432
Submitted November 26, 2019, affirmed February 26, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
CARL WILLIAM SPIELER, SR.,
aka Carl Spieler, aka Carl W. Spieler,
aka Carl William Spieler,
Defendant-Appellant.
Columbia County Circuit Court
17CR46214; A167909
460 P3d 535
Defendant appeals a judgment of conviction for, among other offenses, two
counts of attempted second-degree assault, ORS 161.405; ORS 163.175 (Counts 1
and 2), and two counts of attempted assault of a public safety officer, ORS 161.405;
ORS 163.208 (Counts 3 and 4). The conduct underlying defendant’s convictions on
Counts 1 through 4 involved defendant accelerating his car at two law enforcement officers who were standing in front of his car. In his first four assignments
of error, defendant contends that the trial court erred when it denied his motion
for a judgment of acquittal on Counts 1 through 4, because the state failed to
“offer sufficient evidence to prove that defendant personally intended to injure
the officers.” In his fifth assignment of error, defendant argues that the “trial
court erred in basing its decision to convict defendant of [Counts 1 through 4] on
an incorrect understanding of the law: that a person cannot accelerate his or her
car at somebody without having the intent to cause that person physical injury.”
Furthermore, defendant contends that the trial court erred because it convicted
defendant of Counts 1 through 4 after determining that defendant acted “with
reckless disregard for the safety of the officers when he drove his car towards
them in an effort to escape,” but that for a person to attempt an assault, the person must act with the intent to cause physical injury. Held: The evidence was sufficient to allow a reasonable factfinder to infer that defendant intended to injure
the officers, and, thus, the trial court did not err when it denied defendant’s
motion for a judgment of acquittal on Counts 1 through 4. Furthermore, after
reviewing the trial court’s speaking verdict in the context of the trial as a whole,
the Court of Appeals determined that the trial court’s verdict was based on a
correct understanding of the law, and that the trial court found that defendant
intended to injure the officers when he accelerated his car directly toward them.
Affirmed.
Ted E. Grove, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Neil F. Byl, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
Cite as 302 Or App 432 (2020) 433
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Kirsten M. Naito, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, and Aoyagi, Judge, and
Sercombe, Senior Judge.
TOOKEY, P. J.
Affirmed.
434 State v. Spieler
TOOKEY, P. J.
Defendant appeals a judgment of conviction for,
among other offenses, two counts of attempted second-degree assault, ORS 161.405; ORS 163.175 (Counts 1 and 2),
and two counts of attempted assault of a public safety officer,
ORS 161.405; ORS 163.208 (Counts 3 and 4).1 As explained
further below, the conduct underlying defendant’s convictions on Counts 1 through 4 involved defendant accelerating
his car directly at two law enforcement officers who were
standing somewhere between a “car length” and 20 feet in
front of defendant’s car.
In his first four assignments of error, defendant contends that the trial court erred when it denied his motion for
judgment of acquittal on Counts 1 through 4, because the
state failed to “offer sufficient evidence to prove that defendant personally intended to injure the officers.” We conclude
that the evidence was sufficient to allow a reasonable factfinder to infer that defendant intended to injure the officers.
That was not the only permissible inference, but it was one
permissible inference. See State v. Bivins, 191 Or App 460,
467,
83 P3d 379 (2004) (“[T]he established facts may support
multiple reasonable inferences and, if they do, which inference to draw is for the jury to decide.”). We therefore reject the
first four assignments of error without further discussion.2
1
A person commits the crime of second-degree assault if they “[i]ntentionally … cause[ ] physical injury to another by means of a deadly or dangerous
weapon.” ORS 163.175(1)(b). A person commits the crime of assaulting a public
safety officer if the person “intentionally … causes physical injury to the other
person, knowing the other person to be a peace officer, … and while the other
person is acting in the course of official duty.” ORS 163.208.
To “attempt” either second-degree assault or assaulting a public safety officer, a person must “intentionally engage[ ] in conduct which constitutes a substantial step toward commission of” either of those crimes. ORS 161.405 (defining
attempt). A “substantial step” is conduct that “strongly corroborate[s] the defendant’s criminal purpose—that is, the conduct must (1) advance the criminal purpose charged and (2) provide some verification of the existence of that purpose.”
State v. Jessen, 162 Or App 662, 668,
986 P2d 684 (1999), rev den,
329 Or 589
(2000) (internal quotation marks omitted).
