Barry Joe Stull Briefs 67134

,17+(&28572)$33($/62)7+(67$7(2)25(*21

67$7(2)25(*21 0XOWQRPDK&RXQW\&LUFXLW&RXUW
&DVH1R&5
3ODLQWLII5HVSRQGHQW

Y &$$

%$55<-2(678//DND%DUU\-RH
6WXOO\

'HIHQGDQW$SSHOODQW

$33(//$17¶65(3/<%5,()

$SSHDOIURPWKH-XGJPHQWRIWKH&LUFXLW&RXUW
IRU0XOWQRPDK&RXQW\
+RQRUDEOH-XOLH()UDQW]-XGJH

(51(67*/$11(7 (//(1)526(1%/80
&KLHI'HIHQGHU $WWRUQH\*HQHUDO
&ULPLQDO$SSHOODWH6HFWLRQ %(1-$0,1*870$1
%5(77-$//,1 6ROLFLWRU*HQHUDO
'HSXW\3XEOLF'HIHQGHU -XVWLFH%XLOGLQJ
2IILFHRI3XEOLF'HIHQVH6HUYLFHV &RXUW6WUHHW1(
&RXUW6WUHHW1( 6DOHP25
6DOHP25 EHQMDPLQJXWPDQ#GRMVWDWHRUXV
EUHWWMDOOLQ#RSGVVWDWHRUXV 3KRQH
3KRQH $WWRUQH\VIRU3ODLQWLII5HVSRQGHQW
$WWRUQH\VIRU'HIHQGDQW$SSHOODQW

L
7$%/(2)&217(176

67$7(0(172)7+(&$6(

1DWXUHRIWKH3URFHHGLQJ

6XPPDU\RI$UJXPHQW

5(3/<72$16:(5672$66,*10(1762)(5525

$UJXPHQW

, 'HIHQGDQWSUHVHUYHGKLVILUVWDVVLJQPHQWRIHUURUWKURXJKKLV
UHSHDWHGUHTXHVWVDQGDWWHPSWVWRDUJXHWKDWWKHH[FOXVLRQRUGHUZDV
XQODZIXO

,, 'HIHQGDQWSUHVHUYHGKLVVHFRQGWKURXJKILIWKDVVLJQPHQWVRIHUURU
EHFDXVHKHPDGHDVXIILFLHQWRIIHURISURRI

&21&/86,21

7$%/(2)$87+25,7,(6
&DVHV
State v. Krieger
2U$SS3G
State v. Marbet
2U$SS3G
State v.Riddell
2U$SS3G
6WDWXWHV
2(&

$33(//$17¶65(3/<%5,()

67$7(0(172)7+(&$6(

1DWXUHRIWKH3URFHHGLQJ
2Q6HSWHPEHUWKLVFRXUWJUDQWHGGHIHQGDQW¶VPRWLRQIRUOHDYH
WRILOHDUHSO\EULHI'HIHQGDQWUHSOLHVWRWKHVWDWH¶VDUJXPHQWVWKDWKHIDLOHGWR
SUHVHUYHHLWKHURIKLVDUJXPHQWV

6XPPDU\RI$UJXPHQW
,QKLVRSHQLQJEULHIGHIHQGDQWDUJXHGWKDWWKHWULDOFRXUWHUUHGLQOLPLWLQJ
KLVDUJXPHQWVDJDLQVWWKHODZIXOQHVVRIWKHH[FOXVLRQRUGHUWKDWIRUPHGWKH
EDVLVIRUKLVWUHVSDVVFKDUJHILUVWDVVLJQPHQWRIHUURUDQGWKDWWKHWULDOFRXUW
DOVRHUUHGLQH[FOXGLQJVHYHUDOLWHPVRIHYLGHQFHWKDWGHIHQGDQWVRXJKWWRDGPLW
LQVXSSRUWRIWKDWDUJXPHQWVHFRQGWKURXJKILIWKDVVLJQPHQWVRIHUURU$SS%U
DW
,QLWVDQVZHULQJEULHIWKHVWDWHDUJXHVLQSDUWWKDWGHIHQGDQWIDLOHGWR
SUHVHUYHDQ\RIKLVDVVLJQPHQWV$VWRKLVILUVWDVVLJQPHQWWKHVWDWHFRQWHQGV
WKDWKLVDUJXPHQWWRWKHWULDOFRXUWGLIIHUVIURPWKHRQHWKDWKHPDGHRQDSSHDO
5HVS%XWWKDWDUJXPHQWIDLOVEHFDXVHLWPLVUHDGVGHIHQGDQW¶VDUJXPHQWVRQ
DSSHDO7KHDUJXPHQWWKDWGHIHQGDQWPDGHLQWKHWULDOFRXUWLVWKDWWKHFRXUW

VKRXOGKDYHDOORZHGKLPWRFKDOOHQJHWKHODZIXOQHVVRIWKHH[FOXVLRQRUGHU²
DQHVVHQWLDOHOHPHQWRIWKHRIIHQVH+HPDNHVWKHVDPHDUJXPHQWRQDSSHDO
$VWRWKHHYLGHQWLDU\LVVXHVWKHVWDWHDUJXHVWKDWWKRVHDVVLJQPHQWVDUH
QRWSUHVHUYHGEHFDXVHGHIHQGDQWIDLOHGWRPDNHDVXIILFLHQWRIIHURISURRI5HVS
%UDW7KDWDUJXPHQWDOVRIDLOVEHFDXVHGHIHQGDQWPDGHWKHEHVWUHFRUG
WKDWWKHWULDOFRXUWZRXOGDOORZ7RWKHH[WHQWWKDWWKHRIIHUVRISURRIDUH
LQVXIILFLHQWWKHHUURUVDUHQRQHWKHOHVVSUHVHUYHGEHFDXVHWKHWULDOFRXUW
SUHYHQWHGGHIHQGDQWIURPPDNLQJDPRUHGHWDLOHGRIIHU7KXVWKLVFRXUWVKRXOG
UHYHUVHDQGUHPDQG

5(3/<72$16:(5672$66,*10(1762)(5525
$UJXPHQW
, 'HIHQGDQWSUHVHUYHGKLVILUVWDVVLJQPHQWRIHUURUWKURXJKKLV
UHSHDWHGUHTXHVWVDQGDWWHPSWVWRDUJXHWKDWWKHH[FOXVLRQRUGHUZDV
XQODZIXO
7KHVWDWHDUJXHVWKDWGHIHQGDQWIDLOHGWRSUHVHUYHKLVDUJXPHQWWKDWWKH
WULDOFRXUWHUUHGZKHQLWEDUUHGKLPIURPDUJXLQJWKDWWKHH[FOXVLRQRUGHUZDV
XQODZIXOEHFDXVH³KHQHYHUDOHUWHGWKHWULDOFRXUWWRWKHVSHFLILFUHDVRQKH
DGYDQFHVRQDSSHDOWKDWKHVKRXOGEHDOORZHGWRGRVREHFDXVHWKHPHFKDQLVP
IRUFKDOOHQJLQJWKHRUGHUZDVSURFHGXUDOO\GHILFLHQW´5HVS%UDW
7KDWDUJXPHQWIDLOVEHFDXVHLWLVEDVHGRQDQLQFRUUHFWSUHPLVHWKDW
GHIHQGDQW¶VDUJXPHQWLVEDVHGVROHO\RQWKHGHILFLHQF\LQWKHSURFHGXUDO

PHFKDQLVPVIRUFKDOOHQJLQJWKHH[FOXVLRQRUGHU5DWKHUWKHUXOLQJWRZKLFK
GHIHQGDQWDVVLJQVHUURULVWKHRQH³SUHFOXGLQJGHIHQGDQWIURPDUJXLQJWKDWWKH
WUHVSDVVDQGH[FOXVLRQRUGHUVZHUHXQODZIXO´$SS%UDW
,WLVWUXHWKDWGHIHQGDQWDUJXHVRQDSSHDOWKDW³>W@KHH[FOXVLRQRUGHUKHUH
OLNHWKHRQHLQ>State v.@Riddell>2U$SS3G@GLGQRW
SURYLGHDVXIILFLHQWSURFHGXUDOPHFKDQLVPWRFKDOOHQJHLW´$SS%UDW%XW
WKDWSRLQWLVPHUHO\LOOXVWUDWLYHRIKRZGHIHQGDQWFRXOGKDYHFKDOOHQJHGWKH
ODZIXOQHVVRIWKHH[FOXVLRQRUGHUKDGWKHWULDOFRXUWDOORZHGKLPWRPDNH
DUJXPHQWVDERXWWKDWHVVHQWLDOHOHPHQWRIWKHRIIHQVH'HIHQGDQWDOVRFRXOG
KDYHFKDOOHQJHGWKHRUGHUXQGHUState v. Marbet2U$SS3G
DVKHWROGWKHFRXUWKHZRXOGOLNHWRGR
%XWEHFDXVHWKHWULDOFRXUWUHSHDWHGO\DQGXQHTXLYRFDOO\SUHFOXGHGall
DUJXPHQWVDERXWWKHODZIXOQHVVRIH[FOXVLRQRUGHULWLVLPSRVVLEOHWRLGHQWLI\
DOORIWKHZD\VLQZKLFKGHIHQGDQWPLJKWKDYHFKDOOHQJHGWKHODZIXOQHVVRIWKH
RUGHU
x ³>7+(&2857@7KH&RXUW¶VQRWJRLQJWRDOORZWKLVWREHDWULDODERXW
ZKHWKHU>WKH@H[FOXVLRQZDVODZIXORUQRW´7U

x ³>7+(&2857@7KHODZIXORUGHUVWDQGVWKDWH[FOXGHG\RX$QGVR
ZKHWKHU\RXEHOLHYHGLWZDVODZIXORUQRWRU EHOLHYHWKDWWKLV
ZLWQHVVZDVQRWEDVLQJWKHUHDVRQIRUH[FOXVLRQRQDODZIXOEDVLVLVQRW
JHUPDQHWRWKHLVVXHWKDW¶VEHLQJWULHGWRGD\´7U

x ³>7+(&2857@6R\RXZLOOQRWEHSHUPLWWHGWRDUJXHWKDWDVDGHIHQVH
RUDVDYLRODWLRQWKDWZH¶YHFUHDWHGDQXQODZIXORUGHU´7U

'HIHQGDQW¶VUHSHDWHGDWWHPSWVDQGUHTXHVWVWRDUJXHWKHODZIXOQHVVRI
WKHRUGHUVHUYHGWRSUHVHUYHKLVILUVWDVVLJQPHQWRIHUURU
,, 'HIHQGDQWSUHVHUYHGKLVVHFRQGWKURXJKILIWKDVVLJQPHQWVRIHUURU
EHFDXVHKHPDGHDVXIILFLHQWRIIHURISURRI
$VIRUGHIHQGDQW¶VRWKHUDVVLJQPHQWVRIHUURUWRWKHWULDOFRXUWVH[FOXVLRQ
RIYDULRXVSLHFHVRIGRFXPHQWDU\DQGWHVWLPRQLDOHYLGHQFHWKDWVXSSRUWHGKLV
DUJXPHQWVUHJDUGLQJWKHODZIXOQHVVRIWKHH[FOXVLRQRUGHUGHIHQGDQWDOVR
SUHVHUYHGWKRVHHUURUV'HIHQGDQW¶VRIIHURISURRIZDVVXIILFLHQWIRUWKLVFRXUW
WRGHWHUPLQHZKHWKHUWKHWULDOFRXUWHUUHGDQGDQ\GHILFLHQFLHVLQWKRVHRIIHUV
RISURRIUHVXOWHGIURPWKHWULDOFRXUW¶VOLPLWDWLRQVRQGHIHQGDQW¶VDWWHPSWVWR
GLVFXVVWKHFRQWHQWRIWKHGLVSXWHGHYLGHQFH
$QRIIHURISURRI³PD\RFFXULQQDUUDWLYHIRUPWKURXJKDGHVFULSWLRQE\
FRXQVHORIWKHZLWQHVV¶VLQWHQGHGWHVWLPRQ\´State v. Krieger2U$SS
3G³8QGHU>2(&@QRRIIHURISURRILVQHFHVVDU\
ZKHQWKHQDWXUHRIWKHH[FOXGHGHYLGHQFHLVDGHTXDWHO\UHIOHFWHGLQWKH
DUJXPHQWRIFRXQVHOWRWKHFRXUW/LNHZLVHQRRIIHURISURRILVQHFHVVDU\ZKHQ
WKHWULDOFRXUWUHIXVHVWRDOORZDQRIIHUWREHPDGH´Id.FLWDWLRQVRPLWWHG
$VGLVFXVVHGDERYHEHIRUHWULDOWKHFRXUWUXOHGWKDWDQ\DUJXPHQW
UHJDUGLQJWKHODZIXOQHVVRIWKHH[FOXVLRQRUGHUZDVQRWSURSHU7U$SS
%UDW6KRUWO\DIWHUWKDWWKHWULDOFRXUWDOVRPDGHDFDWHJRULFDOUXOLQJWKDWLW
ZRXOGQRWDOORZDQ\HYLGHQFHUHJDUGLQJGHIHQGDQW¶VSULRULQWHUDFWLRQVZLWK

(PPDQXHO+RVSLWDOLQFOXGLQJWKHLQFLGHQWWKDWOHGWRWKHH[FOXVLRQ
RUGHU³>7+(&2857@,¶PJRLQJWRGLVDOORZDQ\LQWURGXFWLRQRIDQ\HYLGHQFH
RIRWKHUWLPHV\RX¶YHEHHQDW(PDQXHO+RVSLWDOSULRUWR1RYHPEHUWK´7U
7KDWUXOLQJLVWKHVXEMHFWRIGHIHQGDQW¶VWKLUGDVVLJQPHQWRIHUURU$SS%U
DW
,QOLQHZLWKWKDWUXOLQJWKHFRXUWUHIXVHGWRHQWHUWDLQDQ\VLJQLILFDQW
GLVFXVVLRQRIVSHFLILFLWHPVRIHYLGHQFHWKDWGHIHQGDQWVRXJKWWRDGPLW
UHJDUGLQJWKHH[FOXVLRQRUGHU)RUH[DPSOHZKHQGHIHQGDQWDWWHPSWHGWRFURVV
H[DPLQH'RWVRQWKHVHFXULW\RIILFHUDERXWWKHHYHQWVJLYLQJULVHWRWKH
H[FOXVLRQRUGHUWKHVWDWHREMHFWHGWKDWLWZDV³DFROODWHUDOPDWWHU>@´7U
7KHWULDOFRXUWDJUHHGDQGWROGGHIHQGDQWWKDWKHFRXOGQRWLQWURGXFHDQ\
HYLGHQFHDERXWWKHEDVLVIRUWKHH[FOXVLRQRUGHU³>7+(&2857@>7@KH
&RXUW¶VUXOLQJZDVWKDWWKLVRUGHULVLQHIIHFWDQGWKDWWKLVLVQRWJRLQJWR
UHOLWLJDWHRUOLWLJDWHWKHEDVLVIRUWKHRUGHU ,¶PQRWJRLQJWRDOORZ>\RX@WR
JREHKLQGWKDWRUGHUDQGGLVFXVVZKDWEURXJKWDERXWWKDWRUGHU7KHRUGHU
VWDQGV´7U
$WWKDWSRLQWGHIHQGDQWDWWHPSWHGWRH[SODLQWKHWHVWLPRQ\WKDWKHZRXOG
OLNHWRHOLFLWIURP'RWVRQLQFOXGLQJWKDW'RWVRQEDVHGKLVGHFLVLRQWRLPSRVH
WKHH[FOXVLRQRUGHURQLPSURSHUFRQVLGHUDWLRQV7U7KHFRXUWUHLWHUDWHG
LWVUXOLQJDQGWROGGHIHQGDQWLQQRXQFHUWDLQWHUPVWKDWLWZRXOGQRWHQWHUWDLQ
DQ\HYLGHQFHRUDUJXPHQWVDERXWWKHEDVLVIRUWKHH[FOXVLRQRUGHU

