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IN THE COURT OF APPEALS OF THE STATE OF OREGON

_______________

STATE OF OREGON, Multnomah County Circuit


Court No. 15CR53749
Plaintiff-Respondent,

v.

BARRY JOE STULL, aka Barry Joe CA A164154


Stully,

Defendant-Appellant.
_______________

RESPONDENT’S ANSWERING BRIEF


_______________

Appeal from the Judgment of the Circuit Court


for Multnomah County
Honorable LESLIE M. ROBERTS, Judge

ERNEST LANNET #013248 ELLEN F. ROSENBLUM #753239


Chief Defender Attorney General
Office of Public Defense Services BENJAMIN GUTMAN #160599
BRETT J. ALLIN #142719 Solicitor General
Deputy Public Defender PATRICK M. EBBETT #970513
1175 Court St. NE Senior Assistant Attorney General
Salem, Oregon 97301 1162 Court St. NE
Telephone: (503) 378-3349 Salem, Oregon 97301-4096
Email: brett.j.allin@opds.state.or.us Telephone: (503) 378-4402
Email:
patrick.m.ebbett@doj.state.or.us

Attorneys for Defendant-Appellant Attorneys for Plaintiff-Respondent

10/18
TABLE OF CONTENTS

STATEMENT OF THE CASE ........................................................................... 1


Summary of Argument ...............................................................................1
COMBINED ANSWER TO ASSIGNMENTS OF ERROR 1-9........................ 1
The trial court did not abuse its discretion in overruling
defendant’s objection to the prosecutor’s closing argument......................1
Combined Preservation of Error.................................................................2
Combined Standard of Review...................................................................2
COMBINED ARGUMENT ................................................................................ 2
A. Factual Background .........................................................................3
B. Any error in permitting the prosecutor to comment on
defendant’s in-court demeanor was harmless. .................................5
C. The trial court did not err in failing to strike the prosecutor’s
comments about defendant’s courtroom demeanor. ........................7
ANSWER TO PRO SE SUPPLEMENTAL BRIEF ......................................... 10
CONCLUSION.................................................................................................. 11

TABLE OF AUTHORITIES

Cases
Beall Transport Equipment Co. v. Southern Pacific,
186 Or App 696, 64 P3d 1193,
adhered to as clarified,
187 Or App 472 (2003) ............................................................................10
Cler v. Providence Health System,
349 Or 481, 245 P3d 642 (2010)....................................................... 2, 8, 9
Commonwealth v. Smith,
387 Mass 900, 444 NE 2d 374 (1983)........................................................9
OTECC v. Co-Gen,
168 Or App 466, 7 P3d 594 (2000),
rev den, 332 Or 137 (2001) ......................................................................11

i
State v. Davis,
336 Or 19, 77 P3d 1111 (2003)..................................................................5
State v. Lawson,
64 Ohio St 3d 336, 595 NE 2d 902,
cert den, 507 US 1007, 113 S Ct 1653, 123 L Ed 2d 273 (1993) ..............9
State v. Logston,
270 Or App 296, 347 P3d 352 (2015) ........................................................2
State v. Wherry,
402 So 2d 1130 (Ala Crim App 1981) .......................................................9
United States v. Schuler,
813 F2d 978 (9th Cir 1987) ..................................................................9, 10
Woodall v. Commonwealth,
63 SW 3d 104 (Ky 2001)............................................................................9

Other Authorities
John H. Wigmore,
Wigmore on Evidence (4th ed 1979) ...........................................................8
ORAP 5.45(4)(c).................................................................................................10

ii
RESPONDENT’S ANSWERING BRIEF
_______________

STATEMENT OF THE CASE


The state accepts defendant’s statement of the case but supplements the

facts in the argument below.

Summary of Argument
A jury convicted defendant of attempting to assault a police officer,

resisting arrest, and second-degree criminal mischief. On appeal, he raises nine

assignments of error that all address the same issue: whether the trial court

abused its discretion by allowing the prosecutor to comment on defendant’s in-

court behavior. That claim does not entitle defendant to relief. Any error with

respect to the prosecutor’s closing argument was harmless. In any event, it was

permissible for the prosecutor to comment on defendant’s credibility based on

his testimony on the witness stand as well as his behavior off of it.

Defendant has also submitted a pro se supplemental brief that fails to

assign error to any trial court ruling or other otherwise present any coherent

argument that the trial court erred. It therefore provides this court with no basis

for reversal.

COMBINED ANSWER TO ASSIGNMENTS OF ERROR 1-9


The trial court did not abuse its discretion in overruling defendant’s

objection to the prosecutor’s closing argument.


2

Combined Preservation of Error


Defendant generally preserved his argument that prosecutor should not

be allowed to comment on his in-court demeanor. (Tr 161). Although

defendant did not object to the prosecutor’s later remarks about his in-court

demeanor after the court overruled his initial objection, it appears that

subsequent objections were not required as they likely would have been futile.

Cf. State v. Logston, 270 Or App 296, 302, 347 P3d 352 (2015).

To the extent defendant’s advances claims of constitutional error,

however, his arguments are unpreserved, and this court should not consider

them.

Combined Standard of Review


The state agrees with defendant that this court reviews the trial court’s

ruling on jury argument for abuse of discretion. Cler v. Providence Health

System, 349 Or 481, 487, 245 P3d 642 (2010).

COMBINED ARGUMENT
In closing arguments, the prosecutor made several remarks commenting

on the courtroom behavior of defendant, who represented himself at trial. The

comments included:

x “[I]t is clear from * * * [defendant’s] behavior in court, that he didn’t


lose control on [the charged occasion]. (Tr 1260).

x Defendant reveled in that same attention, the show, the spectacle, just
like he did in court over the past week.” (Tr 1260).
3

x Defendant “got worked up then, just as you saw him get worked up in
court a couple of times.” (Tr 1261).

x Defendant’s testimony was “just a second act in this play he has, this
misguided attempt to have his voice heard.” (Tr 1261)

x “He got his moment of notoriety he wanted. He got up on the stand up


before you in the same manner, made the same disjointed argument.” (Tr
1289)

x “You saw [defendant] show signs of that aggression here in the


courtroom.” (Tr 1291).

Defendant contends that the trial erred in failing to strike those and other

remarks because defendant’s in-court behavior was not formally introduced as

evidence at trial. That claim presents an issue of first impression in Oregon:

whether a prosecutor may comment, during closing argument, on a defendant’s

behavior in the courtroom during trial. This court need not reach that issue in

this case, however, because any error was harmless. In any event, the trial court

did not abuse its discretion by ruling that the prosecutor’s remarks were proper

argument.

A. Factual Background
Defendant’s convictions all arose from an incident in Portland’s City

Council chambers and its immediate aftermath. Defendant entered the

chambers and began a lengthy and meandering diatribe before the crowd while

his friend filmed him. (Tr 509, 526-27; Ex 1 at 00:14-20:00). After about 20

minutes, Commissioner Amanda Fritz and others unsuccessfully attempted to


4

calm defendant. (Tr 510; Ex 1 at 20:00-21:00). Defendant responded by

yelling to Fritz that she had left him drug sick and homeless, and told her he had

killed her husband. (Tr 510; Ex 1 at 20:00-22:00). As defendant continued to

yell, Portland Police Officer Engstrom arrived in the chambers, followed

shortly by two other officers. (Tr 611-12).

Defendant approached the officers, yelling at them. (Tr 618, 763; Ex 1 at

Ex 3 at 1:00-1:10). Officer Axhelm briefly placed his hand on defendant to

keep him at arm’s length. (Ex 763; Ex 1 at 22:45 Ex 3 at 1:06). Defendant then

turned his anger toward Office Engstrom. (Ex 1 at 22:55; Ex 3 at 1:17). When

defendant got close, Engstrom told defendant to back up and grabbed

defendant’s left hand to keep him at bay. (Tr 618; Ex 1 at 22:55-23:02).

Defendant repeatedly demanded an ambulance as the officer told him to calm

down and assured him the ambulance was on its way. (Tr 618-19; Ex 1 at

23:00-23:10).

At that point, defendant pulled Engstrom’s hand off his left arm and

threw two right hooks at Engstrom, hitting his arm and shoulder area. (Tr 620;

Ex 1 at 23:10-23:15; Ex 3 at 1:30-1:38). Recognizing the need to arrest

defendant for punching Engstrom, the officers tried to gain control of

defendant. (Tr 968). Engstrom grabbed defendant and wrestled him to the

council desk. (Tr 620; Ex 1 at 23:01-23:25; Ex 3 at 1:37-1:44). As defendant

resisted by tensing up and trying to pull away, the three officers eventually got
5

him cuffed. (Tr 621, 624, 764, 970-72; Ex 2 at 00:00-00:48; Ex 3 at 2:00-2:40).

As Engstrom attempted to walk defendant out, defendant refused to walk, so the

officer placed him on the table in front of the council desk. (Tr 626; Ex 2 0:55-

1:02).

As the officers were escorting defendant out of the building, he reared

back and “mule-kicked” Engstrom in the left shin. (Tr 628). Defendant was

wearing heavy boots so it caused a lot of pain. (Tr 628). A few moments later

defendant did it again, striking Engstrom in the right shin. (T 629).

After Officer Engstrom put defendant in the back of his patrol car,

defendant kicked and tore into the seatbelt assembly, breaking it in several

places. (Tr 635-39; Exs 10-12). As defendant testified, he “tore the hell out of

that police car,” and “did as much damage * * * as [he] possibly could.” (Tr

1237).

