State v. Rupert

                                    91

   This is a nonprecedential memorandum opinion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 October 27, 2021; Counts 1 and 2 reversed and remanded, remanded
   for resentencing, otherwise affirmed July 27; petition for review denied
                       November 23, 2022 (

)


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                  ROBERT GLEN RUPERT,
                    Defendant-Appellant.
                 Umatilla County Circuit Court
                    18CR57911; A171947

   Jon S. Lieuallen, 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 Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
   ORTEGA, P. J.
   Counts 1 and 2 reversed and remanded; remanded for
resentencing; otherwise affirmed.
92                                            State v. Rupert

        ORTEGA, P. J.
          Defendant was found guilty after a jury trial on one
count of possession of a stolen vehicle (Count 1), two counts
of aggravated first-degree theft (Counts 2 and 4), four counts
of first-degree theft (Counts 5 through 8), and one count of
second-degree theft (Count 9). The trial court merged all of
the other guilty verdicts into the conviction on Count 4 for
aggravated first-degree theft. The jury was unanimous as to
all counts except possession of a stolen vehicle (Count 1) and
one of the counts of aggravated first-degree theft (Count 2).
The state concedes that defendant is entitled to reversal of
those two guilty verdicts in light of Ramos v. Louisiana, 

, 

, 

 (2020). We agree and
accept that concession, and therefore reverse and remand on
those two counts but otherwise affirm.
         We briefly address defendant’s remaining assignments of error. In his first assignment of error, he argues
that the trial court erred in denying his motion to dismiss
the charges on former jeopardy grounds after a mistrial
was declared. Defendant challenges the sufficiency of the
evidence to support the trial court’s conclusion that the
prosecutor did not engage in misconduct of the sort that
bars retrial after declaration of a mistrial. The trial court’s
factual findings are binding if there is evidence to support
them, State v. Garner, 

, 

,
rev den, 

 (2010), and we conclude that the evidence supports those findings.
         During the first trial, a police officer mentioned
an outstanding warrant on defendant, and the trial court
granted defendant’s motion for a mistrial. The prosecutor
had not specifically elicited the witness’s comment, but
also had not specifically warned the witness not to mention
the outstanding warrant, which the trial court viewed as
negligent. Retrial after a mistrial is barred under the former jeopardy provision of the Oregon constitution “when
(1) the misconduct is so prejudicial that it cannot be cured
by means short of mistrial; (2) the prosecutor knew that the
conduct was improper and prejudicial; and (3) the prosecutor either intended or was indifferent to the resulting mistrial or reversal.” Garner, 

 (citing State
Nonprecedential Memo Op: 

 (2022)              93

v. Kennedy, 

, 

 (1983)). Given
the trial court’s conclusion that the prosecutor’s failure to
advise the witness not to mention the warrant was negligent, which is supported by the record, we cannot conclude
that the prosecutor knew the conduct was improper and
prejudicial. Accordingly, the trial court did not err in denying the motion for a mistrial.
         In his second through ninth assignments of error,
defendant challenges the sufficiency of the evidence to support each of the convictions, arguing that there was insufficient evidence to create a question of fact as to whether he
knew or believed the property in question to be stolen. 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 elements of the crime beyond
a reasonable doubt. State v. Cunningham, 

, 

 (1994), cert den, 

 (1995). The state may
rely on circumstantial evidence and reasonable inferences
flowing from that evidence to establish an element of a crime.
State v. Hedgpeth, 

, 

 (2019). We
conclude that the circumstantial evidence in this case, and
the reasonable inferences that flow from it, was sufficient to
create a factual issue with respect to defendant’s knowledge.
         In his tenth assignment of error, defendant contends
that the trial court erred in admitting evidence that defendant’s cell phone was near the location where the property
was taken near the time that it was taken. He asserts that
because the state’s theory of the case was that he committed
theft by receiving, evidence that he was near the location
where the thefts occurred was irrelevant. Evidence is relevant if it has “any tendency to make the existence of any
fact that is of consequence to the determination of the action
more probable or less probable than it would be without
the evidence.” OEC 401. Evidence was presented that the
items were stolen in Idaho, and that defendant thereafter
attempted to sell them in Oregon and Washington. Evidence
that defendant was in Idaho near the location of the theft at
the time the items were taken meets the low “any tendency”
94                                           State v. Rupert

standard as it could support an inference that he had the
opportunity to readily receive the stolen goods.
         In his eleventh and twelfth assignments of error,
defendant contends that the trial court erroneously admitted evidence that he used aliases because such evidence was
not relevant to any issue in the case. Given the low threshold
for relevance, we agree with the trial court’s conclusion that
this evidence was relevant to support a theory that defendant was trying to avoid being identified in conjunction with
these offenses. Defendant contends that evidence that he
was concealing his identity was explained by the fact that
a warrant was out for his arrest, and that there was no evidence he used those aliases when contacting potential buyers for the stolen property. However, the fact that there may
be alternative explanations for evidence does not undermine
its admissibility as relevant evidence.
         In his thirteenth assignment of error, defendant
contends that the trial court’s error in instructing the jury
that it could return nonunanimous verdicts infected not
only the nonunanimous verdicts but the unanimous verdicts
as well. We reject that argument for the reasons set forth in
State v. Flores Ramos, 

, 

 (2020).
         Defendant’s fourteenth and fifteenth assignments
of error relate to the two counts on which the jury was not
unanimous and, as explained above, we accept the state’s
concession that defendant is entitled to reversal of those
guilty verdicts.
         Counts 1 and 2 reversed and remanded; remanded
for resentencing; otherwise affirmed.