author: ROWLAND, JUDGE:

text:
    Jestin TAFOLLA, Appellant v. The STATE of Oklahoma, Appellee.
    Case No. F-2017-802
    Court of Criminal Appeals of Oklahoma.
    FILED JULY 18, 2019
    TONI A. BEACH, ATTORNEY AT LAW, P.O. BOX 52755, TULSA, OK 74152, COUNSEL FOR DEFENDANT
    ISAAC SHIELDS, KATE HUNTER, ASST. DISTRICT ATTORNEYS, 500 S. DENVER, SUITE 900, TULSA, OK 74103, COUNSEL FOR STATE
    IAN M. SHAHAN, ATTORNEY AT LAW, 1705 S. BALTIMORE AVE., TULSA, OK 74119, COUNSEL FOR APPELLANT
    MIKE HUNTER, ATTORNEY GENERAL OF OKLAHOMA, JENNIFER B. WELCH, ASSISTANT ATTORNEY GENERAL, 313 N.E. 21ST STREET, OKLAHOMA CITY, OK 73105, COUNSEL FOR APPELLEE
   ROWLAND, JUDGE:

¶1 Appellant Jestin Tafolla appeals his Judgment and Sentence from the District Court of Tulsa County, Case No. CF-2016-2204, for Assault and Battery with a Dangerous Weapon, After Former Conviction of Two or More Felonies (Count 1), in violation of 21 O.S.2011, § 645, and Carrying a Weapon Unlawfully, a misdemeanor (Count 2), in violation of 21 O.S.Supp.2015, § 1272. The Honorable William D. LaFortune, District Judge, presided over Tafolla's jury trial and sentenced him, in accordance with the jury's verdict, to life imprisonment on Count 1 and thirty days in the county jail on Count 2. The sentences were ordered to be served concurrently. Tafolla appeals raising the following issues:

(1) whether the admission of evidence of his gang affiliation violated his due process right to a fair trial;
(2) whether evidence of his gang affiliation was "aggravating" evidence not permissible under Oklahoma law;
(3) whether the trial court erred in allowing evidence of his gang affiliation in violation of the First Amendment Freedom of Association;
(4) whether the admission of his statement that he was a member of the Aryan Brotherhood was improper and denied him his due process right to a fair trial;
(5) whether admission of the victim's out of court statements violated his constitutional right to confrontation;
(6) whether the admission of evidence of underlying facts and probationary sentences imposed in his prior felony convictions deprived him of his due process right to a fair trial;
(7) whether prosecutorial misconduct deprived him of his due process right to a fair trial;
(8) whether instructional error requires relief;
(9) whether his convictions for both assault and battery with a dangerous weapon and carrying a weapon unlawfully violated the constitutional prohibition against double jeopardy and the state prohibition against double punishment;
(10) whether error occurred when the State charged him with the general crime instead of a more specific "hate" crime;
(11) whether he was denied effective assistance of counsel; and,
(12) whether an accumulation of error deprived him of a fair trial.

¶2 We find relief is not required and affirm the Judgment and Sentence of the district court.

FACTS

¶3 On the afternoon of April 5, 2016, Tulsa Police Detectives James Dawson and Korey Scott, both with the Organized Gang Unit, were driving in an unmarked car back to the police station at the end of their patrol shift. Around 11th Street and Highway 169 they saw a white male, Jestin Tafolla, straddling a black male who was on his back on the sidewalk. Tafolla was hitting the victim repeatedly in the face and the detectives could see the victim's head bouncing off the sidewalk with each blow. The detectives activated the lights on their car and drove up to the two men. When Tafolla saw the detectives approach, he stood up, pulled brass knuckles off of his hand, and threw them into the grass ten to fifteen feet away. The officers separated and handcuffed both men as they tried to figure out what had happened.

¶4 The victim told the detectives that he had been driving on the highway and had been cut off. This upset him and he followed the car that cut him off. When the car driven by Tafolla pulled over, both men got out of their vehicles and the two engaged in a heated argument. After they exchanged words they walked back to their cars. As the victim walked toward his car, the occupant of Tafolla's car, Lara Maloy, yelled at him and called him a "n----r." The victim lost his cool; he grabbed a QuikTrip cup half filled with soda from his vehicle and threw the soda toward Tafolla's vehicle at Maloy. As the victim was verbally confronting Maloy, Tafolla sucker punched him in the back of the head. The victim did not remember much after the initial blow. His head was bleeding profusely; he had lacerations in both the front and back of his head. When he spoke with the detectives he was disoriented, dazed, upset, and confused.

¶5 When Detective Dawson approached Tafolla he noticed that Tafolla was heavily tattooed. Dawson thought that the tattoos might indicate a gang affiliation and because he noted a cloverleaf tattoo he asked Tafolla if he was a member of the Irish Mob. Taffolla was angered by the question and pointed out his swastika tattoo; he told Dawson that he was UAB (Universal Aryan Brotherhood). The brass knuckles retrieved from the grass had wolf heads across the knuckle with sharp pointed ears on the wolves. Dawson testified at trial that members of UAB refer to themselves as the "wolf pack." Dawson noted that in addition to significant lacerations on his face, the victim had a row of lacerations across the back of his head in the shape of a wolf's head; the head and sharp ears from the brass knuckles were cut into the back of his head.

¶6 When Tafolla and Maloy told the detectives what had happened, their accounts of how the altercation began were similar to the victim's but their stories of how it escalated at the end were different. Lara testified at trial that after her husband and the victim "had words" in the parking lot they shook hands and went back to their own cars. She testified that the victim backed his car up and started calling her names. She said that he stopped his car, grabbed something from the car and started walking toward her. At this point Tafolla intervened. The victim threw a cup at Tafolla's face and started hitting and punching him. She testified that Tafolla only hit the victim because he was attacked by the victim first. She denied calling the victim a racial epithet.

