State v. Menaugh

Court of Appeals of Oregon

State v. Menaugh

954 P.2d 177, 152 Or. App. 389, 1998 Ore. App. LEXIS 108

CourtCourt of Appeals of Oregon

DecidedFebruary 4, 1998

Docket96-07-45308; CA A95194

StatusPublished

This text of 954 P.2d 177 (State v. Menaugh) 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. Menaugh, 954 P.2d 177, 152 Or. App. 389, 1998 Ore. App. LEXIS 108 (Or. Ct. App. 1998).

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Opinion

ROSSMAN, S. J.

In this district court criminal case involving an altercation between defendant and a former girlfriend at defendant’s apartment, defendant appeals his conviction of assault in the fourth degree, contending that the trial court erred in failing to give his requested instruction on the defense of premises.¹ The state concedes that defendant was entitled to the instruction and that it was error to refuse to give it but argues that the error was harmless and does not require reversal. We do not agree with the state’s characterization of the error, and we reverse and remand for a new trial.

At trial, defendant relied on two defenses: (1) defense of property, involving the victim’s taking of photographs belonging to defendant, and (2) defense of premises, involving the victim’s refusal to leave the apartment after defendant told her to do so and tried to call the police. Although the trial court gave the instruction on defense of property, it concluded that there was no evidence that defendant reasonably believed a criminal trespass was occurring and thus rejected the defense of premises instruction. The state concedes that the evidence entitled defendant to a defense of premises instruction. It contends, however, that-according to defendant’s own testimony — the facts giving rise to defense of property and defense of premises occurred contemporaneously. Therefore, the state reasons, given the jury’s guilty verdict, it is clear that defendant’s claim of defense of property was rejected and that “[t]here is no reason to believe that the jury nonetheless would have accepted [defendant’s] claim of defense of premises.”

[392]*392We reject that reasoning. Defendant is asserting two defenses based on different legal elements and factual considerations and involving different protected interests. In one, defendant asserts that he was protecting his personal property from being physically taken by another and, in the other, that he was protecting his premises from trespassing by another. Simply because the jury did not accept defendant’s testimony regarding one defense does not mean that he was not entitled to have the jury consider the other defense. Here, there was evidence from which the jury could find a premises defense. The error is not harmless.

Reversed and remanded for new trial.

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ROSSMAN, S. J.

In this district court criminal case involving an altercation between defendant and a former girlfriend at defendant’s apartment, defendant appeals his conviction of assault in the fourth degree, contending that the trial court erred in failing to give his requested instruction on the defense of premises.¹ The state concedes that defendant was entitled to the instruction and that it was error to refuse to give it but argues that the error was harmless and does not require reversal. We do not agree with the state’s characterization of the error, and we reverse and remand for a new trial.

At trial, defendant relied on two defenses: (1) defense of property, involving the victim’s taking of photographs belonging to defendant, and (2) defense of premises, involving the victim’s refusal to leave the apartment after defendant told her to do so and tried to call the police. Although the trial court gave the instruction on defense of property, it concluded that there was no evidence that defendant reasonably believed a criminal trespass was occurring and thus rejected the defense of premises instruction. The state concedes that the evidence entitled defendant to a defense of premises instruction. It contends, however, that-according to defendant’s own testimony — the facts giving rise to defense of property and defense of premises occurred contemporaneously. Therefore, the state reasons, given the jury’s guilty verdict, it is clear that defendant’s claim of defense of property was rejected and that “[t]here is no reason to believe that the jury nonetheless would have accepted [defendant’s] claim of defense of premises.”

[392]*392We reject that reasoning. Defendant is asserting two defenses based on different legal elements and factual considerations and involving different protected interests. In one, defendant asserts that he was protecting his personal property from being physically taken by another and, in the other, that he was protecting his premises from trespassing by another. Simply because the jury did not accept defendant’s testimony regarding one defense does not mean that he was not entitled to have the jury consider the other defense. Here, there was evidence from which the jury could find a premises defense. The error is not harmless.

Reversed and remanded for new trial.

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Bluebook (online)

954 P.2d 177, 152 Or. App. 389, 1998 Ore. App. LEXIS 108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-menaugh-orctapp-1998.