Beruflich Dokumente
Kultur Dokumente
v. CA A164155
Defendant-Appellant.
67134 01/18
i
TABLE OF CONTENTS
Jurisdiction .....................................................................................................1
The trial court erred in precluding defendant from arguing that the
trespass and exclusion orders were unlawful.
II. The trial court erred in excluding relevant evidence that supported
defendant’s arguments that the exclusion and trespass orders were
unlawful. ...................................................................................................15
CONCLUSION ...................................................................................................19
TABLE OF AUTHORITIES
Cases
Cler v. Providence Health Sys. Oregon,
349 Or 481, 245 P3d 642 (2010) .....................................................................11
J. D. v. S. K.,
282 Or App 243, 385 P3d 1161 (2016), rev den, 361 Or 439 (2017) .............11
State v. Barajas,
247 Or App 247, 268 P3d 732 (2011) .............................................................17
State v. Davis,
336 Or 19, 77 P3d 1111 (2003) .......................................................................17
State v. Fletcher,
263 Or App 630, 330 P3d 659, 661 (2014) .............................................. 12, 13
iii
State v. Goodin,
8 Or App 15, 492 P2d 287 (1971) ...................................................................12
State v. Gray,
286 Or App 799, 401 P3d 1241 (2017) ...........................................................11
State v. Hooper,
256 Or App 237, 300 P3d 235, rev den, 354 Or 61 (2013).............................12
State v. Koenig,
238 Or App 297, 242 P3d 649 (2010), rev den, 349 Or 601 (2011) ...............13
State v. Lovins,
177 Or App 534, 33 P3d 1060 (2001) .............................................................17
State v. Marbet,
32 Or App 67, 573 P2d 736 (1978) .............................................. 10, 13, 16, 18
State v. Ratliff,
304 Or 254, 744 P2d 2470 (1987) ...................................................................14
State v. Riddell,
172 Or App 675, 21 P3d 128 (2001) ....................................................... 13, 14
State v. White,
211 Or App 210, 154 P3d 124, as clarified on recons, 213 Or App 584, rev
den, 343 Or 224 (2007) ...................................................................................18
OEC 401..............................................................................................................15
OEC 402..............................................................................................................15
Other Authorities
ORAP 5.45 ............................................................................................................7
APPELLANT’S OPENING BRIEF
trespass in the second degree, ORS 164.245, based on the trial courts limitations
of his arguments challenging the lawfulness of the trespass order and its
Jurisdiction
Notice of Appeal
Questions Presented
state to prove that an order to leave was lawful, is the defendant entitled to
argue to the jury that the trespass order is unlawful because it violated Oregon
Summary of Argument
defendant used the bathroom and then began walking down a hospital corridor,
away from the nearest hospital exit. A hospital security guard ordered
defendant to leave through a particular door, and defendant did not comply.
At trial, defendant sought to argue that the 2011 exclusion order and the
2015 trespass order based on it were unlawful because they violated public-
accommodation and disability laws. The trial court barred defendant from
arguing the lawfulness of the order to the jury and excluded as irrelevant
3
arguing that the state failed to prove an essential element a charge. An essential
element of second-degree trespass is that the order for defendant to leave must
be lawful. This court has held that a trial court errs in barring a defendant from
trespass charge.
Likewise in this case, it was error for the court to prohibit defendant from
arguing to the jury that the order was unlawful. It was also error to exclude
evidence that tended to show that the exclusion and trespass orders violated
Oregon and federal statute. Those errors harmed defendant, so his case must be
Summary of Facts
State’s evidence
the premises may result in your arrest for criminal trespass in the
second degree.”
Tr 449-50; Ex 1, ER-4.
hospital “or he would die.” Tr 564. He became verbally aggressive and said
that he had Central Pain Syndrome. Tr 564. Defendant tried to get into the
restrained him and sedated him with two drugs. Tr 569-70. They delivered
received a call that defendant was subject to an exclusion order and that he had
just been discharged from the emergency room. Tr 470-71, 484. Davies went
to the emergency room, where hospital staff told him that defendant was in the
bathroom. Tr 472. Davies saw defendant leave the bathroom, turn away from
the nearest hospital exit, and walk further into the hospital. Tr 472. There are
other hospital exits in the direction that defendant walked. Tr 473, 476. Davies
the exclusion order. Tr 479. Defendant replied, “Nope, I am not stopping,” and
5
turned around and began walking back towards the emergency room. Tr 480.