¶7 Tafolla testified at trial. He said that after he and the victim got within a few feet of each other the victim's demeanor changed; he became less aggressive possibly because he saw Tafolla's visible tattoos. The victim "went from very aggressive to second guessing his behavior." Tafolla said that after their heated exchange of words, he and the victim calmed down and shook hands. When he returned to his car, Lara was standing outside the vehicle. He told her to get back in the car and as he and Lara were bickering back and forth the victim drove by and said, "yeah, get your bitch cuz." Tafolla testified that Lara started yelling at the victim who stopped, got out of his car, reached back into his car and started grabbing for something. Tafolla grabbed his brass knuckles. The victim threw his drink on Tafolla and punched him in the mouth. The two began to fight and were engaged in mutual combat. He testified that they were on their feet "engaging in hand-to-hand combat." Tafolla denied ever hitting the victim from behind and he surmised that the injuries on the back of the victim's head occurred when the victim ducked his head during the fight. Tafolla testified that when the victim fell to the ground he got right back up again. Tafolla denied sitting on the victim and beating his face. He testified that the detectives' testimony to the contrary was wrong.

1.

¶8 Prior to trial the prosecution gave notice that it intended to introduce evidence of other crimes or bad acts at trial. This included evidence that Tafolla was a member of the Universal Aryan Brotherhood (UAB) - a white supremacist prison gang. Tafolla argues that the evidence of his gang affiliation was inadmissible.

¶9 The State asserted below that evidence of Tafolla's involvement in the UAB gang was admissible to show motive, common scheme, design, or purpose, identity, and bias. Despite the extensive pretrial discussion and argument, the gang related evidence about which Tafolla complains in this proposition was not met with objection when it was introduced at trial. Accordingly, we review the admission of this evidence for plain error only. See Lowery v. State , 2008 OK CR 26, ¶ 9, 192 P.3d 1264, 1268 (where defense counsel vigorously challenged other crimes evidence during the in-trial hearing but failed to object at the time the evidence was actually offered at trial review was for plain error). To be entitled to relief for plain error, an appellant must show: "(1) the existence of an actual error (i.e., deviation from a legal rule); (2) that the error is plain or obvious; and (3) that the error affected his substantial rights, meaning the error affected the outcome of the proceeding." Hogan v. State , 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923. "This Court will only correct plain error if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice." Stewart v. State , 2016 OK CR 9, ¶ 25, 372 P.3d 508, 514.

¶10 In Dawson v. Delaware , 503 U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d 309 (1992), the Supreme Court held that evidence introduced in a capital sentencing proceeding that the defendant belonged to the Aryan Brotherhood was constitutional error where such evidence had "no relevance to the issues being decided in the proceeding." Id . 503 U.S. at 160, 112 S.Ct. at 1095. The Supreme Court found in Dawson that the evidence was not inadmissible per se , but rather was irrelevant because the victim and defendant were both white; there was no link between gang membership and the crime - the evidence proved nothing more than the defendant's "abstract beliefs." Id. 503 U.S. at 165-67, 112 S.Ct. at 1098. See also Martinez v. State , 2016 OK CR 3, ¶ 61, 371 P.3d 1100, 1115 ; Torres v. State , 1998 OK CR 40, ¶¶ 66-68, 962 P.2d 3, 22. While acknowledging Dawson's holding that evidence of gang affiliation may be irrelevant under such circumstances in a second stage proceeding, this Court has found that it may be "relevant to character issues and to establish a plan for the crime in the first stage of the proceeding." Wood v. State , 1998 OK CR 19, ¶ 36, 959 P.2d 1, 10-11.

¶11 Although evidence of other crimes or bad acts is not admissible to prove the character of a person in order to show action in conformity therewith, Oklahoma law specifically provides that evidence that a defendant has committed "other crimes" or "bad acts" may be admissible at trial to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. 12 O.S.2011, § 2404(B). This Court has held that before evidence that a defendant has committed another crime or bad act may be admissible, the evidence:

(1) must be probative of a disputed issue in the case being tried; (2) that there must be a "visible connection" between the charged crime(s) and the evidence sought to be introduced; (3) that the evidence of the other crime(s) must be necessary to support the State's burden of proof in the case being tried; (4) that the evidence of the other crime(s) sought to be introduced must be clear and convincing; and (5) that the probative value of the other crime(s) evidence must outweigh any unfair prejudice to the defendant resulting from its introduction.

Miller v. State , 2013 OK CR 11, ¶ 89, 313 P.3d 934, 966. Additionally, the trial court must issue limiting instructions. Welch v. State , 2000 OK CR 8, ¶ 8, 2 P.3d 356, 365.

¶12 In the present case, evidence that Tafolla was a member of the UAB and evidence about the UAB gang was relevant and admissible. There was no error, plain or otherwise, in the admission of this evidence. The claim is without merit and is denied.

2.

¶13 Tafolla asserts that the evidence of his affiliation with the UAB was not relevant to guilt or innocence but, rather, was offered as an aggravating circumstance to encourage the jury to impose a harsh sentence. His argument is not persuasive. The evidence of other bad acts was relevant evidence, its probative value was not outweighed by the danger of unfair prejudice, and it was not simply offered as an aggravating circumstance. Tafolla's argument is rejected.

3.

