339
Submitted September 29, 2020, affirmed July 14, petition for review denied
September 30, 2021 (368 Or 597)
STATE OF OREGON,
Plaintiff-Respondent,
v.
DANIEL ALBERT BELLEQUE,
aka Daniel Albert Bellegue,
aka David Albert Gonzles,
Defendant-Appellant.
Multnomah County Circuit Court
18CR23130; A169979
494 P3d 1004
Defendant was charged by information with the felony charge of unlawful
use of a weapon (UUW), ORS 166.220. The trial court held a preliminary hearing
after which it determined that probable cause existed to proceed to trial on the
UUW charge. Defendant waived jury, and, after a bench trial, he was convicted
of UUW. On appeal, defendant assigns error to the court’s finding of probable
cause, arguing that it engaged in a “flawed probable cause analysis” because it
failed to consider certain affirmative defenses. As a result of that flawed analysis,
defendant argues, the court lacked the authority to enter the subsequent judgment of conviction. He does not challenge the sufficiency of the evidence at trial.
Held: Defendant’s preliminary hearing “served the purposes” of Article VII
(Amended), section 5, of the Oregon Constitution by operating as “a check on the
district attorney’s charging authority.” Because the preliminary hearing served
the purposes of Article VII (Amended), section 5, and because defendant does
not challenge the sufficiency of the evidence used to convict him, the Court of
Appeals concluded that no useful or practical purpose would be served by revisiting the evidence considered at the hearing.
Affirmed.
Leslie M. Roberts, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stacy M. Du Clos, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Christopher A. Perdue, Assistant
Attorney General, filed the brief for respondent.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
340 State v. Belleque
MOONEY, J.
Affirmed.
Cite as 313 Or App 339 (2021) 341
MOONEY, J.
Defendant appeals a conviction for unlawful use
of a weapon (UUW), a felony. The state charged defendant
with two misdemeanors and UUW, ORS 166.220 (Count 1),
by information of the District Attorney. Defendant did not
waive a preliminary hearing and the matter was thus presented to the trial court for a determination of probable
cause. The court concluded that there was probable cause
for the state to proceed to trial, defendant waived a jury
trial, and, after a bench trial, defendant was found guilty of
all counts.
Defendant assigns error to the trial court’s finding
of probable cause at the preliminary hearing, arguing that
the court “expressly declined to consider the affirmative justification defenses of self-defense, defense of premises, and
defense of property.” According to defendant, the court thus
engaged in a “flawed probable cause analysis” because it did
not require the state to disprove beyond a reasonable doubt
that defendant was justified in the defensive use of the
weapon. He argued that, because of that “flawed” analysis,
the court was without subject matter jurisdiction to conduct a trial and convict defendant of the charged crime. For
the reasons that follow, we conclude that the court was not
deprived of subject matter jurisdiction and that it was not
deprived of its authority to enter a judgment of conviction
thereafter.
We draw the uncontested facts from the preliminary
hearing transcript.1 Defendant was camping at Laurelhurst
Park in northeast Portland across the street from S’s house.
S confronted him early in the morning to ask if he knew that
the park was a “no-camping” zone and that he was blocking a running path. Defendant said that he did not know
and that he would leave soon. S drove his wife to work and,
when he returned, S again confronted defendant and asked
why he had not yet left. Defendant again said that he would
leave, but, at that point, S walked up to defendant’s tent and
began asking about the tarp that covered the area where
1
The evidence presented at trial was somewhat different from that presented at the preliminary hearing. But our review is limited to the preliminary
hearing, and we state the evidence as it developed there.
342 State v. Belleque
defendant slept. S indicated that the tarp looked similar to
one that had recently been stolen from his garage, and he
asked defendant, “Do you have your name on it?”
At that point, defendant emerged from his tent with
a half-gallon jug of urine and splashed it toward S while
he cursed at him. S responded with “two can play at that
game,” and he walked closer to the tent. S testified that he
“just stood there,” about “a foot” or “three feet” away from
the tent, but defendant testified that S threatened to urinate in retaliation. Defendant stated that, at that point in
the interaction, he told S that he would “cut his dick off” if
he did so. But S described that moment differently when he
testified that, at that point, defendant reached into his tent
and “came out with—what looked like a machete and he
said ‘I’m going to kill you, motherfucker[.]’ ” S backed away
from defendant and called 9-1-1.
Officer Oldham responded to the 9-1-1 call and met
defendant. He told defendant that he was detaining him
while investigating a possible unlawful use of a weapon.
Defendant immediately told Oldham that an individual had
come across the street to bother him. Oldham read defendant
his Miranda rights and confirmed that defendant understood those rights. Defendant then described the events in
much the same way as he did when he later provided a statement at the preliminary hearing: that, when S touched his
tent and threatened to urinate on it, defendant brandished
his knife and told him that “[i]f you piss on my shit, I’ll chop
your dick off.” Oldham testified that defendant estimated
that S was about “four and a half feet” away from S, but
that his knife was in its sheath during the interaction and
kept by his waist. Oldham arrested defendant for unlawful
use of a weapon and seized his knife. He testified that it was
a “large hunting knife,” with about a “12-inch blade” that
was “capable of causing serious physical injury.” He further
testified that defendant was cooperative and conversational
throughout the encounter.