Defendant sat down in the emergency room lobby and said that he refused to
leave. Tr 480. He yelled and waved his arms. Tr 480. Davies handcuffed him
and tried to escort him out, but defendant went limp. Tr 483-84.
Portland Police Office Jena Lemke responded to the hospital, where she
room and the children’s hospital. Tr 514. She walked defendant to her patrol
car and took him to jail. Tr 515. She did not notice any health issues with
defendant. Tr 518-19.
Defense evidence
Two days before his arrest, defendant went to the emergency room at
received treatment from the attending physician. Tr 638. Once his heart rate
worsened. Tr 641.
6
worsened. Tr 641, 648. After being sedated, he passed out and awoke in a
the room, used the bathroom near the waiting room, and then walked towards
the hospital exit that was nearest to the bus stops. Tr 652. It was cold out and
he was wearing shorts. Tr 653. As he was walking towards the exit, someone
approached him from behind and gave him a trespass warning. Tr 654.
Security guards tried to usher him out through a fire exit, but defendant wanted
to take a different exit. Tr 657. When they arrested him, he sat down and
waited for the police. Tr 658. The police escorted him from the hospital. Tr
659.
The trial court erred in precluding defendant from arguing that the
state’s witnesses about the 2011 incident that led to the exclusion order.
1
Defendant refers to the 2011 order barring defendant from the
hospital except for emergency medical treatment as the “exclusion order.” He
refers to the order to leave issued on the date of arrest as the “trespass order.”
7
At several points before and during trial, defendant3 asserted that he was
not guilty because the exclusion order was unlawful based on his status as a
person with a disability. See, e.g., Tr 124-25, 246-55, 292-93, 317-22. For
example, defendant discussed that defense with the court at a pretrial hearing on
September 6, 2016:
2
Defendant combines the preservation of error, standard of review,
and argument for his first through third assignments of error, because they
present essentially the same legal issue. ORAP 5.45 (6).
3
Defendant represented himself at trial with the assistance of
advisory counsel. Unless otherwise noted, defendant personally raised the
issues identified in this section.
8
Tr 293.
whether the order to leave was lawful.” Tr 328. The trial court ruled that
defendant would not be allowed to argue about the lawfulness of the exclusion
order:
“* * * * *
Tr 352-53. Consistent with that ruling, the court also “disallow[ed] any
Hospital prior to November 20[, 2015,]” including the incident that gave rise to
order against defendant in 2011, defendant asked him about the circumstances
that gave rise to the exclusion order. Tr 454. The state objected, and the trial
court again ruled that defendant could not discuss the factual basis for the order:
Tr 457.
After the state rested, defendant sought to admit his medical records:
marked as Exhibits 105 and 106. Tr 601-03. Defendant argued that those
exhibits were relevant to his argument that the trespass order was unlawful. Tr
604-19.
The court reiterated its earlier ruling that defendant could not challenge
the lawfulness of the exclusion order, and it further held that defendant would
not be allowed to introduce evidence to support his arguments that the order
was unlawful:
* * constitutional rights were violated and that you were not being
accommodated under 690. * * *
“* * * * *
Tr 624-25, 629.
349 Or 481, 487, 245 P3d 642 (2010). It reviews the court’s exercise of control
App 243, 244, 385 P3d 1161 (2016), rev den, 361 Or 439 (2017). Relevance
determinations are reviewed for errors of law. State v. Gray, 286 Or App 799,
Combined Argument
“Absent abuse, the control of closing arguments is left to the trial court
judge, who has broad authority to control the conduct of the trial.” State v.
Goodin, 8 Or App 15, 23-24, 492 P2d 287 (1971). For example, a “trial court
did not abuse its discretion when it prevented a defendant, in closing argument
to the jury, from rehashing an immaterial, pretrial argument about venue, based
on the convenience of witnesses.” State v. Fletcher, 263 Or App 630, 634, 330
P3d 659, 661 (2014) (citing State v. Hooper, 256 Or App 237, 240, 300 P3d
closing argument to prevent him from arguing that the state had failed to prove
example, the trial court in Fletcher ruled that “defendant could not contend, in
closing argument, that the state must prove, but had not, that defendant intended
or knew that he used a dangerous weapon.” Id. at 631. On appeal, this court
understanding of the law, and consequently, the trial court had abused its
commits the crime of criminal trespass in the second degree if the person enters
leave premises that are open to the public after being lawfully directed to do so
state must prove as an element of the offense that the direction for the defendant
to leave the premises was lawful. State v. Koenig, 238 Or App 297, 308, 242
73, 573 P2d 736 (1978). For example, in Koenig, this court reversed the denial
its holding that the trespass order ran afoul of the defendant’s constitutional
The trial court here ruled that defendant needed to challenge the 2011
exclusion order in a civil proceeding and that he could not challenge it in this
criminal proceeding. But this court has held such a ruling to be legal error. In
State v. Riddell, this court held that the trial court erred in barring a defendant
172 Or App 675, 687, 21 P3d 128 (2001). It reasoned that, even though there
was an administrative process to appeal the exclusion order that the defendant
did not take advantage of, that process was “not as ‘formal and comprehensive’
(quoting State v. Ratliff, 304 Or 254, 259-60, 744 P2d 2470 (1987)). Thus, the
Likewise here, the trial court erred by barring defendant from collaterally
order here, like the one in Riddell, did not provide a sufficient procedural
mechanism to appeal the exclusion order). Thus, defendant should not have
been barred from collaterally challenging it and any trespass order based on it.