7+(&2857<HDK,WLVLPSURSHUWRJRLQWR7KHODZIXO
RUGHUVWDQGVWKDWH[FOXGHG\RX$QGVRZKHWKHU\RXEHOLHYHGLW
ZDVODZIXORUQRWRUWKHUHZHUHFLUFXPVWDQFHVWKDW\RXNQRZ
ZKHUHLQZKLFK\RXYLHZ±EHOLHYHWKDWWKLVZLWQHVVZDVQRWEDVLQJ
WKHUHDVRQIRUH[FOXVLRQRQDODZIXOEDVLVLVQRWJHUPDQHWRWKH
LVVXHWKDW¶VEHLQJWULHGWRGD\7KH H[FOXVLRQVWDQGVDQG\RX
ZHUHWRDELGHE\WKDWH[FOXVLRQH[FHSWIRUHPHUJHQF\PHGLFDO
WUHDWPHQW6R that’s the end of this line of questioning´

7UHPSKDVLVDGGHG
'HIHQGDQWFODULILHGWKDW³,¶PMXVWJRLQJWRHQWHUP\REMHFWLRQ IRU
WKHUHFRUG´DQGWKHFRXUWUHVSRQGHG³<RXUREMHFWLRQ¶VQRWHG´7U
,QVXPZKHQGHIHQGDQWDWWHPSWHGWRPDNHDQRIIHURISURRIWRVXSSRUW
KLVVHFRQGDVVLJQPHQWRIHUURUWKHWULDOFRXUWWROGKLPWKDWLWZRXOGQRW
HQWHUWDLQDQ\HYLGHQFHUHJDUGLQJWKHH[FOXVLRQRUGHUDQGZKHQGHIHQGDQW
IXUWKHUDWWHPSWHGWRSUHVHUYHWKHDUJXPHQWWKHFRXUWWROGKLPWKDWKLVREMHFWLRQ
ZDV³QRWHG´IRUWKHUHFRUG7KXVGHIHQGDQWGLGDOOWKDWKHFRXOGGRWRPDNHDQ
RIIHURISURRIDQGDQ\GHILFLHQF\LQWKDWVKRZLQJZDVWKHWULDOFRXUW¶VIDXOW
)RUWKHVDPHUHDVRQVGHIHQGDQW¶VIRXUWKDQGILIWKDVVLJQPHQWVRIHUURU
UHJDUGLQJWKHH[FOXVLRQRIGHIHQGDQW¶VPHGLFDOUHFRUGVDUHSUHVHUYHG7KH
FRXUW¶VUXOLQJVH[FOXGLQJWKDWHYLGHQFHRFFXUUHGDIWHUWKHH[FKDQJHVH[FHUSWHG
DERYHDQGWKXVWKHWULDOFRXUWKDGDOUHDG\PDGHFOHDUWKDWLWZRXOG
FDWHJRULFDOO\H[FOXGHDQ\HYLGHQFHUHJDUGLQJWKHYDOLGLW\RIWKHH[FOXVLRQRUGHU
1RQHWKHOHVVGHIHQGDQWRIIHUHGWKRVHUHFRUGVWRWKHWULDOFRXUWPDUNLQJWKHPDV
([KLELWVDQG7U³>'()(1'$17@>,@QRUGHUIRU\RXWRGRWKH

JDWHNHHSLQJSURFHVVZLWKDOOGXHUHVSHFW\RXKDYHWRNQRZZKDW\RX¶UH
JDWHNHHSLQJULJKW"6R,¶OOPDUNWKHVHDVH[KLELWVDQGWKHQ,¶OOMXVWRIIHUWKHP
$QGWKHQ\RXFDQGHFLGH>@´'HIHQGDQWH[SODLQHGWKHFRQWHQWVRIWKHUHFRUGV
ZKLFKLQFOXGHGKLVPHGLFDOGLDJQRVHVDQGH[SODLQHGKRZWKHUHFRUGVVXSSRUWHG
KLVWKHRU\WKDWWKHH[FOXVLRQRUGHUZDVXQODZIXO7U7KH
SURVHFXWRUKDGDQRSSRUWXQLW\WRUHYLHZWKHUHFRUGVDQGXQGHUVWRRGWKDW
GHIHQGDQWZDVRIIHULQJKLVPHGLFDOUHFRUGVWRHVWDEOLVKWKDWKHKDGDGLVDELOLW\
WKDWUHTXLUHGUHDVRQDEOHDFFRPPRGDWLRQ7U7KHWULDOFRXUW
H[FOXGHGWKHH[KLELWVEDVHGRQLWVGHWHUPLQDWLRQWKDWGHIHQGDQW¶VPHGLFDO
GLDJQRVHVDQGDFFRPPRGDWLRQDUJXPHQWVZHUH³RXWVLGHWKHVFRSHRIWKLV
FKDUJHRI&ULPLQDO7UHVSDVVLQWKHVHFRQGGHJUHH´7U7KXVWKHSDUWLHV
DQGWKHFRXUWXQGHUVWRRGWKHFRQWHQWVRIWKHH[KLELWVDQGZKDWGHIHQGDQW
ZDQWHGWRXVHWKHPIRU
)RUWKRVHUHDVRQVGHIHQGDQWSUHVHUYHGKLVDVVLJQPHQWVRIHUURU7KHVWDWH
KDVQRWPDGHDQ\DUJXPHQWLQUHVSRQVHWRWKHPHULWVRIGHIHQGDQW¶VDUJXPHQW
$QGIRUWKHUHDVRQVVWDWHGLQGHIHQGDQW¶VRSHQLQJEULHIWKHHUURUVZHUHQRW
KDUPOHVV7KXVWKHWULDOFRXUWHUUHGDQGWKRVHHUURUVUHTXLUHUHYHUVDO

&21&/86,21
)RUWKRVHUHDVRQVDQGWKRVHVWDWHGLQKLVRSHQLQJEULHIGHIHQGDQW
UHVSHFWIXOO\DVNVWKLVFRXUWWRUHYHUVHKLVFRQYLFWLRQDQGUHPDQGWRWKHWULDO
FRXUW

5HVSHFWIXOO\VXEPLWWHG

(51(67*/$11(7
&+,()'()(1'(5
&5,0,1$/$33(//$7(6(&7,21
2)),&(2)38%/,&'()(16(6(59,&(6

(6LJQHG
Signed
BBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBB
By Brett Allin at 8:53 am, Oct 03, 2018
%5(77-$//,126%
'(387<38%/,&'()(1'(5
%UHWW-$OOLQ#RSGVVWDWHRUXV

%DUU\-RH6WXOO

&(57,),&$7(2)&203/,$1&(:,7+25$3

%ULHIOHQJWK
,FHUWLI\WKDWWKLVEULHIFRPSOLHVZLWKWKHZRUGFRXQWOLPLWDWLRQLQ25$3DQG
WKHZRUGFRXQWRIWKLVEULHILVZRUGV

7\SHVL]H
,FHUWLI\WKDWWKHVL]HRIWKHW\SHLQWKLVEULHILVQRWVPDOOHUWKDQSRLQWIRUERWKWKH
WH[WRIWKHEULHIDQGIRRWQRWHV

127,&(2)),/,1*$1'3522)2)6(59,&(

,FHUWLI\WKDW,GLUHFWHGWKHRULJLQDO$SSHOODQW
V5HSO\%ULHIWREHILOHGZLWKWKH
$SSHOODWH&RXUW$GPLQLVWUDWRU$SSHOODWH&RXUWV5HFRUGV6HFWLRQ6WDWH6WUHHW
6DOHP2UHJRQRQ2FWREHU

,IXUWKHUFHUWLI\WKDWXSRQUHFHLSWRIWKHFRQILUPDWLRQHPDLOVWDWLQJWKDWWKH
GRFXPHQWKDVEHHQDFFHSWHGE\WKHH)LOLQJV\VWHPWKLV$SSHOODQW
V5HSO\%ULHIZLOO
EHH6HUYHGSXUVXDQWWR25$3UHJDUGLQJHOHFWURQLFVHUYLFHRQUHJLVWHUHG
H)LOHUVRQ%HQMDPLQ*XWPDQ6ROLFLWRU*HQHUDODWWRUQH\IRU3ODLQWLII
5HVSRQGHQW


(51(67*/$11(7
&+,()'()(1'(5
&5,0,1$/$33(//$7(6(&7,21
2)),&(2)38%/,&'()(16(6(59,&(6

(6LJQHG
Signed
By Brett Allin at 8:53 am, Oct 03, 2018
%5(77-$//,126%
'(387<38%/,&'()(1'(5

%DUU\-RH6WXOO

2IILFHRI3XEOLF'HIHQVH6HUYLFHV$SSHOODWH'LYLVLRQ
&RXUW6W1(6DOHP2UHJRQ
7HOHSKRQH)D[
IN THE COURT OF APPEALS OF THE STATE OF OREGON
_______________
STATE OF OREGON, Multnomah County Circuit

Court No. 15CR52961
Plaintiff-Respondent,
v.
BARRY JOE STULL, aka Barry Joe CA A164155

Stully,
Defendant-Appellant.
_______________
RESPONDENT’S ANSWERING BRIEF

_______________
Appeal from the Judgment of the Circuit Court

for Multnomah County
Honorable JULIE E. FRANTZ, 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
9/18
TABLE OF CONTENTS
STATEMENT OF THE CASE ........................................................................... 1

Summary of Argument ...............................................................................1
ANSWER TO FIRST THROUGH FIFTH ASSIGNMENTS OF ERROR........ 2
Defendant’s arguments that the trial court erred by
preventing him from presenting evidence and argument
challenging the lawfulness of a 2011 exclusion order provide this
court with no basis for reversal. .................................................................2
Combined Preservation of Error.................................................................2
COMBINED ARGUMENT ................................................................................ 2
A. Background ......................................................................................3
B. Defendant’s arguments are insufficiently preserved for this
court review......................................................................................5
1. Defendant’s first argument—that he should have been
allowed to argue to the jury that the 2011 order was
unlawful because the process for challenging it was
inadequate—is unpreserved.................................................. 6
2. Defendant’s second argument—that the trial court
erroneously excluded evidence supporting his
argument that the exclusion and trespass orders were
unlawful—fails because defendant failed to make a
sufficient offer of proof......................................................... 8
C. Any error was harmless..................................................................10
ANSWER TO PRO SE SUPPLEMENTAL BRIEF ......................................... 13
CONCLUSION.................................................................................................. 14
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) ............................................................................14
i
OTECC v. Co-Gen,
168 Or App 466, 7 P3d 594 (2000),
rev den, 332 Or 137 (2001) ......................................................................14
State v. Ausmus,
336 Or 493, 85 P3d 864 (2003)................................................................11
State v. Davis,
336 Or 19, 77 P3d 1111 (2003)................................................................10
State v. Hazlett,
269 Or App 483, 345 P3d 482 (2015) ........................................................8
State v. Koenig,
238 Or App 297, 242 P3d 649 (2010) ......................................................13
State v. Marbett,
32 Or App 67, 573 P2d 736 (1978) ..........................................................11
State v. Morgan,
251 Or App 99, 284 P3d 496 (2012) ....................................................8, 10
State v. Riddell,
172 Or App 675, 21 P3d 128 (2001) ........................................................13
State v. Walker,
350 Or 540, 258 P3d 637 (2011)................................................................7
State v. Wyatt,
331 Or 335, 15 P3d 22 (2000)....................................................................7
Statutes & Constitutional Provisions

OEC 103(1)(b) ......................................................................................................8
ORS 164.205(3) ....................................................................................................5
ORS 164.205(3)(b) .............................................................................................11
ORS 164.245(1) ..............................................................................................5, 12
Other Authorities
ORAP 5.45(4)(c).................................................................................................14
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
Defendant was convicted of second-degree criminal trespass after he
went to the hospital for treatment in the emergency room but then wandered
into other areas of the hospital where he was not authorized to be, then refused
to leave and physically resisted efforts to escort him out.
On appeal, he contends that the trial court erred by denying his requests
to argue and present evidence challenging a 2011 exclusion order that only
allowed him to enter the hospital for emergency medical treatment. According
to defendant the trial court should have allowed him to challenge that order as
issued in violation of disability discrimination laws, and hence not a “lawful
order” for purposes of the criminal trespass statute. But defendant’s arguments
provide no basis for reversal.
Defendant’s first argument—that he should have been allowed to argue
to the jury that the 2011 order was unlawful because the process for challenging
it was inadequate—is unpreserved. Defendant’s second argument—that the
trial court erroneously excluded evidence supporting his argument that the
exclusion order was issued in violation of disability discrimination laws—fails

2
because defendant failed to make a sufficient offer of proof. In any event, any
error was harmless because regardless of whether the 2011 exclusion order was
lawful, on the charged occasion defendant refused to leave the hospital’s private
property—where he had no right to remain—after being lawfully directed to
leave.
Finally, defendant has 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.
ANSWER TO FIRST THROUGH FIFTH ASSIGNMENTS OF ERROR

Defendant’s arguments that the trial court erred by preventing him from
presenting evidence and argument challenging the lawfulness of a 2011
exclusion order provide this court with no basis for reversal.
Combined Preservation of Error

As explained below, defendant’s arguments are either unpreserved or fail
for wont of a sufficient offer of proof.
COMBINED ARGUMENT
On appeal from his second-degree criminal trespass conviction,
defendant contends the trial court erred by precluding him from presenting
evidence and argument challenging a 2011 exclusion order as unlawful because
it was issued in violation of disability discrimination laws. But defendant, who

3
represented himself at trial, did not preserve his first argument and did not
present a sufficient offer of proof for his second argument. In any event, any
error was harmless.
A. Background
In 2011, Legacy Emanuel Hospital issued defendant an exclusion order
that prohibited him “from coming onto the property or premises of any Legacy
Health System property at any time except in order to receive emergency
medical care.” (Tr 449-50; ER 2). To enter the property for other reasons,
defendant would first need to obtain permission from “an officer of the Security
Department.” (Tr 449-50; ER 2).
On the charged occasion in 2015, defendant went to the Legacy Emanuel
emergency department to receive emergency care. (Tr 575). Later that night,
Legacy security officer David Davies—who was aware the exclusion order that
limited defendant to the emergency department—learned that defendant had
been discharged. (Tr 471-72). When Davies arrived at the emergency
department, he saw defendant leave the bathroom and walk further into the
hospital rather than take the nearest exit. (Tr 472, 475). Davies followed
defendant and when he caught up to him, he introduced himself and told
defendant that he had to leave because the exclusion order did not allow him to
stay in the hospital after his ER visit. (Tr 478-80). Defendant replied, “Nope. I
am not stopping.” (Tr 480). As he tried to move further into the hospital,
4
Davies stepped in front of him and directed him back toward the emergency
room exit. (Tr 480). At that late hour, the main hospital was closed and only
open to patients, visitors of patients, and people who had direct business in the
hospital. (Tr 479). Nevertheless, defendant again refused to leave and insisted
that he was “going to go sit in the lobby.” (Tr 480). When Davies again told
him he had to leave, defendant responded, “Nope. I’m not.” (Tr 480). As they
walked back toward the lobby, defendant started yelling, “I’m refusing to
leave,” and “I’m going to go sit down and I’m going to stay.” (Tr 480).
At that point, defendant became “very, very, very loud” and started to
swing his arms around as Davies and another security officer repeatedly told
him that he needed to leave. (Tr 480-81). Defendant charged and flailed his
arms as he tried to get past the officers, and declared “that he was going to the
lobby and he was going to sit and [that the security officers] could not tell him
to leave.” (Tr 481). As he kept trying to force his way through, he came into
chest-to-chest contact with the other officer, which prompted Davies to grab his
arm to pull him away. (Tr 483). In response, defendant became increasingly
violent and the officers took him to the ground. (Tr 483). They cuffed him and
informed him that he they were placing him under arrest for criminal trespass.
(Tr 483). When the officers tried to escort defendant out of the hospital, he
went limp and refused to stand up. (Tr 483-84). He lay down on the floor in a
hallway, making it difficult for people going into the emergency department to
5
get by him. (Tr 483-84). Eventually, a Portland police officer arrived and took
defendant to jail. (Tr 514-19).
The state charged defendant with second-degree criminal trespass based
on defendant unlawfully entering or remaining at the hospital. (ER 1). At trial,
defendant sought to argue to the jury that the 2011 order was unlawful because
it was issued in violation of disability discrimination laws. (Tr 293, 328). The
trial court denied his request to do so. (Tr 352). The trial court also denied
defendant’s efforts cross-examine a witness and to present evidence that he
asserted would establish that the 2011 exclusion order was unlawful. (Tr 454-
57; 599-619). The jury convicted defendant. (Tr 752).
B. Defendant’s arguments are insufficiently preserved for this court

