State v. Powell ( 2024 )

206 November 14, 2024 No. 816
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
BRIAN MICHAEL POWELL,
Defendant-Appellant.
Clackamas County Circuit Court
22CR19935; A179521
Michael C. Wetzel, Judge.
Submitted April 22, 2024.
Raymond Tindell 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 Shorr, Presiding Judge, Pagán, Judge, and Mooney,
Senior Judge.
MOONEY, S. J.
Affirmed.
Cite as 336 Or App 206 (2024) 207
MOONEY, S. J.
Defendant appeals a judgment of conviction,
entered after a bench trial, for two felony counts of violat-
ing a stalking protective order, ORS 163.750.1 He raises two
assignments of error. First, defendant contends that the trial
court erred in denying his motion for judgment of acquittal
(MJOA), arguing that the evidence was insufficient to prove
that he recklessly engaged in conduct prohibited by the
stalking protective order (SPO). Second, defendant argues
that the trial court plainly erred by failing to declare a mis-
trial after the judge learned that he had represented defen-
dant in an unrelated criminal matter 18 years earlier. We
affirm.
We begin with defendant’s challenge to the denial
of his MJOA. “We review the denial of a motion for judg-
ment of acquittal for legal error, viewing the evidence in
the light most favorable to the state to determine whether
any rational trier of fact could have found the elements of
the crimes beyond a reasonable doubt.” State v. Miller, 289
Or App 353, 357, 413 P3d 999 (2017) (internal quotation
marks and brackets omitted). We state the relevant facts in
accordance with that standard.
Defendant and his ex-girlfriend, A, co-signed a loan
for the purchase of a Ford F350 truck while she and defen-
dant were still dating. A ended up making most of the loan
payments, and she and defendant did not agree about who
was entitled to possession and ownership of the truck after
their relationship ended, although A retained actual posses-
sion of the truck. On the day in question, defendant asked a
friend to drive him to A’s neighborhood so he could retrieve
the truck. They spotted the truck, which was being driven
by A’s new boyfriend, D, and in which A was riding as the
passenger. Defendant asked his friend to follow D and A,
1
ORS 163.750 provides, in relevant part:
“(1) A person commits the crime of violating a court’s stalking protective
order when:
“(a) The person has been served with a court’s stalking protective order
* * *;
“(b) The person, subsequent to the service of the order, has engaged
intentionally, knowingly or recklessly in conduct prohibited by the order[.]”
208 State v. Powell
and as his friend did so, defendant attempted to get D and A
to stop by yelling at them.
D had a valid SPO that, among other things, pro-
hibited defendant from coming into D’s visual or physical
presence. D eventually pulled over, got out of the truck, and
told defendant to leave. Defendant remained in his friend’s
vehicle. After D exited the truck, A moved into the driver’s
seat and drove around the block, circling back to pick up D.
Defendant followed A around the block and then took off in a
different direction when she stopped for D. Although defen-
dant claimed that his parole officer had given him permis-
sion to locate the truck and to then wait for police assistance
to take possession, his parole officer testified that defendant
“was specifically told not” to go to A’s neighborhood.
We begin by rejecting the state’s contention that
defendant’s argument is unpreserved. After the state rested,
defendant moved for judgment of acquittal, arguing that the
state failed to prove that he had engaged in conduct pro-
hibited by the SPO. Additionally, defense counsel argued in
closing that the state had not carried its burden with respect
to the “criminal intent” element of the charged crime. That
was enough. See, e.g., State v. Gonzalez-Valenzuela, 358 Or
451, 454 n 1, 365 P3d 116 (2015) (agreeing with “the long-
standing case law from the Court of Appeals” that raising
a sufficiency argument during closing argument in a bench
trial can be the “equivalent of a motion for judgment of
acquittal”); see also State v. Forrester, 203 Or App 151, 155,
125 P3d 47 (2005), rev den, 341 Or 141 (2006) (holding that,
in a bench trial, an MJOA is not necessary to preserve a
claim of error concerning the legal sufficiency of the state’s
evidence “as long as a defendant clearly raises the issue in
closing argument”).
Turning to the merits on the first assignment of
error, we conclude that the evidence was legally sufficient
to support defendant’s convictions for violating the stalking
protective order. To establish that defendant acted at least
recklessly, the state was required to produce evidence estab-
lishing beyond a reasonable doubt that he was aware of and
consciously disregarded a substantial and unjustifiable risk
that his conduct violated the SPO. ORS 161.085(9) (defining
Cite as 336 Or App 206 (2024) 209
“recklessly”); ORS 163.750 (defining the elements of the
crime of violating a court’s SPO). Defendant claims that he
did not intend to contact D—rather, he was simply trying to
contact A to take possession of the truck. But even if defen-
dant did not start out intending to contact D, once he saw
that D was driving the truck, rather than turning away, he
instructed his friend to follow the truck, and he proceeded to
lower his window and yell at the truck that D was driving. A
rational factfinder could readily conclude on that record that
defendant recklessly violated the SPO. The trial court did
not err when it denied defendant’s MJOA.
We turn to defendant’s second assignment of error,
in which he argues that the trial court erred by failing to
sua sponte declare a mistrial upon learning that the trial
judge had previously represented defendant in another mat-
ter. We review the denial of a motion for a mistrial for abuse
of discretion, but where, as here, no motion was made, we
may reverse only if “it is beyond dispute” that defendant was
denied a fair trial. State v. Chitwood, 370 Or 305, 311-12, 518
P3d 903 (2022) (internal quotation marks omitted).
As we recently explained,
“All persons charged with a crime have the right to a fair
and impartial trial under both the Oregon and United
States Constitutions. The right to a fair trial includes the
right to a trial before an impartial judge. That right may be
secured and enforced through recusal, removal, or disqual-
ification, any of which may be prompted administratively,
by a party’s motion, or by the court’s own motion.”
State v. Ovalle, 325 Or App 538, 540, 529 P3d 278 (2023)
(citations and footnote omitted). ORS 14.210(1)(d) prohibits
a judge from acting as judge “if the judge has been attorney
in the action, suit or proceeding for any party.” But recusal
or disqualification is not required when a judge previously
represented a party in an unrelated matter, unless addi-
tional facts call into question the judge’s impartiality. State
v. Pierce, 263 Or App 515, 521-22, 333 P3d 1069, rev den, 356
Or 400 (2014) (explaining that neither ORS 14.210(1)(d) nor
the Oregon Code of Judicial Conduct requires recusal when
a judge has previously represented a party, unless the judge
has previously represented a party in the same matter, the
210 State v. Powell
judge is biased against a party, or the judge has personal
knowledge of disputed evidentiary facts).
Here, following the verdict but before sentenc-
ing, defense counsel notified the trial court that the trial
judge had represented defendant in an unrelated criminal
case some 18 years earlier. The trial judge explained that
while he recognized defendant’s name, he did not otherwise
remember defendant or his case, and that he did not have
any “ill will” toward defendant. Defense counsel requested
time to brief the issue, and ultimately reported back to the
court that she did not have a good faith basis to move for a
mistrial or request any other remedy. No other discussion
about disqualifying the trial judge occurred, nor was any
evidence in support of disqualification presented. The trial
court did not err by failing to sua sponte declare a mistrial.
Affirmed.