B. Any error in permitting the prosecutor to comment on defendant’s


in-court demeanor was harmless.
Error is harmless if there is “little likelihood that error affected the jury’s

verdict.” State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003). Here, even if the

prosecutor’s references to defendant’s courtroom demeanor were improper,

they had little likelihood of affecting the jury’s verdict.

As an initial matter, the physical acts that led to defendant’s convictions

were largely undisputed. Defendant was convicted of attempting to assault a


6

police officer because he threw two punches at Officer Engstrom. The punches

were caught on two cameras and witnessed by multiple testifying police

officers. (Tr 620, 968; Ex 1 at 23:10-23:15; Ex 3 at 1:30-38). Defendant was

convicted of resisting arrest because when the police attempted to arrest him for

punching Engstrom, he fought back so vigorously that three officers had to

restrain him. (Tr 621, 624, 764, 970-72). This, too, was captured on multiple

video cameras. (Ex 2 at 00:00-00:48; Ex 3 at 2:00-2:40). And defendant was

convicted of second-degree criminal mischief because, as he testified, he

intentionally “tore the hell out of that police car.” (Tr 1237).

To be sure, defendant obtained self-defense instructions for the resisting

arrest charge and a choice-of-evils instruction for the second-degree criminal

mischief charge. (Tr 1301-1302).1 But the there is little likelihood that the

jury’s rejection of those defenses was affected by the prosecutor’s remarks. As

to self-defense, the videos played to the jury show the officers calmly and

professionally attempting to restrain and cuff defendant as he stiffened and tried

to evade them. After that, defendant mule kicked Engstrom in the shin, twice,
1
Defendant contends that he raised a self-defense defense on the
attempted assault on a peace officer charge as well (App Br 21), but the jury
was not read a self-defense instruction as to that charge. In any event, as noted,
the videos showed defendant approaching Officer Engstrom, resisting
Engstrom’s efforts to keep him at bay, and throwing two right hooks up and to
Engstrom’s shoulder and neck area. There is little likelihood the prosecutor’s
remarks about defendant’s in-court behavior would have affected the jury’s
assessment of a claim that defendant threw the punches in self-defense.
7

as he was being led out of the building. (Tr 628-29). In light of that evidence,

the prosecutor’s comments were unlikely to have affected the jury’s verdict on

that defense.

Defendant’s choice-of-evils defense was even less plausible. It consisted

of defendant’s testimony that he had to damage the police car because he feared

that he would suffer heart failure from pent-up adrenaline. (Tr 1237-38).

Because “there was nobody to fight,” he had to do “as much damage in that

police car as I possibly could” to “vent that fight or flight.” (Tr 1237-38).

There is little to no likelihood that the prosecutor’s remarks about defendant’s

courtroom behavior (behavior that the jury also witnessed) would have caused

any juror to assess that defense differently.

For all of those reasons, there was little likelihood that the prosecutor’s

remarks affected the verdict. Any error in allowing them was therefore

harmless.

C. The trial court did not err in failing to strike the prosecutor’s
comments about defendant’s courtroom demeanor.
Defendant contends that the prosecutor’s remarks in closing argument

commenting on defendant’s courtroom demeanor constituted an improper

reference to facts to not in evidence. (App Br 15-18). But references to a

defendant’s demeanor in front of the jury—particularly the demeanor of a

defendant who testifies—is qualitatively different than references to evidence


8

that is unknown to the jury. Defendant is correct that party may not refer to

evidence the jury has never heard or seen. See Cler, 349 Or at 490 (error to

permit counsel to assert in closing argument that he had an unavailable witness

who could have supported the defense case). But here the prosecutor did not

refer to the jury to anything they had not already seen themselves.

For that reason, this court should hold that a prosecutor may comment on

defendant’s in-court behavior. A defendant may act out during trial for any

number of reasons—to intimidate a witness (for example, making a slashing

motion at his neck, or holding a finger “gun” to the side of his head), to play on

the jurors’ sympathies, or to express an opinion of a witness’s testimony.

Because those actions are assertions that communicate information to the jury,

they are testimony in all but label. The state should be able to rebut them and

comment on them during closing argument. In such circumstances, “the

attempt to force a jury to become mentally blind to the behavior of the accused

sitting before them involves both an impossibility in practice and a fiction in

theory.” John H. Wigmore, 2 Wigmore on Evidence 274(2) (4th ed 1979).

Several courts outside Oregon have endorsed the view that state may

comment on a defendant’s in-court behavior and demeanor. The Massachusetts

Supreme Court, for example, held that a prosecutor’s comments on a

defendant’s behavior during trial were permissible because the prosecutor “did

not suggest that he had knowledge the jury did not share.” Commonwealth v.
9

Smith, 387 Mass 900, 907, 444 NE 2d 374 (1983). In other words, the court

drew a distinction between impermissible references to evidence outside the

jury’s knowledge, as occurred in Cler, and references to the defendant’s

demeanor which was there for the jury to see and assess. See also Woodall v.

Commonwealth, 63 SW 3d 104, 125 (Ky 2001) (“A prosecutor is entitled to

comment on the courtroom demeanor of a defendant.”); State v. Lawson, 64

Ohio St 3d 336, 347, 595 NE 2d 902, cert den, 507 US 1007, 113 S Ct 1653,

123 L Ed 2d 273 (1993) (defendant’s “face and body” are physical evidence

that state may comment upon); State v. Wherry, 402 So 2d 1130, 1133 (Ala

Crim App 1981) (“The conduct of the accused or the accused’s demeanor

during the trial is a proper subject of comment.”).

To be sure, other courts have ruled to the contrary. In United States v.

Schuler, 813 F2d 978 (9th Cir 1987), the Ninth Circuit presumed that the

courtroom demeanor of the non-testifying defendant was not evidence, and thus

the prosecutor’s reference to that demeanor violated the defendant’s right to be

convicted based only on evidence adduced at trial. Id. at 980. But unlike

defendant here, the defendant in Schuler did not testify. Schuler distinguished

cases that allowed comments on the defendant’s demeanor on the basis of that

distinction: “When a defendant chooses to testify, a jury must necessarily

consider the credibility of the defendant. In that circumstance, courtroom


10

demeanor has been allowed as one factor to be taken into consideration.” Id. at

981 n 3.

To ask the jury to stop its assessment of defendant’s credibility at the

moment he got off the witness stand would be, as Wigmore noted, to expect the

impossible. The prosecutor was entitled to comment not only on defendant’s

testimony and demeanor on the witness stand but also his behavior off of it

because defendant was communicating to the jury in both instances.

ANSWER TO PRO SE SUPPLEMENTAL BRIEF


Petitioner has filed a 15-page pro se supplemental brief that fails to

assign error to any ruling of the trial court, develop any legal argument, or

demonstrate that any of claims are preserved. Instead it consists of a series of

assertions that he, as a person with disability, was treated unfairly in the

proceedings below. Defendant’s failure to develop any coherent legal argument

that the trial court erred in any particular respect provides this court with no

basis for reversal. See ORAP 5.45(4)(c) (“[t]he court may decline to consider

any assignment of error that requires the court to search the record to find the

error”); Beall Transport Equipment Co. v. Southern Pacific, 186 Or App 696,

701 n 2, 64 P3d 1193, adhered to as clarified, 187 Or App 472 (2003) (this

court will not speculate as to what a party’s unamplified argument might be);

OTECC v. Co-Gen, 168 Or App 466, 488, 7 P3d 594 (2000), rev den, 332 Or
11

137 (2001) (we “decline to go in search of a substantive argument” where party

“sets forth no meaningful analysis”).

CONCLUSION
This court should affirm the trial court’s judgment.

Respectfully submitted,

ELLEN F. ROSENBLUM
Attorney General
BENJAMIN GUTMAN
Solicitor General

/s/ Patrick M. Ebbett


_________________________________
PATRICK M. EBBETT #970513
Senior Assistant Attorney General
patrick.m.ebbett@doj.state.or.us

Attorneys for Plaintiff-Respondent


State of Oregon
NOTICE OF FILING AND PROOF OF SERVICE

I certify that on October 3, 2018, I directed the original Respondent’s

Answering Brief to be electronically filed with the Appellate Court

Administrator, Appellate Records Section, and electronically served upon

Ernest Lannet and Brett J. Allin, attorneys for appellant, by using the court's

electronic filing system.

CERTIFICATE OF COMPLIANCE WITH ORAP 5.05(1)(d)

I certify that (1) this brief complies with the word-count limitation in

ORAP 5.05(1)(b) and (2) the word-count of this brief (as described in ORAP

5.05(1)(a)) is 2,406 words. I further certify that the size of the type in this brief

is not smaller than 14 point for both the text of the brief and footnotes as

required by ORAP 5.05(3)(b).

/s/ Patrick M. Ebbett


_________________________________
PATRICK M. EBBETT #970513
Senior Assistant Attorney General
patrick.m.ebbett@doj.state.or.us

Attorney for Plaintiff-Respondent


State of Oregon

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IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON, Multnomah County Circuit Court


Case No. 15CR53749
Plaintiff-Respondent,

v. CA A164154

BARRY JOE STULL, aka Barry Joe


Stully,

Defendant-Appellant.

