STATE OF OREGON, Plaintiff-Respondent, v. PAMELA JEAN HOPKINS, aka Pamela Jean Robinson, Defendant-Appellant.
Marion County Circuit Court 16CR10685; A165452
Oregon Court of Appeals
Argued and submitted April 22, 2019, affirmed July 15, 2020
305 Or App 425 (2020); 469 P3d 238
Defendant was charged with, and found guilty of, among other offenses, two counts of first-degree burglary,
Affirmed.
Donald D. Abar, Judge.
David O. Ferry, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Office of Public Defense Services.
Jamie Contreras, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
TOOKEY, J.
Affirmed.
TOOKEY, J.
Defendant was charged with, and found guilty of, among other offenses, two counts of first-degree burglary,
“We review the denial of a motion for a judgment of acquittal by examining the evidence in the light most favorable to the state to determine whether a rational trier of fact, accepting reasonable inferences and reasonable credibility choices, could have found the essential elements of the crime beyond a reasonable doubt.” State v. Fuller, 303 Or App 47, 48, 463 P3d 605 (2020) (internal quotation marks and brackets omitted). In other words, “We will reverse a trial court‘s denial of a motion for judgment of acquittal only where no rational trier of fact could find all of the elements of the crime beyond a reasonable doubt.” State v. Shewell, 178 Or App 115, 118, 35 P3d 1096 (2001), rev den, 334 Or 491 (2002). We state the following facts in accordance with that standard.
The victim was a 57-year-old woman who lived in a one-bedroom apartment with her two cats. She suffered from chronic health issues and had very limited mobility—she was paralyzed from the knee down on her right side—and used a walker or a cane to get around. She had a prescription for oxycodone and, on occasion, sold it.
Defendant and the victim were neighbors and had known each other for three years. They socialized nearly every day, and the victim considered defendant to be her friend. Defendant also took the victim to appointments and to shop. Defendant used oxycodone for medical reasons but she was addicted to it and also misused it. The victim began to suspect that defendant was stealing oxycodone from her and told defendant that she was hiding her oxycodone in her bra so that “people” would not steal it anymore.
On the morning of the victim‘s birthday, defendant knocked on the victim‘s door, and the victim let defendant into her apartment. Their plan for the day, so far as the victim was aware, was to go to the store to purchase a “birthday blouse” for the victim, followed by spending time in the victim‘s apartment and eating dinner. After some “chit chat” and drinking a cup of coffee, the victim gave defendant two dollars to buy cigarettes at a nearby 7-11. Defendant walked toward the front door, and the victim walked down the hallway to her bedroom to say goodbye to her cats.
After the victim told her cats that she would be right back, defendant, standing behind the victim, put a rope around the victim‘s neck and pulled it. The victim struggled, putting her fingers between the rope and her neck to stop the choking pressure. As defendant choked the victim with the rope, defendant said to the victim, “Why don‘t you *** die? Why?”
As they struggled, the victim fell between her bed and a heater that ran along the baseboard in her bedroom. Once the victim fell to the ground, defendant put her knee or her foot on the victim‘s back and pulled the rope, which was still around the victim‘s neck, up. As defendant was assaulting the victim, the victim told defendant to stop and let go, but defendant kept tightening the rope.
Defendant then got up, grabbed two statues made of “cement plaster type material” from a shelf on the victim‘s headboard, and brought each statue down on the victim‘s head “two or three times” until the statues broke, which caused significant bleeding. The victim, at that point, was getting exhausted.
Defendant then grabbed a pillow and tried to suffocate the victim with it, while using one of her hands to squeeze the victim‘s nose, so that the victim could not breathe. Defendant next put her hand into the pillow
Defendant left the room and got a hammer from the victim‘s kitchen. Defendant hit the victim in the head with the hammer and, once the victim began to shield her head from the hammer using her arms, defendant hit the victim in the arms with the hammer. While defendant hit the victim with the hammer, defendant kept “telling [the victim] to die.” Eventually, defendant stopped hitting the victim with the hammer, but there was further struggle in the bathroom, where defendant tried to drown the victim in the bathtub.
During at least some of the assaults, the victim struggled, and tried to get defendant away from her. Defendant was left with scratch marks on her face that were consistent with wounds caused by someone trying to defend themselves against her. Additionally, during at least some of defendant‘s assaults against the victim, the victim “kept trying to talk to [defendant] to get her to come back to her old self.”
