State v. Mull

                                        87

  Argued and submitted December 22, 2020; conviction on Count 6 reversed,
        remanded for resentencing, otherwise affirmed July 8, 2021


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                  DANIEL CLAYTON MULL, JR.,
                     aka Daniel Clayton Mull,
                       Defendant-Appellant.
                   Klamath County Circuit Court
                       17CR38162; A171307
                                   

     Defendant challenges multiple convictions arising out of a single incident in
which he fired multiple shots at his girlfriend’s garage. In four assignments of
error, defendant contends that the trial court erred when it (1) denied his motion
for judgment of acquittal on Count 6, first-degree theft by receiving; (2) denied
his motion to represent himself; (3) instructed the jury that it could convict with a
nonunanimous verdict; and (4) received a nonunanimous verdict on Count 6. The
state concedes that the trial court erred by failing to grant a judgment of acquittal on the first-degree theft by receiving charge and by accepting a nonunanimous verdict on that same charge, but otherwise argues that the trial court
either did not err or that any error was harmless. Held: The trial court did not
err in denying defendant’s motion to represent himself because, on this record,
defendant did not make a cognizable motion to do so. The Court of Appeals
also accepted the state’s concessions with respect to the motion for judgment of
acquittal and the trial court’s acceptance of a nonunanimous verdict, and further
rejected defendant’s nonunanimous jury instruction argument for the reasons
provided in State v. Flores Ramos, 

, 

 (2020).
     Conviction on Count 6 reversed; remanded for resentencing; otherwise
affirmed.



    Marci Warner Adkisson, Judge.
   Neil F. Byl, 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.
   E. Nani Apo, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
88                                           State v. Mull

     POWERS, J.
   Conviction on Count 6 reversed; remanded for resentencing; otherwise affirmed.
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 (2021)                                 89

        POWERS, J.
          In this criminal case, defendant challenges his convictions of second-degree burglary, ORS 164.215, unlawful use of a weapon, ORS 166.220, felon in possession of a
firearm, ORS 166.270, first-degree theft by receiving, ORS
164.055, tamping with physical evidence, ORS 162.295, and
four counts of recklessly endangering another person, ORS
163.195, arising out of a single incident in which he fired
multiple shots at his girlfriend’s garage. In four assignments
of error, defendant contends that the trial court erred when
it (1) denied his motion for judgment of acquittal on Count 6,
first-degree theft by receiving; (2) denied his motion to represent himself; (3) instructed the jury that it could convict
with a nonunanimous verdict; and (4) received a nonunanimous verdict on Count 6. The state concedes that the trial
court erred by failing to grant a judgment of acquittal on
the first-degree theft by receiving charge and by accepting
a nonunanimous verdict on that same charge, but otherwise argues that the trial court either did not err or that
any error was harmless. We reverse on Count 6, remand for
resentencing, and otherwise affirm.
         First, we agree with defendant’s argument and the
state’s concession that the trial court erred in denying the
motion for judgment of acquittal on Count 6. In reviewing
the denial of a motion for judgment of acquittal, we examine
the evidence “in the light most favorable to the state to determine whether a rational trier of fact, accepting reasonable
inferences and reasonable credibility choices, could have
found the essential element[s] of the crime beyond a reasonable doubt.” State v. Cunningham, 

, 

 (1994), cert den, 

 (1995). To be found guilty
of theft by receiving, the state must prove, among other elements, that the defendant must have known or believed that
the property was stolen. State v. Korelis, 

, 

 (1975); State v. Satterfield, 

, 

 (2015), rev den, 

 (2016). To prove a defendant’s knowledge or belief, the state may use circumstantial
evidence and rely on reasonable inferences from that evidence. See, e.g., Delgado v. Souders, 

, 

 (2002). The evidence will be insufficient, however, when
90                                                State v. Mull

the conclusion requires too great an inferential leap such
that the logic is too strained. See, e.g., State v. Korth, 