2
See State v. Ramirez, 113 Or App 224, 226-27,
831 P3d 719 (1992) (rejecting
the defendant’s argument that there was insufficient evidence to prove that she
intentionally attempted to cause serious physical injury to a DEA agent for purposes of proving attempted first-degree assault, because there was evidence that,
when the agent stepped in front of the truck which was roughly 12 feet away,
defendant “accelerated the truck forward” at the agent, the agent leaped out of
the way, and then the defendant drove off).
Cite as
302 Or App 432 (2020) 435
In his fifth assignment of error, defendant argues
that the “trial court erred in basing its decision to convict
defendant of [Counts 1 through 4] on an incorrect understanding of the law: that a person cannot accelerate his or
her car at somebody without having the intent to cause that
person physical injury.” Furthermore, defendant contends
that the trial court erred because it convicted defendant of
Counts 1 through 4 after determining that defendant acted
“with reckless disregard for the safety of the officers when
he drove his car towards them in an effort to escape,” but
that for a person to “attempt” an assault, the person must
act with the intent to cause physical injury.
As explained below, we disagree with defendant
that the trial court based its decision to convict defendant
on a conclusion that, as a matter of law, “a person cannot
accelerate his or her car at somebody without having the
intent to cause that person physical injury.” We also disagree with defendant that the trial court determined that
defendant was acting with mere “reckless disregard for the
safety of the officers when he drove his car towards them
in an effort to escape,” rather than an intent to cause them
injury. Accordingly, we affirm.
“We review for legal error whether the trial court
properly construed a statute and applied a correct legal theory of criminal liability.” State v. Chandler, 293 Or App 705,
707,
430 P3d 186 (2018). The historical facts relevant to our
analysis of this appeal are undisputed.
Sergeant Castilleja and Officer Gaston arrived at
an apartment complex to arrest defendant on a felony warrant. The officers saw defendant walk out of the apartment
complex towards a car. Castilleja made eye contact with
defendant and told him to stop and that he was under arrest.
Defendant ran to his own car, got inside, and locked the
doors. Castilleja and Gaston drew their guns and shouted
at defendant to get out of the car. Castilleja broke the back
passenger-side window with the butt of his gun and reached
inside the car to unlock the front door. Defendant put the
car in reverse in order to exit his parking space, forcing the
officers to move out of the way to avoid being struck by the
car.
436 State v. Spieler
After defendant exited the parking space, the
officers positioned themselves somewhere between a “car
length” and 20 feet in front of defendant’s car, such that the
officers were standing between the front of defendant’s car
and the exit to the parking lot. Castilleja was in front of the
center of defendant’s car, while Gaston was slightly to one
side, in front of the car’s passenger side tire. Both officers
pointed their guns at defendant’s car and ordered him to
stop.
Defendant looked at Castilleja, made eye contact
with him, and then shifted his gaze to what Castilleja
described as “looking through” him. Defendant then quickly
accelerated directly toward Castilleja and Gaston. Castilleja
“darted” or “jumped” out of the way, and “just barely cleared
the car as it was going past.” Gaston also managed to move
out of the way. Defendant’s car missed hitting Castilleja
by less than three feet and missed Gaston by 5 to 10 feet.
Defendant did not try to avoid hitting the officers, but also
did not swerve in an attempt to hit the officers after they
moved out of the way. Had the officers been unable to move
out of the way, they would have been struck by defendant’s
car.
Defendant kept accelerating as he drove out of the
parking lot. The officers decided not to pursue defendant,
but instead notified dispatch. After a series of police pursuits involving other officers, defendant was apprehended
and arrested. Defendant was charged with two counts of
attempted second-degree assault, two counts of attempted
assault of a public safety officer, and various other offenses.3
As relevant here, the two counts of attempted
second-degree assault and the two counts of attempted
assault of a public safety officer alleged, in relevant part,
that defendant “did unlawfully and intentionally attempt to
cause physical injury.”
3
Specifically, in addition to the attempted-assault charges, defendant was
charged with two counts of menacing, ORS 163.190, four counts of recklessly
endangering another person, ORS 163.195, two counts of fleeing or attempting to
elude a police officer, ORS 811.540, one count of interfering with a peace officer,
ORS 162.247, two counts of reckless driving, ORS 811.140, and one count of driving while suspended, ORS 811.182(4).
