufficiency of the evidence
to support the finding. However, defendant did not preserve
below his challenge to “high probability,” and he does not
explain why the court’s instruction defining “rehabilitated”
was insufficient. Additionally, the record contains evidence
of defendant’s prior criminal activity, his statements made
in jail while awaiting trial, his mental health records, and
his refusal to accept responsibility for his actions. That
evidence, viewed in the light most favorable to the state,
Hedgpeth, 365 Or at 730, permitted a rational factfinder to
find that there exists a high probability that defendant can-
not be rehabilitated.
Regarding the second finding—that defendant’s
crimes were precipitated by his unreasonable racial and
religious bias—defendant argues that there is no evidence
that the murders and attempted murder were directly caused
by racial and religious bias. However, viewing the evidence
822 State v. Christian
presented at trial in the light most favorable to the state,
and under the trial court’s unchallenged definition of “pre-
cipitated,” a rational factfinder could find that the crimes
were precipitated by such bias.
As to the third finding—that defendant showed no
remorse—defendant contends that no rational factfinder
could find that he showed no remorse for murdering RB
(Count 2), identifying statements he made to police and a
psychiatrist as evidence that he exhibited some remorse.
But the record contains evidence that defendant repeat-
edly expressed his belief that he was justified in stabbing
all three victims and, further, he attempted to profit off
of the murders by selling his possessions on websites that
featured distribution of memorabilia from “mass murders.”
Defendant stated that the victims “signed their own death
warrant” and that he did not “feel one bit remorseful or
sorry about that.” Cf. State v. Garza, 227 Or App 291, 294,
206 P3d 209, rev den, 347 Or 43 (2009) (concluding that the
defendant’s statement, “I can only blame myself for what
has happened,” could amount to a showing of remorse). That
evidence, viewed in the light most favorable to the state,
supports a finding that defendant felt no remorse for mur-
dering RB.
Affirmed.