413 P.3d 999
Or. Ct. App.2017Background
- Defendant was subject to a stalking protective order (SPO) barring him from being within 25 feet of the Tillamook Coliseum Theatre, but permitting access within 25 feet to use a stairwell to his upstairs apartment.
- Police were contacted after a theater owner recognized defendant's parked car on the street near the theater following a grocery trip with another person, Sims.
- At trial the state offered no direct measurement from the theater to the car or any direct evidence of defendant’s path after exiting the car; the officer measured a 25-foot line from the theater property line along the sidewalk and estimated that its endpoint was about 10 feet lateral from the parked car and about six inches behind the car’s front passenger tire.
- The state argued the car (as an extension of the person) or defendant’s presumed pathway from the vehicle placed him within 25 feet; the trial court convicted on the ground defendant must have walked in a way that violated the SPO.
- Defendant moved for judgment of acquittal on the count alleging he came within 25 feet of the theater (Count 2); the trial court denied the motion and convicted. The court also imposed supervision fees despite finding defendant lacked ability to pay.
- On appeal the court reversed Count 2 for insufficient evidence and (accepting the state’s concession) reversed the supervision-fee orders.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence that defendant himself was within 25 feet | Officer’s measurements and photos allow inference defendant must have walked within 25 feet | No evidence of defendant’s path; speculative to infer he walked into the 25-foot zone | Reversed: evidence insufficient to prove defendant himself was within 25 feet |
| Sufficiency of evidence that defendant’s car was within 25 feet | Officer’s measured 25-ft line plus his estimates permit inference (and vehicle can be treated as extension of person) | Measurements were to a sidewalk point, not the car; use of estimates and Pythagorean calculation is speculative | Reversed: evidence insufficient to prove the car was within 25 feet |
| Use of Pythagorean/Theoretical calculation from estimates to prove distance | Pythagorean computation from officer’s estimates supports finding within 25 feet | Computation based on unverified estimates is speculative and unreliable | Court: cannot rely on imprecise estimates and math; needed precise measurements; speculative inference insufficient |
| Imposition of supervision fees despite court finding inability to pay | State conceded fee imposition was permissible | Defendant argued fees improperly imposed given explicit finding of inability to pay | Reversed: fees vacated (state conceded error; court corrected on appeal) |
Key Cases Cited
- State v. Rivera-Ortiz, 288 Or. App. 284 (2017) (standard for reviewing denial of judgment of acquittal)
- State v. Wisowaty, 200 Vt. 24 (2015) (Pythagorean inference impermissible when measurements are speculative)
- Sam v. State, 842 P.2d 596 (Alaska Ct. App.) (Pythagorean Theorem may be used when measurements and right angle are reliable)
- People v. Harre, 155 Ill.2d 392 (1993) (mathematical formulas only reliable when based on precise measurements)
- State v. Jones, 140 Wash. App. 431 (2007) (noting available technologies for measuring distance; cautioning against reliance on informal estimates)