¶14 The United States Supreme Court has recognized that the First Amendment to the United States Constitution encompasses a right to expressive association which affords "protection to collective effort on behalf of shared goals[;]" i.e., "[the] right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends." Roberts v. United States Jaycees, 468 U.S. 609, 622, 104 S.Ct. 3244, 3252, 82 L.Ed.2d 462 (1984). The right to associate for expressive purposes is not absolute and may be restricted to serve compelling state interests. Id . 468 U.S. at 623, 104 S.Ct. at 3252. In Dawson, the Supreme Court found that admission of evidence that the defendant was a member of the Aryan Brotherhood was prohibited by the First and Fourteenth Amendments. Dawson, 503 U.S. at 160, 112 S.Ct. at 1095. However, the Dawson Court did not find that this type of evidence was completely inadmissible, and it specifically held "that the Constitution does not erect a per se barrier to the admission of evidence concerning one's beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment." Id . 503 U.S. at 165, 112 S.Ct. at 1097. The distinguishing factor in Dawson was that the Aryan Brotherhood evidence had "no bearing on the issue being tried," and was therefore irrelevant; both Dawson and the victim were white. Id . at 168, 112 S.Ct. at 1099. The gang evidence in this case was not introduced to label Tafolla as a criminal without showing that he engaged in criminal activity; it was introduced to provide a context and explanation for the criminal act he committed. Because there was evidence suggesting a nexus between Tafolla's association with the UAB and his attack upon the unarmed African American victim the evidence of his association with the white supremacist gang did not infringe upon his constitutional right of association. This claim is denied.

4.

¶15 The trial court ruled prior to trial that Tafolla's statement to Detective Dawson that he was a member UAB was part of the res gestae of the charged crime. Tafolla argues on appeal that this ruling was in error. He did not, however, object at trial when the evidence was introduced and consequently, he has waived review of this alleged error on appeal for all but plain error. We review for plain error under the test discussed in Hogan, 2006 OK CR 19, ¶ 38, 139 P.3d at 923.

¶16 Evidence is considered part of the res gestae when (1) it is so closely connected to the charged offense as to form part of the entire transaction; (2) it is necessary to give the jury a complete understanding of the crime; or (3) it is central to the chain of events. Jackson v. State , 2006 OK CR 45, ¶ 28, 146 P.3d 1149, 1160. "Res gestae are those things, events, and circumstances incidental to and surrounding a larger event that help explain it." McElmurry v. State , 2002 OK CR 40, ¶ 63, 60 P.3d 4, 22. This Court has held that evidence of gang involvement or affiliation may be admissible when it is "fundamental to understanding what happened and why it happened." Thompson v. State , 2007 OK CR 38, ¶ 34, 169 P.3d 1198, 1209.

¶17 While Tafolla argues that the assault in this case had nothing to do with his affiliation with the UAB or the tenets of that organization, the totality of the evidence suggests otherwise. Tafolla's statement about his gang affiliation was closely connected to the charged offense. It was necessary to give the jury a complete understanding of the crime and was central to the chain of events. Tafolla's statement about his UAB affiliation, viewed with evidence of his numerous tattoos of white supremacist symbols and the brass knuckles also bearing a symbol associated with white supremacists provided an alternative explanation of why the confrontation escalated from an uneventful parting to a brutal beating. Tafilla's statement was part of the res gestae and its admission was not error, plain or otherwise.

5.

¶18 The victim did not testify at preliminary hearing or trial. At trial Detective Dawson testified about what the victim told him at the scene. This included the victim's statement to Dawson that as he walked back to his car after he and Tafolla exchanged words, Tafolla's girlfriend called him a racial epithet and when he responded by throwing a cup of soda at her he was attacked from behind by Tafolla. Tafolla complains on appeal that because the victim did not testify at trial the admission of his statements to Detective Dawson violated his constitutional right to confrontation. Because Tafolla failed to raise this specific objection at trial, we review only for plain error on appeal. See Bench v. State , 2018 OK CR 31, ¶ 140, 431 P.3d 929, 966. See also Tryon v. State , 2018 OK CR 20, ¶ 38, 423 P.3d 617, 632 (where defendant objected below on state law grounds his claim on appeal of constitutional violation is reviewed for plain error only).

¶19 The Sixth Amendment to the United States Constitution requires that in all "criminal prosecutions, the accused shall enjoy the right to ... be confronted with the witnesses against him...." U.S. Const. amend. VI ; Pointer v. Texas , 380 U.S. 400, 403, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965) ("the Sixth Amendment's right of an accused to confront the witnesses against him is likewise a fundamental right and is made obligatory on the States by the Fourteenth Amendment"). In Crawford v. Washington , 541 U.S. 36, 53-54, 124 S.Ct. 1354, 1365, 158 L.Ed.2d 177 (2004), the United States Supreme Court held that the Sixth Amendment's right to confrontation bars the admission of "testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." While the Court in Crawford declined to set forth an exhaustive definition for the term "testimonial," it wrote that, at a minimum, the term applies to "prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." Id . 541 U.S. at 68, 124 S.Ct. at 1374. In Davis v. Washington , 547 U.S. 813, 822, 126 S.Ct. 2266, 2273-74, 165 L.Ed.2d 224 (2006), the Court expanded on Crawford , explaining:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

¶20 In Michigan v. Bryant , 562 U.S. 344, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011), the Supreme Court discussed the primary purpose test emphasizing that it requires consideration of all relevant circumstances. The Court held in Bryant that when assessing police interrogations courts must "objectively evaluat[e] the statements and actions of the parties to the encounter, in light of the circumstances in which the interrogation occurs" to determine the primary purpose of the interrogation. Id . 562 U.S. at 370, 131 S.Ct. at 1162. The Court noted that while the existence of an ongoing emergency is one factor to consider another is the formality of the situation and the interrogation. The Court cautioned, however, that "although formality suggests the absence of an emergency and therefore an increased likelihood that the purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution, informality does not necessarily indicate the presence of an emergency or the lack of testimonial intent." Id . 562 U.S. at 366, 131 S.Ct. at 1160 (internal quotations and citations omitted). See also Davis , 547 U.S. at 822 n.1, 126 S.Ct. at 2274 n.1 (statements that are not the product of a formal interrogation may be testimonial). In any case, the question of whether a statement is testimonial is fact-specific; the circumstances, statements, and actions of both the declarant and the interrogator are to be considered.

