State v. Cooper

812                 February 12, 2025              No. 101

   This is a nonprecedential memorandum opinion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.
             JEFFREY FERRIS COOPER,
                 Defendant-Appellant.
            Washington County Circuit Court
                 22CR49031; A181200

  Eric Butterfield, Judge.
  Submitted December 30, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Nora Coon, Deputy Public Defender, Oregon
Public Defense Commission, filed the brief for appellant.
Jeffrey F. Cooper filed the supplemental brief pro se.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Philip Thoennes, Assistant Attorney
General, filed the brief for respondent.
   Before Tookey, Presiding Judge, Kamins, Judge, and
Kistler, Senior Judge.
  KAMINS, J.
  Remanded for resentencing; otherwise affirmed.
Nonprecedential Memo Op: 

 (2025)            813

        KAMINS, J.
         Defendant appeals a judgment convicting him of
second-degree theft, ORS 164.045, and harassment, ORS
166.065. Defendant raises three assignments of error, one
through counsel and two pro se. In the counseled assignment of error, defendant contends that the trial court
erred in imposing a probation condition, because it was not
announced in open court. In his two pro se assignments of
error, defendant contends (1) that the trial court erred in
denying his motion for judgment of acquittal (MJOA), and
(2) that the trial court erred in excluding his character witnesses. We remand for resentencing, because the trial court
did not announce the challenged condition in open court and
otherwise affirm.
          “In 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. Leake, 

, 

, rev den, 

(2023). Defendant, a taxicab driver, agreed to drive P to a
medical appointment and back to her assisted living facility
for $80. After defendant drove P to her appointment, she
paid defendant $40. Upon returning to the assisted living
facility, defendant and P disagreed about the money owed.
Defendant “snatched” all of the money from P’s hand—
about $150—and made contact with her hand while doing
so. P told defendant that he took more money than he was
owed and asked defendant to return the money. Defendant
refused, “screamed,” and cursed at P. And according to the
office manager at the facility, defendant “reared back his
fist” as if to strike P. The manager intervened and told
defendant to leave the property. Defendant got in his car
and “started backing into [P],” nearly hitting her with the
car door, before leaving.
         For that conduct, defendant was found guilty of
theft in the second-degree and harassment. In its written
judgment, the trial court imposed the following special
condition: “The defendant shall waive all client/psychotherapist privilege and shall sign any release or authorizations necessary to ensure the court, parties, supervising
814                                          State v. Cooper

officers, and treatment providers can share information and
documentation.”
         In his first counseled assignment of error, defendant contends (and the state correctly concedes) that the
trial court erred in imposing that special condition because
it was not announced in open court. “We review a sentencing
court’s imposition of a probation condition for legal error.”
State v. Priester, 

, 

, rev den,

 (2023). At sentencing, the trial court commented
that a condition “might involve mental health treatment
and medication.” That reference to mental health treatment
did not apprise defendant of the challenged condition; therefore, the trial court erred. See id. at 581 (explaining that
a “criminal defendant has the right to have their sentence
announced in open court,” and that the failure to do so is
legal error).
         As noted, the state concedes the error; the only
dispute is the remedy. Defendant requests that we simply
strike the challenged condition, while the state argues that
we remand for resentencing. “In similar cases,” where a trial
court erred in imposing invalid special conditions, “we have
concluded that a remand for resentencing is appropriate.”
State v. Anotta, 

, 

, rev den,

 (2020); see also ORS 138.257(4)(a)(B) (“The
appellate court shall remand the case to the trial court …
[i]f the appellate court determines that the trial court, in
imposing or failing to impose a sentence in the case, committed an error that requires resentencing.”). Accordingly,
we agree with the state and remand to the sentencing court.
         In his first pro se assignment of error, as best we
understand, defendant argues that the trial court erred in
denying his MJOA on the theft in the second-degree and
harassment charges. 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).
        We conclude that the trial court did not err, because
the state presented evidence from which a factfinder could
Nonprecedential Memo Op: 

 (2025)            815

reasonably infer that defendant was guilty of both second-degree theft and harassment. That evidence included witness testimony establishing that defendant snatched money
from P, despite P’s protests; defendant made contact with P’s
hand; and he screamed and cursed at P before driving away
with the money. That evidence is sufficient to prove theft in
the second-degree and harassment. See ORS 164.045(1)(b)
(a person commits second-degree theft “when, with intent
to deprive another of property or to appropriate property
to the person or to a third person, the person … [t]akes,
appropriates, obtains or withholds such property from an
owner thereof,” ORS 164.015(1), and “[t]he total value of the
property in a single or aggregate transaction is $100 or more
and less than $1000”); see also ORS 166.065(1)(a) (“A person
commits the crime of harassment if the person intentionally” “[h]arasses or annoys another person by” “[s]ubjecting
such other person to offensive physical contact[.]”).
         In his final pro se assignment of error, defendant
contends that the trial court erred in excluding his character
witnesses from testifying pursuant to OEC 404(2)(a), which
provides that evidence of a person’s character is admissible
“for the purpose of proving that the person acted in conformity therewith on a particular occasion,” when it is evidence
“of a pertinent trait of character offered by an accused[.]”
“The admissibility of evidence under OEC 404(2)(a) is a
question of law.” State v. Etzel, 

, 

 (2021). During trial, defendant, who represented
himself, provided the names of the character witnesses he
wanted to testify. When the trial court asked the relevancy
for that testimony, defendant provided that it was to prove
that that he was “an honest man” and “never cheated anyone.” The trial court determined that because defendant did
not identify “any specific relevant and admissible purpose”
for the testimony, the character witnesses were not permitted to testify.
        We conclude that the trial court did not err. That is
because the factual basis for the charges was that defendant
took money from P and made contact with P’s hand while
doing so; defendant did not dispute that conduct at trial. On
appeal, defendant does not identify how his reputation for
816                                            State v. Cooper

honesty is pertinent to those issues. See State v. Guritz, 

, 

, rev den, 

 (1995)
(noting that a “defendant may only introduce evidence of a
‘pertinent trait’ of character, and whether a trait is pertinent
depends on the nature of the crime charged”). Therefore, the
trial court did not err.
        Remanded for resentencing; otherwise affirmed.