, 

 (2015).
         In this case, the state presented evidence that in
June 2017, defendant was on post-prison supervision when
he fired multiple shots from a .45 caliber model 1911 pistol at
the victim’s garage and then immediately took the firearm
to his cousin’s house and asked his cousin to keep it. The
state also presented evidence from the owner of the firearm
that he (a) reported it stolen in March 2016; (b) did not know
defendant or give defendant permission to take the firearm;
and (c) thought his ex-partner took the firearm. Based on
that evidence, the state argued at trial—and the trial court
agreed—that a reasonable factfinder could conclude beyond
a reasonable doubt that defendant knew or believed that the
firearm was stolen because he was a felon who was prohibited from obtaining a firearm lawfully and therefore defendant knew that any firearm that he could obtain would have
been, in fact, stolen. However, that evidence—even when
considering all reasonable inferences—is insufficient, and
the state’s concession on appeal is well founded. See State v.
Bivins, 

, 

 (2004) (explaining
that “evidence is insufficient if it requires the stacking of
inferences to the point of speculation”). On this record, there
is no relationship between defendant’s status as a felon and
any knowledge that the firearm was stolen. For example,
despite defendant’s status as a felon, someone who lawfully
acquired a firearm could have given defendant the firearm.
Accordingly, the trial court erred by denying defendant’s
motion, and we reverse defendant’s conviction on Count 6.
         Second, we summarily reject defendant’s contention
that the trial court erred in denying his motion to represent
himself. As we view this record, defendant did not make a
cognizable motion to represent himself. As the state was
about to rest after presenting its case-in-chief, defendant
and the trial court engaged in an extended colloquy about
defendant’s concern that his attorney was not presenting
certain evidence. When the trial court inquired about those
concerns, however, defendant said that he was “really satisfied” with his defense counsel’s representation and even
said, “I’m not deciding to represent myself.” Although it is
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not entirely clear from the record, defendant apparently
wanted defense counsel to offer into evidence information
related to four additional charges—which were severed
and tried separately based on defendant’s pretrial motion—
that arose out of conduct that occurred before the garageshooting incident.
         After a series of discussions and recesses, and after
the trial court denied defendant’s motion for judgment of
acquittal, defense counsel rested. The trial court and defendant again engaged in a colloquy about defendant’s concern
over evidence that defendant believed should have been presented to the jury and whether defendant was going to testify in his own defense. The trial court explained:
   “You have indicated time and time again that you want
   [defense counsel] to represent you in this matter, that you
   do not wish to represent yourself, so that tells me that you
   know that being represented by a lawyer is important in
   the rest of the case. So the only thing, as I said before, is
   we need to know whether you’re going to testify or not and
   by saying ‘I don’t know’ that tells me that you’re not going
   to testify.”
Defendant eventually responded, “I would like to proceed
with trial without a mistrial and I would like [defense counsel] to represent me, but I would like for the Court to stop
protecting the State’s witness.” Given this record, we conclude that defendant did not make an unequivocal request
to represent himself.
         Third, defendant makes two separate arguments
predicated on Ramos v. Louisiana, 

, 

, 

 (2020), which held that nonunanimous jury verdicts for offenses violate the Sixth Amendment
to the United States Constitution. In his third assignment of error, defendant argues that the trial court erred
in instructing the jury that it could reach nonunanimous
verdicts and that, because the erroneous jury instruction
constituted structural error, all of his convictions must be
reversed. In his fourth assignment of error, he challenges
the trial court’s acceptance of the 10-2 verdict on Count 6.
Taking that last issue first, because we conclude that the
trial court should have granted a judgment of acquittal on
92                                               State v. Mull

Count 6, we need not address defendant’s fourth assignment of error and the state’s concession on that point. With
respect to defendant’s structural-error argument articulated in his third assignment of error, we conclude that the
trial court’s instruction was error but not reversible error. In
State v. Flores Ramos, 

, 

 (2020),
the Oregon Supreme Court rejected the argument that giving a nonunanimous jury instruction constituted structural
error categorically requiring reversal in every case. Where,
as in this case, the jury returns mixed—that is, both unanimous and nonunanimous—verdicts despite the nonunanimous instruction, such “instructional error was harmless as
to the unanimous verdicts.” 

.
        Conviction on Count 6 reversed; remanded for
resentencing; otherwise affirmed.