State v. Cheever

200                 January 10, 2024              No. 25

   This is a nonprecedential memorandum opinion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.
               CHAD ADAM CHEEVER,
                  Defendant-Appellant.
               Linn County Circuit Court
                18CR64503, 19CR75319;
               A176067 (Control), A176068

  Thomas McHill, Judge.
  Submitted November 13, 2023.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Morgen E. Daniels, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Julia Glick, Assistant Attorney
General, filed the brief for respondent.
  Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Hadlock, Judge pro tempore.
  AOYAGI, P. J.
  Affirmed.
Nonprecedential Memo Op: 

 (2024)             201

        AOYAGI, P. J.
         Defendant was convicted of second-degree assault,
ORS 163.175, and second-degree murder, ORS 163.115, in
case number 18CR64503 (the 2018 case), based on an incident that caused the death of his uncle. Defendant was convicted of two counts of fourth-degree assault, ORS 163.160,
and one count of attempted fourth-degree assault, ORS
161.405, in case number 19CR75319 (the 2019 case), based
on his punching three different people in prison. The cases
were tried separately, about a month apart. In this consolidated appeal, defendant raises four assignments of error
and six pro se supplemental assignments of error. We affirm.
         Denial of Motion for a Judgment of Acquittal on
Murder Count. In his first assignment of error, defendant
challenges his murder conviction, arguing that the trial
court erred when it denied his motion for a judgment of
acquittal (MJOA). To prove the charged offense, the state
had to prove that defendant, “recklessly under circumstances manifesting extreme indifference to the value of
human life,” caused the death of his uncle by neglect or maltreatment. ORS 163.115(1)(c). “Recklessly” means, as to a
result element, “that a person is aware of and consciously
disregards a substantial and unjustifiable risk that the
result will occur.” ORS 161.085(9). Defendant contends that
the evidence was legally insufficient to prove that he was
aware of and consciously disregarded a substantial and
unjustifiable risk that his uncle would die (i.e., that he acted
recklessly), as well as legally insufficient to prove that he
acted with extreme indifference to the value of human life.
        Our task in reviewing the denial of an MJOA is to
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 element of the crime beyond a reasonable doubt.” State v. Cunningham, 

, 

 (1994), cert den, 

 (1995). Where the state’s
case depends in whole or part on circumstantial evidence,
“whether circumstantial evidence is sufficient to support a
given inference is a question of law.” State v. Simmons, 321
202                                                        State v. Cheever

Or App 478, 483, 

 (2022), rev den, 

(2023).
         Having reviewed the record, we agree with the state
that the evidence was legally sufficient to go to the jury.
Defendant had (and presented) a viable jury argument that
he did not act recklessly as to the risk of his uncle’s death,
and that the circumstances did not manifest extreme indifference to human life. However, for an MJOA, the evidence
must be viewed in the light most favorable to the state, and,
so viewed, there was enough evidence to prove all of the elements of the offense. The trial court did not err in denying
defendant’s MJOA.
         Jury Instructions on Assault (2019 Case). Defendant’s
second and third assignments of error pertain to his two
fourth-degree assault convictions in the 2019 case. As relevant here, a person commits fourth-degree assault if he
“[i]ntentionally, knowingly or recklessly causes physical
injury to another.” ORS 163.160(1)(a). Defendant argues
that the trial court plainly erred1 when it failed to instruct
the jury in the 2019 case that, to find defendant guilty of
fourth-degree assault, it had to find that he had at least a
criminally negligent mental state as to the “physical injury”
element of the offense.
         The state concedes that, in light of State v. Owen,

, 

 (2022), the failure to give
such an instruction constitutes plain error. See State v. Jury,

, 

 (2002), rev den, 

 (2003) (the law in effect at the time of appeal governs,
not the law at the time of the trial court’s ruling). The state
argues the error was harmless, however, and therefore is
not a basis for reversal. See State v. Horton, 

, 

 (2023) (“We cannot reverse a judgment based on a harmless error, so if the error was truly

    1
      “Generally, an issue not preserved in the trial court will not be considered
on appeal.” State v. Wyatt, 

, 

 (2000). However, we have
discretion to correct a “plain” error. ORAP 5.45(1). An error is “plain” when it is
an error of law, the legal point is obvious and not reasonably in dispute, and the
error is apparent on the record without our having to choose among competing
inferences. State v. Vanornum, 

, 

 (2013). It is a matter
of discretion whether we will correct a plain error. State v. Gornick, 

, 

 (2006).
Nonprecedential Memo Op: 

 (2024)              203

‘harmless,’ then we have no discretion and must affirm.”).
An error is harmless if “there was little likelihood that the
error affected the jury’s verdict.” State v. Davis, 

, 

 (2003).
         Defendant barely discusses the facts of the 2019 case
and has not developed a meaningful argument as to harmlessness. In any event, we agree with the state that the error
was harmless on this record. One assault conviction was for
punching another inmate in the face hard enough to break
his nose, and the other was for punching a different inmate in
the side of the head hard enough to knock him unconscious. In
those circumstances, there is little likelihood that the instructional error affected the verdict. See, e.g., State v. Miles, 

