State v. Farmer ( 2024 )

No. 538 July 31, 2024 183
This is a nonprecedential memorandum opinion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.
MARK JAMES FARMER,
Defendant-Appellant.
Marion County Circuit Court
21CR18605, 20CR52851; A177790 (Control), A177788
Sean E. Armstrong, Judge.
Argued and submitted June 17, 2024.
Nora Coon, Deputy Public Defender, argued the cause
for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services. Mark J. Farmer filed the supplemental
opening brief pro se.
Shannon T. Reel, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Aoyagi, Presiding Judge, Joyce, Judge, and Jacquot,
Judge.
PER CURIAM
In Case No. 21CR18605, convictions on Counts 3 and 4
reversed; remanded for resentencing; otherwise affirmed.
In Case No. 20CR52851, affirmed.
184 State v. Farmer
PER CURIAM
In this consolidated appeal, defendant was con-
victed of two counts of violating a stalking protective order,
ORS 163.750 (Counts 1 and 2), and two counts of stalking,
ORS 163.732 (Counts 3 and 4), in Case No. 21CR18605,
and his probation was revoked in Case No. 20CR52851.
Defendant raises five counseled assignments of error and
eight pro se assignments of error. For the reasons stated
below, we reverse defendant’s convictions on Counts 3 and 4
and otherwise affirm the judgment in Case No. 21CR18605.
Defendant has not assigned error to any rulings in Case
No. 20CR52851, and we affirm that judgment without
discussion.
Convictions for Stalking. In his first and second
assignments of error, defendant argues that the trial court
erred by not granting him a judgment of acquittal on Counts
3 and 4. Those counts charged defendant with stalking on
April 12, 2021, and April 15, 2021. Defendant represented
himself at trial, and, at the close of the state’s case, the court
moved for a judgment of acquittal on defendant’s behalf—
then denied its own motion. Given that fact and the content
of defendant’s closing argument, defendant argues that his
claim of error was adequately preserved for appeal, and the
state agrees. We are persuaded that the error is preserved
and review the error as preserved.1
Our task in reviewing the denial of a motion for
judgment of acquittal 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 essen-
tial 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). In this case, the state concedes that
the evidence was legally insufficient to prove that defendant
1
We note that this case is distinguishable from State v. Taylor, 323 Or App
422, 427, 523 P3d 696 (2022), in which the trial court made (and denied) a motion
for a judgment of acquittal on behalf of a self-represented defendant, and we
concluded that the claim of error raised on appeal was not preserved. Unlike in
Taylor, in this case, defendant’s claim of error on appeal is sufficiently aligned
with the motion that the court made on his behalf that the purposes of preserva-
tion were adequately served.
Nonprecedential Memo Op: 334 Or App 183 (2024) 185
committed the crime of stalking on April 12, 2021, and April
15, 2021. Having reviewed the evidentiary record, we agree
and accept the concession. We therefore reverse defendant’s
convictions on Counts 3 and 4.
Convictions for Violating a Stalking Protective Order
(SPO). In his third and fourth assignments of error, defen-
dant argues that the trial court erred by not granting him
a judgment of acquittal on Counts 1 and 2. Those counts
charged defendant with violating an SPO on April 12, 2021,
and April 15, 2021. We agree with the parties that the claim
of error is adequately preserved, for the same reasons as
with Counts 3 and 4. As for the merits, having reviewed
the record, we conclude as to each count that the evidence,
viewed in the light most favorable to the state, would permit
a rational trier of fact to find defendant guilty of the crime
of violating an SPO. We therefore affirm defendant’s convic-
tions on Counts 1 and 2.
Motion to Disqualify. In his fifth assignment of
error, defendant challenges the denial of what he describes
on appeal as his “motion to disqualify Judge Armstrong.”
We understand defendant’s argument to be directed to
the motion filed on June 23, 2021.2 We review the denial of
defendant’s motion for legal error. State v. Langley, 363 Or
482, 498, 424 P3d 688 (2018), adh’d to as modified on recons,
365 Or 418, 446 P3d 542 (2019), cert den, ___ US ___, 141
S Ct 138, 207 L Ed 2d 1081 (2020).
Under ORS 14.250 to 14.270, a party may seek dis-
qualification of the judge assigned to their case by filing a
motion along with a supporting affidavit attesting to their
belief that they “cannot have a fair and impartial trial or
hearing before the judge, and that [the motion] is made in
good faith and not for the purpose of delay.” ORS 14.260(1).
That process—commonly called affidaviting a judge—is “an
2
In September 2021, defendant filed a motion to disqualify Judge Armstrong
for cause, attaching two affidavits, one of which may have been intended as an
ORS 14.260 affidavit, even though it was filed with a motion to disqualify for
cause. Defendant appears to recognize that any September attempt to affidavit
Judge Armstrong under ORS 14.260 was untimely under ORS 14.270, because he
mentions the September motion but directs his arguments to the June motion—
which, even if otherwise flawed, was timely under ORS 14.270. We therefore limit
our discussion to the June motion and ruling.
186 State v. Farmer
exercise of legislative grace.” State v. Pena, 345 Or 198, 203,
191 P3d 659 (2008). The “specific grounds for the belief” need
not be alleged. ORS 14.260(1). Disqualification is automatic,
unless the subject judge challenges the affiant’s good faith,
in which case a hearing must be held before a disinterested
judge. Id. In any single case, a party “may not make more
than two applications” to disqualify the assigned judge.
ORS 14.260(6).
Here, defendant asserted a “bench wide conflict”
and sought to disqualify every trial and appellate judge in
the State of Oregon (including three vacant seats). We agree
with the state that such a motion is not permitted under
ORS 14.250 to 14.270. In short, the legislature created a
process by which a litigant may affidavit an individual
judge without cause—and may do so no more than twice in
a single case. The statutory scheme does not allow a litigant
to affidavit every judge in the county (at least in counties
with three or more judges), let alone every judge in the state,
without cause. Moreover, although Judge Armstrong hap-
pened to be appointed to defendant’s case on the same date
that defendant filed his motion, it is readily apparent from
the title and content of the motion, as well as from defen-
dant’s statements in court, that it is not a motion to disqual-
ify Judge Armstrong specifically. It can only be understood
as what it is—a motion to disqualify 192 named judges
and three judges to be appointed in the future to identified
vacant positions. Such a motion is not permitted under ORS
14.250 to 14.270, and the trial court did not err in denying
it.
Pro Se Supplemental Assignments of Error. Defen-
dant raises eight pro se supplemental assignments of error
additional to those raised by his counsel.3 Defendant asserts
that the trial court mishandled his arraignment and ini-
tial appearance, violated his speedy trial rights, violated
his Fifth and Sixth Amendment rights, violated the Health
Insurance Portability and Accountability Act (HIPAA) and
medical malpractice laws, mishandled his bail hearing,
3
Defendant’s pro se assignments of error are numbered first to ninth, but
there is no sixth assignment of error, so there are a total of eight pro se assign-
ments of error.
Nonprecedential Memo Op: 334 Or App 183 (2024) 187
and violated his Second Amendment rights (first, second,
third, fourth, fifth, and ninth questions); that the Oregon
State Hospital violated a transport law and thus acted in
contempt of court (seventh question); and that the Marion
County Jail violated defendant’s Brady rights and thus acted
in contempt of court (eighth question). Based on the briefing
provided by defendant, we are unpersuaded that the trial
court committed any error that would allow reversal of his
remaining convictions.
In Case No. 21CR18605, convictions on Counts 3 and 4
reversed; remanded for resentencing; otherwise affirmed.
In Case No. 20CR52851, affirmed.