State v. Ockerman

No. 630             November 29, 2023                  343

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
              ROBERT EARL OCKERMAN,
                 Defendant-Appellant.
               Lane County Circuit Court
                 19CR61723; A176053

  Bradley A. Cascagnette, Judge.
  Submitted February 27, 2023.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Matthew Blythe, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Paul L. Smith, Deputy Solicitor
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
  HELLMAN, J.
  Portion of judgment imposing $2,000 DUII fine vacated;
remanded for resentencing; otherwise affirmed.
344                                        State v. Ockerman

        HELLMAN, J.
         Defendant appeals his judgment of conviction for
driving under the influence of intoxicants (DUII), ORS
813.010. On appeal, he raises two assignments of error. In
the first, defendant argues that the trial court erred when
it refused to give the less-satisfactory-evidence instruction.
In the second, defendant argues that the trial court erred
when it imposed a mandatory minimum $2,000 fine because
the jury did not make any findings as to defendant’s blood
alcohol content (BAC) as required for imposition of that fine.
For the reasons below, we vacate the portion of the judgment imposing the $2,000 fine, remand for resentencing,
and otherwise affirm.
        Jury Instruction. Under ORS 10.095, the jury is “to
be instructed by the court on all proper occasions” as follows:
      “(7) That evidence is to be estimated, not only by its
   own intrinsic weight, but also according to the evidence
   which it is in the power of one side to produce and of the
   other to contradict; and, therefore,
       “(8) That if weaker and less satisfactory evidence is
   offered when it appears that stronger and more satisfactory evidence was within the power of the party, the evidence offered should be viewed with distrust.”
What constitutes a “proper occasion” for giving an instruction under ORS 10.095 is a question of law. State v. Payne,

, 

 (2020).
         We have held that, “[t]he less-satisfactory-evidence
instruction is to be given when (1) other evidence was reasonably available on a fact in issue, and (2) there is a basis
for the jury to conclude that the other evidence is stronger
and more satisfactory than the evidence offered.” State v.
Palacios-Romero, 

, 

, rev
den, 

 (2022) (internal quotation marks omitted).
The instruction “’draws the jury’s attention to a party’s failure to produce evidence when that failure could give rise to
an inference that the evidence would be adverse to the party—
that is, when it appears that the party may be trying to
hide something.’” 

 at 567 (quoting State v. McNassar, 77
Nonprecedential Memo Op: 

 (2023)               

, 218, 

, rev den, 

 (1986)
(emphasis in McNassar)).
         Defendant was charged with DUII based on evidence that he drove his motorcycle while intoxicated. The
state’s primary witnesses were the investigating officers
who responded to the scene of a reported motorcycle crash.
Defendant sought the less-satisfactory-evidence instruction
because the state did not call two witnesses for whom it had
issued subpoenas. Those witnesses included a person who
had called 9-1-1 to report someone “yelling some obscenities”
near the scene and another person who had provided information to the 9-1-1 caller.
          After a review of the record, we agree with the trial
court that the evidence here was not sufficient to merit giving the instruction, because the record does not support a
reasonable inference that other evidence was stronger and
more satisfactory than the evidence offered, or that the
state might have been trying to hide something. See State v.
McDonnell, 

, 

 (1992) (“[N]othing
in the record suggests that the state had any other evidence
that it did not offer …, or that the state could have obtained
additional admissible evidence and simply failed to do so.”).
Further, both parties had equal access to the potential witnesses and “it is unclear when, if ever, it would be appropriate to give the less-satisfactory-evidence instruction when
both parties have equal access to the purportedly stronger
evidence[,]” given reciprocal discovery and the availability of
subpoena duces tecum. Palacios-Romero, 

-
68 (citing McDonnell, 

). Thus, the trial court
did not err in declining to give the less-satisfactory-evidence
instruction.
         Enhanced mandatory minimum fine. In his second
assignment of error, defendant argues that the trial court
erred when it imposed a $2,000 mandatory minimum fine,
which is an enhanced penalty for a DUII. ORS 813.010(6)(d).
As the state correctly concedes, the jury never found that
defendant’s BAC was greater than 0.15 percent, which is the
necessary fact to increase defendant’s mandatory minimum
fine to $2,000. Without that fact, the trial court was without
authority to impose the greater mandatory minimum fine.
346                                     State v. Ockerman

Alleyne v. United States, 

, 

, 

 (2013).
        Portion of judgment imposing $2,000 DUII fine
vacated; remanded for resentencing; otherwise affirmed.