, 

 (2023) (“[A]lthough the trial
court plainly erred by failing to consider whether defendant
was at least criminally negligent of the risk of serious physical
injury when he tackled C—who was naked and handcuffed—
as she attempted to escape, it is not the kind of error that
we can correct because the error is harmless.”). We reject the
second and third assignments of error.
         Jury Instructions on Assault (2018 Case). Defendant’s
fourth assignment of error is similar to his previous two,
except that it pertains to his second-degree assault conviction in the 2018 case. As relevant here, a person commits
second-degree assault if he “[i]ntentionally or knowingly
causes serious physical injury to another.” ORS 163.175(1)(a).
Defendant argues that the court plainly erred when it failed
to instruct the jury in the 2018 case that, to find defendant
guilty of assault, it had to find that his mental state was
at least criminally negligent as to causing “serious physical
injury” to his uncle. The state concedes that the instructional omission qualifies as plain error in light of Owen and
its progeny but, again, contends that the error was harmless.
         We agree with the state for two reasons. First, at
trial, defendant understandably focused his defense on the
murder charge and, as part of that strategy, effectively
conceded the assault charge, telling the jury in closing
argument that he had committed assault but not murder.
Second, because the jury found defendant guilty of murder
and found the other elements of assault to be proved, the
204                                           State v. Cheever

jury necessarily found that defendant beat his uncle with
enough intensity to cause severe injuries, including internal
decapitation. For both reasons, there is little likelihood that
the instructional error affected the verdict on the assault
charge. See State v. Scatamacchia, 

, 

 (2022), rev den, 

 (2023) (holding that failure to instruct the jury on the requisite mental state for
second-degree assault was harmless, where the jury necessarily found that the defendant had deliberately and unjustifiably punched the complainant in the face multiple times).
We reject the fourth assignment of error.
        Pro Se Supplemental Assignments of Error.
Defendant asserts six pro se supplemental assignments of
error, which we address in turn.
         Defendant’s first, second, and fourth pro se assignments challenge the trial court’s refusal to consider certain
motions that defendant filed pro se while represented by
counsel. Criminal defendants do not have a right to hybrid
representation, because the right to counsel and the right to
self-representation are “distinct, not overlapping, rights[.]”
State v. Stevens, 

, 

 (1991). Because
defendant was represented by counsel at the relevant times,
the court acted in its authority in declining to consider the
pro se motions. State v. McDonnell, 

, 

 (1992) (“[A] trial court has discretion to allow, as well as
to deny, hybrid representation.”).
          Defendant’s third pro se assignment challenges an
evidentiary ruling in the 2018 case. The trial court excluded
as hearsay an audio recording of a witness’s police interview. As relevant here, defendant had sought to admit that
recording to impeach the witness’s trial testimony that she
could not remember certain details or events. The trial court
did not err. Although a witness’s prior inconsistent statements may be used for impeachment without violating the
hearsay rule, OEC 613, that does not mean that a witness’s
prior substantive statements may be admitted in lieu of live
testimony when the witness’s memory has faded by the time
of trial. State v. Staley, 

, 

(2000). Evidence that a witness used to remember more does
Nonprecedential Memo Op: 

 (2024)            205

not “impeach” her trial testimony that she now remembers
less. 

         Defendant’s fifth pro se assignment challenges the
denial of his MJOA on the murder count, specifically asserting that the trial court failed to consider or properly address
his affirmative defense under ORS 163.115(3). Defendant
does not identify when or how he raised that affirmative
defense, stating only that it was “fairly apprised.” On appeal,
we “may decline to consider any assignment of error that
requires the court to search the record to find the error or to
determine if the error properly was raised and preserved.”
ORAP 5.45(4)(a). In any event, defendant was charged with
murder by abuse, as defined in ORS 163.115(1)(c), and the
affirmative defense in ORS 163.115(3) does not apply to
murder by abuse. It applies only to felony murder as defined
in ORS 163.115(1)(b). See ORS 163.115(3) (providing for “an
affirmative defense to a charge of violating subsection (1)(b)
of this section” (emphasis added)). Even if the defense was
properly raised, defendant was not entitled to a judgment of
acquittal on that basis.
           Defendant’s sixth pro se assignment asserts that
he was denied a fair trial because the trial court allowed
biased jurors to sit on the jury. It is unclear whether defendant is challenging the voir dire in the 2018 case or the 2019
case. More importantly, defendant has not provided any
argument on his sixth pro se assignment, which is dispositive. See ORAP 5.45 (stating briefing requirements); Beall
Transport Equipment Co. v. Southern Pacific, 

, 700 n 2, 

, adh’d to as clarified on recons,

, 

 (2003) (“[I]t is not this court’s
function to speculate as to what a party’s argument might
be. Nor is it our proper function to make or develop a party’s argument when that party has not endeavored to do so
itself.”).
         In sum, having considered and rejected each of the
arguments raised by defendant, both through counsel and
pro se, we affirm.
        Affirmed.