122
Argued and submitted December 17, 2020; conviction on Count 1 reversed and
remanded, remanded for resentencing, otherwise affirmed April 20, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
LISA MORNAY McBEAN,
aka Lisa Mornay Chance,
Defendant-Appellant.
Umatilla County Circuit Court
17CR76459; A168388
510 P3d 233
Defendant was the getaway driver for a woman who assaulted another
woman. For that conduct, defendant was convicted by a jury of one count of hindering prosecution, ORS 162.325 (Count 1), and one count of reckless driving,
ORS 811.140 (Count 2). The jury unanimously voted to convict defendant of reckless driving but did not unanimously agree on the hindering prosecution count.
Defendant challenges several evidentiary rulings, the denial of her motion for
judgment of acquittal on Count 1, and issues regarding the nonunanimous jury
verdict. The state concedes that, in view of Ramos v. Louisiana, 590 US ___,
140
S Ct 1390,
206 L Ed 2d 583 (2020), the conviction on Count 1 must be reversed
and remanded for a new trial. Held: The Court of Appeals reversed and remanded
Count 1 for a new trial, concluded that the trial court properly denied the motion
for judgment of acquittal, and rejected defendant’s other arguments for lack of
preservation.
Conviction on Count 1 reversed and remanded; remanded for resentencing;
otherwise affirmed.
Jon S. Lieuallen, Judge.
Erik Blumenthal, 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.
Adam Holbrook, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before James, Presiding Judge, and Lagesen, Chief Judge,
and Kamins, Judge.
Cite as 319 Or App 122 (2022) 123
LAGESEN, C. J.
Conviction on Count 1 reversed and remanded; remanded
for resentencing; otherwise affirmed.
124 State v. McBean
LAGESEN, C. J.
Defendant was the getaway driver for a woman who
assaulted another woman. For that conduct, defendant was
convicted by a jury of one count of hindering prosecution,
ORS 162.325 (Count 1), and one count of reckless driving,
ORS 811.140 (Count 2). The jury unanimously voted to convict defendant of reckless driving but did not unanimously
agree on the hindering prosecution count. Because of that
lack of unanimity, we reverse the conviction on Count 1 and
remand, rejecting defendant’s argument that she was entitled to a judgment of acquittal on that count. We otherwise
affirm.
As defendant herself admitted upon her arrest,
defendant drove Madrigal and two other people to the victim’s house. According to defendant, “there was a mutually
agreed-upon meeting between [the victim] and Madrigal to
fight up at that residence.” When they arrived at the victim’s
house, all of defendant’s passengers “got out of the vehicle
and went and confronted [the victim] and that there was a
[sic] argument and a fight ensued after that.”
The victim, fearing the attack, called police ahead
of time. The Pendleton Police Department dispatched Officer
Pieschel in response. When he arrived, he saw Madrigal
talking to the victim. When Madrigal saw him, she took off
running. He followed her as she ran and saw her, and one
other person, get into defendant’s car, which then sped away.
He then returned to the victim. He observed that
she had multiple injuries all over her body:
“I observed multiple … bruises, redness, and scratches
on her back. I observed more bruising and scratches to
her left side torso. Her left thigh had multiple bruises
already forming. Her left calf had scratches and redness
on it. Right thigh had several bruises, as well as her right
calf.
“There was a large red scuff mark on her right leg,
starting on the outside of her knee and extending down her
calf.”
The victim’s injuries were, in Pieschel’s view, “more consistent with multiple people in that fight” with the victim.
Cite as 319 Or App 122 (2022) 125
For her role that night, defendant was charged with
reckless driving and hindering prosecution. The offense of
hindering prosecution requires proof that the defendant’s
conduct hindered the prosecution of “a person who has committed a crime punishable as a felony.” ORS 162.325(1).
The state’s theory on that point was that Madrigal was
such a person because her assault on the victim constituted
third-degree assault, a felony, and that defendant hindered
Madrigal’s prosecution by providing transportation to her.
The indictment alleged:
“The defendant, on or about August 11, 2017, in Umatilla
County, Oregon, did unlawfully, with intent to hinder the
apprehension, prosecution, conviction or punishment of
NINA MADRIGAL, a person who had committed Assault
III, a crime punishable as a felony, provide or aid in providing NINA MADRIGAL with transportation.”
At trial, to prove that Madrigal had committed
third-degree assault, the court permitted the state to enter
into evidence an indictment charging Madrigal with third-degree assault. Defendant objected to the admission of the
indictment for that purpose on relevance grounds but did
not object to the admission of the indictment as “a certified true copy of the indictment in the Madrigal case.” The
trial court also permitted Pieschel to testify to his opinion,
based on his investigation, that Madrigal had committed
third-degree assault. Defendant raised hearsay and relevance objections to that testimony, but the trial court overruled them. The jury found defendant guilty as charged.
