State v. Ockerman ( 2023 )

No. 630 November 29, 2023 343
This is a nonprecedential memorandum opinion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.
ROBERT EARL OCKERMAN,
Defendant-Appellant.
Lane County Circuit Court
19CR61723; A176053
Bradley A. Cascagnette, Judge.
Submitted February 27, 2023.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Matthew Blythe, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Paul L. Smith, Deputy Solicitor
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
HELLMAN, J.
Portion of judgment imposing $2,000 DUII fine vacated;
remanded for resentencing; otherwise affirmed.
344 State v. Ockerman
HELLMAN, J.
Defendant appeals his judgment of conviction for
driving under the influence of intoxicants (DUII), ORS
813.010. On appeal, he raises two assignments of error. In
the first, defendant argues that the trial court erred when
it refused to give the less-satisfactory-evidence instruction.
In the second, defendant argues that the trial court erred
when it imposed a mandatory minimum $2,000 fine because
the jury did not make any findings as to defendant’s blood
alcohol content (BAC) as required for imposition of that fine.
For the reasons below, we vacate the portion of the judg-
ment imposing the $2,000 fine, remand for resentencing,
and otherwise affirm.
Jury Instruction. Under ORS 10.095, the jury is “to
be instructed by the court on all proper occasions” as follows:
“(7) That evidence is to be estimated, not only by its
own intrinsic weight, but also according to the evidence
which it is in the power of one side to produce and of the
other to contradict; and, therefore,
“(8) That if weaker and less satisfactory evidence is
offered when it appears that stronger and more satisfac-
tory evidence was within the power of the party, the evi-
dence offered should be viewed with distrust.”
What constitutes a “proper occasion” for giving an instruc-
tion under ORS 10.095 is a question of law. State v. Payne,
366 Or 588, 607, 468 P3d 445 (2020).
We have held that, “[t]he less-satisfactory-evidence
instruction is to be given when (1) other evidence was rea-
sonably available on a fact in issue, and (2) there is a basis
for the jury to conclude that the other evidence is stronger
and more satisfactory than the evidence offered.” State v.
Palacios-Romero, 320 Or App 563, 566-67, 514 P3d 137, rev
den, 370 Or 472 (2022) (internal quotation marks omitted).
The instruction “’draws the jury’s attention to a party’s fail-
ure to produce evidence when that failure could give rise to
an inference that the evidence would be adverse to the party—
that is, when it appears that the party may be trying to
hide something.’” Id. at 567 (quoting State v. McNassar, 77
Nonprecedential Memo Op: 329 Or App 343 (2023) 345
Or App 215, 218, 712 P2d 170, rev den, 300 Or 704 (1986)
(emphasis in McNassar)).
Defendant was charged with DUII based on evi-
dence that he drove his motorcycle while intoxicated. The
state’s primary witnesses were the investigating officers
who responded to the scene of a reported motorcycle crash.
Defendant sought the less-satisfactory-evidence instruction
because the state did not call two witnesses for whom it had
issued subpoenas. Those witnesses included a person who
had called 9-1-1 to report someone “yelling some obscenities”
near the scene and another person who had provided infor-
mation to the 9-1-1 caller.
After a review of the record, we agree with the trial
court that the evidence here was not sufficient to merit giv-
ing the instruction, because the record does not support a
reasonable inference that other evidence was stronger and
more satisfactory than the evidence offered, or that the
state might have been trying to hide something. See State v.
McDonnell, 313 Or 478, 503, 837 P2d 941 (1992) (“[N]othing
in the record suggests that the state had any other evidence
that it did not offer * * *, or that the state could have obtained
additional admissible evidence and simply failed to do so.”).
Further, both parties had equal access to the potential wit-
nesses and “it is unclear when, if ever, it would be appropri-
ate to give the less-satisfactory-evidence instruction when
both parties have equal access to the purportedly stronger
evidence[,]” given reciprocal discovery and the availability of
subpoena duces tecum. Palacios-Romero, 320 Or App at 567-
68 (citing McDonnell, 313 Or at 500). Thus, the trial court
did not err in declining to give the less-satisfactory-evidence
instruction.
Enhanced mandatory minimum fine. In his second
assignment of error, defendant argues that the trial court
erred when it imposed a $2,000 mandatory minimum fine,
which is an enhanced penalty for a DUII. ORS 813.010(6)(d).
As the state correctly concedes, the jury never found that
defendant’s BAC was greater than 0.15 percent, which is the
necessary fact to increase defendant’s mandatory minimum
fine to $2,000. Without that fact, the trial court was without
authority to impose the greater mandatory minimum fine.
346 State v. Ockerman
Alleyne v. United States, 570 US 99, 112, 133 S Ct 2151, 186
L Ed 2d 314 (2013).
Portion of judgment imposing $2,000 DUII fine
vacated; remanded for resentencing; otherwise affirmed.