¶21 In the present case, when the detectives arrived at the scene of the assault, they separated the victim and Tafolla and searched and handcuffed each of them. After it was determined that the victim did not have a weapon, his handcuffs were removed so that he could hold a t-shirt to his head wounds to apply pressure to the bleeding. The detectives called for an ambulance and while they were waiting for it to arrive Detective Dawson asked the victim what had happened. Clearly, the circumstances under which the victim was questioned cannot be characterized as formal. However, it is fair to say that the victim's statements were not made to enable the police to meet an ongoing emergency; the situation had deescalated and was no longer an emergency. A reasonable person could determine from the fact that detectives had arrived during an ongoing assault, secured the individuals involved, and asked questions to determine what had happened, that the detective's intent was to secure testimonial evidence. Despite the lack of formality, a reasonable person in the victim's position could understand that the detective's questions were investigative in nature and foresee that his response might be used in the prosecution of a crime. Thus, the statements were testimonial and absent a showing that the victim was unavailable and that Tafolla had prior opportunity to cross examine him, Detective Dawson's testimony about what the victim told him had happened violated Tafolla's Sixth Amendment right to confrontation.

¶22 Again, because Tafolla did not raise this issue below, he has waived all but plain error. Detective Dawson's testimony about what the victim told him about the assault repeated testimonial hearsay and violated Tafolla's Sixth Amendment right to confront witnesses against him and was plain error. See Miller , 2013 OK CR 11, ¶¶ 104-05, 313 P.3d at 971 (clear violation of Sixth Amendment right to confrontation was plain error). This error, however, does not necessarily require relief. Given the constitutional nature of this claim we must decide whether it was harmless beyond a reasonable doubt. See Chapman v. California , 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967) (holding that "before a federal constitutional error can be held harmless, the [reviewing] court must be able to declare a belief that it was harmless beyond a reasonable doubt"). See Miller , 2013 OK CR 11, ¶ 106, 313 P.3d at 971-72 (recognizing that violations of the Confrontation Clause are subject to harmless error analysis); Cuesta-Rodriguez v. State , 2010 OK CR 23, ¶ 40, 241 P.3d 214, 230 (applying harmless error analysis). In making this determination, we focus upon the specific circumstances of Tafolla's case.

¶23 When the detectives arrived on the scene they saw Tafolla standing over the victim and beating him on the sidewalk. Marks left on the back of the victim's head by the brass knuckles support the finding that the victim was assaulted by Tafolla from behind. Given the properly admitted evidence, we find that the violation of the Confrontation Clause contributed neither to Tafolla's conviction nor to the punishment assessed; it was harmless beyond a reasonable doubt. This claim is denied.

6.

¶24 Tafolla complains that error occurred when the prosecutor asked him questions on cross-examination which elicited evidence about the details of his prior convictions including that his victims were minorities. He also complains that the prosecutor improperly commented on the fact that he had previously received probationary sentences. Tafolla acknowledges that the questioning complained of was not met with objection and is therefore subject to review for plain error only. Again, under the plain error test, the burden is on Tafolla to show the existence of an actual, obvious error that affected his substantial rights. Hogan, 2006 OK CR 19, ¶ 38, 139 P.3d at 923.

¶25 The prosecution's theory was that Tafolla's brutal attack on an unarmed black man was motivated, at least in part, by Tafolla's membership in a white supremacist prison gang. He testified at trial, claimed self-defense, and denied that the victim's race played any part in the attack. It was therefore entirely proper for the prosecution to cross-examine him about two prior attacks which also targeted minorities. The testimony at issue was admissible as it was relevant and material to impeach Tafolla's credibility as a witness, to help prove the State's theory of the case, and to rebut his proffered defense. Furthermore, the probative value of this relevant evidence was not outweighed by the danger of unfair prejudice. 12 O.S.2011, § 2403. The introduction of this evidence was not error, plain or otherwise.

¶26 Tafolla also complains that error occurred when the jury learned that he had received suspended sentences on prior convictions. Recently, in Terrell v. State , 2018 OK CR 22, ¶ 6, 425 P.3d 399, 401 (internal citations omitted), this Court held:

Jurors are free to consider the relevant proof of a prior conviction including any evidence that a defendant previously received probation, suspension, or deferral of a sentence and any acceleration or revocation of such a sentence. The receipt of a probationary term may be viewed as supporting both greater and lesser punishment depending on the facts of the case.

¶27 The Court added that the use of this evidence is still limited by 12 O.S.2011, § 2403 which provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Id . 2018 OK CR 22, ¶ 8, 425 P.3d at 401. We find that the evidence at issue in the present case was relevant and that its probative value was not outweighed by the danger of unfair prejudice. As there was no error, plain or otherwise, relief is not required.

7.