Defendant appealed.
On appeal, defendant raises a number of assignments of error, most of which pertain only to her conviction for hindering prosecution. She contends that the trial
court (1) erroneously admitted Madrigal’s indictment under
OEC 701 as lay opinion testimony; (2) erroneously admitted Pieschel’s testimony about Madrigal committing third-degree assault under OEC 701 as lay opinion testimony;
(3) erroneously admitted Pieschel’s testimony, over defendant’s hearsay objection, that he had determined that
multiple persons participated in the assault on Madrigal;
(4) erred in denying defendant’s motion for judgment of
126 State v. McBean
acquittal on the hindering prosecution count; (5) erred in
overruling defendant’s objection to the prosecutor’s rebuttal argument that, in determining whether Madrigal committee third-degree assault because she had been aided by
someone “actually present,” the jury could take into account
defendant’s act of supplying transportation; (6) erred in
instructing the jury that it could return nonunanimous verdicts; and (7) erred in accepting the nonunanimous guilty
verdict on Count 1.
In response, the state concedes that, in view of
Ramos v. Louisiana, 590 US ___,
140 S Ct 1390,
206 L Ed
2d 583 (2020), we must reverse the conviction on Count 1
because the verdict was not unanimous, and remand for a
new trial on that count. The state argues, correctly, that the
error in instructing the jury that it could render a nonunanimous verdict does not entitle defendant to reversal of the
conviction on Count 2, because the jury was unanimous on
that count. State v. Ramos,
367 Or 292,
478 P3d 515 (2020).
As for defendant’s remaining assignments of error, the state
argues that they are not preserved, with the exceptions of
defendant’s hearsay challenge to the admission of Pieschel’s
testimony and her challenge to the denial of the motion for
judgment of acquittal. On those, the state contends that
there is no error. For the reasons that follow, we agree with
the state.
Motion for judgment of acquittal. We must, at a minimum, reverse the conviction on Count 1 because it resulted
from a nonunanimous verdict, something that would result
in a remand for a new trial. Defendant contends, however,
that the evidence is insufficient to support her conviction,
entitling her to an outright reversal for entry of judgment
of acquittal on Count 1. See State v. Brady, 317 Or App 372,
373,
506 P3d 1180 (2022) (discussing comparable procedural posture). Accordingly, we must consider defendant’s
sufficiency-of-the-evidence claim.
Our review of a trial court’s denial of a motion for a
judgment of acquittal is for legal error, and we consider the
facts in the light most favorable to the state, drawing all
reasonable inferences in the state’s favor. State v. Yerton, 317
Or App 538, 539,
505 P3d 428 (2022).
Cite as
319 Or App 122 (2022) 127
As noted, to prove defendant guilty as charged on
Count 1, the state had to prove that defendant hindered the
prosecution of “a person who has committed a crime punishable as a felony.” ORS 162.325(1). In this instance, the
relevant felony alleged in the indictment was third-degree
assault committed by Madrigal. The state’s theory at trial
was that Madrigal’s conduct constituted third-degree
assault because Madrigal, “[w]hile aided by another person
actually present, intentionally or knowingly caus[ed] physical injury to another.” ORS 163.165(1)(e). Defendant argues
that she is entitled to a judgment of acquittal because, in her
view, the evidence is insufficient to support a finding that
Madrigal was “aided by another person actually present” in
her attack on the victim.
We disagree. Under our case law, it is inferable that
a person is “aided by another person actually present” in
causing physical injury to another if the evidence shows
that the other person is in close proximity in a manner that
that presents “an added threat to the victim’s safety.” State
v. Hesedahl, 247 Or App 285, 290-92,
269 P3d 90 (2011),
rev den,
351 Or 649 (2012) (internal quotation marks omitted). Thus, for example, in Hesedahl, we concluded that
evidence that a third person was in close proximity to the
defendant and giving him verbal encouragement was sufficient to allow a finding that the defendant was “aided
by another person actually present” for purposes of third-degree assault as defined by ORS 163.165(1)(e). Id. In this
case, the evidence allows the same finding. In particular,
defendant’s own admissions that her three passengers “got
out of the vehicle and went and confronted [the victim] and
that there was a [sic] argument and a fight ensued after
that,” together with the evidence that the victim’s injuries
were consistent with injuries inflicted by more than one
person, would allow for the finding that Madrigal caused
physical injury to the victim while “aided by another person
actually present.” The trial court properly denied the motion
for judgment of acquittal.