Cite as 302 Or App 432 (2020) 437
Defendant waived his right to a jury, opting instead
for a bench trial. In their opening statements, the parties outlined their theories of the case with respect to the
attempted-assault charges. Both parties recognized that, in
order to convict defendant on those charges, the court would
have to find that he intended to physically injure the officers
when he was accelerating toward them. The state argued
that, when defendant accelerated at the officers, he intended
to get away but also specifically intended to injure the officers. Defendant argued that he only intended to get away
and never intended to injure the officers.
With the case so teed up, the state put on its evidence, establishing what had physically occurred during the
incident, which defendant did not dispute. As for defendant’s
intent when he was accelerating toward the officers, the evidence was, not surprisingly, circumstantial. In closing, both
parties argued to the trial court as factfinder about what
inference it should draw, pointing to aspects of the evidence
that favored their respective positions. Echoing the opening arguments, the state urged the court to find that defendant intended both to get away and to injure the officers,
while defendant urged the court to find that he intended
only to get away and did not intend to injure the officers.
Defendant essentially admitted that he acted recklessly but
argued that the court should not—or even could not—find
from the evidence that he affirmatively intended to injure
the officers.4
As soon as the parties finished closing arguments,
the court rendered its verdict—guilty on all counts—and
stated as follows regarding the attempted-assault counts:
4
ORS 161.085(9) defines the culpable mental state of “recklessly” as follows:
“ ‘Recklessly,’ when used with respect to a result or to a circumstance
described by a statute defining an offense, means that a person is aware
of and consciously disregards a substantial and unjustifiable risk that the
result will occur or that the circumstance exists. The risk must be of such
nature and degree that disregard thereof constitutes a gross deviation from
the standard of care that a reasonable person would observe in the situation.”
ORS 161.085(7) defines the culpable mental state of “intentionally” or “with
intent” as follows:
“ ‘Intentionally’ or ‘with intent,’ when used with respect to a result or to conduct
described by a statute defining an offense, means that a person acts with a conscious objective to cause the result or to engage in the conduct so described.”
438 State v. Spieler
“Pretty much all I’ve thought about this morning is the
only issue that is in any sort of dispute today, and that
is what was going on in your head at the time that you
accelerated your vehicle with two law enforcement officers
standing directly in front of you.
“[The prosecutor] says that that amounts to intent.
You’ve heard your attorney argue, very strongly and—and
very well, that your purpose was to simply get away. And
no doubt that your first motive was to get away.
“I don’t believe that had the officers not been standing
in front of your car would you have made an effort to try
to run over them. But that’s not the facts of this case. The
facts of this case [are that] they were standing in front of
your car, you clearly knew that they were there, and that
you accelerated your car directly toward them.
“And the car is a dangerous weapon and had one of
them not gotten out of the way, I think it’s pretty clear that
there is an excellent chance that you would be looking at
a second-degree assault and hopefully not a first-degree
assault because that would have resulted in them being
hurt very badly.
“So the question for me is can you drive your car directly
at two people and say that [i]t was not my intent to cause
them injury. That certainly was a risk that you were prepared to accept that they would be injured.
“…
“And my final determination is you cannot drive your
car directly at somebody accelerating and say it wasn’t my
intent to cause them an injury.
“So I’m finding you guilty of Counts 1 and 2 of the
Attempted Assault in the Second Degree. And for the same
reasons, I’m finding you guilty of 3, 4.”
Defendant contends that, in finding him guilty for
the stated reasons, the trial court improperly conflated recklessness with intent. As previously noted, it is undisputed
that the state had to prove that defendant intended to injure
the officers and that it would not be enough for the state to
prove that he recklessly put them at risk of injury. See State
v. Tapp, 110 Or App 1, 5,
821 P2d 1098 (1991) (one cannot
“attempt” a crime involving recklessness). Relying on the
Cite as
302 Or App 432 (2020) 439
court’s speaking verdict, defendant argues that, “instead
of concluding that defendant personally intended to injure
the officers, the trial court determined that, as a matter of
law, a person cannot accelerate a car at someone and not
intend to injure them.” (Emphasis added.) Defendant argues
that that is legally incorrect “because it is entirely possible
for a person to knowingly or recklessly drive his or her car
directly at someone and not intend to injure that person if
his or her intent is simply to get them to move out of the
way so he or she can escape.” Defendant also points to the
court’s statement that injuring the officers “certainly was
a risk that you were prepared to accept,” which he argues
constitutes a finding of recklessness.
