State v. Abbott

362 P.3d 1171, 274 Or. App. 778, 2015 Ore. App. LEXIS 1299
CourtCourt of Appeals of Oregon
DecidedNovember 12, 2015
Docket130230735; A154573
StatusPublished
Cited by5 cases

This text of 362 P.3d 1171 (State v. Abbott) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Abbott, 362 P.3d 1171, 274 Or. App. 778, 2015 Ore. App. LEXIS 1299 (Or. Ct. App. 2015).

Opinion

HADLOCK, J.

Defendant, who concedes that he was properly convicted of first-degree theft, challenges his convictions for first-degree robbery, unlawful use of a weapon (UUW), menacing, and second-degree robbery. The charges that led to those latter convictions were premised on allegations that defendant used or threatened to use force in conjunction with committing the theft. Defendant raises eight assignments of error on appeal, all relating to a single issue: whether the trial court erred by allowing the prosecutor to ask defendant, who testified at trial, whether other witnesses had lied when they described events differently than defendant had. We conclude that, although the trial court erred when it overruled defendant’s objections to some of the prosecutor’s questions, that error was harmless. Accordingly, we affirm.

We describe the relevant evidence as presented both by the state’s witnesses and by defendant, who testified at trial. In doing so, we highlight those aspects of the prosecutor’s cross-examination of defendant that form the basis of defendant’s arguments on appeal.

Alvin and Toby Scheps, who are in their early 70s, often participated in a weekly swap meet at an Eagles Lodge in Portland, where they bought and sold jewelry and “scrap gold.” The couple often displayed several thousand dollars worth of gold and jewelry; they also kept several thousand dollars worth of cash on hand. Alvin Scheps carried a bag that looks like a purse and has compartments in which he kept cash, gold, and jewelry, taking cash out of the bag when he needed it. He also carried a firearm.

One afternoon in February 2013, Pool, who worked at the Eagles Lodge, saw defendant hanging around the lodge for about an hour before the theft occurred. Alvin Scheps also noticed defendant, whom he had never seen before, walking around the lodge. Scheps thought that defendant might be with a group that was going to use the facility for another purpose after the swap meet closed, partly because he saw defendant fold up a table, like other members of that group were doing. Soon thereafter, as Alvin and Toby Scheps were packing up to leave, defendant stole Alvin Scheps’s bag from the chair that it had been on. Toby Scheps called out, saying, [780]*780“That man stole our bag.” Pool pursued defendant, who had run out of the building.

Pool got into a truck, drove for a block, and then spotted defendant “running fast and putting something in his pant pockets.” Pool also saw that defendant had Alvin Scheps’s bag. Pool jumped from the truck, defendant threw the bag onto the ground, and Pool picked up the bag, tossing it into the truck. At that point, Pool had lost sight of defendant, but a man working nearby — later identified as Bustamante — pointed in the direction that defendant had gone. Pool told Bustamante that defendant had robbed some people. Pool then drove to a nearby restaurant and asked another pedestrian if he had seen anybody running; the pedestrian pointed toward some bushes, and Pool saw feet sticking out from under a bush, as well as defendant’s face.

Pool struggled with defendant, trying to pull him out from under the bush. At some point during the struggle, defendant said, “Leave me alone, I have a gun.” Pool believed that defendant might actually have a gun, because Pool knows that Alvin Scheps carried a weapon and thought it might have been in the bag that defendant stole. Pool left because, as he put it, “I’m not a friend of weapons and I didn’t want to verify if he had a weapon or not.” He returned to the Eagles Lodge and gave the bag to Alvin Scheps, who discovered that its contents were missing.

Pool also spoke to police officer Brennan, who had responded to a call about the theft, telling him where he had left defendant and that defendant might have a gun. Brennan broadcast that information to other officers who were investigating the crime. At that point, Brennan also received information that defendant was in a fight with somebody in a particular alleyway, and he departed for that location without having time to ask Pool more questions about why he thought defendant might have a gun.

In the meantime, Bustamante had spotted defendant in the bushes and told him to “hang tight” until police officers arrived. Defendant did not stay long; instead, he emerged from the bushes and ran down an alley, with Bustamante in pursuit. Bustamante caught up to defendant and grabbed his sweatshirt. Defendant repeatedly asked [781]*781Bustamante to let him go, saying, “They got their stuff back.” Bustamante restrained defendant for several minutes, as defendant “continually tried to get up.” Bustamante was holding onto defendant by his sweatshirt, pulling on it to keep defendant down, and the sweatshirt eventually came over defendant’s head, leaving him shirtless. Bustamante testified that he did not punch, strangle, or hit defendant.

A neighbor (Knepell) who observed some parts of the interaction saw Bustamante attempting to keep defendant on the ground. She saw “no violence” like Bustamante hitting defendant with a stick or a post. She did observe defendant yelling things like, “get your hands off me,” even when Bustamante was not touching him. Knepell also called 9-1-1.

Defendant was able to get up after his shirt came off, and he picked up a piece of broken concrete, which Bustamante estimated was about five inches in diameter. Defendant raised the concrete over his head with two hands in what Bustamante “thought was an extremely threatening manner”; Bustamante’s “obvious fear” was that the concrete could have struck him in the head if defendant threw it. Bustamante immediately moved and loudly told defendant to put the rock down. Because Bustamante had spotted police officers nearby, he backed away from defendant very quickly, knowing “that the police were two to three seconds from rounding” a corner into the alley.

Indeed, officers quickly rounded the corner, saw Bustamante retreating, and repeatedly told defendant to put down the concrete, which he did after several commands. Although defendant was noncompliant, officers were eventually able to handcuff him and take him into custody.

Brennan read defendant Miranda warnings and, after defendant said that he understood them, explained to defendant why officers were there and what they had been told. Defendant told Brennan that he had been at the Eagles Lodge only briefly before he stole the bag. Defendant said he was then chased by a man who told him to give back the bag. According to defendant, he complied and gave the bag and all of its contents to the man who had chased him, who turned out to be Pool. At that point, Brennan thought [782]*782that defendant actually might have given the bag and its contents to Pool because defendant “was adamant that he didn’t have anything with him,” having returned it all, and he “just wanted to be done” and not get chased anymore. Defendant said that, if anything was missing from the bag, it must have been Pool who stole it. Officers patted defendant down for weapons and put him into Brennan’s patrol car for transport to a police station.

Brennan testified that, when he took defendant out of the patrol car after they arrived at the station, the back seat of the car “looked like a jewelry store exploded.” Small pieces of gold, jewelry, and “lots and lots and lots of little things [were] all over the place.” Brennan then searched defendant more thoroughly and found over $4,800 in cash, wedged between his buttocks.

Detective Reynolds interviewed defendant a few hours later.

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Cite This Page — Counsel Stack

Bluebook (online)
362 P.3d 1171, 274 Or. App. 778, 2015 Ore. App. LEXIS 1299, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-abbott-orctapp-2015.