In addition to that evidence, during defendant’s
statement to the court, he stated that he felt “very threatened” by S and that “[y]ou don’t approach a homeless person
in any state, period,” and that S should have let “the cops
Cite as 313 Or App 339 (2021) 343
handle it[.]” He stated that he believed that S was retaliating because “maybe somebody did break into his stuff …
but you can’t take it out on somebody else.” Finally, he speculated that S probably “doesn’t like the homeless around
him,” but “[t]hat doesn’t give him a right to take that anger
out on the next person.”
The trial court ruled in favor of the state, finding
probable cause, and explained that requiring the state to
disprove self-defense beyond a reasonable doubt at a preliminary hearing is “inconsistent with the purpose and the
burden” that the state bears at the preliminary stage of the
proceedings. Defense counsel then attempted to make a different argument, but the court stated that it had ruled and
that it would not allow further arguments. Defense counsel
asked if she could ask questions that were relevant to defendant’s self-defense theory, and the court responded:
“So—okay, so you’re asking the question in the guise of
having further debate, and so I’ll allow you to do that. So
go ahead and make your argument as opposed to asking
me a question.”
At that point, defense counsel stated that she was “happy to
just proceed with the hearing, ask my questions; have [the
prosecutor] object at that point.” However, the state did not
object to the self-defense evidence and that evidence was,
therefore, before the court at the preliminary hearing.
Defendant argues that the constitutional purposes
of a preliminary hearing were not served because the trial
court “incorrectly concluded that self-defense was not pertinent to its probable cause determination[.]” According to
defendant, “because the court did not engage in a lawful preliminary hearing procedure,” it did not have “jurisdiction”
to try or convict him. The state correctly notes that challenges to the sufficiency of the evidence presented at grand
jury proceedings are not reviewable. State v. Guse, 237 Or
479, 482,
392 P2d 257 (1964). It argues that the same rule
should apply to preliminary hearings. The Supreme Court
has stated that, in the grand jury setting, such challenges
are not reviewable because
“no useful purpose is served by an investigation of the sufficiency of the evidence taken before the grand jury. If the
344 State v. Belleque
accused is acquitted the matter is moot. If he is convicted, it
is irrelevant. The sufficiency of the evidence to convict may
always be tested at the trial by the motion for a directed
verdict. Judicial review of the trial court’s ruling on that
motion is available through the statutory right of appeal.”
Id. The state argues that the same logic should apply here
because any insufficiency of the evidence before the court
at the preliminary hearing was rendered irrelevant once
defendant was tried and convicted.
We begin with the Oregon Constitution. The circuit
courts have subject matter jurisdiction over all legal actions,
including criminal cases, unless subject matter jurisdiction
has been vested in some other court by the constitution or a
statute or rule of law that is consistent with the constitution.
State v. Terry, 333 Or 163, 186,
37 P3d 157 (2001), cert den,
536 US 910 (2002); see also Or Const, Art VII (Amended),
§ 2 (“The courts, jurisdiction, and judicial system of Oregon,
except so far as expressly changed by this amendment, shall
remain as present constituted until otherwise provided by
law.”); Or Const, Art VII (Original), § 9 (“All judicial power,
authority, and jurisdiction not vested by this Constitution,
or by laws consistent therewith, exclusively in some other
Court shall belong to the Circuit Courts[.]”).
Article VII (Amended), section 5(3) to (5), defines
how felony charges may be initiated and it mandates the use
of two components in that process: (1) “an accusatory instrument, either an indictment or an information” and (2) “a
check on the district attorney’s charging authority.” State v.
Keys, 368 Or 171, 176,
489 P3d 83 (2021).2 It is undisputed
that the district attorney initiated this criminal case with
an information charging defendant with UUW. Defendant
does not contend that the information was defective. And
the validity of a waiver is not in question, because defendant did not waive his right to a preliminary hearing. The
question before us is whether the circuit court lacked subject
matter jurisdiction to try and, therefore, the authority to
2
The Supreme Court issued its opinion in Keys after the underlying trial
took place and after the parties briefed and argued this appeal. That decision
does not change the disposition of this appeal and, in any event, we must determine any error by the law existing at the time the appeal is decided. State v. Jury,
185 Or App 132, 136,
57 P3d 970 (2002), rev den,
335 Or 504 (2003).
Cite as
313 Or App 339 (2021) 345
convict defendant, if the evidence presented at the preliminary hearing was insufficient to support probable cause.
Article VII (Amended), section 5(5), provides:
“The district attorney may charge a person on an information filed in circuit court if, after a preliminary hearing before a magistrate, the person has been held to answer
upon a showing of probable cause that a crime punishable
as a felony has been committed and that the person has committed it, or if the person knowingly waives preliminary
hearing.”
(Emphasis added.) “[T]he preliminary hearing is designed
to make it possible for an accused to avoid defending against
an unjustified charge.” State v. Clark, 291 Or 231, 235,
630
P2d 810, cert den,
454 US 1084 (1981). As in grand jury proceedings, preliminary hearings ensure that a constitutionally sanctioned third party agrees that probable cause exists
to allow the matter to proceed to trial against the defendant
on the felony charges filed by the district attorney. State v.