¶28 Tafolla complains prosecutorial misconduct deprived him of his right to a fair trial. None of the comments at issue were met with objection at trial. Accordingly, we review the alleged misconduct for plain error only. Harney v. State , 2011 OK CR 10, ¶ 23, 256 P.3d 1002, 1007. We review his claim under the analysis set forth in Hogan , 2006 OK CR 19, ¶ 38, 139 P.3d at 923. Again, this Court will only correct plain error if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Id . "[W]e evaluate the alleged misconduct within the context of the entire trial, considering not only the propriety of the prosecutor's actions, but also the strength of the evidence against the defendant and the corresponding arguments of defense counsel." Hanson v. State , 2009 OK CR 13, ¶ 18, 206 P.3d 1020, 1028. Both sides have wide latitude to discuss the evidence and reasonable inferences therefrom. Harmon v. State, 2011 OK CR 6, ¶ 81, 248 P.3d 918, 943. Relief is only granted where the prosecutor's flagrant misconduct so infected the defendant's trial that it was rendered fundamentally unfair. Jones v. State , 2011 OK CR 13, ¶ 3, 253 P.3d 997, 998. It is the rare instance when a prosecutor's misconduct during closing argument will be found so egregiously detrimental to a defendant's right to a fair trial that reversal is required. See Pryor v. State , 2011 OK CR 18, ¶ 4, 254 P.3d 721, 722.

¶29 It is first argued that the prosecutor improperly invoked societal alarm by asking jurors to protect others from similar conduct by the defendant. "The prohibited 'societal alarm' argument is one that mentions crimes committed by other persons and not attributable to the defendant on trial such as arguments that the crime rate is increasing." McElmurry , 2002 OK CR 40, ¶ 151, 60 P.3d at 34. "The 'societal alarm' argument is therefore irrelevant to the guilt or punishment of the defendant on trial except that it implies that the jury should 'make an example' out of the defendant on trial to deter other potential criminals." Id . The argument at issue here did not appeal to societal alarm and was not error, plain or otherwise.

¶30 Tafolla also complains that the prosecutors improperly stated their personal opinions about his guilt and the appropriate punishment. It is improper for a prosecutor to express his personal opinion of the guilt of the accused. Bryson v. State , 1994 OK CR 32, ¶ 45, 876 P.2d 240, 257 ; McCarty v. State , 1988 OK CR 271, ¶ 13, 765 P.2d 1215, 1220. However, a prosecuting attorney may state his opinion as to the defendant's guilt when it is based on the evidence in the case, and where the evidence detailed reasonably tends to support such conclusions. See Mayes v. State , 1994 OK CR 44, ¶ 160, 887 P.2d 1288, 1321. Here, taken in context, the prosecutors did not improperly state their personal opinion of guilt, but permissibly argued that the evidence supported a finding of guilt. See Williams v. State , 2008 OK CR 19, ¶¶ 106-107, 188 P.3d 208, 228. Furthermore, the prosecutor's request that the jury punish Tafolla severely based upon the facts of the case was not inappropriate. See Terrell , 2018 OK CR 22, ¶ 7, 425 P.3d at 401.

¶31 Tafolla also complains that the prosecutor improperly attempted to garner sympathy for the victim. The comments at issue were based upon the evidence and certainly, if bordering upon impropriety, did not rise to the level of plain error.

¶32 Next, Tafolla complains that the prosecutor made improper remarks regarding parole. These comments were addressed above in Proposition Six where we found that there was no error.

¶33 Tafolla argues that the prosecutor engaged in rampant speculation and improperly and repeatedly introduced facts not in evidence. This questioning was proper impeachment under 12 O.S.2011, § 2613(A). The prosecutor's questions were not improper nor were his comments on the witness's responses in closing.

¶34 Finally, Tafolla complains that portions of the prosecutor's argument were improper speculation and that the prosecutor engaged in improper name-calling. Prosecutors are allowed to comment upon and draw logical inferences from the evidence. See Bench , 2018 OK CR 31, ¶ 137, 431 P.3d at 966. While the prosecutor should have refrained from name-calling, the argument at issue was largely proper and certainly not plain error. This claim is denied.

8.

¶35 The trial court instructed the jury that "[i]f a person is sentenced to life imprisonment, the calculation of eligibility for parole is based upon a term of forty-five (45) years." Tafolla did not object below but argues on appeal that this instruction was improper because it advised the jury that he would be eligible for parole. Because Tafolla did not object to the instruction at trial we review for plain error only under the analysis set forth in Hogan , 2006 OK CR 19, ¶ 38, 139 P.3d at 923.

¶36 As Tafolla correctly asserts, the crime of assault and battery with a dangerous weapon is not an enumerated crime under section 13.1 and accordingly, an instruction on the 85% rule was not warranted. Additionally, the instruction given was not the uniform instruction but rather, was a poorly drafted substitute. Nonetheless, Tafolla has failed to show that the instruction given constituted plain error. This proposition warrants no relief.

9.

¶37 Tafolla argues that his convictions for both carrying a weapon unlawfully and assault and battery with a dangerous weapon violate the statutory prohibition against multiple punishments for a single criminal act under 21 O.S.2011, § 11 and the protections against double jeopardy found in the Oklahoma Constitution and the United States Constitution. Okla. Const. art. II, Section 21 ; U.S. Const. amends. V, XIV. Defense counsel failed to object on these grounds below, waiving all but plain error. Head v. State , 2006 OK CR 44, ¶ 9, 146 P.3d 1141, 1144.

¶38 Contrary to Tafolla's argument that carrying a weapon unlawfully and assault and battery with a dangerous weapon were a single criminal act, we find that these were separate and distinct offenses committed during a continuing course of conduct. Conviction and punishment for these crimes does not offend section 11. See Davis v. State , 1999 OK CR 48, ¶¶ 12-13, 993 P.2d 124, 126-27. Furthermore, because each of these crimes requires proof of one or more elements that the other crime does not, Tafolla was not punished twice for the same offense in violation of double jeopardy. Id . 1999 OK CR 48, ¶ 4, 993 P.2d at 125 ; Blockburger v. United States , 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). Tafolla has shown no error, plain or otherwise, and relief is not required.