After defendant‘s assaults against the victim had stopped, the victim told defendant, “It‘s okay. You can go,” and defendant told the victim that defendant would have to tie the victim up and “close [her] mouth” first, to which the victim replied, “You‘ll kill me if I let you do that.”
Defendant was charged with, among other crimes, one count of attempted aggravated murder (Count 1), and two counts of first-degree burglary (Counts 5 and 6). Count 1 alleged that defendant, unlawfully and intentionally, committed the “crime of Burglary in the First Degree and in the course of and in furtherance of the crime that defendant was committing, defendant personally and intentionally attempted to cause the death of [the victim].” Count 5 alleged that defendant unlawfully and knowingly “remain[ed] in a dwelling ***, with the intent to commit the crime of theft therein.” Count 6 alleged that defendant unlawfully and knowingly “remain[ed] in a dwelling ***, with the intent to commit the crime of assault therein.”
Defendant waived her right to a jury trial, and her case was tried to the court. At the close of the state‘s case-in-chief, defendant moved for a judgment of acquittal on Counts 1, 5, and 6. The trial court denied the MJOA after considering the import of two Court of Appeals decisions, State v. Felt, 108 Or App 730, 816 P2d 1213 (1991), rev den, 313 Or 75 (1992), and State v. Werner, 281 Or App 154, 383 P3d 875 (2016), rev den, 361 Or 312 (2017), in which we considered revocation of permission to stay on the premises for the purpose of deciding whether a burglary had been committed. The trial court found defendant guilty of one count of attempted aggravated murder for personally and intentionally attempting to cause the death of the victim in the course of and in furtherance of the crime of first-degree burglary, and two counts of first-degree burglary,2 specifically determining that there “was more than sufficient evidence” of an “implied” revocation of “any prior consent that was given to the Defendant to enter the residence” when “the victim started to fight back.”
Under
In Felt, the defendant was convicted of burglary after he (1) entered his former girlfriend‘s apartment with her permission in order to use her telephone, (2) then, after she refused his request for a kiss and he kissed her anyway, she pushed him away, and (3) he subsequently assaulted her. 108 Or App at 732. On appeal, the defendant argued that the trial court erred in denying his MJOA because “the state offered no evidence that the victim had revoked her permission for him to be on the premises.” Id. at 733. The defendant argued that was so because he was “never told or asked to leave.” Id.
We considered “whether the state proved that defendant ‘unlawfully remained’ in the victim‘s home after he had received permission to enter.” Id. at 732. We affirmed the trial court‘s denial of the defendant‘s MJOA, reasoning, in part, that the evidence in the case “would support the inference that, when [the victim] reacted against defendant, she impliedly revoked her permission that he remain on the premises.” Id. at 733. In other words, we affirmed because there was legally sufficient evidence to support a finding that the victim “withdrew her consent” and that, after that point, the defendant was “no longer privileged to remain in the residence.” Id. at 734.
We addressed a different question in Werner—viz., “whether engaging in unauthorized conduct in a building constitutes unlawfully remaining in the building for the purposes of the burglary statute.” 281 Or App at 161. In that case, the defendant was hired by the complainant to work at the complainant‘s house, and, during the course of that work, the complainant and his wife left for approximately one week. Id. at 156. During the complainant‘s absence, the complainant had given the defendant permission to do “whatever he needed to do” to complete the work at the house. Id. The complainant gave the defendant a house key and turned off the house alarm. Id. Upon the complainant‘s return, he discovered that property was missing from the house. Id. at 157. The defendant later admitted taking the property. Id. The defendant was convicted of burglary. Id. at 160. During the defendant‘s trial, he moved for a judgment of acquittal on the burglary charge, arguing that, because he had permission to be in the house, he had not entered or remained unlawfully, as required to convict him of burglary. Id. at 156. The trial court denied the defendant‘s MJOA. Id.
The state‘s theory in Werner was that the “defendant was guilty of burglary because he engaged in unauthorized conduct—the taking of property—in [the complainant‘s] house; in other words, the state‘s theory was that defendant was guilty of burglary because he committed theft inside the house.” Id. at 158-59. After considering the text, context, and legislative history of the burglary and criminal trespass statutes, we rejected that theory, explaining that “burglary is a separate crime from, and necessarily precedes, the commission of the intended crime.” Id. at 163. The state‘s theory, however, failed “to treat burglary as a separate, earlier crime than the crime intended to be committed in the building.” Id. We reasoned:
“In cases like [Werner], the state‘s argument essentially makes burglary and commission of the intended crime one and the same, even though the legislature intended burglary to be separate from (and not dependent upon) the subsequent commission of the intended crime. In addition, it eliminates the requirement that the criminal trespass coincide with the intent to commit a crime. The state reasons that, if a person commits a crime in a building, the person becomes a trespasser and, apparently retroactively, a burglar. If, as the state argues, the commission of a crime is what causes a person who is otherwise licensed to be present in a building to become a trespasser, then the person is not trespassing with the intent to commit that crime.”