Kuznetsov,
345 Or 479, 484,
199 P3d 311 (2008) (“The constitutionally required roles of the grand jury and the magistrate in felony cases operate as a check on the power of the
district attorney and serve a critical function in protecting
individual liberties.”).
We note that preliminary hearings afford the defendant a number of hearing-specific procedural rights that are
not available to a defendant in the grand jury setting. Clark,
291 Or at 234. Those
“include the right to the aid of counsel, ORS 135.070,
135.075; the right to subpoena witnesses, ORS 135.085;
cross-examination of adverse witnesses, ORS 135.090; the
right to make an unsworn statement subject only to limited
questioning by the magistrate, ORS 135.095, 135.100; and
ultimately, the right to the judgment of a trained judicial
officer whether probable cause for the prosecution has been
shown, based on evidence which the person to be charged
could challenge or meet by opposing evidence or by his own
statement, if he chose to do so. ORS 135.175, 135.185.”
Id. A trained judicial officer—instead of a grand jury—must
determine that probable cause exists and enter a written
order to “hold[ ] the defendant for further proceedings on
346 State v. Belleque
the charge.” ORS 135.185. In contrast, “the grand jury need
not hear any evidence for the defendant, ORS 132.320(4);
and it may find an indictment upon the apparent strength
of prosecution evidence ‘if unexplained or uncontradicted,’
although the defendant had no opportunity to test, explain,
or contradict the evidence. ORS 132.390.” Clark,
291 Or at
234.
It is clear that a defect in an indictment or a defective waiver of an indictment or preliminary hearing does
not divest the circuit court of subject matter jurisdiction.
Keys, 368 Or at 202-03. Although there are a few cases that
concern the constitutionality of the state’s decision in the
first place to proceed by preliminary hearing rather than
by grand jury,3 there is very little case law that directly
addresses the adequacy of the preliminary hearing itself. In
Keys, the Supreme Court reviewed the question of whether
an invalid waiver of preliminary hearing deprives a circuit
court of subject matter jurisdiction. In framing the issue
before it, the Supreme Court formulated the question as
follows:
“[T]he question is whether a defect in the constitutional
check on the district attorney’s charging authority—i.e., a
defect in the defendant’s waiver, a defect in the magistrate’s
probable cause determination, or a defect in the grand jury’s
probable cause determination—deprives a court of subject
matter jurisdiction.”
Keys, 368 Or at 176 (emphasis added). And although the
court’s resolution of Keys was limited to holding that an
invalid waiver of preliminary hearing did not deprive the
court of subject matter jurisdiction, it framed its question
by including a defective preliminary hearing (i.e., probable
cause determination) as a “constitutional check on the district attorney’s charging authority” similar to a defect in the
waiver of such a hearing. Understood in that way—that the
probable cause determination is a check on the prosecuting
attorney’s charging authority—we can see no logical reason
3
See, e.g., State v. Edmonson, 291 Or 251, 253-54,
630 P2d 822 (1981) (holding that the decision to proceed by grand jury or preliminary hearing does not
violate a defendant’s guarantee of equal privileges so long as the choice of procedure is not administered “purely haphazardly or otherwise on terms that have no
satisfactory explanation under Art I, § 20”).
Cite as
313 Or App 339 (2021) 347
for concluding that a defect in that determination would
deprive the court of subject matter jurisdiction any more than
would the absence of such a hearing due to a defective waiver.
Moreover, conducting a post-trial review of the
sufficiency of evidence presented at a preliminary hearing is analogous to a post-trial review of the sufficiency of
evidence presented at a grand jury proceeding. In either
setting, no useful purpose would be served by that review,
because (1) “[t]he sufficiency of the evidence to convict” was
“tested at the trial,” Guse, 237 Or at 482, and (2) the purposes of Article VII (Amended), section 5, were served. Even
though preliminary hearings provide a defendant with more
procedural rights than do grand jury proceedings, both proceedings yield determinations by persons outside the executive branch that there is probable cause to believe that the
person has committed the felony with which he or she is
charged. That is to say, both proceedings serve as a check on
the district attorney’s charging authority. And that evidence
will later be developed and tested at trial through various
tools such as cross-examination and motions for judgment of
acquittal.
We conclude that defendant’s preliminary hearing
served the purposes of Article VII (Amended), section 5. It
informed defendant of (1) the felony charge against him and
(2) the state’s theory of the case. It also allowed defendant
to be present with his attorney, to make an unsworn statement, to cross-examine the state’s witnesses, and to receive
a probable cause determination by a magistrate. All of that
served as a check on the prosecuting attorney’s charging
authority.
Defendant asserted the same theories of self-defense
at trial as he did at the preliminary hearing, again testing the adequacy of the evidence against him. In so doing,
the sufficiency of the evidence produced at the preliminary
hearing was rendered irrelevant. We can think of no useful
or practical purpose that would be served by revisiting the
evidence considered at the preliminary hearing and assessing its adequacy now.
Affirmed.