APPELLANT’S OPENING BRIEF AND EXCERPT OF RECORD

Appeal from the Judgment of the Circuit Court


for Multnomah County
Honorable Leslie M. Roberts, Judge

ERNEST G. LANNET #013248 ELLEN F. ROSENBLUM #753239


Chief Defender Attorney General
Criminal Appellate Section BENJAMIN GUTMAN #160599
BRETT J. ALLIN #142719 Solicitor General
Deputy Public Defender 400 Justice Building
Office of Public Defense Services 1162 Court Street NE
1175 Court Street NE Salem, OR 97301
Salem, OR 97301 benjamin.gutman@doj.state.or.us
brett.j.allin@opds.state.or.us Phone: (503) 378-4402
Phone: (503) 378-3349 Attorneys for Plaintiff-Respondent
Attorneys for Defendant-Appellant

67135 01/18
i

TABLE OF CONTENTS

STATEMENT OF THE CASE.............................................................................1

Nature of the Proceeding................................................................................1

Nature of the Judgment ..................................................................................1

Jurisdiction .....................................................................................................1

Notice of Appeal ............................................................................................2

Question Presented.........................................................................................2

Summary of Argument ..................................................................................2

Summary of Facts ..........................................................................................4

FIRST ASSIGNMENT OF ERROR ..................................................................10

The trial court erred in failing to strike the prosecutor’s argument that “it
is clear from * * * [defendant]’s behavior in court, that he didn’t lose
control on November 25th, 2015.” Tr 1260.

SECOND ASSIGNMENT OF ERROR .............................................................10

The trial court erred in failing to strike the prosecutor’s argument that
defendant “reveled in that same attention, the show, the spectacle, just
like he did in court over the past week.” Tr 1260.

THIRD ASSIGNMENT OF ERROR .................................................................10

The trial court erred in failing to strike the prosecutor’s argument that
during the incident, defendant was “doing * * * what he did here today,
create a scene. Getting himself worked up and reveled in it, in the
attention from the audience, and the fact that he got to be the center of
attention. Everyone had to pay attention to him, had to focus on him.”
Tr 1261.

FOURTH ASSIGNMENT OF ERROR .............................................................11


ii
The trial court erred in failing to strike the prosecutor’s argument that
defendant “got worked up then, just as you saw him get worked up in
court a couple of times.” Tr 1261.

FIFTH ASSIGNMENT OF ERROR ..................................................................11

The trial court erred in failing to strike the prosecutor’s argument that
“You saw as he advanced at Officer Engstrom, yelling at him, pointing at
him, walking towards him to the point where the Judge had to order him
back. He got worked up then just as he did in that City Hall.” Tr 1261.

SIXTH ASSIGNMENT OF ERROR .................................................................11

The trial court erred in failing to strike the prosecutor’s argument that
defendant “testified, and I’ll be frank with you, I mean, his testimony, I
was surprised, you saw it. I didn’t expect that. It’s just a second act in
this play he has, this misguided attempt to have his voice heard.” Tr
1269.

SEVENTH ASSIGNMENT OF ERROR ...........................................................11

The trial court erred in failing to strike the prosecutor’s argument that
defendant “got to be heard. He got his moment of notoriety he wanted.
He got to stand up before you in the same manner, make the same
disjointed argument * * *.” Tr 1289.

EIGHTH ASSIGNMENT OF ERROR ..............................................................12

The trial court erred in failing to strike the prosecutor’s argument that
defendant “worked himself up this week.” Tr 1291.

NINTH ASSIGNMENT OF ERROR .................................................................12

The trial court erred in failing to strike the prosecutor’s argument that
“You saw [defendant] show signs of that aggression here in the
courtroom.” Tr 1291.

Combined Preservation of Error ..................................................................12

Standard of Review ......................................................................................15


ii
Argument .....................................................................................................15
I. The trial court erred in failing to strike the prosecutor’s arguments
referencing facts not in evidence. .............................................................15

II. The error was not harmless and requires reversal. ............................19

CONCLUSION ...................................................................................................23

TABLE OF AUTHORITIES

Cases
Christensen v. Cober,
206 Or App 719, 138 P3d 918 (2006) .............................................................17

Cler v. Providence Health Sys.-Oregon,


349 Or 481, 245 P3d 642 (2010)...................................... 15, 16, 17, 18, 19, 20

Huber v. Miller,
41 Or 103, 68 P 400 (1902) .............................................................................15

Lazzari v. States Marine Corp. of Del.,


220 Or 379, 349 P2d 857 (1960) .....................................................................17

State v. Bates,
203 Or App 245, 125 P3d 42 (2005), rev den, 340 Or 483 (2006)..................19

State v. Baughman,
361 Or 386, 393 P3d 1132 (2017) ...................................................................18

State v. Davis,
336 Or 19, 77 P3d 1111 (2003).............................................................. 5, 6, 19

State v. Knight,
343 Or 469, 173 P3d 1210 (2007) ...................................................................22

Taylor v. Kentucky,
436 US 478, 98 S Ct 1930, 56 L Ed 2d 468 (1978) ........................................17
iv

Constitutional Provisions and Statutes


Or Const, Art VII (Amended), § 3 ......................................................................19

former ORS 138.040 (2017) .................................................................................1

OEC 103 ............................................................................................................. 16

OEC 403 ............................................................................................................. 18

ORS 138.071 .........................................................................................................2

ORS 162.315 .........................................................................................................1

ORS 163.208 .........................................................................................................1

ORS 164.245 .........................................................................................................1

ORS164.354 ..........................................................................................................1

Other Authorities
ORAP 1.25 ............................................................................................................2

ORAP 5.45 ......................................................................................................... 12


APPELLANT’S OPENING BRIEF

STATEMENT OF THE CASE

Nature of the Proceeding

In this criminal appeal, defendant challenges his convictions for

attempted assault on a public safety officer (Count 1), ORS 163.208, resisting

arrest (Count 2), ORS 162.315, and second-degree criminal mischief (Count 3),

ORS164.354, based on the prosecutor’s improper closing arguments that

referenced facts not in evidence. The state charged defendant by indictment

with those offenses as well as second-degree criminal trespass (Count 4), ORS

164.245. Indictment, ER-1.

Nature of the Judgment

A jury found defendant guilty of Counts 1 to 3. The court dismissed

Count 4 on the state’s motion.

The trial court sentenced defendant to two years of supervised probation,

a $100 fine, and $48.68 in restitution. Judgment, ER 2-3.

Jurisdiction

This court has jurisdiction pursuant to former ORS 138.040 (2017).1

1
Although the legislature repealed those statutes, the repeal applies
only to judgments entered after January 1, 2018. Or Laws 2017, ch 529 § 28.
2

Notice of Appeal

The judgment was entered in Multnomah County Circuit Court on

November 21, 2016. On November 30, 2016, defendant timely filed a motion

for new trial, which the court denied on January 5, 2017. Defendant timely

filed a notice of appeal on February 6, 2017. See ORS 138.071(2)(a) (providing

that notice of appeal is to be filed within 30 days of the denial of new trial

motion); ORAP 1.25(1) (providing that if 30th day falls on a Saturday, the

period runs until the end of the next day that the court is open).

Question Presented

When the defendant raises self-defense and represents himself at trial,

does the trial court abuse its discretion when it allows the prosecutor to argue in

closing that the jury can infer from defendant’s conduct and demeanor at trial

(both as a party and as his own counsel) that he was the aggressor in the

encounter, when the court never admitted defendant’s in-court conduct or

demeanor into evidence?

Summary of Argument

Although counsel have a large degree of freedom to comment on the

evidence submitted and urge the jury to draw legitimate inferences from that

evidence, that freedom does not permit counsel to make statements of fact

outside the range of evidence. Consequently, this court has held that a trial
3

court abused its discretion by allowing a party’s closing arguments referencing

facts not in evidence.

Here, after an altercation with police at Portland City Hall, the state

charged defendant with attempting to assault a public safety officer, resisting

arrest, and criminal mischief. At trial, defendant raised self-defense and choice

of evils to those charges. Defendant acted as his own counsel and testified to

facts supporting those defenses. In its closing argument, the prosecutor made

several remarks about defendant’s conduct and demeanor during the course of

the trial that he characterized as showing his aggressive tendencies, and he

encouraged the jury to infer that defendant was the aggressor during the City

Hall incident. The trial court overruled defendant’s objection to those

arguments.

The state never moved to admit any aspect of defendant’s in-court

behavior or demeanor into evidence, and as such, the facts that the prosecutor

relied on were not evidence. The trial court erred in allowing the prosecutor to

rely on extra-record facts in his argument.

The error was not harmless. By overruling defendant’s objection, the

trial court essentially admitted defendant’s in-court conduct for propensity

purposes and tacitly allowed the jury to use those unadmitted facts as evidence.

The court did not place any limitations on the state’s use of defendant’s in-court

conduct, and although the court instructed the jury to rely on the “evidence,” the
4

jury would likely view the extra-record facts as evidence. Thus, the jury was

likely to use the extra-record facts to determine the central issue in the case—

whether defendant acted in self-defense. This court should reverse.

Summary of Facts

State’s evidence

James Wood is a security guard contracted to provide security services at

Portland City Hall. Tr 501. On the afternoon of November 24, 2015, Wood

was called into the Office of Neighborhood Involvement, located inside City

Hall, on a report of a “disturbance.” Tr 502-03, 563. When Wood arrived,

defendant was there and was visibly upset. Tr 503. Defendant complained

about not being served and refused to leave. Tr 504. Wood informed defendant

that he was excluded from City Hall for 24 hours.2 Tr 504. Defendant still

refused to leave, but after Wood’s supervisor arrived and spoke with defendant,

he left the building. Tr 504.