review.
Under ORS 164.245(1) “[a] person commits the crime of criminal
trespass in the second degree if the person enters or remains unlawfully in a
motor vehicle or in or upon premises.” As relevant here, “enter or remain
unlawfully” means:
(b) To fail to leave premises that are open to the public after being
lawfully directed to do so by the person in charge;
(c) To enter premises that are open to the public after being
lawfully directed not to enter the premises;
ORS 164.205(3).
6
On appeal, defendant contends that the trial court erred in two respects,
both pertaining to his challenge to the lawfulness of the hospital’s 2011
exclusion order limiting defendant’s access to the hospital to emergency
medical care. Neither argument, however, was properly preserved.
1. Defendant’s first argument—that he should have been allowed

to argue to the jury that the 2011 order was unlawful because
the process for challenging it was inadequate—is unpreserved.
Defendant first contends that the trial court abused its discretion by
denying defendant’s requests to challenge the lawfulness of the 2011 exclusion
order. On that point, defendant’s argument is narrow. He contends that the trial
court erroneously ruled that defendant needed to challenge the 2011 order in
civil proceeding and that he could not collaterally challenge it in the criminal
proceeding. (App Br 13-14). In his view, the court erred because the exclusion
order “did not provide a sufficient procedural mechanism to challenge it” in a
civil proceeding. (App Br 14). In particular, he argues that the exclusion order
on its face failed “to provide any procedural mechanism to appeal the exclusion
order.” (App Br 14). Accordingly, he reasons that he “should not have been
barred from collaterally challenging [the exclusion] and any trespass order
based on it.” (App Br 14). The problem with that narrow argument, however,
is that defendant never raised it below.
To preserve an argument for appeal, a party must explain it to the trial
court in a manner “specific enough to ensure that the trial court [could] identify
7
its alleged error with enough clarity to permit it to consider and correct the error
immediately, if correction [was] warranted.” State v. Wyatt, 331 Or 335, 343,
15 P3d 22 (2000). Here, while defendant broadly argued to the trial court that
he should be allowed to challenge the lawfulness of the exclusion order by
arguing to the jury that it was issued in violation of disability discrimination
laws, he never alerted the trial court to the specific reason he advances on
appeal: that he should be allowed to do so because the mechanism for
challenging the order was procedurally deficient.
By failing to raise that issue below, defendant has denied the state the
opportunity to develop a record on any process defendant could have utilized to
challenge the exclusion order—a process that he argues for the first time on
appeal was insufficient based solely on the fact that the face of the order did not
specify any process. Because defendant failed to provide the either the state or
the trial court to address his argument this court should not consider it. See
State v. Walker, 350 Or 540, 552, 258 P3d 637 (2011) (explaining that the focus
of the preservation inquiry is on “whether a party has given opponents and the
trial court enough information to be able to understand the contention and to
fairly respond to it”).

8
2. Defendant’s second argument—that the trial court erroneously

excluded evidence supporting his argument that the exclusion
and trespass orders were unlawful—fails because defendant
failed to make a sufficient offer of proof.
Defendant also contends that the trial court erred by excluding evidence
that would have supported his argument that the 2011 exclusion order was
unlawful because it—and the 2015 order to leave that relied on it—were based
on a discriminatory purpose in violation of disability discrimination laws. (App
Br 14). Specifically, he contends that the trial court “erred in barring evidence
about the 2011 incident and defendant’s medical records supporting and
explaining his status as a person with a disability.” (App Br 15-16). Defendant
made no offer of proof with respect to the 2011 incident, however.
“In a case in which a court has excluded evidence, the error is preserved
if ‘the substance of the evidence was made known to the court by offer or was
apparent from the context within which the questions were asked.’” State v.
Hazlett, 269 Or App 483, 492, 345 P3d 482 (2015) (quoting OEC 103(1)(b)).
The purpose of that requirement is to ensure that “appellate courts are able to
determine whether a trial court erred in excluding evidence and whether that
error was likely to have affected the trial’s result[.]” State v. Morgan, 251 Or
App 99, 104, 284 P3d 496 (2012). The offer of proof “can be made either by
question or answer or through counsel’s statement of what the proposed
evidence is expected to be.” Hazlett, 269 Or App at 492.

9
Here, defendant first challenges the trial court’s refusal to allow him to
elicit testimony before the jury about the 2011 incident. Defendant first
attempted to elicit testimony about the circumstances of the 2011 exclusion
order in his cross-examination of Legacy security official Christopher Dotson,
who issued the order. (Tr 454). After the trial court sustained the prosecutor’s
objection to defendant’s question about whether defendant had been drinking
coffee at a café in the hospital at the time, defendant made no offer of testimony
through question and answer and made only brief remarks about what he hoped
to expose with his cross-examination. Specifically, he asserted that Dotson had
falsely accused him of smelling of alcohol and of being “filthy.” (Tr 457-58).
The only other evidence defendant offered with respect to his claim that
the exclusion order was the product of disability discrimination was his 2015
medical records. (Tr 601-19). As defendant describes them, those records
“reinforced defendant’s testimony about his diagnosis with Central Pain
Syndrome, which was relevant to whether he was an individual with a
disability.” (App Br 15).
Neither defendant’s characterization of what he hoped to expose on
cross-examination of Dotson nor the medical records constituted sufficient
offers of proof. Even assuming the trial court erred by not allowing defendant
to present evidence challenging the 2011 as issued for a discriminatory purpose
in violation of disability discrimination laws, defendant’s remark that he was

10
falsely accused of being drunk and dirty when he was excluded in 2011did
nothing to support a theory that he was discriminated against because he suffers
from Central Pain Syndrome. In the same way, his 2015 medical records
indicating that he suffered from that condition did nothing to suggest that the
2011 exclusion order was issued for the purpose of discriminating against him
as a person with that condition. Put differently, defendant failed to submit any
evidence by way of an offer of proof that would tend to show that the 2011
exclusion order was issued in violation of disability discrimination laws and
therefore unlawful.
In the absence of an offer of proof in the form of evidence relevant to
show that the 2011 order was issued for the improper purpose of discriminating
against defendant because he suffered from central pain syndrome, this court
cannot determine whether any error the trial court made in excluding evidence
“was likely to affect the trial’s result.” Morgan, 251 Or App at 104. For that
reason, defendant’s argument with respect to the trial court’s exclusion of
evidence provides this court with no basis for reversal.
C. Any error 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, any error in
preventing defendant from challenging the lawfulness of the 2011 exclusion
order was harmless because, even assuming the 2011 order was unlawful,
11
defendant had no right to remain in the hospital in 2015, and thus was lawfully
ordered to leave.
As described above, defendant was arrested for criminal trespass after he
left the hospital’s emergency department and wandered into other areas of the
hospital where he was not authorized to be. In fact, those areas of the hospital
were not open to the general public at that time of night. (Tr 479).
Nevertheless, when Davies told defendant to leave, he refused and physically
resisted efforts to escort him out. Accordingly, defendant was not charged with
criminal trespass simply because he violated the 2011 order, but also because he
remained in the hospital after he was directed to leave. The record shows that
Davies, as a security officer for the hospital, was “a person in charge” for
purposes of ORS 164.205(3)(b)—who then exercised that authority when
defendant refused to leave. As Officer Davies testified, defendant refused to
leave the hospital after being ordered to do so and instead declared, “I’m
refusing to leave.” Defendant then physically resisted efforts to escort him out.
When “the authority of the person in charge to expel an individual is not
limited by a constitutional or statutory right of the individual to remain, the
order must be obeyed at the risk of a conviction for trespass.” State v. Marbett,
32 Or App 67, 73, 573 P2d 736 (1978). Such an order is “lawful” when it is “is
authorized by, and not contrary to, substantive law.” State v. Ausmus, 336 Or
493, 504, 85 P3d 864 (2003). In this case, the testimony established that
12
defendant failed to leave the hospital after being directed to do so by a person in
charge. The lawfulness of Davies’s orders to leave after defendant refused to
leave does not turn on whether or not the 2011 exclusion order was lawful.
Defendant was on the hospital’s private property and defendant has not cited
any authority for the proposition that he had right to remain there. Defendant
offers no argument that Davies’s authority was “limited by a constitutional or
statutory right” that he had to remain in areas of the hospital he was not
authorized to be in. To the contrary, defendant concedes that his “sole defense
to the charge” was that “the exclusion order was unlawful because it violated
public-accommodation laws.” (App Br 18).
Because defendant remained on the hospital’s property—a place where
he had no constitutional or statutory right to remain—after being lawfully
directed to leave, he was guilty of violating ORS 164.245(1), regardless of
whether the 2011 exclusion order was lawful. Indeed, in the state’s closing
argument the prosecutor did not argue that the jury should convict because
defendant violated the 2011 exclusion order. (Tr 708-716). Rather, he focused
on defendant’s belligerent refusals to comply with Davies’s orders to leave.
The prosecutor only mentioned the 2011 exclusion order as evidence of
defendant’s knowledge that he was in place where he had no right to be. (See
Tr 713, noting that defendant “knew he was excluded”).

13
This case thus differs from two cases defendant cites, State v. Koenig,
238 Or App 297, 242 P3d 649 (2010), and State v. Riddell, 172 Or App 675, 21
P3d 128 (2001), both of which involved the exclusion of defendants from
publicly owned spaces that were open to the public, where the defendants
otherwise had a right to be. In Koenig, the defendant was cited for violating an
order excluding him from the Washington County Public Services Building.
238 Or App at 304. Because the exclusion notice restricted the defendant’s
access to petition the government but did not provide adequate process to
contest the notice, the notice was unlawful. Id. at 311. Similarly, in Riddell,
defendant was cited for violating an order excluding him from another public
space, Portland’s Pioneer Square. 172 Or App at 678. Moreover, in both cases,
again contrast to this case, the defendants were cited for entering the premises
in violation of prior exclusion orders, and not also for remaining on the
premises after being directed to leave. Koenig, 238 Or App at 305; Riddell, 172
Or App at 678.
For those reasons, any error the trial court made in preventing defendant
from challenging the lawfulness of the 2011 order had little likelihood of
affecting the jury’s verdict.
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 post-conviction court, develop any legal
14
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 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
Attorneys for Plaintiff-Respondent
State of Oregon
NOTICE OF FILING AND PROOF OF SERVICE
I certify that on September 5, 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 3,272 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
Attorney for Plaintiff-Respondent

State of Oregon
PME:mkf/9159414

,17+(&28572)$33($/62)7+(67$7(2)25(*21

67$7(2)25(*21 0XOWQRPDK&RXQW\&LUFXLW&RXUW
&DVH1R&5
3ODLQWLII5HVSRQGHQW

Y &$$

%$55<-2(678//DND%DUU\-RH
6WXOO\

'HIHQGDQW$SSHOODQW

$33(//$17¶6PRO SE6833/(0(17$/23(1,1*%5,()

$SSHDOIURPWKH-XGJPHQWRIWKH&LUFXLW&RXUW
IRU0XOWQRPDK&RXQW\
+RQRUDEOH-XOLH()UDQW]-XGJH

(51(67*/$11(7 (//(1)526(1%/80
&KLHI'HIHQGHU $WWRUQH\*HQHUDO
&ULPLQDO$SSHOODWH6HFWLRQ %(1-$0,1*870$1
%5(77-$//,1 6ROLFLWRU*HQHUDO
'HSXW\3XEOLF'HIHQGHU -XVWLFH%XLOGLQJ
2IILFHRI3XEOLF'HIHQVH6HUYLFHV &RXUW6WUHHW1(
&RXUW6WUHHW1( 6DOHP25
6DOHP25 EHQMDPLQJXWPDQ#GRMVWDWHRUXV
EUHWWMDOOLQ#RSGVVWDWHRUXV 3KRQH
3KRQH $WWRUQH\VIRU3ODLQWLII5HVSRQGHQW

'HIHQGDQWKDVDWDOOWLPHVGHFODUHGGHIHQGDQWLVDSHUVRQZLWKDGLVDELOLW\
DQGKDVLQYRNHGWKHSURWHFWLRQVRI256$ZKLFKSURKLELWVGLVFULPLQDWLRQ
EDVHGRQGLVDELOLW\LQSODFHVRISXEOLFDFFRPPRGDWLRQDQGE\VWDWHJRYHUQPHQW
DQGLQYRNHGIHGHUDO$'$SURWHFWLRQV7KH$'$LVUHIHUHQFHGLQ256$
2UHJRQ$GPLQLVWUDWLYH5XOHV&KDSWHULQWHUSUHWVDQGHQIRUFHVWKH
SURYLVLRQVRI256$WKURXJKWKHHQDEOLQJVWDWXWH256$7KH
GHILQLWLRQVIRU256&KDSWHU$LQFOXGH256$ZKLFKGHILQHV
³8QODZIXOSUDFWLFH´WRLQFOXGHDSUDFWLFHWKDWYLRODWHVDUXOHDGRSWHGE\WKH
FRPPLVVLRQHUIRUWKHHQIRUFHPHQWRIWKHSURYLVLRQVRIWKLVFKDSWHU
'HIHQGDQWDUJXHVWKLVFDVHKDVDGHIHFWLQMXULVGLFWLRQEHFDXVHGHIHQGDQWLV
DSHUVRQZLWKDGLVDELOLW\DQGWKHSODFHRISXEOLFDFFRPPRGDWLRQYLRODWHG
GHIHQGDQW
VFLYLOULJKWVSULRUWRDUUHVWDQGWKHQDJDLQZLWKWKHDUUHVWDQGDJDLQVW
2UHJRQDQGIHGHUDOODZWKURXJKVXEVHTXHQWSURVHFXWLRQSRVVLEOHRQO\RQFHWKH
SXEOLFDFFRPPRGDWLRQZDVDLGHGDQGDEHWWHGE\WKHVWDWHWKURXJKWKLVFDVH
$3ROLF\,WLVGHFODUHGWREHWKHSXEOLFSROLF\RI2UHJRQWR
JXDUDQWHHLQGLYLGXDOVWKHIXOOHVWSRVVLEOHSDUWLFLSDWLRQLQWKHVRFLDODQG
HFRQRPLFOLIHRIWKHVWDWHWRHQJDJHLQUHPXQHUDWLYHHPSOR\PHQWWRXVHDQG
HQMR\SODFHVRISXEOLFDFFRPPRGDWLRQUHVRUWRUDPXVHPHQWWRSDUWLFLSDWH
LQDQGUHFHLYHWKHEHQHILWVRIWKHVHUYLFHVSURJUDPVDQGDFWLYLWLHVRIVWDWH
JRYHUQPHQWDQGWRVHFXUHKRXVLQJDFFRPPRGDWLRQVRIWKHLUFKRLFHZLWKRXW
GLVFULPLQDWLRQRQWKHEDVLVRIGLVDELOLW\
7KHJXDUDQWHHVH[SUHVVHGLQVXEVHFWLRQRIWKLVVHFWLRQDUHKHUHE\
GHFODUHGWREHWKHSROLF\RIWKH6WDWHRI2UHJRQWRSURWHFWDQG256
$WR$VKDOOEHFRQVWUXHGWRHIIHFWXDWHVXFKSROLF\
>)RUPHUO\FFF@

