State v. Morales

                                      280

Argued and submitted August 9, 2019, reversed and remanded October 21, 2020


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                   ANGEL ISAIAH MORALES,
                       Defendant-Appellant.
                  Multnomah County Circuit Court
                       17CR65059; A167147
                                   

    At the customer service desk of a WinCo, defendant told his mother that
he had been hit by a car in the parking lot. She called 9-1-1 and reported the
incident. The police came and questioned defendant and the driver of the car,
then, upon concluding that defendant had lied about being hit, arrested defendant for initiating a false report, ORS 162.375(1). At defendant’s trial, the court
instructed the jury that “[p]ersons can act in concert to initiate a false report.”
The jury returned a verdict of guilty. On appeal, defendant assigns error to
that instruction. He argues that, under these circumstances, it was incorrect
and misleading such that the jury could have based its verdict on legally erroneous grounds. Held: The trial court erred in issuing the “in concert” instruction,
because that instruction misleadingly suggested that the jury could find defendant guilty even if he did not engage in conduct that marked the beginning of a
false report to law enforcement. That error was not harmless, in part because
the state argued that defendant initiated the false report by telling his mother
(rather than law enforcement) that he had been hit. See State v. Branch, 

, 

 (2018).
    Reversed and remanded.



    Leslie M. Roberts, Judge.
   Kyle Krohn, Deputy Public Defender, argued the cause
for appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Office of Public
Defense Services.
   David B. Thompson, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
   Before Lagesen, Presiding Judge, and Powers, Judge, and
Kistler, Senior Judge.
Cite as 

 (2020)   281

  LAGESEN, P. J.
  Reversed and remanded.
282                                          State v. Morales

        LAGESEN, P. J.
         At the customer service desk of a WinCo, defendant
told his mother, Santiago, that he had been hit by a car in the
parking lot. Santiago called 9-1-1 and reported the incident.
The police came and questioned defendant and the driver of
the car, then, upon concluding that defendant had lied about
being hit, arrested defendant for initiating a false report,
ORS 162.375(1). At defendant’s trial, the court instructed,
among other things, that “[p]ersons can act in concert to initiate a false report.” The jury returned a verdict of guilty.
On appeal, defendant assigns error to that instruction.
He argues that, under these circumstances, it was incorrect and misleading such that the jury could have based its
verdict on legally erroneous grounds. The state argues in
response that the jury instruction issue is unpreserved and
unreviewable. We conclude that defendant’s claim on appeal
is preserved, that the instruction was erroneous, and that
the erroneous instruction was not harmless. We therefore
reverse and remand.
         Defendant and his family parked in a WinCo parking lot, and Santiago went inside the store. A short time
later, defendant and his younger brother headed toward
the store and, while in the crosswalk leading to the front
of the store, got into a confrontation with a driver, Tate.
Defendant accused Tate of hitting him with her car, and
Tate denied hitting him. Tate parked her car and entered the
store.
         Defendant entered the store and found Santiago,
who was at the customer service desk. He told Santiago that
he had been hit by Tate’s car in the parking lot. A WinCo
employee at the customer service desk overheard and suggested that Santiago call the police. Heeding that suggestion, Santiago called 9-1-1 and relayed defendant’s description of what had happened in the parking lot. Defendant
remained nearby for all or much of the phone call, then went
outside to wait for the police.
        Officer Wingfield arrived on the scene and asked
defendant if he was injured. Defendant responded that he
was not injured but that the car had hit him, according to
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Wingfield, on his upper thigh.1 Defendant asked Wingfield
to “do something” about the incident, and Wingfield agreed
to investigate. After Wingfield observed that the fender
and bumper on Tate’s car, which was still parked in the
parking lot, were situated much lower to the ground than
defendant’s upper thigh, however, he became concerned that
defendant was lying about being hit. He asked defendant,
“Is it possible you overstated what happened?” Defendant
answered, “No, I got hit, and I want you to help me on
this.”
         Tate came out of the store and identified herself
as the driver but denied hitting defendant. After speaking
with Tate, Wingfield warned defendant that initiating a
false report could result in a criminal investigation against
him. Defendant was adamant that Tate had hit him.
Meanwhile, a different police officer was in the store watching security footage of the confrontation in the parking lot,
so Wingfield agreed to wait with defendant for the officer
to finish watching the tape. A few minutes later, Wingfield
spoke with the other officer about the security footage, then
returned to defendant and again asked him to “be honest”
about the incident. Defendant maintained that Tate had hit
him. According to Wingfield, he offered to watch the video
with defendant and Santiago, but they declined and began
to leave.2 Wingfield then arrested defendant for initiating a
false report.
         Defendant was charged by information with initiating a false report, ORS 162.375.3 He exercised his right to
a jury trial, and, at trial, the parties disputed how the jury
should be instructed on the charge. The state requested that
the jury be instructed as follows, adding the italicized wording (which it derived from our decision in State v. Velasquez,