essential element of the charge. The court further erred in excluding evidence
II. The trial court erred in excluding relevant evidence that supported
defendant’s arguments that the exclusion and trespass orders were
unlawful.
less probable than it would be without the evidence.” OEC 401. All relevant
element of trespass in the second degree. One way to show that a trespass order
was unlawful is to show that the exclusion order that authorized it was
unlawful. Thus, the lawfulness of both orders was a material issue, and
purpose and that they were unlawful. To do that, he needed to present evidence
about the circumstances surrounding the 2011 incident, which would tend to
show the reasons for the exclusion order. Thus, that evidence was relevant to
records reinforced defendant’s testimony about his diagnosis with Central Pain
Disabilities Act (ADA). Tr 293. Those provisions suggest that a trespass order
unless certain showings are made.); ORS 659A.142 (“It is an unlawful practice
a disability.”).
Thus, evidence about whether defendant had a disability and whether the
Or App at 73 (“If the manager [of a restaurant] had authority to direct the patron
discrimination statute may have been violated by the order to leave is a proper
inquiry in a criminal trespass trial.”). The trial court erred in barring evidence
17
about the 2011 incident and defendant’s medical records supporting and
itself [i]s affected * * * because the court denied one of its required elements.”
State v. Lovins, 177 Or App 534, 538, 33 P3d 1060 (2001). In such cases, this
argument, that principle applies with equal force here. The only element that
(defendant stating that he was not challenging the authority of the person who
gave the order and was only challenging “the lawfulness of the order to leave”).
Thus, for practical purposes, the prohibition on argument about that element
requires reversal.
should reverse. This court “must affirm a judgment, despite any error
committed at trial, if, after considering all the matters submitted, the court is of
the opinion that the judgment ‘was such as should have been rendered in the
case.’” State v. Davis, 336 Or 19, 28, 77 P3d 1111 (2003) (quoting Or Const
18
Art VII (Amended), § 3). Ordinarily, whether the court must affirm despite
error depends upon “a single inquiry: Is there little likelihood that the particular
Here, defendant contended that the exclusion order was unlawful because
colorable basis for the jury to find that the exclusion order was unlawful.4
examination of witnesses about the lawfulness of the order compound the harm.
Without the errors, defendant would have been able to present evidence
regarding whether the orders were unlawful, and he would have been able to
cite that evidence in his arguments to the jury. That was defendant’s sole
defense to the charge, and the court’s errors completely deprived defendant of
that defense. There is more than “little likelihood” that the errors affected the
4
Although defendant’s argument involved a legal issue, it was
ultimately “for the jury to decide the factual predicates underlying the elements
of a crime.” State v. White, 211 Or App 210, 217, 154 P3d 124, as clarified on
recons, 213 Or App 584, rev den, 343 Or 224 (2007) (holding that it was for the
jury to decide whether facts established that order was lawful).