2$5&KDSWHULQWHUSUHWVDQGHQIRUFHVWKHSURYLVLRQVRI256$
LQFOXGLQJGLVFULPLQDWLRQE\VWDWHJRYHUQPHQWDQGWKH2UHJRQ-XGLFLDO'HSDUWPHQW
GHILQHGDVSDUWRIVWDWHJRYHUQPHQWLQ2$52$5
VWDWHV'LVFULPLQDWLRQDJDLQVWLQGLYLGXDOVZLWKGLVDELOLWLHVE\SODFHVRISXEOLF
DFFRPPRGDWLRQZKLFKLQFOXGHSXEOLFERGLHVZLWKVRPHH[FHSWLRQVLVVXEMHFWWR
256$$DQG2$5WR
$VGHILQHGLQ256$EIRUWKHSXUSRVHVRI256&KDSWHU$
2UHJRQLVDSHUVRQ
'HIHQGDQWLVDSHUVRQZLWKDQHXURORJLFDOFRQGLWLRQ&HQWUDO3DLQ6\QGURPH
DQGVRPHWLPHVFDQ
WYRFDOL]HDQGPHHWV$'$DQG256$FULWHULDDQGKDV
DGLVDELOLW\5HTXLUHGUHDVRQDEOHDFFRPPRGDWLRQVRUPRGLILFDWLRQVDUHGHWHUPLQHG
RQDFDVHE\FDVHEDVLV
$'HVFULSWLRQRIGLVDELOLW\IRUSXUSRVHVRI256$WR
$$QLQGLYLGXDOKDVDGLVDELOLW\IRUWKHSXUSRVHVRI256
$WR$LIWKHLQGLYLGXDOPHHWVDQ\RQHRIWKH
IROORZLQJFULWHULD

D7KHLQGLYLGXDOKDVDSK\VLFDORUPHQWDOLPSDLUPHQWWKDW
VXEVWDQWLDOO\OLPLWVRQHRUPRUHPDMRUOLIHDFWLYLWLHVRIWKHLQGLYLGXDO

E7KHLQGLYLGXDOKDVDUHFRUGRIKDYLQJDSK\VLFDORUPHQWDO
LPSDLUPHQWWKDWVXEVWDQWLDOO\OLPLWVRQHRUPRUHPDMRUOLIHDFWLYLWLHV
RIWKHLQGLYLGXDO)RUWKHSXUSRVHVRIWKLVSDUDJUDSKDQLQGLYLGXDOKDV
DUHFRUGRIKDYLQJDSK\VLFDORUPHQWDOLPSDLUPHQWLIWKHLQGLYLGXDO
KDVDKLVWRU\RIRUKDVEHHQPLVFODVVLILHGDVKDYLQJDSK\VLFDORU
PHQWDOLPSDLUPHQWWKDWVXEVWDQWLDOO\OLPLWVRQHRUPRUHPDMRUOLIH
DFWLYLWLHVRIWKHLQGLYLGXDO

$FWLYLWLHVDQGIXQFWLRQVWKDWDUHFRQVLGHUHGPDMRUOLIHDFWLYLWLHVIRU
WKHSXUSRVHRIGHWHUPLQLQJLIDQLQGLYLGXDOKDVDGLVDELOLW\LQFOXGHEXW
DUHQRWOLPLWHGWR T&RPPXQLFDWLQJ Y,QWHUDFWLQJZLWK
RWKHUV ]2SHUDWLRQRIDPDMRUERGLO\IXQFWLRQLQFOXGLQJEXWQRW
OLPLWHGWR & QHXURORJLFDO IXQFWLRQV
2UHJRQ
VSXEOLFSROLF\DQGFLYLOULJKWVOHJLVODWLRQJXDUDQWHHWRSURWHFW
SHUVRQVZLWKGLVDELOLWLHVLQFOXGLQJGLVDELOLWLHVRISHRSOHPDLQWDLQLQJRWKHUDELOLWLHV
DQGGLVDELOLWLHVIURPFRQGLWLRQVZKLFKDUHHSLVRGLFRULQUHPLVVLRQ256
$
$QLQGLYLGXDOLVVXEVWDQWLDOO\OLPLWHGLQDPDMRUOLIHDFWLYLW\LIWKH
LQGLYLGXDOKDVDQLPSDLUPHQWKDGDQLPSDLUPHQWRULVSHUFHLYHGDV
KDYLQJDQLPSDLUPHQWWKDWUHVWULFWVRQHRUPRUHPDMRUOLIHDFWLYLWLHVRI
WKHLQGLYLGXDODVFRPSDUHGWRPRVWSHRSOHLQWKHJHQHUDOSRSXODWLRQ
$QLPSDLUPHQWQHHGQRWSUHYHQWRUVLJQLILFDQWO\RUVHYHUHO\UHVWULFW
WKHLQGLYLGXDOIURPSHUIRUPLQJDPDMRUOLIHDFWLYLW\LQRUGHUWREH
FRQVLGHUHGVXEVWDQWLDOO\OLPLWLQJ$QLPSDLUPHQWWKDWVXEVWDQWLDOO\
OLPLWVRQHPDMRUOLIHDFWLYLW\RIWKHLQGLYLGXDOQHHGQRWOLPLWRWKHU
PDMRUOLIHDFWLYLWLHVRIWKHLQGLYLGXDOAn impairment that is episodic
or in remission is considered to substantially limit a major life activity
of the individual if the impairment would substantially limit a major
life activity of the individual when the impairment is active.
1RQHWKHOHVVQRWHYHU\LPSDLUPHQWZLOOFRQVWLWXWHDGLVDELOLW\ZLWKLQ
WKHPHDQLQJRIWKLVVHFWLRQHPSKDVLVDGGHG
7KH2UHJRQ-XGLFLDO'HSDUWPHQWKDVEHHQELDVHGDQGRSHUDWHGRXWVLGHWKH
OLPLWDWLRQVRI2562QFHGHIHQGDQWZDVLGHQWLILHGDVDSHUVRQZLWKD
GLVDELOLW\WKHVWDWHKDGDGXW\WRLQYHVWLJDWHDQGH[SORUHUHDVRQDEOH
DFFRPPRGDWLRQVLQFOXGLQJPRGLILFDWLRQVWRSROLFLHVDQGSUDFWLFHVWRSUHYHQW
DGYHUVHLPSDFWV
2SWLRQVDYDLODEOHDVDFFRPPRGDWLRQVLQFOXGHGWRFKRRVHQRWWRSURVHFXWH
WKHGHIHQGDQWRUGLVPLVVRUPRUHDSSURSULDWHO\YDFDWHWKHFDVHRUWROLPLWWKH
GHOD\VJHWWLQJGHIHQGDQWRXWRIFXVWRG\EHIRUHWKHFRXUWIRUWKHIHZHVWQXPEHURI
DSSHDUDQFHVDQGWRDVSHHG\WULDODQGWRKDYHGHIHQGDQWDSSHDUEHIRUHDMXGJH
DEOHWRXQGHUVWDQGWKHQDWXUHDQGFRPSOH[LW\RIWKHGHIHQGDQW
VGLVDELOLW\DQGWKH
GHIHQVHVDYDLODEOHWRGHIHQGDQW
,QVWHDGGHIHQGDQWDSSHDUHGLQFRXUWGR]HQVRIWLPHVEHIRUHRYHUVL[
GLIIHUHQWMXGJHVKHDULQJWKLVFDVHZLWKHYHQPRUHGLIIHUHQWFRXUWDSSRLQWHGGHIHQVH
DWWRUQH\VDQGPDQ\GLIIHUHQWGHSXW\GLVWULFWDWWRUQH\VSURVHFXWLQJWKLVFDVH1R
RQHJDWKHUHGLQVWLWXWLRQDOPHPRU\H[FHSWGHIHQGDQWZKRZDVEXUGHQHGWRLQIRUP
HYHU\RQHHOVHRIKDYLQJDGLVDELOLW\HDFKWLPHDQGVKRXOGQRWKDYHEHHQ $IWHUD
WZRDQGDKDOIKRXUKHDULQJRQWKLVFDVHLQ$SULOWKHRQO\SHUVRQDSSHDULQJDW
WULDOODWHUZKRKDGEHHQWKHUHZDVGHIHQGDQWEHFDXVHWKHMXGJHGHSXW\GLVWULFW
DWWRUQH\DQGFRXUWDSSRLQWHGOHJDODGYLVRUKDGHDFKEHHQUHSODFHGDQGQRQHKDG
WKDW$SULOH[SHULHQFHDSURGXFWRIGHIHQGDQW
VHIIRUWVWRLQIRUPWKHP
7KLVFDVHKDUPHGGHIHQGDQW :KHWKHUE\GLQWRUGRRPGHVLJQRUIDXOWDV
WKLVFDVHSURJUHVVHGGHIHQGDQW
VOLPLWHGUHVRXUFHVZHUHGUDLQHGDJDLQDQGDJDLQ
ZKHQWKH\QHHGQ
WKDYHEHHQDQGZRXOGQ
WKDYHEHHQZLWKWKHUHDVRQDEOH
PRGLILFDWLRQVWRSROLFLHVDQGSUDFWLFHVPDQGDWHGE\ODZ
,QDGGLWLRQWRSURFHGXUDOSROLFLHVDQGSUDFWLFHVZKLFKKDUPHGGHIHQGDQWDV
WKLVFDVHSURJUHVVHGGHIHQGDQWZDVKDUPHGZKHQGLVFULPLQDWHGDJDLQVWUHJDUGLQJ
GHIHQGDQW
VPHGLFDOKLVWRU\DQGUHFRUGV7KHUHLVDFRQIOLFWEHWZHHQWKHODZV
LGHQWLI\LQJDQGJXDUDQWHHLQJSURWHFWLRQWRDSHUVRQVXFKDVGHIHQGDQWDSHUVRQ
GLDJQRVHGZLWK&HQWUDO3DLQ6\QGURPHDQHXURORJLFDOFRQGLWLRQVXEMHFWWR
HSLVRGLFGLVDEOLQJIODUHVUHTXLULQJHPHUJHQF\PHGLFDOWUHDWPHQWDQGWKHODZVDV
LQWHUSUHWHGE\WKH2UHJRQ-XGLFLDO'HSDUWPHQWDQG0XOWQRPDK&RXQW\'LVWULFW
$WWRUQH\RSHUDWLQJDVWKRXJKDQ\UHFRUGVGRFXPHQWLQJWKDWSK\VLFDOFRQGLWLRQDQG
UHFRUGLQJDQ\VXFKSUHYLRXVHSLVRGHVDQGHPHUJHQF\WUHDWPHQWDUHQ
WLPSRUWDQWIRU
DQ\QXPEHURISUHWH[WVVXFKDVWKHHSLVRGHKDSSHQHGWRRORQJDJRRUWKHOLFHQVHG
PHGLFDOSURIHVVLRQDOLVQRWSUHVHQWLQFRXUWWRYHULI\VSHFLILFUHFRUGV
,QVWHDGGHIHQGDQWSHUVRQZLWKDGLVDELOLW\ZDVH[SHFWHGDQGUHTXLUHGWR
SURGXFHPHGLFDOHYLGHQFHDQGLIDQGRQFHSURGXFHGWRYDOLGDWHUHFRUGVLQFOXGLQJ
EHLQJDEOHWRKDYHDSK\VLFLDQDYDLODEOHWRWHVWLI\LQFRXUWWKRVHUHFRUGVZHUHYDOLG
EXWDGGLWLRQDOO\WRKDYHWKHPHDQVWRKDYHKDGDSULRUDQGUHFHQWGLDJQRVLVE\D
SK\VLFLDQWKHGHIHQGDQWFDQSURGXFHDOLYHDQGLQFRXUW
(YHQWKRXJKGHIHQGDQWZDVDEOHWRVXESRHQDWKHPRVWUHFHQWQHXURORJLVWWR
GLDJQRVHGHIHQGDQWWKHFRXUWDOORZHGWKDWGHIHQVHZLWQHVVWRTXDVKWKDWVXESRHQD
DWDKHDULQJGHIHQGDQWKDGOHVVWKDQKRXUV¶QRWLFHRIDQGZKHUHGHIHQGDQW
DSSHDUHGDQGOHDUQHGWKHFRXUWDSSRLQWHGOHJDODGYLVRUKDGQRWPDGHDUUDQJHPHQWV
ZKLOHLVVXLQJWKHVXESRHQDHLWKHUIRUWKHQHXURORJLVWWREHVXESRHQDHGDVDQH[SHUW
ZLWQHVVRUWREHSDLG
:KHQPHGLFDOUHFRUGVZHUHSURGXFHGE\GHIHQGDQWLQFOXGLQJUHFRUGVIURP
6RFLDO6HFXULW\$GPLQLVWUDWLRQDQG0XOWQRPDK&RXQW\+HDOWK'HSDUWPHQWILOHV
DQGWKHLUDXWKHQWLFLW\ZDVQ
WFKDOOHQJHGE\WKHVWDWHWKHVWDWHDUJXHGWKDW
GHIHQGDQW
VPHGLFDOFRQGLWLRQDQGVSHFLILFDOO\GHIHQGDQW
VGLVDELOLW\GLGQ
WPDWWHU
ZKLFKLWIROORZVPDGHWKHPHGLFDOFRQGLWLRQDQGUHFRUGVGRFXPHQWLQJWKH
PHGLFDOFRQGLWLRQQRWUHOHYDQW&OHDUO\VXFKDQDSSURDFKLVDJDLQVWLQWHUSUHWLQJ
256$DQGWKH$'$WRDIIRUGWKHEURDGHVWSRVVLEOHSURWHFWLRQVWRSHUVRQVZLWK
GLVDELOLWLHV
'HIHQGDQW
VH[SHULHQFHKDVEHHQRQHZKHUHLQWHUSUHWDWLRQZKLFKZRXOG
DOORZPHGLFDOGRFXPHQWDWLRQDVGHIHQGDQW
VHYLGHQFHSHUPLWWHGXQGHUWKH2UHJRQ
(YLGHQFH&RGHZDVGHQLHGDJDLQVWWKHJXDUDQWHHVWRSURWHFWSHUVRQVZLWK
GLVDELOLWLHVIURPXQODZIXOGLVFULPLQDWLRQ
7KHFDVHDURVHDIWHUGHIHQGDQWVRXJKWDQGUHFHLYHGHPHUJHQF\PHGLFDO
WUHDWPHQWDVDSHUVRQZLWKDGLVDELOLW\WULJJHUHGDVFULPHYLFWLPDQGIROORZLQJ
WKDWWKHDFWRUVLQZKDWEHFDPHWKLVFDVHYLRODWHGGHIHQGDQW
VFLYLOULJKWVDVD
SHUVRQZLWKDGLVDELOLW\SULRUWRWKHDUUHVWDQGWKHQDJDLQZLWKWKHDUUHVWDQG\HW
DJDLQE\DQGWKURXJKWKHSURVHFXWLRQRIWKLVFULPLQDOFDVHQRZRQDSSHDO
256$FULWHULDTXDOLILHVDQLQGLYLGXDODVDSHUVRQZLWKDGLVDELOLW\LI
WKDWLQGLYLGXDOKDVDUHFRUGRIKDYLQJDSK\VLFDORUPHQWDOLPSDLUPHQW:KHQ
DSSHDULQJLQFRXUWWKRVHGRFXPHQWVHVWDEOLVKDQGLQYRNHSURWHFWLRQVDQGVWDWXVDVD
SHUVRQZLWKDGLVDELOLW\EXWDUHDUJXHGDQGGHHPHGXQVXLWDEOHDVGHIHQVHHYLGHQFH
DVHLWKHURXWVLGHWKHERXQGVRIWKH2UHJRQ(YLGHQFH&RGHRUQRWUHOHYDQWEHFDXVH
WKH\GRQ
WUHODWHWRWKHWLPHIUDPHZKLFKKDVEHHQVHOHFWHGLQDSSURSULDWHO\
VWULSSLQJSURWHFWLRQVRISHUVRQVZLWKGLVDEOLQJFRQGLWLRQVZKLFKDUHHSLVRGLF
7KLVFDVHKDVQHYHUEHHQOHJDO )URPLWVLQFHSWLRQWKURXJKJHQHUDWLRQRI
GR]HQVRIYROXPHVRIWUDQVFULSWVWKLVFDVHKDVDGYHUVHO\LPSDFWHGGHIHQGDQWZLWKD
GLVDELOLW\EH\RQGWKHUHDOPRIVRFLHWDOWROHUDQFH)ROORZLQJDUUHVWGHIHQGDQW
V
HIIRUWVWRSURVHFXWHDGHIHQVHZHUHUHSHDWHGO\LOOHJDOO\KDPSHUHGDVUHSRUWHGWR
-XGJH%XVKRQJKHDULQJGHIHQGDQW
VPRWLRQWRGLVPLVVRURWKHUZLVHFRQWDLQHGLQ
ZKDWZDVUHFHLYHGDWWKDWKHDULQJDVGHIHQVHH[KLELWRUDVLGHQWLILHGLQ
$SSHOODQW
V2SHQLQJ%ULHIDQG([HUSWRI5HFRUGRUDSSDUHQWLQWKHUHFRUG
'HIHQGDQWZDVKHOGLQMDLOZLWKRXWDFFHVVWRDWHOHSKRQHDVGHIHQGDQW
UHSRUWHGDWILUVWDSSHDUDQFHEHIRUHWKHFRXUW'HIHQGDQWZDVKDPSHUHGE\PRQWKV
RILQFDUFHUDWLRQRQDIHORQ\FKDUJHWKHVWDWHNQHZLWFRXOGQRWSURVHFXWHDQGKHOG
LQFXVWRG\IRURYHUDQDGGLWLRQDOPRQWKSULRUWRGHIHQGDQWEHLQJUHOHDVHGIURPMDLO
RQWKDWFKDUJHDIWHUWKHVWDWHDQGGHIHQGDQWNQHZWKHIHORQ\FKDUJHZRXOGKDYHWR
EHGLVPLVVHGGHIHQGDQW
VFRQWDFWVLQWKHFRPPXQLW\GHIHQGDQWSURYLGHGZHUHQ
W
FRQWDFWHGDVSDUWRIWKHUHOHDVHIURPFXVWRG\LQYHVWLJDWLRQUHFRPPHQGLQJGHQLDO
EHFDXVHGHIHQGDQWODFNHGUHODWLRQVKLSVLQWKHFRPPXQLW\DQGWKHLQYHVWLJDWLRQZDV
RQO\FRQGXFWHGDIWHUH[WUDRUGLQDULO\GHOD\GHIHQGDQWVXIIHUHGWKHORVVRIDQG
VXIIHUHGVLFNHQLQJHPRWLRQDOLPSDFWDULVLQJIURPWKHGHVWUXFWLRQRIGHIHQGDQW
V
SHUVRQDOJRRGVHVVHQWLDOWRGHIHQGDQW
VZHOOEHLQJZKLFKZHUHVHL]HGDWDUUHVWDQG
GHVWUR\HG)HEUXDU\ZKLOHGHIHQGDQWZDVLQFXVWRG\DVWKLVFDVHZDV
SHQGLQJ)HEUXDU\MDLOVWDIIUHIXVHGWRDFFHSWDFDVKLHU
VFKHFNIRU
GHIHQGDQW
VEDLOZKLOHGHIHQGDQWZDVLQFXVWRG\RQWKLVFDVHGHIHQGDQW
VOHJDOPDLO
IURPFXVWRG\ZDVQ
WGHOLYHUHGMDLOVWDIIUHIXVHGGHIHQVHDWWRUQH\FRQWDFWWKURXJK
HLWKHUYLVLWVRUWHOHSKRQHFDOOVDQGWKHFRXUWDSSRLQWHGGHIHQVHDWWRUQH\V
DFTXLHVFHGGHIHQGDQWUHFHLYHGQRPHGLFDOWUHDWPHQWIRU&HQWUDO3DLQ6\QGURPHLQ
FXVWRG\ZKLFKVLFNHQHGGHIHQGDQWDQGFRXUWDSSRLQWHGFRXQVHOIDLOHGWRREWDLQ
GHIHQGDQW
VUHTXHVWHGGHIHQVHHYLGHQFH
$IWHUWKDWWKHVWDWHLQWHUIHUHGZLWKDQGGHQLHGGHIHQGDQW
VGHIHQVHVWRWKH
FKDUJHVRUGLQDULO\DYDLODEOHWRDQ\GHIHQGDQWDVLGHQWLILHGLQ$SSHOODQW
V2SHQLQJ
%ULHI ,QVSLWHRIDOORIWKRVHDVVDXOWVRQGHIHQGDQW
VSURWHFWHGLQWHUHVWVDQG
DELOLWLHVGHIHQGDQWZLOOQHWDUHYHUVDORIWKHWULDOFRXUW
VFRQYLFWLRQRQDSSHDODVD
SURGXFWRIGHIHQGDQW
VSURVHUHSUHVHQWDWLRQDWWULDODQG$SSHOODQW
V2SHQLQJ%ULHI
SUHSDUHGE\WKH2UHJRQ2IILFHRI3XEOLF'HIHQVH6HUYLFHV
7KHWULDOFRXUW
VFRQYLFWLRQPXVWEHUHYHUVHGDVUHTXLUHGXQGHUWKHFRXUW
V
RZQUXOHVDQGREOLJDWLRQV 0RUHLPSRUWDQWWRGHIHQGDQWLVWKHUHFRJQLWLRQWKDWRXU
VWDWHFDQQRWHQJDJHWKHFRXUWSURFHVVHVDVLWKDVGRQHEHFDXVHRIWKHDGYHUVHDQG
KDUPIXOLPSDFWRQGHIHQGDQWDVDSHUVRQZLWKDGLVDELOLW\EHFDXVHLWLVDJDLQVWWKH
GHFODUHGSXEOLFSROLF\RIWKHVWDWHDQGEHFDXVHLWLVDQRQJRLQJYLRODWLRQRIWKH
$'$ 7KLVFDVHVKRXOGQRWEHUHYHUVHGEXWVKRXOGEHYDFDWHG
'HIHQGDQW
VPHGLFDOUHFRUGVDQGKLVWRU\DUHDVSHFLILFHOHPHQWRIWKHVWDWXWH
GHWHUPLQLQJGHIHQGDQW
VVWDWXVDVDSHUVRQZLWKDGLVDELOLW\256$E
7KHFRXUWSURFHVVLQVWHDGWXUQHGWKHPLQWRDEXUGHQE\LPSRVLQJLPSRVVLEOH
FRQGLWLRQVRQWKHLQGLJHQWGHIHQGDQWZLWKDGLVDELOLW\ZKRKDVDOZD\VVDLGKHZDV
REH\LQJWKHODZDQGVKRXOGQHYHUKDYHEHFRPHDGHIHQGDQW
7KHFRXUWSODFHGWKHEXUGHQRQSURVHGHIHQGDQWZLWKDGLVDELOLW\WR
VXESRHQDUHFRUGVDVWKHSURVHGHIHQGDQWSHUVRQZLWKDGLVDELOLW\FRQWLQXHGWR
UHSRUWWRWKHFRXUWWKHFRXUWDSSRLQWHGOHJDODGYLVRUVZRXOGQRWIROORZXSWRREWDLQ
GHIHQGDQW
VHYLGHQFHHYHQDIWHUEHLQJDSSRLQWHGE\WRFRXUWWRDVVLVWGHIHQGDQWDVD
SHUVRQZLWKDGLVDELOLW\VSHFLILFDOO\WRREWDLQHYLGHQFH7KHFRXUWSHUPLWWHGWKH
GHUHOLFWLRQRIWKHFRXUWDSSRLQWHGGHIHQVHFRXQVHOLQFOHDUYLRODWLRQRIGHIHQGDQW
V
ULJKWWRDVVLVWDQFHRIFRXQVHODQGWKHGXW\LPSRVHGRQWKRVHFRXUWDSSRLQWHG
GHIHQVHDWWRUQH\VZKLFKERWKIDLOHGWRDFWDQGGLGVRZLWKWKHNQRZOHGJHRIWKH
FRXUW
2Q)HEUXDU\GHIHQGDQWUHSRUWHGWRWKHFRXUWWKHFRXUWDSSRLQWHG
GHIHQVHFRXQVHOGLGQ
WFRPPXQLFDWHZLWKGHIHQGDQWUHJDUGLQJWKH1RYHPEHU
HYHQWVDQGGLGQ
WDFWWRZDUGGHIHQGDQW
VLQWHUHVWVDQGGHIHQGDQWZDVFKRRVLQJWR
SURFHHGSURVH)ROORZLQJDQH[SHULHQFHLQZKHQ3RUWODQG3ROLFHUHIXVHGWR
DFFHSWGHIHQVHZLWQHVVVXESRHQDVGHIHQGDQWQHHGHGDVVLVWDQFHDQGZDVSURYLGHGD
OHJDODGYLVRUWRREWDLQGHIHQVHHYLGHQFHEH\RQGGHIHQGDQW
VDELOLW\WRREWDLQLQD
IRUPDWDFFHSWDEOHWRWKHFRXUWDVHYLGHQFH $VVSHFLILHGRQWKHUHFRUGEHIRUH
-XGJH0DUVKDOOWKHGHIHQVHHYLGHQFHZDVVRXJKWSULRUWRWKHOHJDODGYLVRUEHLQJ
DSSRLQWHGWRDVVLVWGHIHQGDQW'HIHQGDQWZDLYHGULJKWWRFRXQVHODQGDSSHDUHGSUR
VHZLWKWKDWJXDUDQWHH7U
7+('()(1'$17 ZKLFKZRXOGEHWKHFDOOVZKLFKZRXOG
EHP\PHGLFDOUHFRUGVZKLFKZRXOGEHJHWWLQJP\H[SHUWZLWQHVV
P\QHXURORJLVWJHWWLQJWKH(PDQXHO+RVSLWDOHPHUJHQF\URRPGRFWRU