The following morning, Wood was providing security for a meeting of

the Portland City Council at City Hall. Tr 505-06. Shortly before the meeting

began, Wood opened the door to the public. Tr 506. Defendant was among the

people who entered the city council chambers, and Wood told defendant that he

was excluded. Tr 506. Defendant replied, “I know I am but I’m not leaving,”

2
That trespass order was later deemed unlawful, and the state
moved to dismiss the trespass charge. Tr 337-38.
5

and said that he intended to testify. Tr 506-08. Wood contacted his supervisor

and informed the mayor’s office that it should delay the council meeting. Tr

509.

Wood’s supervisor, Sergeant Cohen, arrived and saw defendant speaking

to the crowd in the council chambers. Tr 509. An acquaintance of defendant,

David Davis, was filming defendant.3 Tr 526-27, 760. Defendant was upset.

Tr 587. Cohen tried to calm him down and then left the chambers to call 9-1-1.

Tr 509, 588. Commissioner Amanda Fritz tried to speak to defendant, and

defendant told her that she had left him homeless, broke, and hungry. Tr 510.

Defendant yelled that he had killed Fritz’s husband, who had died in a traffic

accident a year earlier. Tr 510.

Portland Police Officer Todd Engstrom arrived to City Hall and received

details from Cohen. Tr 591, 610. Engstrom could hear yelling coming from the

chambers. Tr 611. Engstrom looked into the chambers and saw defendant

standing in the middle of the room, yelling at the top of his lungs about various

political issues. Tr 611. Defendant requested an ambulance and was repeatedly

yelled “Central Pain Syndrome.” Tr 541-46, 777-80. Engstrom called for

3
The state admitted Davis’s video as Exhibit 1, which it played for
the jury. The entirety of the incident in the city council chambers was captured
on video.
6

backup; Sergeant Axthelm and Officer Singh arrived for support. Tr 611-12.

He also called an ambulance for defendant. Tr 619.

Cohen tried to get Davis to leave the chambers. Tr 594. Davis refused,

and Cohen issued an exclusion order to him. Tr 594. The officers decided to

arrest Davis for trespass, because defendant was speaking directly to Davis’s

camera. Tr 526-27, 760-61, 937. At that point, the police did not intend to

arrest defendant; rather, they wanted everyone else out of the chambers so they

could try to calm defendant down. Tr 756, 761-62. Axthelm told David he was

under arrest. Tr 615. The officer began to move in to arrest Davis. Tr 966-67.

At that time, defendant approached Engstrom and Axthelm. Tr 618, 763.

Axthelm pushed defendant and told him to give him distance. Tr 763, 770.

Engstrom told defendant to back up, grabbed defendant’s arm, and told him that

an ambulance was coming. Tr 618. The police were not trying to arrest

defendant. Tr 618, 756. Defendant tried to pry Engstrom’s hand off of his arm,

and Engstrom grabbed defendant’s other hand to stop him from doing so. Tr

620. Defendant took a couple of swings at Engstrom, hitting him in the bicep.

Tr 620. Engstrom put defendant in a “quasi bear hug” and pushed him against a

desk. Tr 620. As Engstrom, Axthelm, and Singh tried to handcuff defendant,

defendant tensed up and tried to pull away. Tr 620, 624, 626, 764, 968, 972.

The officers succeeded in handcuffing defendant, using two sets of cuffs

connected together so as to make it more comfortable. Tr 620, 624. Singh used


7

a wrist-lock technique on defendant to get him to comply. Tr 970. Defendant

was under arrest at that point. Tr 620.

Sergeant Price arrived and helped escort defendant outside. Tr 627-28.

When the officers tried to remove defendant from the chambers, he went limp.

Tr 626. As they escorted defendant out of the building, defendant “mule

kicked” Engstrom three times in his shin, which caused “a lot of pain.” Tr 628-

29, 1023.

When they got outside, an ambulance was waiting for defendant. Tr 619.

Engstrom put defendant in the back of his patrol car. Tr 631-32. Defendant

kicked the restraint system in the back of the patrol car and broke it loose from

its anchors. Tr 632-39. Engstrom did not give defendant medical attention

because he did not think defendant needed it. Tr 640. Engstrom transported

defendant to jail, and the jail accepted him. Tr 641. The jail will not accept

prisoners who they deem to be in need of medical attention. Tr 641.

Several days after the incident, Engstrom noted a bruise on his bicep

where defendant punched him. Tr 746. He took a picture of the bruise a week

after the incident. Tr 746; Ex 14.

Defense evidence

Defendant, who is a street musician, went to Portland City Hall on

November 25, 2015, to speak at the city council meeting about laws regarding

street performers and to sing a song that he had written. Tr 1196, 1211, 1213.
8

He had signed up to speak at the meeting that day. Tr 1213. His plan “was to

go to City Hall, and if I didn’t get arrested there for trespass, I was going to go

up and get arrested at the Kafoury Court Apartment complex,” which was

vacant. Tr 1225.

When he got to City Hall, defendant became sick due to his pain

condition. Tr 1225. Defendant has had Central Pain Syndrome for many years,

which causes chronic disabling pain. Tr 1196-98. It can cause emotional stress

to manifest as physical pain. Tr 1200, 1225. He asked people to call him an

ambulance. Tr 1225. Defendant was “trying to vent * * * to keep from getting

sicker.” Tr 1226.

Defendant noticed the police arrive, and in particular, he took note that

Engstrom was “big” and had a taser. Tr 1227, 1228. He thought Engstrom

“was going to hurt me bad.” Tr 1228, 1230. Engstrom put his hand on

defendant. Tr 1228. Defendant does not like to be touched by people he does

not know. Tr 1230. He knows that “offensive physical contact” is a crime in

Oregon: “[W]e don’t get to touch people. That’s the line. Say anything you

want verbally. Don’t touch people. Touching people, offensive physical

contact, is criminal.” Tr 1231.

Defendant tried to slide Engstrom’s hand off of his and said, “Do you

want your thumb back?” Tr 1228. Defendant explained the events that

followed:
9

“And as soon as [Engstrom] got more aggressive, I punched


him, right her[e] in his ballistic vest, because I wouldn’t be
grabbing at his taser, I knew, wouldn’t be physically injuring him
in any way. And that was a room full of people. And people were
going to get hurt. I knew what was going to happen. I was going
to punch Officer Engstrom, and he was going to try to pull some
moves on me, and that was going to be very short lived because his
other officers would respond and I would be out of there.”

Tr 1231. The police subjected defendant to “pain compliance holds.” Tr 1231.

Engstrom hurt defendant “all the way to the police car.” Tr 1236.

Defendant was “kind of kicking, spazzing out in pain[.]” Tr 1236-37. Once

police placed defendant in the police car, his pain condition was aggravated,

and he believed he needed to physically vent or risk bodily harm:

“And at that point, it was heart failure. That’s what I was


looking forward to, heart failure. I had all that adrenaline, all that
flight or fight chemicals, and there was nobody to fight and
nowhere to go. So I tore the hell out of that police car. I did as
much damage in that police car as I possibly could. * * *”

“* * * * *

“And that felt better. It felt better seeing the looking on


Todd Engstrom’s panicked face. He’s fumbling for the key to get
in the car and take me the two blocks into the jail. * * * I learned
that if I don’t vent that fight or flight, it could kill me.”

Tr 1237. Defendant explained his use of force that day: “I can do self-defense.

I’ve done * * * citizen’s arrests. I can, you know, if appropriate, use force. But

I don’t hurt people more than I need to in custody, and I had that happen that

day with Todd Engstrom, as I predicted.” Tr 1239.


10

Multnomah County Corrections Deputy Melissa Regehr has known

defendant for years through her work at the jail. Tr 1178. She opined that

defendant had “a little character for aggression,” but if police are willing to

engage in a conversation with him, defendant is able to focus and calm down.

Tr 1173, 1176. She has never seen defendant get physical, although he

sometimes yells and gets angry. Tr 1184. The corrections community knows to

be cautious around defendant. Tr 1186.

FIRST ASSIGNMENT OF ERROR

The trial court erred in failing to strike the prosecutor’s argument that “it

is clear from * * * [defendant]’s behavior in court, that he didn’t lose control on

November 25th, 2015.” Tr 1260.

SECOND ASSIGNMENT OF ERROR

The trial court erred in failing to strike the prosecutor’s argument that

defendant “reveled in that same attention, the show, the spectacle, just like he

did in court over the past week.” Tr 1260.

THIRD ASSIGNMENT OF ERROR

The trial court erred in failing to strike the prosecutor’s argument that

during the incident, defendant was “doing * * * what he did here today, create a

scene. Getting himself worked up and reveled in it, in the attention from the

audience, and the fact that he got to be the center of attention. Everyone had to

pay attention to him, had to focus on him.” Tr 1261.


11

FOURTH ASSIGNMENT OF ERROR

The trial court erred in failing to strike the prosecutor’s argument that

defendant “got worked up then, just as you saw him get worked up in court a

couple of times.” Tr 1261.

FIFTH ASSIGNMENT OF ERROR

The trial court erred in failing to strike the prosecutor’s argument that

“You saw as he advanced at Officer Engstrom, yelling at him, pointing at him,

walking towards him to the point where the Judge had to order him back. He

got worked up then just as he did in that City Hall.” Tr 1261.