10.

¶39 Tafolla contends that he should have been charged with the specific misdemeanor "hate" crime of malicious intimidation or harassment because of race, color, religion, ancestry, national origin or disability ( 21 O.S.2011, § 850 ) instead of the general crime of assault and battery with a dangerous weapon ( 21 O.S.2011, § 645 ). Tafolla waived appellate review of this issue for all but plain error when he did not raise this challenge below. Again, to obtain relief, Tafolla must prove plain or obvious error affected the outcome of the proceeding. Hogan , 2006 OK CR 19, ¶ 38, 139 P.3d at 923.

¶40 It is true that "where a defendant's conduct is arguably covered by more than one criminal provision, the choice is a matter within the prosecutor's discretion, bounded by the constitutional requirement that the decision not be based on impermissible standards, such as race or religion." State v. Haworth , 2012 OK CR 12, ¶ 13, 283 P.3d 311, 316. It is also true, however, that specific statutes should be charged over general statutes in situations where charging under the general statute would thwart the legislative intent in enacting the more specific statute. See State v. Franks , 2006 OK CR 31, ¶ 6, 140 P.3d 557, 558-59. See also Lozoya v. State , 1996 OK CR 55, ¶¶ 17-18, 932 P.2d 22, 28-29. In interpreting statutory provisions, we look first at the plain meaning of the statutory language. State v. Farthing , 2014 OK CR 4, ¶ 5, 328 P.3d 1208, 1210. Furthermore, we construe statutes to determine the intent of the legislature, reconciling provisions, rendering them consistent and giving intelligent effect to each. King v. State , 2008 OK CR 13, ¶ 7, 182 P.3d 842, 844. "To determine legislative intent we may look to each part of the statute, similar statutes, the evils to be remedied, and the consequences of any particular interpretation." Id .

¶41 The law and facts here do not support Tafolla's claim that the misdemeanor "hate" crime statute prohibiting malicious intimidation or harassment because of race, color, religion, ancestry, national origin or disability is a more specific charge than felonious assault and battery with a dangerous weapon; the statutes at issue prohibit two separate and distinct types of conduct. While Section 850 prohibits the intimidation or harassment, by assault and battery, of another person because of that person's race, color, religion, ancestry, national origin or disability, the fact that this crime is a misdemeanor indicates the legislative intent that the conduct it seeks to prohibit and punish is not as serious as a felony offense. In contrast, Section 645 seeks to prohibit and punish as a felony an assault and battery, committed without justifiable or excusable cause, and committed with the intent to do bodily harm and with a dangerous weapon.

¶42 Tafolla was not prosecuted for the act of committing simple assault and battery upon the victim in order to harass or intimidate him because of his race. Rather, he was prosecuted for the brutal assault and battery he committed upon the victim with a dangerous weapon and with the intent to injure him. The assault and battery in this case was far more serious than a misdemeanor offense and there was no error, plain or otherwise, in the prosecutor's decision to charge Tafolla with the greater felony offense of assault and battery with a dangerous weapon.

¶43 Tafolla argues additionally that because he was charged with assault and battery with a dangerous weapon rather than with the misdemeanor "hate" crime, evidence of his involvement in the UAB gang was irrelevant and inadmissible. For reasons discussed above in Propositions 1 and 4 this argument is rejected. Relief is not required.

11.

¶44 Tafolla contends that he was denied constitutionally effective assistance of counsel. This Court reviews claims of ineffective assistance of counsel de novo, to determine whether counsel's constitutionally deficient performance, if any, prejudiced the defense so as to deprive the defendant of a fair trial with reliable results. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984) ; Malone v. State, 2013 OK CR 1, ¶ 14, 293 P.3d 198, 206. Under this test, Tafolla must affirmatively prove prejudice resulting from his attorney's actions.

Strickland, 466 U.S. at 693, 104 S.Ct. at 2067 ; Head, 2006 OK CR 44, ¶ 23, 146 P.3d at 1148. "To accomplish this, it is not enough to show the failure had some conceivable effect on the outcome of the proceeding." Id . Rather, Tafolla must show that there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different. Id. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. This Court need not determine whether counsel's performance was deficient if the claim can be disposed of on the ground of lack of prejudice. See Malone, 2013 OK CR 1, ¶ 16, 293 P.3d at 207. Tafolla has not shown on the record that but for counsel's actions the result of his trial would have been different. Because he has failed to establish prejudice from his attorney's actions, Tafolla's ineffective assistance of counsel claim is denied.

12.

¶45 Tafolla asserts that even if no individual error in his case merits reversal, the cumulative effect of the errors committed warrants a new trial or sentence modification. The cumulative error doctrine applies when several errors occurred at the trial court level, but none alone warrants reversal. Although each error standing alone may be of insufficient gravity to warrant reversal, the combined effect of an accumulation of errors may require a new trial. Martinez, 2016 OK CR 3, ¶ 85, 371 P.3d at 1119. Cumulative error does not deprive the defendant of a fair trial when the errors considered together do not affect the outcome of the proceeding. Baird v. State, 2017 OK CR 16, ¶ 42, 400 P.3d 875, 886. A cumulative error claim is baseless when this Court fails to sustain any of the alleged errors raised on appeal. Id. There were no errors, either individually or when considered together, that deprived Tafolla of a fair trial. This claim is denied.

DECISION

¶46 The Judgment and Sentence of the district court is AFFIRMED . Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals , Title 22, Ch. 18, App. (2019), the MANDATE is ORDERED issued upon delivery and filing of this decision.