7+(&2857 2ND\
%\WKHWLPHRIWKHWULDORYHUVL[PRQWKVODWHUGHIHQVHHYLGHQFHZDVQRW
REWDLQHGE\DQ\RIWKHFRXUWDSSRLQWHGDWWRUQH\VZKRUHSUHVHQWHGGHIHQGDQW
PHDQLQJGHIHQGDQWGLGDOORIWKHZRUNLGHQWLI\LQJDQGUHTXHVWLQJHYLGHQFH\HW
UHDSHGQRQHRIWKHUHZDUGGXHWRWKHIDLOXUHRURXWULJKWUHIXVDORIWKH
FRXUWDSSRLQWHGFRXQVHOWRDFWWRVHFXUHGHIHQGDQW
VHYLGHQFH
6WDWXWRU\DQGDGPLQLVWUDWLYHUXOHVSURWHFWGHIHQGDQW
VFLYLOULJKWVEXWWKH
2UHJRQ-XGLFLDO'HSDUWPHQWFRQWLQXHVWRYLRODWHWKDWGHFODUHGSXEOLFSROLF\DQG
HQJDJHGLQXQODZIXOGLVDELOLW\GLVFULPLQDWLRQZKHWKHULQWHQWLRQDOO\RUQRW
&RQJUHVVFRXOGQRWKDYHLQWHQGHGWROLPLWWKH>$'$
V@SURWHFWLRQVDQG
SURKLELWLRQVWRFLUFXPVWDQFHVLQYROYLQJGHOLEHUDWHGLVFULPLQDWLRQ 5DWKHUWKH
$'$DWWHPSWVWRHOLPLQDWHWKHHIIHFWVRIEHQLJQQHJOHFWDSDWK\DQG
LQGLIIHUHQFHLQWHUQDOTXRWDWLRQVRPLWWHGDVLQ&URZGHUY.LWDJDZD)G
WK&LU'LVFULPLQDWLRQWKHRULHVDUHVHWRXWLQ2$5
$GYHUVHLPSDFWLVGLVDELOLW\GLVFULPLQDWLRQHYHQZKHQXQLQWHQWLRQDO2$5