SIXTH ASSIGNMENT OF ERROR

The trial court erred in failing to strike the prosecutor’s argument that

defendant “testified, and I’ll be frank with you, I mean, his testimony, I was

surprised, you saw it. I didn’t expect that. It’s just a second act in this play he

has, this misguided attempt to have his voice heard.” Tr 1269.

SEVENTH ASSIGNMENT OF ERROR

The trial court erred in failing to strike the prosecutor’s argument that

defendant “got to be heard. He got his moment of notoriety he wanted. He got

to stand up before you in the same manner, make the same disjointed argument

* * *.” Tr 1289.
12

EIGHTH ASSIGNMENT OF ERROR

The trial court erred in failing to strike the prosecutor’s argument that

defendant “worked himself up this week.” Tr 1291.

NINTH ASSIGNMENT OF ERROR

The trial court erred in failing to strike the prosecutor’s argument that

“You saw [defendant] show signs of that aggression here in the courtroom.” Tr

1291.

Combined Preservation of Error4

Defendant acted as his own counsel at trial. In its closing argument, the

state repeatedly commented on defendant’s behavior and demeanor during the

trial and suggested that the jury should conclude from defendant’s trial conduct

that he was the aggressor during the incident at City Hall. For example, the

state argued:

“[THE PROSECUTOR]: At the beginning of this big trial, I


said something. You deserve a (indiscernible), and the theme was
[defendant] lost control. Nothing has changed. Because
sometimes themes and stories change with evidence as things
come out. They adapt. And I think it is clear from the evidence,
the testimony, [defendant]’s behavior in court, that he didn’t lose
control on November 25th, 2015. He knew exactly what he was
doing. He knew what to expect. He knew what he was going to
do, and he reveled in it. So he reveled in that same attention, the
show, the spectacle, just like he did in court over the past week.

4
Defendant combines the preservation of error, standard of review,
and argument for his first through third assignments of error, because they
present essentially the same legal issue. ORAP 5.45(6).
13

“It is clear from the evidence and, more importantly, from


[defendant]’s own words that you heard this morning, that he knew
he was excluded from City Hall and he went down there looking
for a fight. * * * He knew exactly what he was doing. * * * [H]e
said, ‘No, I went down there with the purpose of getting arrested. I
had this song. I had it checked out by a lawyer because it was so
inflammatory. I wanted to make sure I wasn’t breaking the law
because I was singing it.’ He was going to have his moment.

“Now, you’ll see this video, and I’ve moved it up to about


the 21-minute mark. You’ve already listened to its entirety once,
because the first 20 minutes of that video is just [defendant] doing,
on November 25th, what he did here today, create a scene.
Getting himself worked up and reveled in it, in the attention from
the audience, and the fact that he got to be the center of attention.
Everyone had to pay attention to him, had to focus on him. And
then in that speech, he kept getting worked up, and worked up, and
worked up. And despite the statements of, ‘Oh, you're triggering
my disability,’ at the very beginning of that video, it happens at
about the second minute, did he leave? Did he walk out? Did he
follow that exclude order that he knew was in place? No. He
stayed there and he continued to talk, to rant, to revel in that
moment. And he got worked up then, just as you saw him get
worked up in court a couple of times.”

Tr 1259-61.

At that point, defendant objected to the prosecutor’s suggestion that the

jury should use defendant’s in-court conduct as evidence of his guilt of the

charged offenses:

“[DEFENDANT]: Your Honor, I object.

“[THE PROSECUTOR]: And then he advanced –

“THE COURT: About what?


14

“[DEFENDANT]: The demeanor of the Defense counsel has


nothing to do with the witness or the evidence.

“THE COURT: Overruled. This is an argument.”

Tr 1261. The state continued its closing argument and persisted in encouraging

the jury to use defendant’s in-court conduct as evidence of his guilt:

x “You saw as [defendant] advanced at Officer Engstrom [at trial], yelling


at him, pointing at him, walking towards him to the point where the
Judge had to order him back. He got worked up then just as he did in that
City Hall.” 5 Tr 1261.

x “[Defendant]’s fantasies are on display in this entire video. The fact that
he was certain he was going to be arrested. He testified, and I’ll be frank
5
The prosecutor was apparently referring to a brief exchange during
defendant’s cross examination of Engstrom:

“[THE PROSECUTOR]: Your Honor, I’d object right now.


[Defendant]’s walking up, advancing on the witness and yelling at
him. It’s improper.
“[DEFENDANT]: I’m not yelling at him.
“THE COURT: I think –
“[DEFENDANT]: I’m sorry.

“THE COURT: Unless there’s a reason to approach the


witness, maybe you should keep a little distance.
“[DEFENDANT]: I want to make sure that he feels safe,
Your Honor, and everybody else does.

“THE COURT: And I’m telling you to do that.

“[DEFENDANT]: That’s my sentiment exactly. I will.


“THE COURT: Okay. Good.”
Tr 678-79.
15

with you, I mean, his testimony, I was surprised, you saw it. I didn’t
expect that. It’s just a second act in this play he has, this misguided
attempt to have his voice heard.” Tr 1269.

The state continued that theme in its rebuttal argument:

x “[Defendant] * * * got to be heard. He got his moment of notoriety he


wanted. He got to stand up before you in the same manner, make the
same disjointed argument, ran by the same disjointed theories and ghosts.
It’s his world.” Tr 1289.

x “In [defendant]’s head, he’s the star of the show. He wants that spotlight.
He wants that attention and he wants that validation. And he worked
himself up – he worked himself up on a – remember, he worked himself
up this week.” Tr 1291.

x “You saw how aggressive he was in the video. You saw him show signs
of that aggression here in the courtroom.” Tr 1291.

Standard of Review

A trial court’s decisions regarding control of jury argument is reviewed

for an abuse of discretion. Cler v. Providence Health Sys.-Oregon, 349 Or 481,

487, 245 P3d 642 (2010).

Argument

I. The trial court erred in failing to strike the prosecutor’s arguments


referencing facts not in evidence.
Although “counsel have ‘a large degree of freedom’ to comment on the

evidence submitted and urge the jury to draw any [and] all legitimate inferences

from that evidence,” that freedom does not permit counsel to “make ‘statements

of facts outside the range of evidence.’” Cler, 349 Or at 487-88 (quoting Huber

v. Miller, 41 Or 103, 115, 68 P 400 (1902)).


16

This court has held that a trial court abused its discretion by allowing a

party’s closing arguments referencing facts not in evidence. Cler dealt with the

plaintiff’s medical malpractice lawsuit arising from cancer treatment that she

received at the defendant’s hospital. Id. at 483. In closing arguments, defense

counsel asserted that an expert oncology nurse had been prepared to testify on

the defendant’s behalf during trial but could not testify before leaving for

vacation because the plaintiff had called additional witnesses, and that the nurse

would have supported the defendant’s case. Id. at 485, 488. The trial court

overruled the plaintiff’s objection to those arguments. Id. at 485. At the end of

arguments, the trial court gave the jury the standard instruction that it must

decide the case based on the evidence presented at trial and that counsel’s

arguments are not evidence. Id. at 486.

The Supreme Court reversed. It agreed with this court “that jury

argument may refer to matters that are within the scope of the issues and the

evidence, but that evidence outside the record may not be suggested by any

means.” Id. at 490; see also OEC 103(3) (“In jury cases, proceedings shall be

conducted, to the extent practicable, so as to prevent inadmissible evidence

from being suggested to the jury by any means, such as making statements or

offers of proof or asking questions in the hearing of the jury.”). Accordingly, it

held that “the trial court abused its discretion by overruling plaintiffs’
17

objections to defendant’s improper argument” and reversed. Cler, 349 Or at

490, 493.

The federal Constitution similarly entitles a criminal defendant “to have

his guilt or innocence determined solely on the basis of the evidence introduced

at trial, and not on * * * other circumstances not adduced as proof at trial.”

Taylor v. Kentucky, 436 US 478, 485, 98 S Ct 1930, 56 L Ed 2d 468 (1978).

Accordingly, it has reversed a defendant’s conviction based on a “prosecutor’s

closing argument * * * asking the jury to draw inferences about petitioner’s

conduct from ‘facts’ not in evidence[.]” Id. at 486.

Here, defendant’s behavior during trial was not in evidence. If admitted,

defendant’s in-court conduct would be a type of “demonstrative evidence” by

“convey[ing] a firsthand sense impression to the trier of fact.” Christensen v.

Cober, 206 Or App 719, 727, 138 P3d 918 (2006) (quotations omitted). But the

state never moved to admit evidence of defendant’s conduct or demeanor

contemporaneously with its occurrence, for example, by asking the court to “let

the record reflect” what was happening in court. Thus, the trial court never

admitted the evidence. See Lazzari v. States Marine Corp. of Del., 220 Or 379,

381, 349 P2d 857 (1960) (“[D]emonstrative evidence * * * adds nothing but

confusion to a written record unless explanation is made[.]”).

The state’s failure to move for admission of defendant’s in-court conduct

deprived defendant of the opportunity to litigate its admissibility and respond to


18

it. On the record that does exist, the use of defendant’s in-court conduct to

prove that he was the initial aggressor in the City Hall incident raises concerns

about its admissibility. The facts that the prosecutor identified are “other acts”

evidence. Before other acts evidence may be admitted over a defendant’s

objection, the court must ensure that it complies with the strictures of OEC 403:

“[I]n a criminal action, when the state proffers evidence of


uncharged acts, either to prove a defendant’s propensity to commit
charged crimes under OEC 404(4), or for a nonpropensity purpose
under OEC 404(3), and a defendant objects to the admission of that
evidence, the trial court must conduct balancing under OEC 403,
according to its terms, to determine whether the probative value of
the challenged evidence is substantially outweighed by the danger
of unfair prejudice.”

