State v. Ramirez-Torres

                                      772

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).
  Submitted August 23; convictions on Counts 1 and 2 reversed and remanded
 for entry of judgment of conviction of one count of first-degree animal neglect,
       remanded for resentencing, otherwise affirmed September 14, 2022


                       STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                    JAIME RAMIREZ-TORRES,
                       Defendant-Appellant.
                    Marion County Circuit Court
                       19CR59043; A174950

   Courtland Geyer, Judge.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Neil F. Byl, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jennifer S. Lloyd, Assistant Attorney
General, filed the brief for respondent.
  Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
   SHORR, P. J.
   Convictions on Counts 1 and 2 reversed and remanded
for entry of judgment of conviction of one count of first-degree animal neglect; remanded for resentencing; otherwise affirmed.
Nonprecedential Memo Op: 

 (2022)                             773

           SHORR, P. J.
         Defendant appeals from a judgment convicting him
of two counts of first-degree animal neglect, one count of first-degree animal abuse, one count of aggravated first-degree
animal abuse, and one count of second-degree animal abuse.
He argues first that the trial court erred in denying his
motion for judgment of acquittal on the first-degree animal
neglect charges, because the state failed to present sufficient
evidence that he had acted with criminal negligence, and
on the first-degree animal abuse charges,1 because the state
failed to present sufficient evidence that he had acted recklessly. A discussion of the facts would not benefit the bench,
the bar, or the public. The challenged convictions arose from
an incident where defendant became angry with his dog and
chained him in the sun on a warm day for many hours without food or water, in a position where the dog could not lie
down, and the dog died of congestive heart failure. Viewed
in the light most favorable to the state, there was sufficient
evidence to create jury questions as to whether defendant
acted recklessly and with criminal negligence.
         Defendant next argues that the trial court erred in
denying his motion for a new trial due to juror misconduct.
After trial was concluded, defendant asserted that he had
recognized one of the jurors as someone with whom he had
had prior interactions involving illegal drugs and that the
juror was biased against him. The court received testimony
from defendant and concluded that there was “certainly no
other interpretation that’s reasonable of the testimony that
I heard today other than that—that [defendant] recognized
this juror before the end of the trial and certainly before
a verdict has been—had been rendered.” The court therefore concluded that defendant had waived his argument
by failing to raise the issue before the jury returned a verdict. Defendant asserts on appeal that the evidence in the
record does not support the trial court’s conclusion. Having
reviewed the record, we disagree, and conclude that the trial
court did not err in denying the motion for a new trial.
     1
       Defendant was charged with two counts of first-degree animal abuse, and
the jury returned guilty verdicts on both counts. However, the counts were merged
at sentencing and defendant was only convicted of one count of that crime.
774                                 State v. Ramirez-Torres

         Finally, defendant asserts that the trial court erred
in failing to merge the two counts of first-degree animal
neglect, Counts 1 and 2, noting that they asserted different theories of a single offense and were based on simultaneously occurring conduct that violated a single statutory
provision. The state concedes the error. We agree that those
verdicts should have merged under ORS 161.067(3), and we
accept the state’s concession.
          Convictions on Counts 1 and 2 reversed and
remanded for entry of judgment of conviction of one count
of first-degree animal neglect; remanded for resentencing;
otherwise affirmed.