State v. Brower-Gillpatrick

448                  October 9, 2024              No. 723

   This is a nonprecedential memorandum opinion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.
        JESSE RYAN BROWER-GILLPATRICK,
                Defendant-Appellant.
            Columbia County Circuit Court
                21CR37770; A179899

  Michael T. Clarke, Judge.
  Submitted on July 25, 2024.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Marc Brown, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Julia Glick, Assistant Attorney
General, filed the brief for respondent.
  Before Shorr, Presiding Judge, Mooney, Judge, and
Pagán, Judge.
  PAGÁN, J.
   Convictions on Counts 1 and 4 reversed and remanded
for entry of judgment of conviction for a single count of
second-degree robbery; remanded for resentencing; otherwise affirmed.
Nonprecedential Memo Op: 

 (2024)                        449

          PAGÁN, J.
          In this criminal appeal, defendant challenges
his convictions for second-degree robbery, ORS 164.405
(Count 1); second-degree kidnapping, ORS 163.225 (Count
2); unlawful use of a weapon (UUW), ORS 166.220 (Count
3); and unauthorized use of a vehicle (UUV), ORS 164.135
(Count 4).1 The charges arose out of an incident in which
defendant, while holding an open pocketknife, demanded
that the victim drive him to a park and then to a motel. In
his first three assignments of error, defendant contends that
the trial court erred in denying his motions for judgment of
acquittal (MJOA) on Counts 1, 2 and 3. In his fourth assignment, defendant argues that the trial court plainly erred
by failing to merge the verdicts on Counts 1 and 4. For the
reasons explained below, we agree with defendant’s merger
argument, but we reject his first three assignments of error.
          When reviewing the trial court’s denial of an
MJOA, we view the facts in the light most favorable to the
state, drawing all reasonable inferences in the state’s favor.
State v. Connelly, 

, 

 (2019).
We consider “whether any rational trier of fact, accepting
reasonable inferences and making reasonable credibility
choices, could have found the essential elements of the crime
beyond a reasonable doubt.” State v. Lupoli, 

,

 (2010).
          Here, the record shows that when the victim was
standing by his car and preparing to leave for work, defendant ran up from behind and stood about one foot away from
the victim. Defendant, who was running from the police, was
soaking wet, covered in blood, and “[p]retty scary looking.”
Defendant appeared to be on drugs, and he was holding an
open pocketknife.
          Defendant demanded that the victim drive him to
a park, and when the victim refused, defendant got into the
backseat of the victim’s vehicle. The victim, whose family
was inside the house at the end of his driveway, was concerned that defendant would hurt him or his family. The
    1
      Defendant was also convicted of the misdemeanor offenses of menacing,
ORS 163.190 (Count 5) and second-degree theft, ORS 164.045 (Count 6), but he
does not challenge those convictions on appeal.
450                                State v. Brower-Gillpatrick

victim decided to drive defendant to where he wanted to go.
While the victim drove, defendant lay down in the backseat
of the vehicle, and he put on some clothes belonging to the
victim before exiting the vehicle. Defendant was in the victim’s car for about 10 minutes.
         Viewed in the light most favorable to the state, that
evidence was sufficient for the jury to find that defendant
implicitly threatened the immediate use of physical force
upon the victim. See ORS 164.405 (defining second-degree
robbery); see also State v. Brown, 

,

, rev den, 

 (2021) (affirming convictions for second-degree robbery because “the jury could reasonably have inferred that [the] defendant’s display of the
weapon while in close proximity to the [victim] constituted
an implicit threat”). It was also sufficient for the jury to find
that defendant intended to interfere substantially with the
victim’s personal liberty, as required for second-degree kidnapping. See ORS 163.225(1) (defining second-degree kidnapping); see also State v. Zweigart, 

, 

 (2008) (“[A] reasonable juror may infer intent to
interfere substantially with a victim’s freedom of movement
from evidence that the defendant moved the victim a substantial distance.”). The kidnapping was not merely incidental to the crime of UUV because defendant first demanded
that the victim drive, and then sought to minimize the risk
of discovery by lying in the backseat and putting on some
of the victim’s clothes before exiting the vehicle. See State v.
Worth, 

, 

 (2015), rev den, 

 (2016) (observing that evidence that a defendant “sought
to minimize the risk of discovery” is probative of intent to
substantially interfere with a victim’s freedom of movement). In addition, the evidence was sufficient for the jury
to find that defendant carried or possessed the open pocketknife with the intent to threaten immediate harm or injury,
as required for a conviction of UUW. See ORS 166.220(1)(a)
(defining UUW); see also State v. McAuliffe, 

, 

, rev den, 

 (2016) (explaining
that actual use of the weapon is unnecessary for a conviction of UUW). For those reasons, we reject defendant’s first
three assignments of error.
Nonprecedential Memo Op: 

 (2024)             451

          In his fourth assignment, defendant argues that
the trial court plainly erred by failing to merge the guilty
verdicts for UUV and second-degree robbery into a single
conviction for second-degree robbery. The state concedes the
error. We agree with and accept that concession. In State v.
Taylor, 

, 

 (2022), another
case in which UUV was the predicate offense for second-degree robbery, we held that it was plain error not to merge
the guilty verdicts, and we exercised our discretion to correct the error. The same reasoning applies here. The state’s
concession weighs in favor of exercising our discretion to correct it. Furthermore, “the ends of justice will not be satisfied
by a refusal to correct what everyone involved acknowledges
to be error.” State v. Jones, 

, 

(1994). We therefore exercise our discretion to correct the
plain error.
         Convictions on Counts 1 and 4 reversed and
remanded for entry of judgment of conviction for a single
count of second-degree robbery; remanded for resentencing;
otherwise affirmed.