'HIHQGDQWFKDOOHQJHVWKHMXULVGLFWLRQRIWKH2UHJRQ-XGLFLDO'HSDUWPHQW
WKHVWDWHJRYHUQPHQWLVSURKLELWHGWRDVVLVWLQXQODZIXOGLVDELOLW\GLVFULPLQDWLRQ
ZKLFKFDQEHXQODZIXOHYHQZKHQIDFLDOO\QHXWUDOLILWKDVDQDGYHUVHLPSDFWRQ
SHUVRQVZLWKGLVDELOLWLHV
7KHFRXUWDOVRFUHDWHGDKRVWLOHHQYLURQPHQW $Q\UHDVRQDEOHSHUVRQLQWKH
VLWXDWLRQ GHIHQGDQW IDFHG ZRXOG ILQG WKH HQYLURQPHQW KRVWLOH LQWLPLGDWLQJ DQG
RIIHQVLYH See 2$5 E 7KH VWDQGDUG IRU GHWHUPLQLQJ ZKHWKHU
KDUDVVPHQW LV VXIILFLHQWO\ VHYHUH RU SHUYDVLYH WR FUHDWH D KRVWLOH LQWLPLGDWLQJ RU
RIIHQVLYHHQYLURQPHQWLVZKHWKHUDUHDVRQDEOHSHUVRQLQWKHFLUFXPVWDQFHVRIWKH
LQGLYLGXDO DJDLQVW ZKRP WKH KDUDVVPHQW LV GLUHFWHG ZRXOG VR SHUFHLYH LW 7KH
2UHJRQ -XGLFDO 'HSDUWPHQW DQG 'LVWULFW $WWRUQH\ HQJDJHG LQ GLVDELOLW\
GLVFULPLQDWLRQ DV WKH FDVH ZDV SURVHFXWHG DQG GLG VR ZKHQ WKH FRXUW ODFNHG
MXULVGLFWLRQWKURXJKWKHRSHUDWLRQRI256$
-XULVGLFWLRQPD\EHUDLVHGDWDQ\WLPH7KHTXHVWLRQSUHVHQWHGLVZKHWKHUWKH
2UHJRQ-XGLFLDO'HSDUWPHQWFDQH[HUFLVHMXULVGLFWLRQRYHUWKLVFDVHZKHQWKHVWDWH
LVSURKLELWHGIURPDVVLVWLQJDSODFHRISXEOLFDFFRPPRGDWLRQHQJDJHGLQWKH
XQODZIXOSUDFWLFHVRIGLVDELOLW\GLVFULPLQDWLRQDQG$'$UHWDOLDWLRQ
2UHJRQ
VSXEOLFSROLF\UHJDUGLQJSHUVRQVZLWKGLVDELOLWLHVDVGHFODUHGLQ256
$JXDUDQWHHVSHUVRQVZLWKGLVDELOLWLHVWKHULJKWWRXVHDQGHQMR\SODFHV
RISXEOLFDFFRPPRGDWLRQ256$EGHILQHVSXEOLFDFFRPPRGDWLRQ
WRLQFOXGHSODFHVRSHUDWHGE\SXELFERGLHVDQGFLQFOXGHVVHUYLFHVRIIHUHGE\
SXEOLFERGLHV
'HIHQGDQW
VGLDJQRVLVRIKDYLQJ&HQWUDO3DLQ6\QGURPHLVRQHZD\
GHIHQGDQWLVSURWHFWHGDVDSHUVRQZLWKDGLVDELOLW\XQGHU256&KDSWHU$DQG
SDUDOOHOODQJXDJHZLWKLQ2UHJRQ$GPLQLVWUDWLYH5XOHV&KDSUWHU 7KRVH
GHILQLWLRQVLQFOXGHDSHUVRQZLWKDGLVDELOLW\ZKRKDVWKHTXDOLI\LQJFRQGLWLRQ
256$DRUIRUKDYLQJDUHFRUGRUKLVWRU\RIWKHTXDOLI\LQJ
FRQGLWLRQ256$E
'HIHQGDQWZDVGLDJQRVHGDVKDYLQJ&HQWUDO3DLQ6\QGURPHRQERWK
1RYHPEHUDQG1RYHPEHU7KHWULDOFRXUWUHIXVHGWRDOORZWKH
(PHUJHQF\'HSDUWPHQWUHFRUGVDVGHIHQVHH[KLELWV1HYHUWKHOHVVGHIHQGDQWZDV
GLDJQRVHGDVDSHUVRQZLWK&HQWUDO3DLQ6\QGURPHDWWKRVHWZR(PHUJHQF\
'HSDUWPHQWYLVLWVZKHUHGHIHQGDQWZDVDGPLWWHGDQGGLDJQRVHGZKLFKWKHFRXUW
DQGSURVHFXWRUNQHZSULRUWRWKDWDUJXPHQWDQGUXOLQJ ,QDGGLWLRQGHIHQGDQW
V
GRFXPHQWVDQGFROORTX\LQIRUPHGWKHFRXUWDQGSURVHFXWRUGHIHQGDQWVXUYLYHGD
HSLVRGHUHTXLULQJHPHUJHQF\PHGLFDOFDUHIRUIRUW\ILYHPLQXWHVWRSUHYHQW
FLUFXODWRU\IDLOXUH
7KHVWDWHDQGLWVFRXUWLVSURKLELWHGIURPDVVLVWLQJRUDFWLQJRQEHKDOIRI
WKHSODFHRISXEOLFDFFRPPRGDWLRQZKLFKYLRODWHGGHIHQGDQW
VULJKWVDVDSHUVRQ
ZLWKDGLVDELOLW\ZKHWKHUWKDWEHDJRYHUQPHQWEXLOGLQJRUVHUYLFHRUDKRVSLWDORU
DVHFXULW\JXDUGRUDSROLFHRIILFHU
7KHMXULVGLFWLRQRIWKH2UHJRQ-XGLFLDO'HSDUWPHQWLVOLPLWHGE\256
$,WFDQQRWDFWLILWVDFWLRQVDOWHULWVVWDWXVWREHDSHUVRQDFWLQJRQ
EHKDOIRIWKHSODFHRISXELFDFFRPPRGDWLRQHQJDJHGLQXQODZIXOGLVDELOLW\
GLVFULPLQDWLRQ256$,WLVDQXQODZIXOSUDFWLFHIRUDQ\SODFHRI
SXEOLFDFFRPPRGDWLRQUHVRUWRUDPXVHPHQWDVGHILQHGLQ256$RUDQ\
SHUVRQDFWLQJRQEHKDOIRIVXFKSODFHWRPDNHDQ\GLVWLQFWLRQGLVFULPLQDWLRQRU
UHVWULFWLRQEHFDXVHDFXVWRPHURUSDWURQLVDQLQGLYLGXDOZLWKDGLVDELOLW\
7KHUHLVQRHYLGHQFHLQWKHUHFRUGWKDWSULRUWRDUUHVWLQJGHIHQGDQWWKHSXEOLF
DFFRPPRGDWLRQPDGHDQ\HIIRUWWRHQJDJHLQWKHUHTXLUHGPHDQLQJIXOLQWHUDFWLYH
SURFHVVWULJJHUHGE\WKHGLVFRYHU\GHIHQGDQWZDVDSHUVRQZLWKDGLVDELOLW\)DLOXUH
WRHQJDJHLQWKDWLQWHUDFWLYHSURFHVVLVXQODZIXOGLVDELOLW\GLVFULPLQDWLRQEHFDXVH
QRUHTXLUHGUHDVRQDEOHDFFRPPRGDWLRQRUPRGLILFDWLRQRIDGPLQLVWUDWLYHSROLFLHV
RUSUDFWLFHVRUDOWHUQDWLYHO\HVWDEOLVKLQJQRUHDVRQDEOHDFFRPPRGDWLRQLVDYDLODEOH
FDQEHGHWHUPLQHGZLWKRXWPHDQLQJIXOLQTXLU\7KHGHWHUPLQDWLRQRIZKDW
FRQVWLWXWHVUHDVRQDEOHPRGLILFDWLRQLVKLJKO\IDFWVSHFLILFUHTXLULQJFDVHE\FDVH
LQTXLU\See&URZGHUY.LWDJDZD)GWK&LU
,QVWHDGGHIHQGDQWHQGXUHGDUUHVWLQFDUFHUDWLRQDQGGR]HQVRIFRXUW
DSSHDUDQFHVIDFLQJWKHHPRWLRQDOGDPDJHRIRQJRLQJWKUHDWRIDQDUUHVWZDUUDQW
EHLQJLVVXHGIRUPLVVLQJDFRXUWDSSHDUDQFHHYHQRQWKHRFFDVLRQGHIHQGDQWLVD
FULPHYLFWLPRQWKHZD\WRFRXUWDVRFFXUUHGRQ1RYHPEHUDQGZKLFK
UHVXOWHGLQ-XGJH7RGGLVVXLQJDZDUUDQWIRUGHIHQGDQW7U
(DFKRIWKRVHGR]HQVRIPDQGDWRU\FRXUWDSSHDUDQFHVUHTXLUHGGHIHQGDQWWR
OHDYHKRPHWUDYHOWRDQGHQWHUWKHFRXUWKRXVHDQGDSSHDULQFRXUWZKHUHDQG
ZKHQWKHVWDWHUHTXLUHGLQFOXGLQJWZRSODFHVDWWKHVDPHWLPHDVRQ0DUFK
ZKHQGHIHQGDQWZDVRQWKHGRFNHWEHIRUH-XGJH0DXUHULQRQHFRXUWURRP
7UDQVFUSW9ROXPHRIDQG-XGJH.DQWRULQDGLIIHUHQWFRXUWURRP7UDQVFULSW
9ROXPHDQGRI
'HIHQGDQWZDVDUUHVWHGZLWKLQDZHHNDIWHUDQHSLVRGLFZRUVHQLQJRI
GHIHQGDQW
VQHXURORJLFDOFRQGLWLRQZDVWULJJHUHGDIWHUEHLQJDFULPHYLFWLPDV
SHUVRQZLWKDGLVDELOLW\ 'HIHQGDQWKDGEHHQDGPLWWHGDWWKH(PDQXHO+RVSLWDO
(PHUJHQF\'HSDUWPHQWWZLFHGD\VSULRUWREHLQJDUUHVWHG
&(57,),&$7(2)&203/,$1&(:,7+25$3
%ULHIOHQJWK
,FHUWLI\WKDW,GRQRWKDYHWKHDELOLW\WRSURYLGHDZRUGFRXQWEHFDXVHWKHEULHI
ZDVSUHSDUHGpro seWKLVEULHIFRPSOLHVZLWKWKHSDJHOLPLWDWLRQLQ25$3
DQGWKHQXPEHURISDJHVLQWKLVEULHILVSDJHV
7\SHVL]H
,FHUWLI\WKDWWKHVL]HRIWKHW\SHLQWKLVEULHIFRXOGQRWEHGHWHUPLQHGEHFDXVHWKHEULHI
ZDVSUHSDUHGpro se
127,&(2)),/,1*$1'3522)2)6(59,&(
,FHUWLI\WKDW,GLUHFWHGWKHRULJLQDO$SSHOODQW
V3UR6H6XSSOHPHQWDO%ULHIWREH
ILOHGZLWKWKH$SSHOODWH&RXUW$GPLQLVWUDWRU$SSHOODWH&RXUWV5HFRUGV6HFWLRQ
6WDWH6WUHHW6DOHP2UHJRQRQ$SULO
,IXUWKHUFHUWLI\WKDWXSRQUHFHLSWRIWKHFRQILUPDWLRQHPDLOVWDWLQJWKDWWKH
GRFXPHQWKDVEHHQDFFHSWHGE\WKHH)LOLQJV\VWHPWKLV$SSHOODQW
V3UR6H
6XSSOHPHQWDO%ULHIZLOOEHH6HUYHGSXUVXDQWWR25$3UHJDUGLQJHOHFWURQLF
VHYLFHRQUHJLVWHUHGH)LOHUVRQ%HQMDPLQ*XWPDQ6ROLFLWRU*HQHUDO
DWWRUQH\IRU3ODLQWLII5HVSRQGHQW
(51(67*/$11(7
&+,()'()(1'(5
&5,0,1$/$33(//$7(6(&7,21
2)),&(2)38%/,&'()(16(6(59,&(6
(6LJQHG
Signed
By Brett Allin at 9:38 am, Apr 16, 2018
%5(77-$//,126%
'(387<38%/,&'()(1'(5
%DUU\-RH6WXOO
2IILFHRI3XEOLF'HIHQVH6HUYLFHV$SSHOODWH'LYLVLRQ
&RXUW6W1(6DOHP2UHJRQ
7HOHSKRQH)D[
IN THE COURT OF APPEALS OF THE STATE OF OREGON
STATE OF OREGON, Multnomah County Circuit

Court Case No. &5
Plaintiff-Respondent,
v. CA A16415
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-XOLH()UDQW], 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
6713 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 ............................................................................................1
Questions Presented .......................................................................................2
Summary of Argument ..................................................................................2
Summary of Facts ..........................................................................................3
FIRST ASSIGNMENT OF ERROR ....................................................................6
The trial court erred in precluding defendant from arguing that the
trespass and exclusion orders were unlawful.
SECOND ASSIGNMENT OF ERROR ...............................................................6
The trial court erred in precluding defendant from cross-examining the

state’s witnesses about the 2011 incident that led to the exclusion order.
THIRD ASSIGNMENT OF ERROR ...................................................................7
The trial court erred in excluding evidence about the circumstances

surrounding the issuance of the exclusion order.
FOURTH ASSIGNMENT OF ERROR ...............................................................7
The trial court erred in excluding Exhibit 105, defendant’s medical

records from November 20, 2015.
ii
FIFTH ASSIGNMENT OF ERROR ....................................................................7

Combined Preservation of Error ....................................................................7
Combined Standard of Review ....................................................................11
Combined Argument ....................................................................................12
I. The trial court abused its discretion in barring defendant from

arguing that the exclusion and trespass orders were unlawful. ................12
II. The trial court erred in excluding relevant evidence that supported
defendant’s arguments that the exclusion and trespass orders were
unlawful. ...................................................................................................15
III. The errors harmed defendant. ............................................................17
CONCLUSION ...................................................................................................19
TABLE OF AUTHORITIES
Cases
Cler v. Providence Health Sys. Oregon,
349 Or 481, 245 P3d 642 (2010) .....................................................................11
J. D. v. S. K.,
282 Or App 243, 385 P3d 1161 (2016), rev den, 361 Or 439 (2017) .............11
State v. Barajas,
247 Or App 247, 268 P3d 732 (2011) .............................................................17
State v. Davis,
336 Or 19, 77 P3d 1111 (2003) .......................................................................17
State v. Fletcher,
263 Or App 630, 330 P3d 659, 661 (2014) .............................................. 12, 13
iii
State v. Goodin,
8 Or App 15, 492 P2d 287 (1971) ...................................................................12
State v. Gray,
286 Or App 799, 401 P3d 1241 (2017) ...........................................................11
State v. Hooper,
256 Or App 237, 300 P3d 235, rev den, 354 Or 61 (2013).............................12
State v. Koenig,
238 Or App 297, 242 P3d 649 (2010), rev den, 349 Or 601 (2011) ...............13
State v. Lovins,
177 Or App 534, 33 P3d 1060 (2001) .............................................................17
State v. Marbet,
32 Or App 67, 573 P2d 736 (1978) .............................................. 10, 13, 16, 18
State v. Ratliff,
304 Or 254, 744 P2d 2470 (1987) ...................................................................14
State v. Riddell,
172 Or App 675, 21 P3d 128 (2001) ....................................................... 13, 14
State v. White,
211 Or App 210, 154 P3d 124, as clarified on recons, 213 Or App 584, rev
den, 343 Or 224 (2007) ...................................................................................18
Constitutional Provisions and Statutes

42 USC § 12102 ..................................................................................................15
42 USC § 12182 ..................................................................................................16
Or Const, Art VII, § 3 .........................................................................................18
OEC 401..............................................................................................................15
OEC 402..............................................................................................................15
ORS 138.040 .........................................................................................................1

iv
ORS 164.205 .......................................................................................................13
ORS 164.245 .................................................................................................. 1, 13
ORS 659A.142 ....................................................................................................16
Other Authorities
ORAP 5.45 ............................................................................................................7
APPELLANT’S OPENING BRIEF
STATEMENT OF THE CASE
Nature of the Proceeding
In this criminal appeal, defendant seeks reversal of his conviction for
trespass in the second degree, ORS 164.245, based on the trial courts limitations
of his arguments challenging the lawfulness of the trespass order and its
exclusion of his evidence relevant to that argument. The state charged
defendant by information with that offense. Information, ER 1-2.
Nature of the Judgment
A jury found defendant guilty. The trial court sentenced defendant to
two days in jail. Judgment, ER-3.
Jurisdiction
This court has jurisdiction pursuant to ORS 138.040.
Notice of Appeal
Defendant timely filed a notice of appeal on February 6, 2017, from the
judgment entered in Multnomah County Circuit Court on January 6, 2017.

2
Questions Presented
1. When a defendant is charged with criminal trespass, which requires the
state to prove that an order to leave was lawful, is the defendant entitled to
argue to the jury that the trespass order is unlawful because it violated Oregon
and federal statute?
2. When a defendant is charged with criminal trespass, is evidence tending
to show that the trespass order was unlawful relevant?
Summary of Argument
In 2011, Legacy Emmanuel Hospital issued an exclusion order that
prohibited defendant from entering hospital premises except to receive
emergency medical care. In 2015, an ambulance took defendant to the Legacy
Emmanuel emergency room for emergency treatment. Upon being discharged,
defendant used the bathroom and then began walking down a hospital corridor,
away from the nearest hospital exit. A hospital security guard ordered
defendant to leave through a particular door, and defendant did not comply.
At trial, defendant sought to argue that the 2011 exclusion order and the
2015 trespass order based on it were unlawful because they violated public-
accommodation and disability laws. The trial court barred defendant from
arguing the lawfulness of the order to the jury and excluded as irrelevant
3
testimonial and documentary evidence that defendant sought to introduce in
support of that argument. The trial court erred in both respects.
A trial court abuses its discretion when it prevents a defendant from
arguing that the state failed to prove an essential element a charge. An essential
element of second-degree trespass is that the order for defendant to leave must
be lawful. This court has held that a trial court errs in barring a defendant from
collaterally challenging the lawfulness of an exclusion order underlying a
trespass charge.
Likewise in this case, it was error for the court to prohibit defendant from
arguing to the jury that the order was unlawful. It was also error to exclude
evidence that tended to show that the exclusion and trespass orders violated
Oregon and federal statute. Those errors harmed defendant, so his case must be
reversed and remanded.
Summary of Facts
State’s evidence
In 2011, Legacy Emmanuel Hospital issued an exclusion order against
defendant that contained an exception for emergency medical treatment:
“You are prohibited from coming onto the property or