State v. Baughman, 361 Or 386, 388, 393 P3d 1132 (2017) (footnotes omitted).

It is likely that OEC 403 balancing would have led to exclusion, because

the state did not identify a nonpropensity purpose for its admission, and it

explicitly used the extra-record facts for propensity purposes—i.e., to argue that

defendant had a character for aggression and that he acted in conformity with

that character during the City Hall incident.

In sum, the prosecutor repeatedly and forcefully cited facts not in

evidence and asked the jury to infer defendant’s guilt based on those facts.

Consequently, the trial court abused its discretion in allowing those arguments.

Cler, 349 Or at 490.


19

II. The error was not harmless and requires reversal.


As in Cler, the errors here were not harmless. This court “must affirm a

judgment, despite any error committed at trial, if, after considering all the

matters submitted, the court is of the opinion that the judgment ‘was such as

should have been rendered in the case.’” State v. Davis, 336 Or 19, 28, 77 P3d

1111 (2003) (quoting Or Const Art VII (Amended), § 3). Ordinarily, whether

the court must affirm despite error depends upon “a single inquiry: Is there

little likelihood that the particular error affected the verdict?” Davis, 336 Or at

32. “Under the federal constitution, the state bears the burden to prove that the

error was harmless beyond a reasonable doubt.” State v. Bates, 203 Or App

245, 251, 125 P3d 42 (2005), rev den, 340 Or 483 (2006).

In Cler, the Supreme Court reversed the judgment, holding that the

defendant’s arguments citing facts not in evidence substantially affected the

plaintiff’s rights. 349 Or at 493. Its reasoning in reaching that conclusion is

instructive. First, the court noted the importance of closing arguments to the

jury and reasoned that “[t]he integrity of closing arguments can only be ensured

when the court requires the parties to limit their arguments to the facts in

evidence and permissible inferences from those facts.” Id. at 491. Second, it

reasoned that counsel’s arguments “impermissibly interjected extra-record facts

into the case after the parties had rested,” and by overruling the plaintiff’s

objections in front of the jury, the trial court had given the jury its “imprimatur”
20

to rely on those facts. Id. Third, the court noted that the defense counsel had

essentially given unsworn testimony that was not subject to cross-examination.

Id. at 492. Fourth, the court determined that “[t]he trial court’s admonition to

the jury that the lawyers’ arguments ‘are not evidence’ does not overcome that

problem[.]” Id. In so concluding, it reasoned that counsel’s reference to facts

outside of the record could have been seen by the jury not as arguments, but as

evidence to be relied on. Id. at 492-93. Finally, the court noted that the extra-

record facts were “material to the central issue in the case[.]” Id. at 493.

For similar reasons, the trial court’s approval of the state’s reliance on

extra-record facts was not harmless. By overruling defendant’s objection, the

trial court essentially admitted defendant’s in-court conduct (and the

prosecutor’s recollections of it) for propensity purposes, thereby inserting what

amounted to prejudicial “other acts” evidence into the jury’s deliberations. The

state then urged the jury to draw propensity inferences from it. As in Cler, the

trial court gave the jury its “imprimatur” to rely on those facts by overruling

defendant’s objections in front of the jury. Id. at 491.

Further, although the trial court instructed the jury to “[b]ase [its] verdict

on the evidence” and that the “parties’ statements and arguments are not

evidence,” as in Cler, those instructions did not cure the harm. Id. at 492-93.

The jury would likely see defendant’s conduct as “evidence.” Indeed, the trial

court suggested that those facts were not “stricken” when it overruled
21

defendant’s objection to the prosecutor’s arguments, because it also

instructed the jury that evidence should be disregarded only “[w]hen I’ve

sustained objections to evidence or ordered that evidence be stricken * * *.” Tr

1293.

Moreover, the court did not place any limitations on the state’s use of

defendant’s in-court conduct, and the state urged the jury to draw propensity

inferences from it regarding defendant’s character for aggression. See, e.g., Tr

1261 (arguing that defendant “got worked up [at City Hall], just as you saw him

get worked up in court”). Thus, the jury was free to conclude that the defendant

acted in conformance with his trial conduct during the City Hall incident, and

therefore he was the aggressor and was not acting in self-defense or from a fear

of injury. That was the central issue in the trial, because defendant raised self-

defense to Counts 1 and 2 and choice of evils to Count 3. Defendant provided

testimony that supported those defenses, and there is a great risk that the jury

based its verdict on the extra-record facts rather than on the events at issue.

The prosecutor’s remarks were harmful for an additional reason. Many

of the remarks to which defendant assigns error went beyond the extra-record

facts and were comments on defendant’s exercise of his constitutional rights to

testify and to represent himself. For example, the prosecutor referred to

defendant’s decision to testify at trial as “just a second act in this play he has,

this misguided attempt to have his voice heard.” Tr 1269 (emphasis added).
22

And the prosecutor characterized defendant’s performance as his own

counsel as a “show” and a “spectacle.” Tr 1260 (“So he reveled in that same

attention, the show, the spectacle, just like he did in court over the past week.”).

Although defendant did not preserve an argument about the prosecutor’s

comments on his constitutional rights, that aspect of the comments makes their

erroneous admission more harmful. The prosecutor’s remarks disparaging

defendant’s decision to speak as his own counsel reduced defendant’s exercise

of his constitutional rights to acts of narcissism in the eyes of the jury and

encouraged the jury to draw adverse inferences against defendant—both as a

party and as his own counsel. Cf. State v. Knight, 343 Or 469, 482-83, 173 P3d

1210 (2007) (holding that the defendant’s derogatory statements about defense

counsel were unfairly prejudicial because they “inevitably affected the jury’s

own perception of the competence and zealousness of defendant’s trial counsel

and, ultimately, of the strength of defendant’s case”).

In sum, under Oregon’s harmless-error standard, it cannot be said that

there is “little likelihood” that the error affected the verdict. Under the federal

harmless-error standard, the state has failed to carry its burden of proving the

error harmless beyond a reasonable doubt. The errors require reversal.


23

CONCLUSION

For those reasons, defendant asks this court to reverse the judgment and

remand to the trial court.

Respectfully submitted,

ERNEST G. LANNET
CHIEF DEFENDER
CRIMINAL APPELLATE SECTION
OFFICE OF PUBLIC DEFENSE SERVICES

ESigned
Signed
By Brett J Allin at 11:14 am, Jan 31, 2018

BRETT J. ALLIN OSB #142719


DEPUTY PUBLIC DEFENDER
Brett.J.Allin@opds.state.or.us

Attorneys for Defendant-Appellant


Barry Joe Stull
i

EXCERPT OF RECORD INDEX

Indictment ...................................................................................................... ER-1

Judgment ............................................................................................................. ER 2-3

General Dismissal Judgment……..................................................................... ER-4

eCourt Case Information Register ............................................................. ER 5-11


ER-1
ER-2
ER-3
ER-4
Page 1 of 7
ER-5

Skip to Main Content Logout My Account Search Menu Search Criminal, Traffic and Parking Case
Location : Multnomah Images Help
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REGISTER OF ACTIONS
CASE NO. 15CR53749

State of Oregon vs Barry Joe Stull § Case Type: Offense Misdemeanor


§ Date Filed: 11/25/2015
§ Location: Multnomah
§ Booking Number: 1357219
§ District Attorney Number: 2331361-1
§
§

RELATED CASE INFORMATION

Related Cases
15CR52961 (Related - Same Defendant)

PARTY INFORMATION

Attorneys
Defendant Stull, Barry Joe Also Known Male White Pro SeBRYAN
As Stully, Barry Joe DOB: 1958 FRANCESCONI
6' 2", 260 lbs Court Appointed
503 225-9100(W)
10852 SE Stark Street #5
Portland, OR 97216
SID: OR07941656 KASIA E RUTLEDGE
Other Agency Numbers Retained
86112 Multnomah County Sheriff 503 225-9100(W)

Kevin Kelley
Court Appointed
503 648-0707(W)

Plaintiff State of Oregon MULTNOMAH DISTRICT


ATTORNEY

Eamon P McMahon
503 988-3162(W)

JEFFREY DAVID AUXIER


503 988-5445(W)

MICHAEL BOTTHOF
503 988-3162(W)

SEAN M MAZOROL
503 988-3162(W)

TODD T JACKSON
503 988-3162(W)

CHARGE INFORMATION

Charges: Stull, Barry Joe Statute Level Date


1. Attempt to Commit a Class C/Unclassified Felony 161.405(2)(d) Misdemeanor Class A11/25/2015
2. Resisting Arrest 162.315 Misdemeanor Class A11/25/2015
3. Criminal Mischief in the Second Degree 164.354 Misdemeanor Class A11/25/2015
4. Criminal Trespass in the Second Degree 164.245 Misdemeanor Class C11/25/2015
Assaulting a Public Safety Officer 163.208 Felony Class C 11/25/2015

https://publicaccess.courts.oregon.gov/PublicAccessLogin/CaseDetail.aspx?CaseID=2547... 3/22/2017
Page 2 of 7
ER-6

999.

