State v. Gallegos

28 P.3d 1178, 174 Or. App. 549, 2001 Ore. App. LEXIS 810
CourtCourt of Appeals of Oregon
DecidedJune 6, 2001
DocketCF970313; A102941
StatusPublished

This text of 28 P.3d 1178 (State v. Gallegos) 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. Gallegos, 28 P.3d 1178, 174 Or. App. 549, 2001 Ore. App. LEXIS 810 (Or. Ct. App. 2001).

Opinion

CENICEROS, S. J.

Defendant appeals her convictions for two counts of forgery in the first degree and one count of forgery in the second degree. At trial, she raised the “partial responsibility defense,” ORS 161.300, and contended that, because of a mental disease or defect, she was unable to form the intent to defraud required by the forgery statutes.

On appeal, defendant raises three assignments of error, all dealing with that defense. She argues that the trial court erred first, in refusing to take judicial notice and informing the jury of the court’s order previously finding her unable to aid and assist in her defense; second, in not allowing into evidence a letter written by defendant showing her mental state at the time of the commission of one of the crimes; and third, in refusing to give a special jury instruction regarding intent. We reverse and remand.

Defendant claimed to have found a quantity of checks in a dumpster. She had a $35 clock on lay away at a flea market, and on February 12, 1997, she attempted to redeem it by passing one of the checks. She signed the true owner’s name, left the payee field blank, and made the check out for $1,000,000. The shopkeeper knew defendant as a “street person” and refused to accept the check. Defendant told him that the check was good and that she would return for her change.1

Defendant was being evicted from her home by an individual who had purchased the property. On February 21, 1997, she went to a tavern where the individual worked and gave him a check for $60,000. She told him that the check was to purchase the property she was living in. He knew the check was not valid because he had known defendant for some time and because the payee was designated only as “Floyd” with no last name. Defendant also left a seven-page hand-printed letter addressed to “Mr. Floyd Matthews.”

[552]*552On February 21, 1997, defendant went into the Inland Empire Bank and attempted to cash a $600 check made out to “Tammy Mallegos,” an obvious misspelling of her name. Defendant became very upset when the teller asked her for identification, and she asked the teller not to touch the picture on her identification card.

Based on those events, defendant was indicted for two counts of forgery in the first degree and one count of forgery in the second degree. On July 16,1997, the court ordered defendant transported to the Eastern Oregon Psychiatric Center to determine whether she was fit to proceed. On August 19,1997, the court signed an order finding defendant unable to proceed pursuant to ORS 161.360(2).

Defendant was confined at the Oregon State Hospital from September 1997 until February 1998, when she was returned to Umatilla County. Her diagnosis in February 1998 was “Schizophrenia, paranoid type, episodic with inter-episode residual symptoms; Alcohol abuse, Amphetamine abuse; Panic disorder without agoraphobia.” All were in satisfactory remission. On March 6,1998, the parties stipulated that defendant was able to aid and assist in her defense.

Forgery in the first and second degree both require that the person act “with intent to injure or defraud.” ORS 165.007; ORS 165.013.2 Before trial, defendant filed a notice raising the “partial responsibility defense,”3 pursuant to ORS 161.300. Her defense at trial was her inability to form that intent because of a mental disease or defect.

At trial, defendant asked the court to take judicial notice of and inform the jury of its order of August 19,1997, [553]*553pursuant to ORS 161.360(2), finding her not fit to proceed. She argued that the court’s finding that she could not aid and assist in her own defense was relevant to the issue of whether she could have formed the intent to defraud required by forgery statutes. The state objected on the ground that the court’s finding and order were too remote in time from the commission of the crimes. The state also objected because “these are whole different issues. Aid and assist is a different issue as to partial responsibility.” The court denied the motion, holding that “[i]t is not relevant basically in time.” We review relevance determinations for errors of law. State v. Titus, 328 Or 475, 481, 982 P2d 1133 (1999).

On appeal, defendant argues that the order finding defendant unfit to proceed necessarily involved a finding that defendant had a mental disease or defect and that this finding should have been presented to the jury for its consideration. She further contends that the court erred when it held that the finding was not sufficiently close in time to the date of the crimes.

The state argues that defendant’s mental state in August 1997, when the order was signed, is not relevant to her mental state in February 1997, the date of the crimes. The state also argues that evidence that defendant was unable to aid and assist in her own defense is not relevant to her ability to form intent.

Because of our disposition of this assignment of error, we first consider the state’s argument that a finding that defendant was unable to aid and assist did not necessarily mean that she could not form intent. Although the state objected on this ground, the court based its ruling on the length of time between the crimes and the order.

The trial court’s order of April 19,1997, found “that the defendant is not now fit to proceed, as defined by ORS 161.360(2),” which provides:

“A defendant may be found incapacitated if, as a result of mental disease or defect, the defendant is unable:
“(a) To understand the nature of the proceedings against the defendant; or
[554]*554“(b) To assist and cooperate with the counsel of the defendant; or
“(c) To participate in the defense of the defendant.”

Defendant relies on ORS 161.300, which provides that “[ejvidence that the actor suffered from a mental disease or defect is admissible whenever it is relevant to the issue of whether the actor did or did not have the intent which is an element of the crime.” Defendant argues that the court’s finding that she was unable to aid and assist was a finding that she had a mental disease or defect and that the jury should have been allowed to consider this condition in its evaluation of her ability to form intent. The state responds that

“the two issues differ in the standard by which they assess the defendant’s mental condition. The court’s inquiry under ORS 161.360

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Bluebook (online)
28 P.3d 1178, 174 Or. App. 549, 2001 Ore. App. LEXIS 810, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gallegos-orctapp-2001.