premises of any Legacy Health System property at any time except
in order to receive emergency medical care. Permission to enter
the premises of Legacy Health System for any other reason must
be obtained by an officer of the security department. Entry upon
4
the premises may result in your arrest for criminal trespass in the
second degree.”
Tr 449-50; Ex 1, ER-4.
On November 22, 2015, defendant perceived that he was suffering from a
medical emergency and called 9-1-1. Tr 558. Paramedics responded to
defendant’s home, where defendant demanded that he be transported to the
hospital “or he would die.” Tr 564. He became verbally aggressive and said
that he had Central Pain Syndrome. Tr 564. Defendant tried to get into the
ambulance without permission. Tr 565. Eventually, the paramedics transported
defendant to Legacy Emmanuel Hospital. Tr 558, 569. On the way, they
restrained him and sedated him with two drugs. Tr 569-70. They delivered
defendant to the emergency room at 8:45 p.m. Tr 575.
Around midnight, David Davies, a security officer at the hospital,
received a call that defendant was subject to an exclusion order and that he had
just been discharged from the emergency room. Tr 470-71, 484. Davies went
to the emergency room, where hospital staff told him that defendant was in the
bathroom. Tr 472. Davies saw defendant leave the bathroom, turn away from
the nearest hospital exit, and walk further into the hospital. Tr 472. There are
other hospital exits in the direction that defendant walked. Tr 473, 476. Davies
followed defendant. Tr 479. He told defendant that he had to leave because of
the exclusion order. Tr 479. Defendant replied, “Nope, I am not stopping,” and
5
he continued walking. Tr 480. Davies got in front of defendant, who then
turned around and began walking back towards the emergency room. Tr 480.
Defendant sat down in the emergency room lobby and said that he refused to
leave. Tr 480. He yelled and waved his arms. Tr 480. Davies handcuffed him
and tried to escort him out, but defendant went limp. Tr 483-84.
Portland Police Office Jena Lemke responded to the hospital, where she
found defendant in custody in the internal corridor between the emergency
room and the children’s hospital. Tr 514. She walked defendant to her patrol
car and took him to jail. Tr 515. She did not notice any health issues with
defendant. Tr 518-19.
Defense evidence
Defendant is diagnosed with a neurological condition called Central Pain
Syndrome. Tr 635. That condition causes serious problems when he has an
elevated heart rate. Tr 635. He goes to Legacy Emmanuel for treatment
because that hospital specializes in neuroscience. Tr 636.
Two days before his arrest, defendant went to the emergency room at
Legacy Emmanuel because he had an elevated heart rate. Tr 634, 636. He
received treatment from the attending physician. Tr 638. Once his heart rate
declined, he was discharged. Tr 641. He was told to return if his condition
worsened. Tr 641.
6
On November 22, defendant called 9-1-1 because his condition
worsened. Tr 641, 648. After being sedated, he passed out and awoke in a
treatment room. Tr 649. He received discharge paperwork. Tr 649. He left
the room, used the bathroom near the waiting room, and then walked towards
the hospital exit that was nearest to the bus stops. Tr 652. It was cold out and
he was wearing shorts. Tr 653. As he was walking towards the exit, someone
approached him from behind and gave him a trespass warning. Tr 654.
Security guards tried to usher him out through a fire exit, but defendant wanted
to take a different exit. Tr 657. When they arrested him, he sat down and
waited for the police. Tr 658. The police escorted him from the hospital. Tr
659.
FIRST ASSIGNMENT OF ERROR
The trial court erred in precluding defendant from arguing that the
trespass and exclusion orders1 were unlawful.
SECOND ASSIGNMENT OF ERROR
The trial court erred in precluding defendant from cross-examining the
state’s witnesses about the 2011 incident that led to the exclusion order.
1
Defendant refers to the 2011 order barring defendant from the
hospital except for emergency medical treatment as the “exclusion order.” He
refers to the order to leave issued on the date of arrest as the “trespass order.”
7
THIRD ASSIGNMENT OF ERROR
The trial court erred in excluding evidence about the circumstances
surrounding the issuance of the exclusion order.
FOURTH ASSIGNMENT OF ERROR
FIFTH ASSIGNMENT OF ERROR
Combined Preservation of Error2
At several points before and during trial, defendant3 asserted that he was
not guilty because the exclusion order was unlawful based on his status as a
person with a disability. See, e.g., Tr 124-25, 246-55, 292-93, 317-22. For
example, defendant discussed that defense with the court at a pretrial hearing on
September 6, 2016:
2
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).
3
Defendant represented himself at trial with the assistance of
advisory counsel. Unless otherwise noted, defendant personally raised the
issues identified in this section.
8
“THE COURT: And so you want to argue that it’s not a

lawful order because you’re disabled and you have a right to use
and enjoy the hospital?
“[THE DEFENDANT]: In essence, that’s kind of where

I’m just saying that to challenge the lawfulness of the order, you
have to determine if the actions were lawful or unlawful and if they
violated the provisions that we’re talking about them –
“THE COURT: Okay.
“[THE DEFENDANT]: – [ORS] 659A.142 and those kinds

of things and the [Americans with Disabilities Act].
“THE COURT: Okay.”
Tr 293.
At trial, defendant argued that “[t]he jury should be able to determine
whether the order to leave was lawful.” Tr 328. The trial court ruled that
defendant would not be allowed to argue about the lawfulness of the exclusion
order:
“[THE COURT:] The Court’s not going to allow this to be a trial

about whether [the 2011] exclusion was lawful or not. That is a
matter that is outside the parameters of this criminal charge. Just
like * * * if a conviction is entered that conviction, whether it’s by
trial or by plea, is a conviction. And * * * the facts that were
presented to the trier of fact that resulted in a conviction cannot be
retried in a subsequent case.
“* * * * *
“So if there was a – an Order of No Trespass, then that is an

order by which you would be required to abide. If you believe that
that was unlawful in violation of the ADA or other reasons, then
that would be a matter that should have been brought or could have
been brought * * * in a civil arena.”
9
Tr 352-53. Consistent with that ruling, the court also “disallow[ed] any
introduction of any evidence of other times [defendant had] been at Emanuel
Hospital prior to November 20[, 2015,]” including the incident that gave rise to
the exclusion order. Tr 375.
In his cross-examination of Christopher Dotson, who issued the exclusion
order against defendant in 2011, defendant asked him about the circumstances
that gave rise to the exclusion order. Tr 454. The state objected, and the trial
court again ruled that defendant could not discuss the factual basis for the order:
“THE COURT: * * * It is improper to go into. The lawful

order stands that excluded you. And so whether you believed it
was lawful or not or * * * believe that this witness was not basing
the reason for exclusion on a lawful basis is not germane to the
issue that’s being tried today. The * * * exclusion stands and you
were to abide by that exclusion except for emergency medical
treatment. So * * * that’s the end of this line of questioning.”
Tr 457.
After the state rested, defendant sought to admit his medical records:
“THE COURT: You’re going to try to introduce them

through your testimony? Is that –
“[THE DEFENDANT]: Right.
“THE COURT: – what you’re going to try to do?
“[THE DEFENDANT]: Right. And what they are, Your

Honor, is they’re medical records. And I have the – this from my
neurologist of many years, which actually has a diagram. And this
is already been introduced [in other cases]. These pictures have
been introduced and I’ll just –
10
“THE COURT: All right. * * * * *
“Yeah. One question, [advisory counsel]. Have you

discussed rules of evidence with respect to foundation and so forth
with your client?
“[ADVISORY COUNSEL]: Yes, we have.
“[THE DEFENDANT]: Yes.”
Tr 599-600. Defendant further explained that those records included the
records of his visits to Legacy Emmanuel on November 20 and 22, 2015,
marked as Exhibits 105 and 106. Tr 601-03. Defendant argued that those
exhibits were relevant to his argument that the trespass order was unlawful. Tr
604-19.
The court reiterated its earlier ruling that defendant could not challenge
the lawfulness of the exclusion order, and it further held that defendant would
not be allowed to introduce evidence to support his arguments that the order
was unlawful:
“THE COURT: All right. So I’ve listened to you

extensively, [defendant], and I’ve listened to [the prosecutor]. And
I’ve read the Marbet case. And I agree with [the prosecutor] that
you have conflated a civil remedy for your proposal that you have
a disability, which has not been established yet through the
evidence, and that * * * that disability was not accommodated.
“There is a civil remedy for that. That does not translate

into an affirmative defense to the charge of trespass in the second
degree. So I’m not going to allow that testimony or introduction of
exhibits for the purpose of your attempting to establish that your *
11
* * constitutional rights were violated and that you were not being
accommodated under 690. * * *
“Now you can challenge the authority of the person in

charge to have arrested you. That’s an issue that the jury will have
to determine. But the argument that you were not being
accommodated is outside the scope of this charge of Criminal
Trespass in the second degree. So I’m not going to allow it. * * *
“* * * * *
“* * * So you will not be permitted to argue that as a

defense or as a violation that we’ve created an unlawful order.”
Tr 624-25, 629.
Combined Standard of Review
This court “review[s] a trial court’s decisions regarding control of jury
argument for an abuse of discretion.” Cler v. Providence Health Sys. Oregon,
349 Or 481, 487, 245 P3d 642 (2010). It reviews the court’s exercise of control
over the examination of witnesses for abuse of discretion. J. D. v. S. K., 282 Or
App 243, 244, 385 P3d 1161 (2016), rev den, 361 Or 439 (2017). Relevance
determinations are reviewed for errors of law. State v. Gray, 286 Or App 799,
808, 401 P3d 1241 (2017).

12
Combined Argument
I. The trial court abused its discretion in barring defendant from

arguing that the exclusion and trespass orders were unlawful.
“Absent abuse, the control of closing arguments is left to the trial court
judge, who has broad authority to control the conduct of the trial.” State v.
Goodin, 8 Or App 15, 23-24, 492 P2d 287 (1971). For example, a “trial court
did not abuse its discretion when it prevented a defendant, in closing argument
to the jury, from rehashing an immaterial, pretrial argument about venue, based
on the convenience of witnesses.” State v. Fletcher, 263 Or App 630, 634, 330
P3d 659, 661 (2014) (citing State v. Hooper, 256 Or App 237, 240, 300 P3d
235, rev den, 354 Or 61 (2013)).
However, a trial court abuses its discretion when it “limit[s] defendant’s
closing argument to prevent him from arguing that the state had failed to prove
a material allegation of the charge.” Fletcher, 263 Or App at 634. For
example, the trial court in Fletcher ruled that “defendant could not contend, in
closing argument, that the state must prove, but had not, that defendant intended
or knew that he used a dangerous weapon.” Id. at 631. On appeal, this court
determined that the defendant’s proposed argument was based on a correct
understanding of the law, and consequently, the trial court had abused its
discretion in withholding that argument from the jury. Id. at 634.

13
Here, like in Fletcher, the argument that defendant sought to make
reflected a correct understanding of the law on a material point. “A person
commits the crime of criminal trespass in the second degree if the person enters
or remains unlawfully in a motor vehicle or in or upon premises.” ORS
164.245. “Enter or remain unlawfully” means, as relevant here, “[t]o fail to
leave premises that are open to the public after being lawfully directed to do so
by the person in charge[.]” ORS 164.205(3)(b) (emphasis added). Thus, the
state must prove as an element of the offense that the direction for the defendant
to leave the premises was lawful. State v. Koenig, 238 Or App 297, 308, 242
P3d 649 (2010), rev den, 349 Or 601 (2011).
A trespass order may be unlawful is if it is “limited by a constitutional or
statutory right of the individual to remain[.]” State v. Marbet, 32 Or App 67,
73, 573 P2d 736 (1978). For example, in Koenig, this court reversed the denial
of defendant’s motion for judgment of acquittal on a trespass charge based on
its holding that the trespass order ran afoul of the defendant’s constitutional
right to procedural due process. 238 Or App at 310.
The trial court here ruled that defendant needed to challenge the 2011
exclusion order in a civil proceeding and that he could not challenge it in this
criminal proceeding. But this court has held such a ruling to be legal error. In
State v. Riddell, this court held that the trial court erred in barring a defendant
from collaterally challenging the lawfulness of the underlying exclusion order.

14
172 Or App 675, 687, 21 P3d 128 (2001). It reasoned that, even though there
was an administrative process to appeal the exclusion order that the defendant
did not take advantage of, that process was “not as ‘formal and comprehensive’
as a criminal proceeding, nor does it provide the ‘same quality of proceedings
and the opportunity to litigate’ as does a criminal proceeding.” Id. at 686-87
(quoting State v. Ratliff, 304 Or 254, 259-60, 744 P2d 2470 (1987)). Thus, the
“defendant was entitled in this criminal trespass prosecution to challenge the
constitutionality of the underlying exclusion order.” Id. at 687.
Likewise here, the trial court erred by barring defendant from collaterally
challenging the lawfulness of the exclusion or trespass orders. The exclusion
order here, like the one in Riddell, did not provide a sufficient procedural
mechanism to challenge it. Ex 1, ER-4 (failing to provide any procedural
mechanism to appeal the exclusion order). Thus, defendant should not have
been barred from collaterally challenging it and any trespass order based on it.
The trial court’s contrary holding prohibited defendant from contesting an
essential element of the charge. The court further erred in excluding evidence
to support that defense.

15
II. The trial court erred in excluding relevant evidence that supported
defendant’s arguments that the exclusion and trespass orders were
unlawful.
Evidence is relevant if it has “any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.” OEC 401. All relevant
evidence is generally admissible. OEC 402.
As discussed above, the lawfulness of a trespass order is a material
element of trespass in the second degree. One way to show that a trespass order
was unlawful is to show that the exclusion order that authorized it was
unlawful. Thus, the lawfulness of both orders was a material issue, and
evidence that tends to show that either was unlawful is relevant.
Defendant sought to show that the orders were based on a discriminatory
purpose and that they were unlawful. To do that, he needed to present evidence
about the circumstances surrounding the 2011 incident, which would tend to
show the reasons for the exclusion order. Thus, that evidence was relevant to
whether the order was lawful.
Defendant’s medical records were also relevant to his argument. Those
records reinforced defendant’s testimony about his diagnosis with Central Pain
Syndrome, which was relevant to whether he was an individual with a
disability. See 42 USC § 12102 (“The term ‘disability’ means * * * a physical

16
or mental impairment that substantially limits one or more major life
activities of such individual[.]”). Defendant contended that the exclusion order
was unlawful because it violated public-accommodation and disability laws.
Specifically, defendant cited ORS 659A.142 and the Americans with
Disabilities Act (ADA). Tr 293. Those provisions suggest that a trespass order
may be unlawful if it has the effect of discriminating against a person with a
disability. See, e.g., 42 USC § 12182 (“[D]iscrimination includes * * * a failure
to make reasonable modifications in policies, practices, or procedures, when
such modifications are necessary to afford such goods, services, facilities,
privileges, advantages, or accommodations to individuals with disabilities”
unless certain showings are made.); ORS 659A.142 (“It is an unlawful practice
for any place of public accommodation * * * to make any distinction,
discrimination or restriction because a customer or patron is an individual with
a disability.”).
Thus, evidence about whether defendant had a disability and whether the
hospital excluded him on an impermissible basis was relevant. See Marbet, 32
Or App at 73 (“If the manager [of a restaurant] had authority to direct the patron
to leave the restaurant[,] the exercise of the authority is limited by the
proscription forbidding discrimination against handicapped persons. That the
discrimination statute may have been violated by the order to leave is a proper
inquiry in a criminal trespass trial.”). The trial court erred in barring evidence
17
about the 2011 incident and defendant’s medical records supporting and
explaining his status as a person with a disability.
III. The errors harmed defendant.

When a trial court completely precludes closing arguments, “[t]he trial
itself [i]s affected * * * because the court denied one of its required elements.”
State v. Lovins, 177 Or App 534, 538, 33 P3d 1060 (2001). In such cases, this
court will reverse without undertaking a harmless-error analysis. State v.
Barajas, 247 Or App 247, 253, 268 P3d 732 (2011).
Although Lovins and Batajas involved complete preclusion of closing
argument, that principle applies with equal force here. The only element that
defendant sought to challenge was the lawfulness of the order. Tr 613
(defendant stating that he was not challenging the authority of the person who
gave the order and was only challenging “the lawfulness of the order to leave”).
Thus, for practical purposes, the prohibition on argument about that element
was tantamount to a total preclusion of his closing argument. That error
requires reversal.
Alternatively, even under a standard harmless-error analysis, this court
should reverse. 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
18
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.
Here, defendant contended that the exclusion order was unlawful because
it violated public-accommodation and disability laws. That provided a
colorable basis for the jury to find that the exclusion order was unlawful.4
Marbet, 32 Or App at 73 (“That the discrimination statute may have been
violated by the order to leave is a proper inquiry in a criminal trespass trial.”).
The erroneous limitations on the presentation of evidence and
examination of witnesses about the lawfulness of the order compound the harm.
Without the errors, defendant would have been able to present evidence
regarding whether the orders were unlawful, and he would have been able to
cite that evidence in his arguments to the jury. That was defendant’s sole
defense to the charge, and the court’s errors completely deprived defendant of
that defense. There is more than “little likelihood” that the errors affected the
verdict. Consequently, the errors were not harmless.
4
Although defendant’s argument involved a legal issue, it was
ultimately “for the jury to decide the factual predicates underlying the elements
of a crime.” State v. White, 211 Or App 210, 217, 154 P3d 124, as clarified on
recons, 213 Or App 584, rev den, 343 Or 224 (2007) (holding that it was for the
jury to decide whether facts established that order was lawful).
19
CONCLUSION
For those reasons, defendant respectfully asks this court to reverse the
judgment of the trial court and remand his case.
ERNEST G. LANNET
CHIEF DEFENDER
CRIMINAL APPELLATE SECTION
OFFICE OF PUBLIC DEFENSE SERVICES
ESigned
Signed
________________________________
By Brett J Allin at 2:30 pm, Jan 02, 2018
BRETT J. ALLIN OSB #142719

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

Barry Joe Stull
i
EXCERPT OF RECORD INDEX
Information .................................................................................................ER1
6WDWH
V([KLELW............................................................................................... ER-
-XGJPHQW............................................................................................. ER-
eCourt Case Information Register ............................................................ ER

ER-1
ER-2
ER-3
Page 1 of 5
ER-4
Skip to Main Content Logout My Account Search Menu Search Criminal, Traffic and Parking Case
Location : Multnomah Images Help
Records Refine Search Back
REGISTER OF ACTIONS
CASE NO. 15CR52961
State of Oregon vs Barry Joe Stull § Case Type: Offense Misdemeanor

§ Date Filed: 11/23/2015
§ Location: Multnomah
§ Booking Number: 1356998
§ District Attorney Number: 2331221-1
§
§
RELATED CASE INFORMATION
Related Cases
15CR53749 (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 JANE FOX

Portland, OR 97216 Court Appointed
Other Agency Numbers 503 225-9100(W)
86112 Multnomah County Sheriff
KASIA E RUTLEDGE
Court Appointed
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
https://publicaccess.courts.oregon.gov/PublicAccessLogin/CaseDetail.aspx?CaseID=2546... 3/22/2017
Page 2 of 5
ER-5
Charges: Stull, Barry Joe Statute Level Date

1. Criminal Trespass in the Second Degree 164.245 Misdemeanor Class C11/22/2015
EVENTS & ORDERS OF THE COURT
DISPOSITIONS
12/03/2015 Plea (Judicial Officer: Greenlick, Michael A)
1. Criminal Trespass in the Second Degree
Not Guilty
Created: 12/03/2015 9:53 AM
01/05/2017 Disposition (Judicial Officer: Frantz, Julie E.)