EVENTS & ORDERS OF THE COURT

DISPOSITIONS
11/27/2015 Disposition
999. Assaulting a Public Safety Officer
No Complaint
Created: 11/27/2015 1:31 PM

12/10/2015 Amended Disposition Reason: Clerical Revision


999. Assaulting a Public Safety Officer
Removed From Charging Instrument
Created: 12/10/2015 1:57 PM

12/11/2015 Plea (Judicial Officer: Jones, Edward J)


1. Attempt to Commit a Class C/Unclassified Felony
Not Guilty
4. Criminal Trespass in the Second Degree
Not Guilty
3. Criminal Mischief in the Second Degree
Not Guilty
2. Resisting Arrest
Not Guilty
Created: 12/11/2015 10:40 AM

09/06/2016 Disposition (Judicial Officer: Skye, Kelly)


4. Criminal Trespass in the Second Degree
Dismissed
Created: 09/06/2016 11:31 AM

11/17/2016 Disposition (Judicial Officer: Roberts, Leslie M)


1. Attempt to Commit a Class C/Unclassified Felony
Convicted
3. Criminal Mischief in the Second Degree
Convicted
2. Resisting Arrest
Convicted
Created: 11/17/2016 9:42 AM

11/17/2016 Sentence (Judicial Officer: Roberts, Leslie M)


1. Attempt to Commit a Class C/Unclassified Felony
Fee Totals:
Amount Reduction
Fine - Misdemeanor $100.00
Fee Totals $ $100.00
Fee Modifier
ATFE waived.
Probation Supervised (Active)
Start Date: 11/17/2016
Duration: 2 Years
Estimated End Date: 11/17/2018
Judicial Officer: Roberts, Leslie M
Comments: Comply w/all probation.
Condition Behavior: All General Conditions apply
Special Conditions: Program - Mental Health Evaluation & Treatment, 11/17/2016, Participate in a mental health ev
enter and successfully complete any course of treatment, including prescribed medications, determined to be nece
designated by the evaluator or the probation officer. If currently in a mental health program, continue as directed by
provider.
Sentencing Details
Decision Date: 11/17/2016
Suspend Imposition
Created: 11/21/2016 3:55 PM

11/17/2016 Sentence (Judicial Officer: Roberts, Leslie M)


2. Resisting Arrest
Comment (Fine and ATFE waived.)
Probation Supervised (Active)
Start Date: 11/17/2016
Duration: 2 Years
Estimated End Date: 11/17/2018
Judicial Officer: Roberts, Leslie M
Comments: Concurrent w/conditions on count 1.

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Condition Behavior: All General Conditions apply


Sentencing Details
Decision Date: 11/17/2016
Suspend Imposition
Created: 11/21/2016 3:57 PM

11/17/2016 Sentence (Judicial Officer: Roberts, Leslie M)


3. Criminal Mischief in the Second Degree
Fee Totals:
Amount Reduction
Restitution A $48.68
Fee Totals $ $48.68
Fee Modifier
Fine and ATFE waived.
Probation Supervised (Active)
Start Date: 11/17/2016
Duration: 2 Years
Estimated End Date: 11/17/2018
Judicial Officer: Roberts, Leslie M
Comments: Concurrent w/conditions on count 1.
Condition Behavior: All General Conditions apply
Sentencing Details
Decision Date: 11/17/2016
Suspend Imposition
Created: 11/21/2016 3:59 PM

OTHER EVENTS AND HEARINGS


11/27/2015 Arraignment (2:30 PM) (Judicial Officer Bloch, Eric J)
Result: Held
Created: 11/25/2015 4:36 PM
11/27/2015 Motion - Recognizance Release
Created: 11/27/2015 8:00 AM
11/27/2015 Information
Created: 11/27/2015 4:52 PM
11/27/2015 Order - Appear (Judicial Officer: Bloch, Eric J )
Signed: 11/27/2015
Created: 11/30/2015 3:22 PM
11/27/2015 Order - Appointing Counsel (Judicial Officer: Bloch, Eric J )
Attorney:
Signed: 11/27/2015
Created: 12/01/2015 10:46 AM
11/30/2015 Hearing (10:10 AM) (Judicial Officer Greenlick, Michael A)
s/o from 11/27
Result: Held
Created: 11/27/2015 2:32 PM
11/30/2015 Affidavit - Probable Cause
Created: 11/30/2015 8:53 AM
11/30/2015 Order - Appear (Judicial Officer: Greenlick, Michael A )
Signed: 11/30/2015
Created: 12/01/2015 8:59 AM
12/01/2015 Hearing (10:10 AM) (Judicial Officer Greenlick, Michael A)
Result: Held
Created: 11/30/2015 11:01 AM
12/01/2015 Order - Appear (Judicial Officer: Greenlick, Michael A )
Signed: 12/01/2015
Created: 12/01/2015 4:46 PM
12/03/2015 Arraignment (10:10 AM) (Judicial Officer Greenlick, Michael A)
s/o from 12/1
Result: Held
Created: 12/01/2015 11:07 AM
12/03/2015 Arraignment (Judicial Officer: Greenlick, Michael A )
Created: 12/03/2015 9:54 AM
12/03/2015 Order - Appear (Judicial Officer: Greenlick, Michael A )
Signed: 12/03/2015
Created: 12/03/2015 4:44 PM
12/10/2015 Indictment
Created: 12/10/2015 1:58 PM
12/11/2015 CANCELED Hearing - Preliminary (9:30 AM) (Judicial Officer Jones, Edward J)
Indicted
Created: 12/03/2015 9:54 AM
12/11/2015 Arraignment (9:30 AM) (Judicial Officer Jones, Edward J)
Result: Held
Created: 12/10/2015 4:07 PM

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12/11/2015 Warrant - Return of Service


Created: 12/11/2015 8:31 AM
12/11/2015 Arraignment (Judicial Officer: Jones, Edward J )
Created: 12/11/2015 10:40 AM
12/11/2015 Order - Appear (Judicial Officer: Jones, Edward J )
Signed: 12/11/2015
Created: 12/14/2015 7:47 AM
01/07/2016 Report
DENIAL RECOMMENDATION
Created: 01/08/2016 7:07 AM
01/15/2016 Call - Regular (9:00 AM) (Judicial Officer Jones, Edward J)
Swis Booking Date: 11/25/15 Custody: MCDC
Result: Held
Created: 12/11/2015 10:41 AM
01/28/2016 Hearing - Substitution Of Attorney (8:30 AM) (Judicial Officer Jones, Edward J)
w/15CR52961
Result: Held
Created: 01/26/2016 2:50 PM
01/28/2016 Order (Judicial Officer: Jones, Edward J )
Judge E Jones recuses himself from case
Signed: 01/28/2016
Created: 01/29/2016 9:58 AM
02/01/2016 Call (9:15 AM) (Judicial Officer Waller, Nan G)
Substitution of Attorney Hearing SWIS Booking Date: 11/25/2015 Custody: MCDC
Result: Held
Created: 01/28/2016 1:58 PM
02/04/2016 Call (9:15 AM) (Judicial Officer Waller, Nan G)
Substitution of Attorney Hearing SWIS Booking Date: 11/25/2015 Custody: MCDC
Result: Held
Created: 02/01/2016 10:45 AM
02/05/2016 Hearing - Substitution Of Attorney (9:31 AM) (Judicial Officer Hodson, Jerry B)
Transport Requested
Result: Held
Created: 02/04/2016 10:08 AM
02/05/2016 Order (Judicial Officer: Hodson, Jerry B )
Jg Hodson recuses himself
Signed: 02/05/2016
Created: 02/08/2016 2:47 PM
02/08/2016 Call (9:15 AM) (Judicial Officer Waller, Nan G)
For Sub of Attorney Swis Booking Date: 11/25/15 Custody: MCDC
Result: Held
Created: 02/05/2016 11:13 AM
02/09/2016 Hearing - Substitution Of Attorney (9:01 AM) (Judicial Officer Marshall, Christopher J)
transport requested
Result: Held
Created: 02/08/2016 10:42 AM
02/09/2016 Judgment - General Dismissal (Judicial Officer: Marshall, Christopher J )
Of indictment; Misd info filed
Signed: 02/09/2016
Created: 02/09/2016 2:28 PM
02/09/2016 Information
Created: 02/09/2016 2:28 PM
02/09/2016 Affidavit - Probable Cause
Created: 02/09/2016 2:28 PM
02/09/2016 Order (Judicial Officer: Marshall, Christopher J )
set TR 3.4.16, C docket; rls to report to PRS: ind dismissed, arraigned on new info
Signed: 02/09/2016
Created: 02/09/2016 2:28 PM
02/09/2016 Arraignment
Created: 02/09/2016 2:28 PM
02/09/2016 Order (Judicial Officer: Marshall, Christopher J )
waiving counsel
Signed: 02/09/2016
Created: 02/09/2016 2:28 PM
02/22/2016 CANCELED Call - Regular (9:00 AM) (Judicial Officer Waller, Nan G)
Other
Swis Booking Date: 11/25/15 Custody: MCDC Ext 60 days thru 3/24 per EJJ
Created: 01/15/2016 11:24 AM
03/04/2016 Hearing - Trial Readiness (9:00 AM) (Judicial Officer Maurer, Jean Kerr)
03/04/2016 Reset by Court to 03/04/2016
Result: Held
Created: 02/12/2016 10:59 AM
03/04/2016 Hearing (9:00 AM) (Judicial Officer Kantor, Henry)