    1
        At trial, defendant testified that he was hit lower—on his leg above his
knee.
    2
      At trial, Santiago testified that she had asked to watch the security video
but that she was not allowed to see it.
    3
      ORS 162.375(1) provides:
        “A person commits the crime of initiating a false report if the person
    knowingly initiates a false alarm or report that is transmitted to a fire
    department, law enforcement agency or other organization that deals with
    emergencies involving danger to life or property.”
284                                              State v. Morales

, 

 (2017)) to the uniform instruction on the elements of initiating a false report:
       “A person commits the crime of or the offense of initiating a false report if the person initiates or sets going
   a report to a law enforcement agency, knowing that such
   information is false. Persons can act in concert to initiate a
   false report.”
(Emphasis added.)
         The trial court initially was hesitant to grant the
state’s request, indicating that it was concerned that the “in
concert” instruction could be misleading. It explained, “I
don’t mind instructing the jury that that is—that they can
act together to initiate. But it’s more than just being involved
somehow in a false report. I think that’s—I think that could
be misleading to the jury.” Defendant informed the court
that he too thought that the “in concert” instruction was
misleading. To remedy the issue, he proposed adding other
instructions designed to “counterweigh and balance out”
the state’s “in concert” instruction, should the court elect
to deliver it, suggesting two specific possible instructions in
the course of discussions.
         Ultimately, despite its initial misgivings, the court
sided with the state over defendant’s objection. It included
the “in concert” instruction and declined to qualify it with
either of defendant’s suggested clarifying instructions.
         During the state’s closing argument, after describing defendant’s confrontation with Tate, the state contended
that defendant’s conduct, alone or when taken together with
his mother’s act of calling 9-1-1, constituted initiating a false
report:
   “[C]riminal conduct is what happened next.
      “[Defendant] went inside, went and found his mom at
   the WinCo. He told her what he said happened. And based
   upon that information, she called 911. He was there when
   she called 911. You heard during the 911 phone call she’s
   talking to him, giving him instructions not to move.
      “…
      “So, based upon this 911 call, officers were dispatched.
   Officer Wingfield testified that he was the first one on the
Cite as 

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    scene. Defendant was outside waiting for him. He was
    waiting for him, called him over. ‘Hey, I’m the one you’re
    looking—I’m the one. I was the one hit by the car.’ Officer
    Wingfield said, ‘Do you want to file a report? Do you want
    us to investigate?’ And the defendant said, ‘Yes. Yes. I was
    hit by this car, I was hit intentionally. Yes, I want to file a
    report.’ That’s why we’re here today. These are the facts that
    show that the defendant initiated a false report that day[.]”
(Emphasis added.)
        The instructions to the jury included the “in concert” wording. The jury returned a verdict of guilty.
         Defendant appeals. He assigns error to the trial
court’s instruction that “[p]ersons can act in concert to initiate a false report.” Much as he did below, defendant argues
that that instruction was incomplete and inaccurate, and
that it could have permitted the jury to reach a legally erroneous result.4 Defendant points out that the instruction, as
taken from Velasquez, omits from the “in concert” wording
the other qualifying words in that opinion—“in concert and
simultaneously.”5 

 (emphasis added). The
state contends that defendant’s argument is unpreserved
and unreviewable because defendant did not point out below
that the instruction omitted “simultaneously.”
        We begin by addressing the state’s contention that
defendant’s argument is unpreserved. Under ORAP 5.45(1),
to preserve an issue for appellate review, a party typically

