State v. Caldwell

780 P.2d 789, 98 Or. App. 708, 1989 Ore. App. LEXIS 1486
CourtCourt of Appeals of Oregon
DecidedOctober 11, 1989
DocketC87-12-36954; CA A49191
StatusPublished
Cited by4 cases

This text of 780 P.2d 789 (State v. Caldwell) 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. Caldwell, 780 P.2d 789, 98 Or. App. 708, 1989 Ore. App. LEXIS 1486 (Or. Ct. App. 1989).

Opinions

[710]*710GRABER, P. J.

Defendant appeals from convictions for kidnapping in the first degree, rape in the first degree, sodomy in the first degree, and robbery in the third degree. ORS 163.235; ORS 163.375; ORS 163.405; ORS 164.395. He assigns as error the giving of a jury instruction that “one who has the purpose of forcibly raping another has the purpose of causing physical injury.”1 We affirm.

The trial court first instructed the jury on general matters, including these:

“It is your sole responsibility to make all the decisions about the facts in this case.
“ * * * *
“You are further instructed that the law presumes that the defendant is innocent, and this presumption follows the defendant unless and until the defendant is proven guilty beyond a reasonable doubt. The burden is upon the state to prove the guilt of a defendant beyond a reasonable doubt.”

Then the court instructed “regarding the elements of the various crimes that the defendant is charged with.” With respect to kidnapping in the first degree, the court said:

“A person commits Kidnapping in the First Degree if, with intent to interfere substantially with another person’s personal liberty and without consent or legal authority he takes the other person from one place to another to cause physical injury to the victim.”

The burden is on the state, she instructed, to “prove beyond a reasonable doubt” the elements of that crime, including the element that defendant acted with the purpose to cause physical injury to the victim.

With respect to rape in the first degree, the court instructed that the state must prove beyond a reasonable doubt each element, including the element that defendant [711]*711subjected the victim to forcible compulsion. With respect to sodomy in the first degree, the court similarly instructed that the state must prove beyond a reasonable doubt that defendant subjected the victim to forcible compulsion. With respect to robbery in the third degree, the court instructed that the state must prove beyond a reasonable doubt that defendant, in the course of committing theft, used physical force against the victim.

After instructing on the elements of the crimes, the trial court told the jury that she was going to give them “various definitions.” “Physical injury” was defined as “an injury that impairs a person’s physical condition or causes substantial pain.” “Forcible compulsion” was defined to include physical force or a threat that places the victim in fear of immediate physical injury. The challenged instruction appeared in the list of definitions.

The trial court gave that instruction on the basis of State v. Strickland, 36 Or App 119, 584 P2d 310 (1978). In Strickland, we held that “[o]ne who has the purpose of forcibly raping another has the purpose of causing physical injury,” within the meaning of the statute that defines kidnapping, although we were not called upon to consider a jury instruction to that effect. See 36 Or App at 124. Defendant’s primary argument is that the “holding in Strickland is incorrect * * Strickland is consistent with ORS 163.2352 and ORS 163.3753 [712]*712and with prior cases, see 36 Or App at 124 n 4, and we adhere to it.

Defendant next argues that “[t]he instruction constituted a judicial comment on the evidence * * *.” ORCP 59E, which applies to criminal cases, see ORS 136.330(1), provides that “[t]he judge shall not instruct with respect to matters of fact, nor comment thereon.” (Emphasis supplied.) However, in the disputed instruction, the trial court did not instruct the jury on any matter of fact or on the probative value of the evidence. See R.J. Frank Realty, Inc. v. Heuvel, 284 Or 301, 309-10, 586 P2d 1123 (1978). The court instructed on a substantive legal principle.

Further, defendant asserts that the trial court gave an instruction on an inference or presumption, which may be impermissible “when used against a defendant with reference to an element of the crime * * State v. Rainey, 298 Or 459, 466, 693 P2d 635 (1985).4 The disputed instruction was neither an inference nor a presumption within the meaning of Rainey. There, the defendant was charged with knowingly delivering a controlled substance in violation of ORS 475.992. The court gave this instruction:

“Proof of unlawful delivery of a controlled substance is prima facie evidence of knowledge of its character.
“The term prima facie evidence means evidence good and sufficient on its face, such evidence as in the judgment of the law is sufficient to establish a given fact and which if not rebutted or contradicted will remain sufficient.” 298 Or at 462.

The defendant admitted the delivery; his only defense was that he did not know that the delivered boxes contained a controlled substance. Under those circumstances, the court concluded:

“We find it probable that a rational juror would have interpreted this instruction to mandate a finding of knowledge, unless this fact was rebutted by defendant, from the admitted fact of delivery of a controlled substance. The instruction stated a rebuttable presumption against the accused. Thus, [713]*713the burden of persuasion on a fact necessary to constitute the crime charged, which was an element of the offense, was placed on the criminal defendant. We hold that this allocation was an unlawful denial of the right of defendant to be convicted only upon proof of guilt beyond a reasonable doubt. ORS 136.415. This was error and was prejudicial.” 298 Or at 468.

An inference, then, involves the jury’s finding of Fact A (delivery of a substance), which leads it to find a different Fact B (knowledge of what the substance is). Similarly, a presumption involves the jury’s finding of Fact B on the basis that it found Fact A. In contrast, here, the jury was called upon to decide a single fact: whether defendant had the purpose of causing physical injury to the victim. It was simply told that one legally sufficient means to prove that fact was to prove the purpose of forcible rape. It is as if, in Rainey, the instruction had simply told the jury that one legally sufficient means to prove delivery of a controlled substance is to prove an attempted delivery of it. See

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Related

State v. Poole
28 P.3d 643 (Court of Appeals of Oregon, 2001)
State v. Herzog
864 P.2d 1362 (Court of Appeals of Oregon, 1993)
State v. Odoms
844 P.2d 217 (Court of Appeals of Oregon, 1992)
State v. Caldwell
780 P.2d 789 (Court of Appeals of Oregon, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
780 P.2d 789, 98 Or. App. 708, 1989 Ore. App. LEXIS 1486, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-caldwell-orctapp-1989.