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Result: Held
Created: 03/04/2016 9:32 AM
03/04/2016 Order - Appear (Judicial Officer: Kantor, Henry )
Signed: 03/04/2016
Created: 03/04/2016 11:26 AM
03/04/2016 Order (Judicial Officer: Wittmayer, John A )
Signed: 03/04/2016
Created: 03/04/2016 11:59 AM
03/04/2016 Order (Judicial Officer: Wittmayer, John A )
Signed: 03/04/2016
Created: 03/04/2016 11:59 AM
04/13/2016 Call - Regular (8:30 AM) (Judicial Officer Marshall, Christopher J)
for motion to be set out for 4/14 Arrn: 12/03/15
Created: 03/04/2016 11:32 AM
04/14/2016 Hearing - Motion (9:00 AM) (Judicial Officer Bushong, Stephen K.)
Result: Held
Created: 04/13/2016 8:51 AM
04/14/2016 Order (Judicial Officer: Bushong, Stephen K. )
Court denies Defendant's motion to dismiss
Signed: 04/14/2016
Created: 04/15/2016 9:40 AM
04/21/2016 Motion - Evidentiary
Created: 04/21/2016 2:27 PM
04/25/2016 Order - Authorizing Payment Expenses (Judicial Officer: Jones, Edward J )
Signed: 04/25/2016
Created: 04/25/2016 10:50 AM
05/05/2016 Exhibit - List
Manila
Created: 05/05/2016 10:32 AM
06/08/2016 Motion - Quash
Created: 06/08/2016 2:55 PM
06/08/2016 Declaration
Created: 06/08/2016 2:55 PM
06/09/2016 Call - Regular (8:30 AM) (Judicial Officer Marshall, Christopher J)
Arrn: 11/27/15. date cert
04/25/2016 Reset by Court to 06/09/2016
Created: 03/04/2016 10:39 AM
06/09/2016 Hearing - Motion (10:30 AM) (Judicial Officer Roberts, Leslie M)
15CR53749
Result: Held
Created: 06/09/2016 9:19 AM
06/13/2016 Trial - Six Person Jury (9:00 AM) (Judicial Officer Immergut, Karin J)
06/13/2016, 06/14/2016
1.5 days KJI
Result: Held
Created: 06/09/2016 9:33 AM
06/21/2016 Motion - Attorney Withdrawal
Created: 06/21/2016 10:54 AM
06/24/2016 Order - Substituting Attorney (Judicial Officer: Marshall, Christopher J )
LEGAL ADVISOR
Signed: 06/24/2016
Created: 06/24/2016 3:56 PM
06/30/2016 Hearing - Further Proceedings (9:00 AM) (Judicial Officer Marshall, Christopher J)
To meet new atty
04/13/2016 Reset by Court to 05/26/2016
05/26/2016 Continued to 06/30/2016 - Stipulated by Parties - State of Oregon; Stull, Barry Joe
Created: 03/07/2016 2:00 PM
07/15/2016 Hearing - Trial Readiness (9:00 AM) (Judicial Officer Roberts, Leslie M)
Result: Held
Created: 06/30/2016 10:58 AM
07/15/2016 Order - Appear (Judicial Officer: Roberts, Leslie M )
Signed: 07/15/2016
Created: 07/15/2016 4:17 PM
09/01/2016 Motion - Consolidate Cases
Created: 09/01/2016 4:02 PM
09/06/2016 Hearing - Motion (8:30 AM) (Judicial Officer Skye, Kelly)
motion to join cases
Result: Held
Created: 09/02/2016 2:15 PM
09/06/2016 Order (Judicial Officer: Skye, Kelly )
Granting dismissal on count #4
Signed: 09/06/2016
Created: 09/07/2016 10:12 AM

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09/06/2016 Order (Judicial Officer: Skye, Kelly )


Motion to join is denied
Signed: 09/06/2016
Created: 09/07/2016 10:14 AM
09/07/2016 Hearing - Further Proceedings (9:00 AM) (Judicial Officer Albrecht, Cheryl A.)
09/06/2016 Reset by Court to 09/07/2016
Created: 07/15/2016 4:36 PM
09/15/2016 Call - Regular (8:30 AM) (Judicial Officer Jones, Edward J)
Arrn:11/27/15
Created: 07/15/2016 9:30 AM
09/16/2016 Hearing (8:30 AM) (Judicial Officer Roberts, Leslie M)
on Pre Trial Conference for Jury Trial starting 9/19/2016 for 4 days.
Result: Held
Created: 09/15/2016 9:36 AM
09/19/2016 Trial - Six Person Jury (9:00 AM) (Judicial Officer Roberts, Leslie M)
09/19/2016, 09/20/2016, 09/21/2016, 09/22/2016, 09/23/2016
4 days Roberts
Result: Held
Created: 09/15/2016 9:15 AM
09/26/2016 Order - Appear (Judicial Officer: Roberts, Leslie M )
Sentencing on 10/21/16 @ 1:30
Signed: 09/23/2016
Created: 09/27/2016 9:30 AM
09/26/2016 Verdict
Created: 09/28/2016 9:25 AM
10/21/2016 Hearing - Sentencing (1:30 PM) (Judicial Officer Roberts, Leslie M)
Sentencing on counts 1, 2, 3.
Result: Held
Created: 09/23/2016 11:29 AM
11/17/2016 Hearing - Sentencing (8:30 AM) (Judicial Officer Roberts, Leslie M)
Sentencing on 1, 2, 3.
Result: Held
Created: 10/21/2016 1:45 PM
11/17/2016 Notice (Judicial Officer: Roberts, Leslie M )
Victim Information
Sign Date: 11/17/2016
Created: 11/18/2016 10:58 AM
11/17/2016 Judgment - Offense General Creates Lien
Created: 11/21/2016 3:55 PM
11/17/2016 Judgment - Offense General Creates Lien
Created: 11/21/2016 3:59 PM
11/17/2016 Closed
Created: 11/21/2016 4:00 PM
11/21/2016 Disposition - Reported
Created: 11/21/2016 7:33 PM
11/30/2016 Motion - New Trial
Created: 11/30/2016 9:53 AM
12/22/2016 Judgment - Payment Schedule Assessment
Added by Payment Schedule Assessment Job
Created: 12/22/2016 7:14 PM
01/04/2017 Response
Created: 01/04/2017 11:51 AM
01/05/2017 Hearing - Motion (11:30 AM) (Judicial Officer Roberts, Leslie M)
for New Trial. Requested by Kevin Kelley.
Result: Held
Created: 12/12/2016 2:08 PM
01/27/2017 Letter
re: payment delinquency
Created: 01/27/2017 1:24 PM
02/01/2017 Order (Judicial Officer: Roberts, Leslie M )
New Trial is denied
Signed: 01/05/2017
Created: 02/02/2017 9:29 AM
02/08/2017 Notice - Appeal
Created: 02/09/2017 8:26 AM
02/15/2017 Certificate
Notice to court reporter/transcriber, A164154, due: 3/8/17
Created: 02/16/2017 8:48 AM
02/28/2017 Notice
Order giving leave to enter Judgment disposing of count #4 (from Court of Appeals).
Created: 02/28/2017 9:26 AM
03/09/2017 Letter
to Judge re: failure to pay restitution

https://publicaccess.courts.oregon.gov/PublicAccessLogin/CaseDetail.aspx?CaseID=2547... 3/22/2017
Page 7 of 7
ER-11

Created: 03/09/2017 11:06 AM

FINANCIAL INFORMATION

Defendant Stull, Barry Joe


Total Financial Assessment 198.68
Total Payments and Credits 0.00
Balance Due as of 03/22/2017 198.68

11/21/2016 Transaction
100.00
Assessment
11/21/2016 Transaction
48.68
Assessment
12/22/2016 Transaction
50.00
Assessment

https://publicaccess.courts.oregon.gov/PublicAccessLogin/CaseDetail.aspx?CaseID=2547... 3/22/2017
CERTIFICATE OF COMPLIANCE WITH ORAP 5.05

Brief length
I certify that this brief complies with the word-count limitation in ORAP 5.05, which
word-count is 5,378 words.

Type size
I certify that the size of the type in this brief is not smaller than 14 point for both the
text of the brief and footnotes.

NOTICE OF FILING AND PROOF OF SERVICE

I certify that I directed the original Appellant's Opening Brief to be filed with
the Appellate Court Administrator, Appellate Courts Records Section, 1163 State
Street, Salem, Oregon 97301, on January 31, 2018.

I further certify that, upon receipt of the confirmation email stating that the
document has been accepted by the eFiling system, this Appellant's Opening Brief
will be eServed pursuant to ORAP 16.45 (regarding electronic service on registered
eFilers) on Benjamin Gutman #160599, Solicitor General, attorney for Plaintiff-
Respondent.

Respectfully submitted,

ERNEST G. LANNET
CHIEF DEFENDER
CRIMINAL APPELLATE SECTION
OFFICE OF PUBLIC DEFENSE SERVICES

ESigned
Signed
By Brett J Allin at 11:14 am, Jan 31, 2018

BRETT J. ALLIN OSB #142719


DEPUTY PUBLIC DEFENDER
Brett.J.Allin@opds.state.or.us

Attorneys for Defendant-Appellant


Barry Joe Stull

Office of Public Defense Services • Appellate Division


1175 Court St. NE • Salem, Oregon 97301-4030
Telephone: (503) 378-3349 • Fax: (503) 378-2163