    4
      Defendant argues separately that “courts should avoid giving instructions
that quote the exact words of an appellate opinion, because many opinions are
not written with the intent of being adapted into jury instructions.” We reject
defendant’s argument to the extent that it suggests that there is a per se ban
on using appellate opinions to inform jury instructions. But we note that this
case illustrates the risk of using wording from opinions as jury instructions
and, in particular, the risk of crafting a jury instruction from statements in a
case intended to describe why particular evidence was sufficient. See Rogers v.
Meridian Park Hospital, 

, 

 (1989) (“[B]ecause many
appellate opinions are written with no view that they will be turned into instructions, care must be exercised in using the language of these opinions for instructions to juries.”).
    5
      The trial court and parties discussed the source of the “in concert” instruction, our decision in Velasquez, 

. The sentence on which they
focused reads, “We agree that when, as here, the evidence shows that two persons
acted in concert and simultaneously made a false report to a police officer, each
could commit the crime of initiating a false report.” 

286                                               State v. Morales

must offer “an explanation of his or her objection that is specific enough to ensure that the court can identify its alleged
error with enough clarity to permit it to consider and correct
the error immediately.” State v. Wyatt, 

, 

 (2000). “The primary purposes of the preservation
rule are to allow the trial court to consider a contention and
correct any error, to allow the opposing party an opportunity to respond to a contention, and to foster a full development of the record.” State v. Laune, 

,

 (2020) (citing Peeples v. Lampert, 

, 

 (2008)).
         Reviewing the trial court record below, we conclude that defendant’s assignment of error is preserved.
His assignment of error is that the court should not have
included the “in concert” wording in its instructions to the
jury because that wording was incorrect under the law and
misleading. Below, defendant and the court (and the state)
discussed how the “in concert” instruction “could be misleading to the jury.” Defendant therefore offered, at two
separate points in the discussion, clarifying instructions
designed to “balance out” the state’s proposed instruction:
one clarifying that defendant’s conduct needed to be “proactive rather than reactive” to support a conviction for initiating a false report, and the other clarifying that merely
lying in response to police questioning could not support
such a conviction. See State v. Vanornum, 

, 632
n 11, 

 (2013) (“[T]he terms of a requested, but
refused, instruction may sometimes go a long way to putting
a trial court on notice of the deficiency in the trial court’s
instructions if the requested instruction is not given.”). More
importantly, when the court indicated that it intended to
include the state’s proposed instruction, defendant objected.
He argued that the instruction was “not an accurate statement of the law, because it mischaracterizes the holding of
Velasquez.” Defendant elaborated:
      “In Velasquez the initiation of the report was the conversation that the defendant and another person had together
   with a police officer.
       “… And I believe the facts are inapposite to our situation here. Because the initiation of the report in this matter
   was done singularly by Ms. Santiago.”
Cite as 

 (2020)                                             287

(Emphases added.) And he argued, among other things,
that the proposed instruction could allow the jury to convict
defendant even if he did not actively participate during the
initiation of the report—an issue that defendant renews on
appeal. That issue is plainly preserved.
         In arguing that defendant’s assignment of error is
not preserved, the state focuses on the fact that defendant’s
argument on appeal centers largely on the theory that the
challenged instruction was misleading because it omitted
the word “simultaneously.” Although defendant’s appellate
argument unquestionably rests on that point, and that is a
point that defendant did not make below, the state’s argument overlooks the fact that that particular point, about
the omission of the word “simultaneously,” is just one argument in support of defendant’s position—both below and
on appeal—that the instruction delivered is misleading.6
Because defendant clearly raised the issue of the misleading
quality of the instruction below, that issue is preserved. See
Schultz v. Franke, 

, 

, rev den,

 (2015) (explaining that there are “distinctions
between raising an issue at trial, identifying a source for a
claimed position, and making a particular argument. …
The first ordinarily is essential, the second less so, the third
least” (quoting State v. Hitz, 

, 

(1988)) (emphases and omission in Schultz; internal quotation marks omitted)).
         That leaves the question whether the trial court’s
instruction was misleading. We review for legal error
whether a trial court erred in instructing the jury. State
v. Barnes, 

, 

 (1999). One circumstance in which instructional error exists is where the
instructions communicate to the jury an inaccurate legal
rule to apply to the facts. State v. Bistrika, 