LEWIS, P.J.: Concur

KUEHN, V.P.J.: Concur

LUMPKIN, J.: Concur

HUDSON, J.: Concur

      Lara Maloy was Tafolla's girlfriend at the time of the incident. By the time of trial she was married to Tafolla and went by the name Lara Tafolla.


source: Caselaw Access Project

license: Public Domain

text:
    BULARD AIR SERVICES, LLC, an Oklahoma Limited Liability Company, and Donald McDaniel, d/b/a McDaniel Aviation, Plaintiffs/Appellees, v. BROWN AVIATION, INC., an Oklahoma Corporation, Defendant/Appellant.
    Case No. 116,274
    Court of Civil Appeals of Oklahoma, Division No. 1.
    FILED APRIL 18, 2019 Mandate Issued: July 17, 2019
    Noah Fontanez, DUNLAP, BENNETT & LUDWIG, PLLC, Tulsa, Oklahoma, for Appellant,
    Sam P. Daniel, III, SAM P. DANIEL, III, PLLC, Tulsa, Oklahoma, for Appellees.
   OPINION BY BRIAN JACK GOREE, CHIEF JUDGE:

¶1 This is an action for replevin of an aircraft engine that was in the possession of a mechanic. The trial court issued its writ for immediate return of the property to the owner. We affirm the court's prejudgment order of delivery.

BACKGROUND

¶2 Bulard Air Services, LLC, owns a Cessna 421, a twin-engine propeller aircraft. When Ron Bulard's pilot discovered the left engine had a crack in its crankcase, they hired Donald McDaniel to remove the engine from the plane so it could be repaired. McDaniel spoke to a mechanic named Larry Brown about the problem and eventually transported the engine and logbook to Brown Aviation, Inc. The scope of the work to be performed by Brown and the terms for payment of his services are disputed. The agreement was not in writing.

¶3 Several months passed and Mr. Bulard contacted Mr. Brown about the status of the repair. Brown requested a deposit of $25,000 but Bulard was unwilling to make a payment without the documentation he believed was reasonable. Brown was unwilling to complete the work without payment, nor would he agree to voluntarily return the engine because he claimed a possessory lien. Plaintiffs filed a petition for breach of contract, replevin and injunctive relief. Brown filed a counterclaim for payment of services for $29,812.00

¶4 The trial court conducted a hearing and ruled in favor of Bulard. Brown was required to relinquish possession of the engine and Bulard was required to obtain a bond for $16,000. The next day, Brown filed a motion to stay execution of the writ. The trial court granted the motion in part by (1) modifying the bond amount to $50,000.00, (2) extending the deadline for Brown to release the engine, and (3) requiring Brown to document the components of the disassembled engine. Brown appealed.

APPELLATE JURISDICTION

¶5 The appealed order addresses the writ of replevin. Brown proposes the order is appealable because it is an interlocutory order appealable by right. He argues it is an order modifying or refusing to vacate or modify a provisional remedy which affects the substantial rights of a party. Bulard counters that replevin is not a provisional remedy.

¶6 "The Supreme Court may reverse, vacate, or modify any of the following orders of the district court, or a judge thereof ... (2) An order that discharges, vacates or modifies or refuses to vacate or modify a provisional remedy which affects the substantial rights of a party ..." 12 O.S. § 952(b)(2) and 12 O.S. § 993(A)(3). For the reasons that follow, we agree with appellant that Bulard was asserting a provisional remedy in this action.

¶7 Identifying provisional remedies is more difficult in modern civil procedure where actions in equity and law are combined. The term "provisional" comes from the former practice of allowing an ancillary suit in equity. Shadid v. Hammond , 2013 OK 103, ¶6, 315 P.3d 1008, 1010 (Edmondson, J., concurring). In the court of law a litigant who was particularly at risk of an inequitable loss was obliged to request the temporary relief provided for in chancery court. Id . The district court now has authority to address all claims arising from a single transaction or set of circumstances, including an alleged need for prejudgment temporary relief.

¶8 Replevin is an action to recover the possession of specific personal property. The statutes allow for an expedited hearing to obtain an order for prejudgment delivery of the property. This evidentiary hearing is preliminary in nature. Sweeten v. Lawson , 2017 OK CIV APP 51, ¶33, 404 P.3d 885, 895. Its purpose is only to determine who should have possession of the claimed property pending the final hearing. Id .

¶9 In Hutchings v. Cobble , 1911 OK 395, ¶2, 30 Okla. 158, 120 P. 1013, 1015, the Supreme Court cited Kansas authority which noted that a prejudgment delivery of personal property is a provisional remedy: " 'The order for the delivery is ancillary. It is like an order of injunction, which may be the final judgment or provisional remedy' " Hutchings , at ¶6, quoting Batchelor v. Walburn , 23 Kan. 733 (Kan. Sup. Ct. 1880).

¶10 A claimant who seeks possession of property before judgment is requesting temporary relief. The prejudgment order is contingent on security in the form of a bond because the court may re-transfer possession after a merits trial. We hold that prejudgment delivery of specific personal property pursuant to 12 O.S. § 1571 et seq . is a provisional remedy within the meaning of 12 O.S. § 952(b)(2) and 12 O.S. § 993(A)(3).

¶11 Not all orders disposing of provisional remedies are reviewable. Appellate jurisdiction founded upon § 952(b)(2) exists only where the order discharges, vacates, modifies or refuses to vacate or modify a provisional remedy which affects the substantial rights of a party. § 952(b)(2). We must examine the effect of the appealed order to determine whether it is reviewable.

¶12 In the writ of replevin, Bulard was directed to execute an undertaking of $16,000. A replevin bond was issued in that amount. Three days later, the court entered an order expressly modifying the amount of the bond to $50,000. The appealed order modified a provisional remedy by significantly increasing the replevin bond that secured the prejudgment order of delivery.

