State v. Hawkins

Under ORS 138.230, an error is not harmless when a defendant is denied their right to an acquittal and their right to have the judgment reflect that acquittal.

Defendant appealed conviction of first-degree robbery with a firearm (Court 1); unlawful use of a weapon with a firearm (Count 2), and felon in possession of a firearm (Count 4). Defendant and a codefendant robbed a Portland cafe. Defendant was injured in the robbery, taken to the hospital, and released before police had an opportunity to question him. Police located Defendant in custody in Washington state on other charges, and began the transfer process. This process caused approximately 22 months of delay. On appeal, Defendant argued that the State's delay in bringing him to trial was unreasonable under ORS 135.747. The Court held that Defendant was brought to trial within a reasonable period of time and that most of the delay was attributable to transfer procedures. Defendant also argued that he never used or threatened to use a firearm throughout the robbery and that the trial court erred when it denied his motion for judgment of acquittal. The State conceded and the Court held that there was insufficient evidence to conclude that Defendant personally used or threatened to use a firearm during the robbery. However, the State argued that the error was harmless because Defendant is subject to the same consequences based on Count 2, which was not challenged on appeal. Under ORS 138.230, an error is not harmless when a defendant is denied their right to an acquittal and their right to have the judgment reflect that acquittal. Because Defendant was entitled to acquittal on Count 1, the error was not harmless. Conviction for first-degree robbery with a firearm reversed and remanded with instructions to enter a conviction for first-degree robbery and for resentencing; otherwise affirmed.