19
CONCLUSION
For those reasons, defendant respectfully asks this court to reverse the
Respectfully submitted,
ERNEST G. LANNET
CHIEF DEFENDER
CRIMINAL APPELLATE SECTION
OFFICE OF PUBLIC DEFENSE SERVICES
ESigned
Signed
________________________________
By Brett J Allin at 2:30 pm, Jan 02, 2018
Information ......................................................................................................ER-1
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BARRY JOE STULLY
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·c DOB: 08/13/1962
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MO" 'l. l ?Ofi
Defendant(s). " .• . Q\s\r\Gt
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The above-named defendant(s) is accused by this information of the crime(s) of COUNT l'+'~,CRIM®"AL TRESPASS IN
THE SECOND DEGREE, committed as follows:
COUNT 1
CRIMINAL TRESPASS IN THE SECOND DEGREE
The said Defendant(s), BARRY JOE STULL, on or about November 22, 2015, in the County of Multnomah, State of
Oregon, did unlawfully and intentionally, knowingly, and recklessly enter and remain in and upon the premises located at
2801 N GATENBEIN AVE PORTLAND OREGON (EMANUEL HOSPITAL), contrary to the statutes in such cases made
and provided and against the peace and dignity of the State of Oregon,
By--l-----'8.Ll.--14.l~:l!!.:::::......'-_..--~
Shann
Uniform Complaint
AFFIRMATIVE DECLARATION
The District Attorney hereby affirmatively declares for the record, as required by ORS 161.566, upon the date scheduled for the first appearance of the defendant, and before the
court asks under ORS 135.020 how the defendant pleads to the charge(s), the State's intention that any misdemeanor charged herein proceed as a misdemeanor.
Pursuant to 2005 Or Laws ch. 463 sections l to 7, 20(1) and 21to23, the State hereby provides written notice of the State's intention to
rely at sentencing on enhancement facts for any statutory ground for the imposition of consecutive sentences codified under ORS 137.123
on these counts or to any other sentence which has been previously imposed or is simultaneously imposed upon this defendant.
..
en
0 Report to Sheriff by: _ _ _ _ _ _ to arrange TSI date Work Release: o Recommended o NOT Recommended
o Consecutive to:----------~ 0 By Stipulation 0 Findings per ORS 137.123(5): _ _ _ _ _ _ _ _ __
[] Concurrent with: _ _ _ _ _ _ _ _ __ [J Other_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
The releasing authority OMAY OMA Y NOT release the defendant on post-prison supervision under ORS 421.508(4) following successful completion of an
alternative incarceration program. *Basis for ineligibility: CJ By Stipulation CJ Substantial and compelling reasons (specify): _ _ _ _ _ _ _ _ _ _ __
Dated:\ I~1 (~
Original to Court File
Judge (Signature),~~~~~~LL.-L~~~~::__:
Copies to: I _i Probation Judge
23-74A (05/2014) Page --~,-
\ of -~-- l
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ER-4
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REGISTER OF ACTIONS
CASE NO. 15CR52961
Related Cases
15CR53749 (Related - Same Defendant)
PARTY INFORMATION
Attorneys
Defendant Stull, Barry Joe Also Known Male White Pro SeBRYAN
As Stully, Barry Joe DOB: 1958 FRANCESCONI
6' 2", 260 lbs Court Appointed
503 225-9100(W)
KASIA E RUTLEDGE
Court Appointed
503 225-9100(W)
Kevin Kelley
Court Appointed
503 648-0707(W)
Eamon P McMahon
503 988-3162(W)
MICHAEL BOTTHOF
503 988-3162(W)
SEAN M MAZOROL
503 988-3162(W)
TODD T JACKSON
503 988-3162(W)
CHARGE INFORMATION
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ER-5
DISPOSITIONS
12/03/2015 Plea (Judicial Officer: Greenlick, Michael A)
1. Criminal Trespass in the Second Degree
Not Guilty
Created: 12/03/2015 9:53 AM
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ER-6
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ER-8
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CERTIFICATE OF COMPLIANCE WITH ORAP 5.05
Brief length
I certify that this brief complies with the word-count limitation in ORAP 5.05, which
word-count is 4,041 words.
Type size
I certify that the size of the type in this brief is not smaller than 14 point for both the
text of the brief and footnotes.
I certify that I directed the original Appellant's Opening Brief to be filed with
the Appellate Court Administrator, Appellate Courts Records Section, 1163 State
Street, Salem, Oregon 97301, on January 2, 2018.
I further certify that, upon receipt of the confirmation email stating that the
document has been accepted by the eFiling system, this Appellant's Opening Brief
will be eServed pursuant to ORAP 16.45 (regarding electronic service on registered
eFilers) on Benjamin Gutman #160599, Solicitor General, attorney for Plaintiff-
Respondent.
Respectfully submitted,
ERNEST G. LANNET
CHIEF DEFENDER
CRIMINAL APPELLATE SECTION
OFFICE OF PUBLIC DEFENSE SERVICES
ESigned
Signed
________________________________
By Brett J Allin at 2:30 pm, Jan 02, 2018
BRETT J. ALLIN OSB #142719
DEPUTY PUBLIC DEFENDER
Brett.J.Allin@opds.state.or.us