Evidentiary errors. Defendant contends that the
trial court made three evidentiary errors in admitting certain evidence. Although, as explained, we reject them on
128 State v. McBean
procedural grounds, we address them briefly because they
pertain to defendant’s conviction for hindering prosecution,
and we wish to be clear that, should the state seek to introduce the same evidence on remand, our decision does not
preclude defendant from again challenging the admissibility of that evidence.
In her first assignment of error, defendant contends that the trial court erred in admitting Madrigal’s
indictment. In her second assignment of error, defendant
contends that the trial court erred in admitting Pieschel’s
testimony that, based on his investigation, he determined
that Madrigal committed third-degree assault. Defendant
frames both assignments of error under OEC 701. Although
defendant objected to the admission of the evidence below,
at least insofar as the state proposed to use it for some purposes, not once did defendant mention OEC 701. For that
reason, defendant’s first two assignments of error, as presented to us, are not preserved, and we decline to address
them in this posture. Because of that, we are not called upon
to address when, if ever, an indictment may be admissible
as substantive proof that the person committed the crime
charged. Given the presumption of innocence, which does
not permit guilt to be inferred from the fact that a person is
charged with a crime, the use of indictment to prove that the
person charged committed the crime charged is potentially
problematic for reasons other than those identified by defendant. Should the state again seek to prove that Madrigal
committed a felony through evidence that Madrigal was
indicted, this decision does not foreclose the parties from
further developing their arguments regarding the permissibility of the use of an indictment to prove that someone
committed a crime.
In her third assignment of error, defendant asserts
that the trial court erred in overruling her hearsay objections to two statements by Pieschel. Defendant first argues
that the following statement was hearsay, and that the trial
court erred in concluding otherwise:
“Based on my investigation, I was able to determine that
an Assault III had taken place. They—there was physical
injury and multiple people that had taken part and aided
each other in committing the physical injury.”
Cite as 319 Or App 122 (2022) 129
On its face, the statement does not recount out-of-court
statements by others. Further, the record demonstrates
that Pieschel’s determination was based at least in part on
his direct personal observations, rather than witness statements, making at least some of it admissible. Under those
circumstances, defendant has not established that it was
error to overrule her hearsay objection. When part of a whole
of evidence is admissible and part is not, a trial court does
not err by admitting it over a general objection that does not
parse the admissible from the inadmissible. See Biegler v.
Kirby,
281 Or 423, 426,
574 P2d 1127 (1978) (so concluding).
This opinion does not foreclose defendant from advancing
more specific objections on retrial, if the issue arises again.
Defendant next argues that the trial court erred in
overruling her hearsay objection to Pieschel’s response to the
prosecutor’s question, “As part of your investigation, were
you able to determine who—who was involved in the assault
on [the victim]?” Pieschel responded: “Nina Madrigal, Omar
Almonte are the two that I was able to identify. I was not
able to identify the third.” Defendant asserts that Pieschel’s
testimony was inadmissible hearsay. She asserts that
Pieschel’s identification was based on out-of-court statements by others so, in essence, it represents a recounting of
those statements. But Pieschel’s testimony does not, on its
face, refer to out-of-court statements by others. In addition,
the record is insufficient to demonstrate whether Pieschel
was, in fact, recounting statements of others. Under those
circumstances, defendant has not demonstrated that the
trial court erred in overruling the hearsay objection. This
opinion, again, does not foreclose defendant from developing
a different factual record in support of her hearsay objection on remand, should the state seek to introduce the same
testimony.
Prosecutor’s rebuttal argument. In her remaining
assignment of error, defendant contends that the trial court
erred when it overruled her objection to the following rebuttal argument by the prosecutor:
“So there could be an argument to make that [defendant] herself, in providing the transportation to [the victim’s] home, being aware that they had prearranged for
130 State v. McBean
a fight, and then following that providing transportation
away from there, had aided Nina Madrigal.”
Before us, defendant argues that the prosecutor’s statement
misstated the law by suggesting that defendant’s act of
transporting Madrigal could constitute the aid by another
person present required to make Madrigal’s attack on the
victim third-degree assault. But, as the state correctly
points out, that was not the basis of defendant’s objection
below. Instead, defendant argued that the evidence was
improper because it suggested that defendant herself had
committed a different crime that was not before the jury. In
response, the prosecutor explained that that was not what
he was doing, and that he was instead noting that defendant’s aid to Madrigal could constitute the aid necessary to
make the assault a felony. Upon hearing that, defendant did
not object further. Consequently, the assigned error is not
preserved and we reject it for that reason.
Conviction on Count 1 reversed and remanded;
remanded for resentencing; otherwise affirmed.