, 

, rev den, 

 (2014), cert den, ___

    6
      In his brief on appeal, defendant also argues more generally that the
instruction is misleading:
    “The instruction permitted the jury [to] reach a legally erroneous result.
    Based on the instruction, the jury could have found defendant guilty not
    because his statements to police initiated a false report, but because his
    mother’s 9-1-1 call combined with his statements—after the call—collectively
    initiated a false report.”
288                                            State v. Morales

US ___, 

 (2015). “A trial court commits reversible
error when it incorrectly instructs the jury on a material
element of a claim or defense and that instructional error,
in light of the other instructions given, permits the jury to
reach a legally erroneous result.” Id. at 727-28.
         Under ORS 162.375(1), “[a] person commits the
crime of initiating a false report if the person knowingly
initiates a false alarm or report that is transmitted to a …
law enforcement agency.” As the Supreme Court explained
in State v. Branch, for purposes of that statute:
   “[A] person ‘initiates a false alarm or report’ if the person’s communication ‘begin[s]’ or ‘mark[s] the beginning of’
   informing the organization about the circumstances that
   are the subject of the report. In the context of questioning initiated by law enforcement, that suggested meaning
   includes, at a minimum, falsely reporting new circumstances to which the law enforcement agency is reasonably
   likely to respond as a separate, ongoing crime or emergency.
   Conversely, the text and context suggest that a person does
   not violate ORS 162.375 during law enforcement questioning by falsely confirming or denying knowledge of a report
   or alarm that already is under investigation[.]”

, 362, 

 (2018) (second and third
brackets in original).
         In view of the explanation in Branch of the type
of conduct necessary to support a conviction under ORS
162.375(1), the trial court’s instruction that “[p]ersons can
act in concert to initiate a false report” was misleading.
That is because the instruction suggested to the jury that
it could find defendant guilty even if, as required under
Branch, defendant did not knowingly engage in conduct that
“mark[ed] the beginning” of a false report to law enforcement, based on defendant’s conduct of telling his mother (who
was not law enforcement herself) about the alleged collision,
and his later conduct in responding to the police questioning
triggered by his mother’s 9-1-1 call. Said another way, the
instruction, by suggesting to the jury that it could rely on the
conduct of another to convict defendant without elaborating
further on how, precisely, another’s behavior could be taken
into account, created the risk that the jury would find defendant guilty without finding that he, himself, engaged in the
Cite as 

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conduct proscribed by the statute with the requisite mental state.7 Because the instruction was misleading, the trial
court erred in delivering it. See Estate of Michelle Schwarz
v. Philip Morris Inc., 

, 

, adh’d
to on recons, 

, 

 (2010) (“Everything
which is reasonably capable of confusing or misleading the
jury should be avoided. Instructions which mislead or confuse are ground for a reversal or a new trial.”).
         That error was not harmless. In reviewing whether
an instructional error was harmless, we take into account
“the contentions of the parties at trial.” Bistrika, 

; State v. Payne, 

, 

(2020) (to determine whether instructional error is harmless, the court considers the instructions as a whole, taking into account how the parties’ theories of the case were
developed through the evidence and arguments at trial).
Here, the state’s theory in closing argument relied heavily
on the notion that defendant could act with another to initiate a false report. It argued that defendant initiated the
report by (1) telling Santiago that he had been hit, (2) being
near her while she called 9-1-1, (3) identifying himself as
the victim when Wingfield arrived on the scene, and (4) asking Wingfield to investigate. That line of argument, coupled
with the “in concert” instruction, allowed the jury to find
defendant guilty of initiating a false report simply by finding either that he told his mother about the alleged collision,
causing her to call 9-1-1, or by finding, alternatively, that he
maintained his story when responding to police questioning
after his mother initiated the report to 9-1-1 (or both). Under
Branch, neither one of those findings, on its own, could have
supported a lawful conviction. There is, therefore, some likelihood that the trial court’s instruction permitted the jury to
reach a legally erroneous result. Accordingly, on this record,
“[w]e cannot conclude that there is little likelihood that the
error affected the verdict.” Payne, 

.
          Reversed and remanded.



    7
      We note that the state has never contended that defendant could be convicted under an accomplice theory of liability.