State v. Torre

56 P.3d 473, 184 Or. App. 392, 2002 Ore. App. LEXIS 1646
Court of Appeals of Oregon·Decided October 23, 2002·No. 97CR1615; A105871·Published

Opinion

DEITS, C. J.

Defendant appeals from a judgment of conviction for criminal mischief in the third degree, ORS 164.345,1 and criminal trespass in the first degree, ORS 164.255.2 We affirm.

The district attorney’s information charged defendant with criminal mischief in the third degree and criminal trespass in the first degree. The charges were based on a dispute between defendant and the victims, his neighbors. At trial, defendant testified that the victims’ dog defecated on his property and that he ultimately threw fecal matter into the victims’ home.3 A jury convicted defendant of both counts. Judge Gillespie signed a judgment of conviction.

Following the entry of judgment, defendant appealed. Thereafter, the parties moved to vacate the judgment of conviction because of allegations that the audio record in the case did not accurately reflect the trial proceedings. We issued an appellate judgment that vacated the judgment of conviction and remanded the case to the trial court for further proceedings. See ORS 138.227.4

[395]*395On remand, defendant filed motions to postpone the scheduled hearing and to allow scientific forensic examination and analysis of the master tape recordings of the trial “for the purpose of having said expert forensically analyze said tapes and make a determination of whether said taped record has been modified, damaged, tampered with, or in any other way altered from their original condition, to aid in settling the record in this matter.” Thereafter, the state filed a motion to settle the record, arguing, in part:

“[T]his [cjourt should first determine whether there is a basis to find that the master recording made at trial in this matter is accurate. A determination that the record is accurate can be accomplished through the testimony of the trial court recorder and without resort to expensive and time consuming forensic analysis. Should this [c]ourt determine that there exists a basis from which to conclude that the master recording should be analyzed forensically, it may so order.”

Judge Barron presided over the hearing to settle the record (the hearing). At the hearing, Judge Barron indicated that “it sounds to me as if nothing happened more than these are recording defects that possibly rarely happen but still can happen.” In other words, Judge Barron reasoned that defendant, the proponent of the position that the master tape had been altered, had not persuaded him of that fact. Judge Barron also concluded that, even if someone intentionally altered the tape, defendant had not demonstrated that he was prejudiced. Ultimately, Judge Barron issued an order reinstating the judgment of conviction, settling the trial record to “consist of the transcript of proceedings and an amendment thereto,” and denying defendant’s motion to allow forensic examination and analysis of the tapes.

Defendant appealed Judge Barron’s order reinstating the judgment. However, we issued an order that stated, in part:

“The question arises whether the order on remand is appealable. Although ORS 138.227 permits a new appeal to [396]*396be taken from entry of a modified judgment or upon reentry of the original judgment from which the appeal was taken, the trial court has not entered a modified judgment nor has it reentered the original judgment. The court determines that merely ordering reinstatement of the original judgment is insufficient to give rise to an appealable decision.
“The court further determines that the trial court intended to enter an enforceable and appealable judgment. Therefore, pursuant to ORS 19.270(4), the court gives the trial court leave on motion of either party to enter a modified judgment or to reenter the original judgment.”

Thereafter, the original judgment of conviction was re-entered. Consequently, we turn to defendant’s appeal.

Before addressing defendant’s specific assignments of error, we must determine our standard of review of findings of fact in a proceeding to determine the accuracy of a trial court record and our standard of review of the trial court’s ruling in such a proceeding. State v. Lee Ping Bow, 10 Or 27 (1881), is instructive. In that case, the defendant was convicted of larceny. On appeal, he asserted that the trial court erred in denying his motion to correct the record of his arraignment. The defendant’s motion to correct was based on affidavits indicating that he “did not understand the English language sufficiently to comprehend the proceedings, and that no interpreter was sworn, neither were the proceedings interpreted or explained to him, at the time of his arraignment.” Id. at 29. However, counteraffidavits were also filed. Those affidavits indicated that the defendant “did sufficiently understand the English language” and that no interpretation was necessary. Id. In explaining its decision, the Supreme Court reasoned:

“As the amendment of its record was a matter resting in the sound discretion of the court below, we have no power to review its determinations made in the exercise of that discretion, unless they disclose errors of law. In this instance the evidence furnished by the affidavits was conflicting, and we are by no means satisfied that the decision complained of was against the weight of the evidence.
“The bill of exceptions shows that the court below found that the appellant did possess some knowledge of the English language, and we must presume it considered his [397]*397knowledge sufficient to enable him to understand the proceedings as they transpired, and that he did, in fact, sufficiently understand them to avail himself of all the benefits which the statute was designed to confer upon him for his protection in making his defense. Taking into account also the facts disclosed by the record, that he appeared by counsel, as well as in person, at every stage of the proceedings previous to his conviction, and that no objection or suggestion of this nature was interposed until after he had been tried and found guilty by the jury, and we cannot doubt the justice or correctness of the ruling denying the motion.”

Id. at 29-30.

The reasoning in Lee Ping Bow indicates that an appellate court will review the trial court’s ruling concerning the accuracy of a record for abuse of discretion and that, where a motion is filed to settle the record and conflicting evidence is presented, a trial court’s findings are binding on appeal if there is evidence to support them. That standard of review of factual issues is also consistent with the standard that the Supreme Court articulated in Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968):

“What actually transpired is a question of fact for the trial court or jury.

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State v. Torre, 56 P.3d 473, 184 Or. App. 392, 2002 Ore. App. LEXIS 1646 (Or. Ct. App. 2002).

56 P.3d 473 (State v. Torre) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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