State v. Campbell
Case # A149727
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/A149727.pdf
Defendant Campbell was convicted of witness tampering and second-degree assault. He contends that the evidence presented was insufficient to support both charges.
The witness tampering charge arose when Campbell called the victim from jail and told her that he did not want her to testify against him. Defendant’s brother and several others also called the victim and requested that she not testify. On Appeal, the State conceded that it lacked evidence on the record showing that the victim had been legally summoned to testify at the time the calls were made. The State also conceded that the trial court committed plain error by convicting the defendant without that evidence. The appellate court acknowledges the State’s concessions but decides not to correct the error.
Crucial to the appellate court’s decision is the fact that the plain error was not preserved. In order to preserve a contention that evidence was insufficient, a defendant must provide a specific theory on how the State’s proof was insufficient. See State v. Paragon, 195 Or App 265, 268, 97 P3d 11 691 (2004). A general motion for judgment of acquittal without that specific theory preserves no ground for challenge on appeal. State v. Schodrow, 187 Or App 224, 231 n 5, 66 P3d 547 (2003). Because Campbell presented a general motion for judgment of acquittal without offering a specific theory, his contention was not preserved for appeal.
The appellate court can correct unpreserved plain error. The Court considers several factors when determining whether to correct unpreserved plain error. Determining factors include the ends of justice, the gravity of error, and policies underlying the preservation requirement. One such policy is whether opposing party had opportunity to respond to the asserted error. There was no evidence on the record that indicated the victim had been legally summoned to testify at the time Campbell and others made their calls. Had Campbell raised his objection at trial, the State could have produced additional evidence showing the victim had been summoned to testify at the time defendant attempted to coerce her. However, Campbell’s failure to raise his objection undermined the policies underlying the preservation requirement. The Court, therefore, declines to correct that error.
Campbell’s second-degree assault arose when he pressed a lit cigarette against the victim’s cheek causing blistering that turned into a scar. The State argued that the cigarette could have resulted in serious physical injury. Serious physical injury is included in the definition of “dangerous weapon,” which, in turn, is an element of second-degree assault. Campbell argued that the evidence at trial was insufficient to show the cigarette created a substantial risk of serious physical injury.
The appellate court disagrees with Campbell, noting that the test for determining whether something is a dangerous weapon rests on what injury could have resulted under the circumstance and not on what the actual injury incurred. The trial court, therefore, did not commit plain error in entering a judgment of conviction on the second-degree assault charge, and the Court of Appeals affirms.