Convicted
Created: 01/05/2017 2:32 PM
01/05/2017 Sentence (Judicial Officer: Frantz, Julie E.)

Comment (Waive all fines and fees.)
Incarceration
Duration: 2 Days
Agency: County Jail
Credit Time Served
Report To: Jail
Report Date and Time: 01/05/2017
Statute: 137.752
Eligibility: Eligible
Created: 01/06/2017 8:44 AM
OTHER EVENTS AND HEARINGS

11/23/2015 Agreement - Recognizance Release
Created: 11/23/2015 4:49 PM
11/23/2015 Information
Created: 11/23/2015 5:01 PM
11/24/2015 Arraignment (9:30 AM) (Judicial Officer Todd, Steven A)
Result: FTA - Warrant
Created: 11/23/2015 4:48 AM
11/24/2015 Order - Appear (Judicial Officer: Todd, Steven A )
Signed: 11/24/2015
Created: 11/24/2015 5:00 PM
11/24/2015 Order - Bench Warrant (Judicial Officer: Todd, Steven A )
Signed: 11/24/2015
Created: 11/25/2015 1:22 PM
11/27/2015 Arraignment (2:30 PM) (Judicial Officer Bloch, Eric J)
Result: Held
Created: 11/27/2015 8:24 AM
11/27/2015 Warrant - Return of Service
Created: 11/27/2015 8:26 AM
11/27/2015 Order - Appear (Judicial Officer: Bloch, Eric J )
Signed: 11/27/2015
Created: 11/30/2015 3:23 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 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 11:00 AM
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
Page 3 of 5
ER-6
Created: 12/01/2015 11:07 AM

12/03/2015 Arraignment (Judicial Officer: Greenlick, Michael A )
Created: 12/03/2015 9:53 AM
Signed: 12/03/2015
Created: 12/03/2015 4:44 PM
12/09/2015 Hearing - Early Resolution Conference (9:00 AM) (Judicial Officer Todd, Steven A)
Result: Held
Created: 12/03/2015 9:53 AM
12/09/2015 Notice - Representation
Created: 12/09/2015 3:09 PM
12/09/2015 Order - Appear (Judicial Officer: Todd, Steven A )
Signed: 12/09/2015
Created: 12/09/2015 4:46 PM
12/31/2015 Hearing - Trial Readiness (9:00 AM) (Judicial Officer Kantor, Henry)
In-Custody @ MCDC
Created: 12/09/2015 11:05 AM
12/31/2015 Order (Judicial Officer: Kantor, Henry )
Signed: 12/31/2015
Created: 12/31/2015 10:41 AM
01/15/2016 Call - Regular (9:00 AM) (Judicial Officer Jones, Edward J)
Swis Booking Date: 11/25/15 Custody: MCDC Tracking w/ 15CR53749
Result: Held
Created: 12/31/2015 11:02 AM
01/28/2016 Hearing - Substitution Of Attorney (8:31 AM) (Judicial Officer Jones, Edward J)
w/15CR53749
Result: Held
Created: 01/26/2016 3:01 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 9:57 AM
02/01/2016 Call (9:15 AM) (Judicial Officer Waller, Nan G)
Substutition of Attorney Hearing SWIS Booking Date: 11/25/2015 Custody: MCDC Tracking w/ 15CR53749
Result: Held
Created: 01/28/2016 1:59 PM
Substutition of Attorney Hearing SWIS Booking Date: 11/25/2015 Custody: MCDC Tracking w/ 15CR53749
Result: Held
Created: 02/01/2016 10:44 AM
02/05/2016 Hearing - Substitution Of Attorney (9:30 AM) (Judicial Officer Hodson, Jerry B)
Transport Requested
Result: Held
Created: 02/04/2016 10:07 AM
02/05/2016 Order (Judicial Officer: Hodson, Jerry B )
Jg Hodson recuses himself
Signed: 02/05/2016
Created: 02/08/2016 2:46 PM
For Sub of Attorney Swis Booking Date: 11/25/15 Custody: MCDC Tracking w/ 15CR53749
Result: Held
Created: 02/05/2016 11:11 AM
02/09/2016 Hearing - Substitution Of Attorney (9:00 AM) (Judicial Officer Marshall, Christopher J)
Substitution of Atty; transport requested
Result: Held
Created: 02/08/2016 10:40 AM
02/09/2016 Order (Judicial Officer: Marshall, Christopher J )
set TR 3.4.16, C docket; rls to rpt to PRS
Signed: 02/09/2016
Created: 02/09/2016 2:32 PM
02/09/2016 Order (Judicial Officer: Marshall, Christopher J )
waiver of counsel
Signed: 02/09/2016
Created: 02/09/2016 2:32 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 Tracking w/ 15CR53749
Created: 01/15/2016 11:23 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)
Page 4 of 5
ER-7
Created: 03/04/2016 9:34 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)
Motion for 4/12/16 Arrn: 12/03/15
04/11/2016 Reset by Court to 04/13/2016
Created: 03/04/2016 10:01 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 denied Defendant's motion to dismiss
Signed: 04/14/2016
Created: 04/15/2016 9:41 AM
05/05/2016 Exhibit - List
Manila
Created: 05/05/2016 10:30 AM
06/09/2016 Call - Regular (8:30 AM) (Judicial Officer Marshall, Christopher J)
date cert Arrn: 11/27/15
04/25/2016 Reset by Court to 06/09/2016
Created: 03/04/2016 10:01 AM
06/09/2016 Hearing - Motion (10:30 AM) (Judicial Officer Roberts, Leslie M)
Motion to quash
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
2 days KJI
Result: Held
Created: 06/09/2016 9:32 AM
06/24/2016 Order - Substituting Attorney (Judicial Officer: Marshall, Christopher J )
LEGAL ADVISOR
Signed: 06/24/2016
Created: 06/24/2016 3:53 PM
06/30/2016 Hearing - Further Proceedings (9:00 AM) (Judicial Officer Marshall, Christopher J)
04/13/2016 Reset by Court to 05/26/2016
05/26/2016 Continued to 06/30/2016 - Request by Defendant - Stull, Barry Joe
Created: 03/07/2016 2:01 PM
07/15/2016 Hearing - Trial Readiness (9:00 AM) (Judicial Officer Roberts, Leslie M)
Result: Held
Created: 06/30/2016 10:57 AM
07/15/2016 Order - Appear (Judicial Officer: Roberts, Leslie M )
Signed: 07/15/2016
Created: 07/15/2016 4:17 PM
08/17/2016 Hearing - Further Proceedings (9:00 AM) (Judicial Officer Albrecht, Cheryl A.)
Created: 07/15/2016 4:33 PM
09/06/2016 Trial - Six Person Jury (9:00 AM) (Judicial Officer Skye, Kelly)
2 days
Result: Held
Created: 09/01/2016 9:33 AM
09/07/2016 Order (Judicial Officer: Skye, Kelly )
Furter Proceedings Date: 9/27/2016
Signed: 09/06/2016
Created: 09/07/2016 2:24 PM
11/18/2016 Order - Appear (Judicial Officer: Lopez, Angel )
Hrg: 11/22/16 at 9am
Signed: 11/17/2016
Created: 11/18/2016 11:53 AM
11/21/2016 CANCELED Call - Regular (8:30 AM) (Judicial Officer Jones, Edward J)
Stipulated by Parties
DATE CERT
Created: 07/15/2016 9:29 AM
11/22/2016 Hearing - Further Proceedings (9:00 AM) (Judicial Officer Lopez, Angel)
Page 5 of 5
ER-8
09/27/2016 Reset by Court to 11/08/2016

11/21/2016 Reset by Court to 11/22/2016
11/22/2016 Reset by Court to 11/21/2016
Created: 09/06/2016 11:45 AM
12/21/2016 Hearing - Further Proceedings (9:00 AM) (Judicial Officer Lopez, Angel)
Created: 11/22/2016 11:13 AM
12/29/2016 Call - Regular (8:30 AM) (Judicial Officer Bergstrom, Eric J.)
Arrn:11/27/15
Created: 11/22/2016 11:14 AM
01/03/2017 Trial - Six Person Jury (9:00 AM) (Judicial Officer Frantz, Julie E.)
01/03/2017, 01/04/2017
2 Day Frantz
Result: Held
Created: 12/29/2016 12:25 PM
01/05/2017 Hearing - Sentencing (2:00 PM) (Judicial Officer Frantz, Julie E.)
Result: Held
Created: 01/04/2017 5:06 PM
01/05/2017 Closed
Created: 01/06/2017 8:44 AM
01/06/2017 Judgment - General (Judicial Officer: Frantz, Julie E. )
Signed: 01/05/2017
Created: 01/06/2017 8:45 AM
01/06/2017 Verdict
Created: 01/06/2017 9:27 AM
01/06/2017 Jury - Instructions
Created: 01/06/2017 9:38 AM
01/31/2017 Exhibit - List
Election
Created: 01/31/2017 8:14 AM
02/08/2017 Notice - Appeal
Created: 02/09/2017 8:25 AM
02/15/2017 Certificate
Notice to court reporter/transcriber, A164155, due: 3/8/17
Created: 02/16/2017 8:46 AM
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 4,041 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 2, 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.
ERNEST G. LANNET
CHIEF DEFENDER
CRIMINAL APPELLATE SECTION
OFFICE OF PUBLIC DEFENSE SERVICES
ESigned
Signed
________________________________
By Brett J Allin at 2:30 pm, Jan 02, 2018
BRETT J. ALLIN OSB #142719
DEPUTY PUBLIC DEFENDER
Brett.J.Allin@opds.state.or.us

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

Barry Joe Stull Briefs 67134

Uploaded by

Document Information

Copyright

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Barry Joe Stull Briefs 67134

Uploaded by

Copyright:

EDVLVIRUKLVWUHVSDVVFKDUJH ILUVWDVVLJQPHQWRIHUURU DQGWKDWWKHWULDOFRXUW

LQVXSSRUWRIWKDWDUJXPHQW VHFRQGWKURXJKILIWKDVVLJQPHQWVRIHUURU $SS%U

OLNHWKHRQHLQ>State v.@Riddell>2U$SS3G  @GLGQRW

3G  ³8QGHU>2(&  @QRRIIHURISURRILVQHFHVVDU\

WKHWULDOFRXUWUHIXVHVWRDOORZDQRIIHUWREHPDGH´Id. FLWDWLRQVRPLWWHG 

H[DPLQH'RWVRQ WKHVHFXULW\RIILFHU DERXWWKHHYHQWVJLYLQJULVHWRWKH

STATE OF OREGON, Multnomah County Circuit

BARRY JOE STULL, aka Barry Joe CA A164155

RESPONDENT’S ANSWERING BRIEF

Appeal from the Judgment of the Circuit Court

ERNEST LANNET #013248 ELLEN F. ROSENBLUM #753239

Attorneys for Defendant-Appellant Attorneys for Plaintiff-Respondent

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

Statutes & Constitutional Provisions

STATEMENT OF THE CASE

facts in the argument below.

to leave and physically resisted efforts to escort him out.

issued in violation of disability discrimination laws, and hence not a “lawful

provide no basis for reversal.

Defendant’s first argument—that he should have been allowed to argue

it was inadequate—is unpreserved. Defendant’s second argument—that the

exclusion order was issued in violation of disability discrimination laws—fails

property—where he had no right to remain—after being lawfully directed to

Finally, defendant has submitted a pro se supplemental brief that fails to

ANSWER TO FIRST THROUGH FIFTH ASSIGNMENTS OF ERROR

presenting evidence and argument challenging the lawfulness of a 2011

exclusion order provide this court with no basis for reversal.

Combined Preservation of Error

for wont of a sufficient offer of proof.

evidence and argument challenging a 2011 exclusion order as unlawful because

it was issued in violation of disability discrimination laws. But defendant, who

error was harmless.

Health System property at any time except in order to receive emergency

Department.” (Tr 449-50; ER 2).

On the charged occasion in 2015, defendant went to the Legacy Emanuel

limited defendant to the emergency department—learned that defendant had

been discharged. (Tr 471-72). When Davies arrived at the emergency

defendant and when he caught up to him, he introduced himself and told

defendant to jail. (Tr 514-19).

The state charged defendant with second-degree criminal trespass based

on defendant unlawfully entering or remaining at the hospital. (ER 1). At trial,

defendant’s efforts cross-examine a witness and to present evidence that he

57; 599-619). The jury convicted defendant. (Tr 752).

B. Defendant’s arguments are insufficiently preserved for this court

trespass in the second degree if the person enters or remains unlawfully in a

motor vehicle or in or upon premises.” As relevant here, “enter or remain

both pertaining to his challenge to the lawfulness of the hospital’s 2011

exclusion order limiting defendant’s access to the hospital to emergency

medical care. Neither argument, however, was properly preserved.

1. Defendant’s first argument—that he should have been allowed

denying defendant’s requests to challenge the lawfulness of the 2011 exclusion

order “did not provide a sufficient procedural mechanism to challenge it” in a

is that defendant never raised it below.

To preserve an argument for appeal, a party must explain it to the trial

immediately, if correction [was] warranted.” State v. Wyatt, 331 Or 335, 343,

he should be allowed to challenge the lawfulness of the exclusion order by

arguing to the jury that it was issued in violation of disability discrimination

appeal: that he should be allowed to do so because the mechanism for

challenging the order was procedurally deficient.

opportunity to develop a record on any process defendant could have utilized to

trial court enough information to be able to understand the contention and to

fairly respond to it”).

2. Defendant’s second argument—that the trial court erroneously

on a discriminatory purpose in violation of disability discrimination laws. (App

explaining his status as a person with a disability.” (App Br 15-16). Defendant

made no offer of proof with respect to the 2011 incident, however.

question or answer or through counsel’s statement of what the proposed

EDVLVIRUKLVWUHVSDVVFKDUJHILUVWDVVLJQPHQWRIHUURUDQGWKDWWKHWULDOFRXUW

LQVXSSRUWRIWKDWDUJXPHQWVHFRQGWKURXJKILIWKDVVLJQPHQWVRIHUURU$SS%U

OLNHWKHRQHLQ>State v.@Riddell>2U$SS3G@GLGQRW

3G³8QGHU>2(&@QRRIIHURISURRILVQHFHVVDU\

WKHWULDOFRXUWUHIXVHVWRDOORZDQRIIHUWREHPDGH´Id.FLWDWLRQVRPLWWHG

H[DPLQH'RWVRQWKHVHFXULW\RIILFHUDERXWWKHHYHQWVJLYLQJULVHWRWKH

RIIHQVLYH See 2$5 E 7KH VWDQGDUG IRU GHWHUPLQLQJ ZKHWKHU