State v. Brown

No. 717 October 9, 2024 417

This is a nonprecedential memorandum opinion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 WILLIAM CODY BROWN,

Defendant-Appellant.

Douglas County Circuit Court

22CR15578; A180171

Ann Marie Simmons, Judge.

Submitted August 28, 2024.

Ernest G. Lannet, Chief Defender, Criminal Appellate

Section, and Brett J. Allin, Deputy Public Defender, Office

of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Shannon T. Reel, Assistant Attorney

General, filed the brief for respondent.

Before Shorr, Presiding Judge, Mooney, Judge, and

Pagán, Judge.

SHORR, P. J.

Remanded for resentencing; otherwise affirmed.

418 State v. Brown

SHORR, P. J.

After an incident in which defendant entered a

trailer home and used mace on the three occupants, the

state charged defendant with multiple offenses, and a jury

found him guilty of unlawful use of a weapon, ORS 166.220

(Count 1); coercion, ORS 163.275 (Count 2); menacing, ORS

163.190 (Count 3); harassment, ORS 166.065(3) (Count 4);

first-degree burglary, ORS 164.255 (Count 5); first-degree

criminal trespass, ORS 164.255 (Count 6); and three counts

of second-degree use of mace, ORS 163.212 (Counts 7, 8, 9).

The trial court merged the guilty verdicts on Counts 5 and

6 into a single conviction for first-degree burglary and sen-

tenced defendant to a total of 81 months in prison.

On appeal, defendant raises four assignments of

error. He argues that the evidence was insufficient for the

burglary and trespass charges and that the trial court erred

in denying his motion for judgment of acquittal (MJOA) on

each of those counts,1 that the trial court erred in provid-

ing an outdated “witness false in part” jury instruction, and

that the post-prison supervision (PPS) term for his coercion

conviction exceeds the statutory maximum. As to defen-

dant’s fourth assignment of error, the state concedes the

sentencing error. We agree with and accept that concession.

We therefore remand for resentencing but, for the reasons

explained below, we reject defendant’s first three assign-

ments of error.

In his first and second assignments, defendant

argues that the state presented insufficient evidence to

prove either first-degree burglary or first-degree trespass-

ing. Assuming without deciding that defendant preserved

both of those assignments of error, we conclude that the

jury could have found that defendant entered and remained

unlawfully in the trailer home. There was evidence that

defendant, late at night, cut the coverings on a broken

window on the back door of the trailer home to unlock the

door and enter the home. The tenant who rented the home

had previously told defendant that he was not allowed to

1

Defendant made an MJOA on Count 5 and contends on appeal that he effec-

tively made an MJOA on Count 6 when he argued that the state failed to prove

one of the elements of that offense.

Nonprecedential Memo Op: 335 Or App 417 (2024) 419

spend the night, and he had checked that the doors were

locked. While inside the trailer home, defendant argued

with the three occupants, one of whom was his mother, and

he sprayed them with pepper spray or mace. That evidence

was sufficient for the jury to find that defendant entered and

remained unlawfully.

In arguing otherwise, defendant claims that the

state failed to prove that he had not been invited into the

home by his mother, but he points to no evidence that his

mother had invited him. Other evidence established that

the tenant had excluded defendant from spending the night

at the home. For that reason, defendant’s reliance on State

v. Schneider, 246 Or App 163, 265 P3d 36 (2011), rev den,

351 Or 546 (2012) is misplaced. See id. at 168 (concluding

that the state failed to prove that the defendant was not

privileged to be in the apartment common area where he

had been excluded by the property manager but invited by a

tenant). There is no evidence here that one occupant’s invi-

tation conflicted with other exclusion directives. The trial

court did not err in determining that there was sufficient

evidence for the jury to decide whether defendant entered

and remained unlawfully in the trailer home.

In his third assignment of error, defendant argues

that the trial court erred in providing the jury with an out-

dated version of Uniform Criminal Jury Instruction 1029,

the “witness false in part” instruction. The trial court

instructed the jury that, “A witness who lies under oath in

some part of his or her testimony is likely to lie in other

parts of his or her testimony.”2 Defendant argues that the

trial court erred in providing that instruction because it is

an improper comment on the evidence.

Defendant argued below that the instruction “often

amounts to a comment on the evidence,” which was suffi-

cient for preservation purposes. Considering defendant’s

argument on its merits, in State v. Zelinka, 130 Or App 464,

477-78, 882 P2d 624 (1994), rev den, 320 Or 508 (1995), we

2

The uniform instruction was revised in 2012 to omit that sentence. State v.

Sharinghousen, 279 Or App 593, 597 n 3, 379 P3d 728 (2016). The instruction now

provides, in part, that “if you find that a witness has intentionally lied in part of

his or her testimony, you may, but are not required to, distrust other portions of

that witness’s testimony.” UCrJI 1029.

420 State v. Brown

rejected the argument that the same version of the “wit-

ness false in part” jury instruction constituted an improper

comment on the evidence. Zelinka is binding precedent and

defendant does not argue that Zelinka is plainly wrong or

should be overruled. See Farmers Ins. Co. v. Mowry, 350 Or

686, 698, 261 P3d 1 (2011) (“the party seeking to change

a precedent must assume responsibility for affirmatively

persuading us that we should abandon that precedent.”

(Internal quotation marks omitted)). We therefore reject

defendant’s third assignment of error.

In his fourth assignment, defendant argues that the

trial court plainly erred in imposing a sentence for his coer-

cion conviction that exceeds the statutory maximum. OAR

213-005-0002(4) prohibits a PPS term that, when added to

the prison term, exceeds the “statutory maximum indeter-

minate sentence for the crime of conviction.” Coercion is a

Class C felony. ORS 163.275(2). The statutory maximum

indeterminate sentence for that conviction is 5 years or, in

other words, 60 months. ORS 161.605(3). Here, on Count 2,

the trial court sentenced defendant to 36 months of prison

and imposed 36 months of PPS, which exceeds the statutory

maximum. The trial court plainly erred, the state concedes

the error, and we exercise our discretion to correct it. On

remand, the trial court must reduce the sentence so that it

does not exceed the statutory maximum.3

Remanded for resentencing; otherwise affirmed.

3

In January 2024, in the trial court, the state filed a joint motion to modify

the judgment to reflect a prison sentence of 26 months and a PPS term of 24

months on Count 2, but, to date, the trial court has not ruled on the motion.