Thus, we concluded that “the commission of a crime does not, in and of itself, convert a lawful entry into an unlawful remaining,” and that “because the only evidence that the state presented regarding the criminal trespass element of the charged burglary *** was that defendant committed theft, the trial court erred by denying defendant‘s motion for judgment of acquittal on the burglary count.” Id. at 168. Additionally, we noted that Werner was distinguishable from Felt. In Werner, the “state did not present any evidence that [the complainant] revoked his consent before defendant committed the theft,” whereas, in Felt, “the state had presented evidence that the defendant remained in his former girlfriend‘s apartment after she implicitly revoked her permission to be there by physically pushing him away.” Werner, 281 Or App at 167.
On appeal, defendant relies on Werner to argue that, because “defendant‘s commission of a crime in the victim‘s home did not convert her lawful presence into an unlawful one, the state failed to prove that defendant unlawfully remained in the victim‘s home during the crime.” Werner requires that a burglary is viewed “as a separate, earlier crime than the crime intended to be committed in the building” because the “legislature intended burglary to be separate from (and not dependent upon) the subsequent commission of the intended crime,” 281 Or App at 164, and, in defendant‘s view, her case was like the circumstances in Werner, where there was no evidence that the homeowner had revoked his consent to remain in the home before the defendant stole the property. Thus, defendant argues that the trial court erred because the state presented “no evidence that the victim had explicitly or impliedly revoked defendant‘s permission to be in her home before defendant committed assault and attempted murder.” (Emphasis in defendant‘s brief.) Defendant also argues that the facts of this case are distinguishable from Felt.
The state, for its part, argues that it “introduced sufficient evidence that the victim impliedly revoked defendant‘s license to remain in her residence after defendant‘s initial attempts to kill her.” In the state‘s view, Werner does not hold that a guest‘s permission to remain on another‘s premises cannot be impliedly revoked at some point during an ongoing attack.
We disagree with defendant that Werner controls. As noted above, in Werner, “the only evidence that the state presented regarding the criminal trespass element of the charged burglary *** was that defendant committed theft.” 281 Or App at 168. By contrast, in this case, the victim struggled, putting her fingers between the rope and her neck soon after defendant began to assault her. At that point, she impliedly revoked her permission for defendant to be present in the victim‘s apartment before the subsequent attacks and before defendant stole the victim‘s oxycodone. See Felt, 108 Or App at 733 (“[T]he circumstances of this case would support the inference that, when [the victim] reacted against defendant, she impliedly revoked her permission that he remain on the premises.“). Once the victim resisted the attack, she impliedly revoked her permission for defendant to remain in her home and, from that point on, defendant was trespassing with the intent to commit additional assaults against the victim and steal the oxycodone.
Defendant contends that this case is distinguishable from Felt because, in this case, the
As to defendant‘s contention that the attacks against the victim were part of a “single criminal episode” of attempted murder—for which the victim must have revoked permission before the episode began—we note that, to the extent that defendant is arguing that the principles that guide us when deciding whether a defendant‘s conduct constitutes a single “criminal episode” for purposes of merger, see
Defendant also argues that this case is distinguishable from Felt because the victim did not purport to revoke her permission for defendant to be in her apartment at any point during the episode. That is, not only did the victim not push defendant away like the victim in Felt did, but the victim kept trying to talk defendant into coming “back to her old self” and, after the attacks, gave defendant permission to leave. But, as noted above, the victim in this case suffered from chronic health issues and had very limited mobility. It was sufficient in this case for the victim to struggle and put her fingers between the rope and her neck to manifest a revocation of her permission for defendant to remain. As to the victim‘s attempts to persuade defendant not to kill her and to leave, neither means that the victim did not revoke her permission for defendant to remain in the victim‘s home nor negate that revocation.3
In sum, we conclude the evidence was legally sufficient for a rational trier of fact to have found, beyond a reasonable doubt, that defendant in this case unlawfully remained in the victim‘s apartment, and “at some point
Affirmed.