State v. Newkirk

                                      131

       Submitted March 23, affirmed April 20, petition for review denied
                     September 16, 2022 (

)


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                 ROBERT BENBEAR NEWKIRK,
                     Defendant-Appellant.
                  Marion County Circuit Court
                     20CR00927; A174096
                                  

     Defendant appeals a judgment of conviction for one count of attempted
assault in the first degree, ORS 163.185 and ORS 161.405 (Count 1), and one
count of criminal mischief in the second degree, ORS 164.354 (Count 2). The
court imposed an upward departure sentence of 90 months’ incarceration on
Count 1, finding that the state had proved four sentencing enhancement factors.
Defendant assigns error to the trial court’s denial of a motion for judgment of
acquittal on Count 1, contending that the evidence is insufficient to support a
finding that defendant intended to cause serious physical injury. He also assigns
error to the trial court’s reliance on enhancement factors that were not approved
by a grand jury or through a preliminary hearing, contending that the Due
Process Clause of the Fourteenth Amendment to the United States Constitution
incorporates the Grand Jury Clause of the Fifth Amendment to the United States
Constitution against the states. Held: The trial court properly denied the motion
for judgment of acquittal because the evidence sufficiently supported the inference that defendant intended to cause serious physical injury. Additionally, the
Court of Appeals was bound by Hurtado v. California, 

, 

, 

 (1884), which rejected the notion that a grand jury process
is one encompassed within the Fourteenth Amendment’s requirement of due process. Accordingly, the trial court did not err by relying on enhancement factors
that were not approved by a grand jury or through a preliminary hearing.
    Affirmed.




    J. Channing Bennett, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kristin A. Carveth, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jon Zunkel-Decoursey, Assistant
Attorney General, filed the brief for respondent.
132                                       State v. Newkirk

  Before Mooney, Presiding Judge, and Lagesen, Chief Judge,
and Kistler, Senior Judge.
  LAGESEN, C. J.
  Affirmed.
Cite as 

 (2022)                              133

        LAGESEN, C. J.
         Defendant appeals a judgment of conviction for one
count of attempted assault in the first degree, ORS 163.185
and ORS 161.405 (Count 1), and one count of criminal mischief in the second degree, ORS 164.354 (Count 2). The
court imposed an upward departure sentence of 90 months’
incarceration on Count 1, finding that the state had proved
four sentencing enhancement factors. Defendant assigns
error to the trial court’s denial of a motion for judgment of
acquittal on Count 1, contending that the evidence is insufficient to support a finding that defendant “intended to
cause the victim protracted disfigurement or death.” He also
assigns error to the trial court’s reliance on enhancement
factors that were not approved by a grand jury or through
a preliminary hearing, contending that the Due Process
Clause of the Fourteenth Amendment to the United States
Constitution incorporates the Grand Jury Clause of the
Fifth Amendment to the United States Constitution against
the states, thereby requiring a state to charge sentencing
enhancement factors through the use of a grand jury or preliminary hearing. We affirm.
          Starting with defendant’s motion for judgment of
acquittal, we review for legal error the trial court’s denial of
the motion, viewing the facts and the reasonable inferences
that can be drawn from the facts in the light most favorable
to the state. State v. Yerton, 

, 

 (2022). In this instance, defendant contends that there is
insufficient evidence to support a finding that he intended to
cause the victim “serious physical injury,” that is, an injury
that causes “a substantial risk of death or which causes serious and protracted disfigurement, protracted impairment of
health or protracted loss or impairment of the function of
any bodily organ.” ORS 161.015(8) (defining “serious physical injury;”); ORS 163.185(1)(a) (defining relevant elements
of first-degree assault).
        We disagree. The record contains evidence that defendant went after the victim with a screwdriver with a seveninch-long shank and head, swinging it at her with a downward chopping motion. The victim lurched backward, into
the wall behind her; had she not been able to do so, she
134                                                        State v. Newkirk

would have been hit by the screwdriver. That evidence of
the circumstances of defendant’s attempted attack on the
victim would allow for the inference that his intent was to
cause her serious physical injury within the meaning of the
statutes.
        Turning to defendant’s sentencing argument, defendant’s contention is that the Due Process Clause of the
Fourteenth Amendment1 incorporates the Grand Jury
Clause of the Fifth Amendment2 making it applicable to the
states and requiring that sentencing enhancement factors
be charged by a grand jury or through a preliminary hearing. Whether the federal constitution so requires presents a
question of law, making our review for legal error. State v.
Worth, 

, 

 (2019), rev den,

 (2020).
         In this instance, that question of law is resolved
by controlling precedent of the United States Supreme
Court. See State v. Reinke, 

, 

(2013) (discussing the evolution of the issue). In Hurtado v.
California, 

, 

, 

(1884), the Supreme Court rejected the notion that a grand
jury process is one encompassed within the Fourteenth
Amendment’s requirement of due process. The Court
explained that
    “any legal proceeding enforced by public authority, whether
    sanctioned by age and custom, or newly devised in the discretion of the legislative power, in furtherance of the general public good, which regards and preserves these principles of liberty and justice, must be held to be due process
    of law.”
Id. at 537.
        In reaching that conclusion, the Court looked to,
among other sources, the constitution of Connecticut, “adopted
in 1818 and in force when the Fourteenth Amendment
took effect.” Id. Connecticut’s constitution had its own
    1
      “[N]or shall any State deprive any person of life, liberty, or property, without due process of law[.]” US Const, Amend XIV.
    2
      “No person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a Grand Jury[.]” US Const,
Amend V.
Cite as 

 (2022)                              135

provision requiring due process, but, at the same time, it
did not require a grand jury in all instances. Instead, the
Connecticut constitution “require[d] an indictment or presentment of a grand jury only in cases where the punishment of the crime charged is death or imprisonment for life.”

 From that aspect of state constitutional structure—that
the right to due process coexisted with a very limited right
to a grand jury—the court reasoned that the Fourteenth
Amendment right to due process was not intended to encompass the broad right to a grand jury included in the Fifth
Amendment. Id. at 536-38.
           Defendant acknowledges Hurtado and the obstacle it
presents. He argues, nonetheless, that in Ramos v. Louisiana,

, 

, 

 (2020), Timbs
v. Indiana, 

, 

, 

(2019), and McDonald v. Chicago, 

, 

, 

 (2010), the Supreme Court abandoned
the approach to incorporation that it had taken in Hurtado,
meaning that “Hurtado can no longer be relied on as authority.” It is not clear to us that the Court’s approach to incorporation in the more recent cases is as fully at odds with
the approach in Hurtado as defendant argues it to be. But
assuming it is, that does not mean that we, an intermediate appellate court, have the power to pursue a different
legal path. The Supreme Court itself has never overruled
Hurtado. As the state points out, the Supreme Court has
explained that, when one of its cases directly controls on
a question of law, lower courts must “follow the case which
directly controls,” even if the case “appears to rest on reasons
rejected in some other line of decisions.” Agostini v. Felton,

, 

, 

 (1997).
If Hurtado’s construction of the Fourteenth Amendment no
longer governs, the Supreme Court, not our court, must be
the one to say so.
        Affirmed.