State v. Johnson

                                    134

Submitted October 4, 2021; “constituting domestic violence” finding on Count 1
 reversed, remanded for resentencing, otherwise affirmed January 20, 2022


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                 ROBERT LOUIS JOHNSON,
                     Defendant-Appellant.
                Washington County Circuit Court
                     19CR42810; A172796
                                

   D. Charles Bailey, Jr., Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sara F. Werboff, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
  Ellen F. Rosenblum, Attorney General, and Benjamin
Gutman, Solicitor General, and Christopher A. Perdue,
Assistant Attorney General, filed the brief for respondent.
  Before Tookey, Presiding Judge, and Aoyagi, Judge, and
Armstrong, Senior Judge.
   PER CURIAM
   “Constituting domestic violence” finding on Count 1
reversed; remanded for resentencing; otherwise affirmed.
Cite as 

 (2022)                                                135

           PER CURIAM
        Defendant appeals a judgment in which he was convicted of harassment constituting domestic violence, ORS
166.065(3) (Count 1), and initiating a false report, ORS
162.375 (Count 3). We write to address defendant’s fourth
and fifth assignments of error, rejecting his first through
third assignments.1
         In the fourth assignment of error, defendant contends that the trial court erred when it imposed a special probation condition that required him to “[s]ubmit to search of
person, residence, vehicle and property including consent to
search computer and telephonic devices.” The state concedes
the error. See State v. Bowden, 

, 

 (2018) (a trial court’s discretion does not extend to imposing special conditions that are inconsistent with other statutory restrictions set out by the legislature); ORS 137.540(1)(i)
(providing a general condition that requires a probationer to
“[c]onsent to the search of person, vehicle or premises upon
the request of a representative of the supervising officer if
the supervising officer has reasonable grounds to believe that
evidence of a violation will be found” (emphasis added)). We
agree, accept the concession, and remand for resentencing.
         In the fifth assignment of error, defendant contends
that the trial court erred by entering a judgment that included
“constituting domestic violence” as part of the Count 1 conviction for harassment. That is because, defendant argues, the
state did not charge him with harassment constituting domestic violence, the jury did not find him guilty of that crime,
and harassment is not a domestic violence crime as defined by
ORS 135.230. The state concedes the error. Again, we agree
with the concession and accept it. We therefore reverse the
“constituting domestic violence” finding on Count 1.
        “Constituting domestic violence” finding on Count 1
reversed; remanded for resentencing; otherwise affirmed.

    1
      Since the submission of this case, the Supreme Court decided State v.
Belden, 

, 

 (2021), which concerns the showing that the state
must make to establish its inability to produce a witness at trial, thereby permitting the admission of a hearsay statement by the witness. We are satisfied that
the state met its burden under Belden to permit the admission of the hearsay
statement that is the subject of defendant’s first assignment of error.