Although the question is somewhat close, we conclude that the trial court did not make the error that defendant asserts that it did. In essence, defendant argues that
the trial court wrongly concluded that, as a matter of law,
there was only one reasonable inference that could be drawn
from the evidence: that defendant intended to injure the
officers. Looking at what the trial court said in isolation,
there is some plausibility to that argument. However, we
do not look at individual statements in isolation, but rather
consider them in the context of the parties’ arguments and
the ruling as a whole. State v. Rasberry, 286 Or App 685,
689,
399 P3d 1030 (2017); see also Kincek v. Hall,
217 Or
App 227, 234-36,
175 P3d 496 (2007) (rejecting the state’s
argument that the post-conviction court misunderstood and
misapplied the law, where the state had “ ‘cherry-picked out
of context’ a single remark from the post-conviction court’s
oral description of its thought process”).
Considering the court’s speaking verdict as a
whole—especially in the context of the parties’ arguments—
we conclude that the trial court understood that its task
was to choose between the competing inferences argued by
the parties and decide from the circumstantial evidence
whether defendant intended to injure the officers. That is,
the parties did an excellent job of laying out exactly what
the trial court sitting as factfinder needed to decide in order
to render a verdict on the attempted-assault counts. It was
undisputed that defendant was trying to get away; the only
question for the factfinder was whether defendant did or
440 State v. Spieler
did not intend to injure the officers as part of getting away.
The state expressly argued that he did, while defendant
expressly argued that he did not.
In that context, we are unpersuaded that the trial
court’s words reflect a decision not to make a finding on the
“only” factual issue that was in “any sort of dispute”—did
defendant intend to injure the officers or not—and instead
make a finding on an undisputed issue that everyone agreed
was not the issue before the court—was defendant reckless.
See State v. Reed, 299 Or App 675, 689,
452 P3d 995 (2019)
(the “court’s speaking verdict and other comments must be
considered in context, taking into account the circumstances
in which the court made its observations”); Bohnenkamp v.
State of Oregon,
293 Or App 551, 557,
429 P3d 738 (2018)
(considering “the trial court’s speaking verdict … in its
entirety in the context of the whole record”).
Although some of the trial court’s phrasing during
its speaking verdict may not have been as clear as ideal,
we disagree that what the court said reveals a fundamental misunderstanding of the law. Such a misunderstanding
seems highly unlikely, given the emphasis on the intent
issue throughout trial—including in opening statements,
in argument on defendant’s motion for judgment of acquittal, and in closing arguments—and given the trial court’s
express identification of the issue before it as being to figure
out “what was going on in [defendant’s] head at the time
that [he] accelerated [his] vehicle with two law enforcement
officers standing directly in front of [him].” In context, we
do not read the trial court’s statements as meaning that it
had concluded as a matter of law that any time a person
accelerates a car directly at another person the only reasonable inference is that the person intended to cause physical injury to the other person. Rather, we understand the
trial court to have meant that, in this particular case, it was
persuaded by the state’s argument that defendant intended
to injure these two officers and, conversely, unpersuaded by
defendant’s argument that he did not intend to injure them.
As for the court’s statement that defendant was certainly prepared to accept “the risk” of injuring the officers, it
is not entirely clear what the court intended to convey with
Cite as 302 Or App 432 (2020) 441
that statement, but that single statement, in the broader context, does not persuade us that the trial court misunderstood
its task or the applicable law. See Kincek,
217 Or App at 234-
36 (rejecting the state’s argument that “the post-conviction
court ‘apparently conflated the two prongs of the inadequate
assistance standard—or, in the alternative, simply overlooked or misunderstood the prejudice prong’ ”—because the
state’s argument was “predicated upon an unduly selective
reading of the post-conviction court’s comments,” and, “in
… context, it [was] clear that the post-conviction court did
not misunderstand the relevant standard for determining
prejudice”).
In sum, even if the trial court’s speaking verdict
could have been more precise, in context, we are convinced
that the court did find that defendant intended to injure the
officers when he accelerated his car directly toward them
and that such finding was made in accordance with the legal
principles and case theories that the parties had presented.
Accordingly, we reject defendant’s argument that the trial
court committed legal error in connection with finding him
guilty of the four attempted-assault counts.
Affirmed.