¶13 The order also affected the appellant's substantial rights . Brown provided aircraft mechanic services on the engine pursuant to a voluntary agreement, and the property was in his possession. He disassembled it, obtained new or remanufactured component parts, and delivered an invoice to Bulard which has not been paid. The trial court noted that any security interest Brown may have is adequately protected by the bond. We conclude the August 4, 2017 order that modified the replevin bond pursuant to a prejudgment order of delivery is an interlocutory order appealable by right. It modified a provisional remedy that affected the substantial rights of a party.

SUFFICIENCY OF THE PETITION

¶14 Brown argues that the order removing the engine from his possession should be reversed because Plaintiffs' petition failed to include all of the specific allegations set forth in § 1571(A)(1) and it lacked the verification required by § 1571(A)(2). These propositions require statutory construction which is an issue of law, and we review them de novo without deference to the trial court. Sweeten , ¶16.

¶15 A plaintiff seeking delivery of the property "at the commencement of the suit" must request immediate possession and include verified allegations about the property including its description, ownership, value, and wrongful detention without legal justification. Brown correctly points out that Bulard's petition omitted the allegation of § 1571(A)(1)(e), that the property was not taken in execution (or for a similar statutory justification). However, because the order for delivery was based on evidence at a hearing, and not solely on the allegations of the petition, we are not persuaded that failure to meet this technical form of pleading requires reversal.

¶16 Section § 1571 sets forth the procedure a plaintiff must follow to recover immediate possession of specific personal property at the time suit is commenced . A verified petition alleging facts showing elements (a) through (f) must be served on the defendant with a summons and a special notice. The notice must direct the defendant to file a written objection within five days. If an objection is not filed in five days, no hearing is necessary and the court clerk shall issue the order of delivery. § 1571(A)(3). We observe that in a case where property is immediately removed from a defendant's possession at the commencement of a case , without a hearing, the statute requires a verified petition that includes the specified allegations.

¶17 However, when an objection is filed the court must set the case for a prompt hearing and determine the matter according to the probable merit of the petition. § 1571(A)(3). Here, the order of delivery was not made immediately at commencement of the case. Brown objected to the notice and filed an answer with counterclaims. The trial court heard sworn testimony of witnesses and received exhibits offered and admitted into evidence. We hold that an order of delivery properly founded upon evidence at the hearing provided for by § 1571 is not invalidated by lack of a verified petition. Furthermore, in replevin cases where the order for delivery does not rest solely on the verified allegations of the petition, the sufficiency of the petition is governed by the Oklahoma Pleading Code.

VALUE OF THE PROPERTY

¶18 Brown proposes the replevin order must be reversed because Bulard never presented competent evidence of the engine's value. The value of the property is relevant where prejudgment delivery is sought because the writ may not issue until a replevin bond is executed for double the value of the property. § 1573. The valuation is based on the amount stated in the petition or on evidence given at a hearing. §§ 1573, 1573.1. At the hearing, Bulard testified he obtained an estimate from a different mechanic for $16,000 after receiving Brown's statement requiring a $25,000 deposit. Bulard learned that the engine was disassembled and there was a possibility it was not repairable. Later, Brown sent Bulard a bill for more than $29,000 for work performed plus storage costs. At the close of Bulard's case-in-chief, Brown's counsel demurred to the evidence and the trial court overruled it. Brown contends the trial court's ruling was reversible error.

¶19 When a trial court considers a demurrer to the evidence it must take as true all evidence (together with all reasonable inferences) favorable to the party against whom relief is sought. A demurrer should be overruled unless there is an entire absence of proof tending to show a right to recover. Jackson v. Jones , 1995 OK 131, ¶4, 907 P.2d 1067, 1071.

¶20 Brown argues there was no evidence of the value of the engine. He urges that Bulard's only testimony was about the cost of repair which is not the same as value of the property. Bulard testified the engine was dismantled and possibly could not be repaired - Brown informed him, "I don't even know if I can fix your engine because I don't even know if the parts are available." Bulard testified he would be willing to post a bond in the amount of $16,000.

¶21 Accepting Bulard's evidence as true and construing all inferences in his favor, the trial court could have determined the property at issue was a group of disassembled engine components, some broken and possibly irreparable or irreplaceable. The court could reasonably have inferred from Bulard's agreement to post a $16,000 bond that the dismantled and undiagnosed engine had a value of $8,000. The trial court did not commit error when it overruled Brown's demurrer to the evidence.

¶22 At the conclusion of the hearing the trial court pronounced its order granting replevin. The writ issued directing an officer to take the engine with its aircraft log book and delivery it to plaintiffs, and requiring plaintiffs to execute a bond in the amount of $16,000. However, before the time set for delivery, Brown filed a motion to stay to protect his security interest.

¶23 Brown referred to his testimony at the hearing that he has lien rights in the work he performed on the engine while it was in his possession. He argued these rights would be effectively destroyed because his interest was $29,812.00, a sum far greater than the $16,000 bond. In response, the trial court filed an order modifying the bond from $16,000 to $50,000.

¶24 Brown maintains his argument that the bond, even as modified, is not substantiated by evidence and the trial court erred by relying on the petition's allegation that the value is $25,000. We reiterate that there was sufficient testimony concerning the value of the property received in evidence at the hearing to support the order of prejudgment delivery. Considering that the modified bond protected Brown's claimed security interest, we find no error in the court's order.

PRESERVATION OF THE PROPERTY

¶25 When the court modified the bond, it also directed Brown to photographically document the components of the disassembled engine and it extended the time for delivery of the property. Brown asserts Bulard might deliver the engine to a third party to repair it and this would constitute spoliation of evidence. He claims the trial court erred by omitting from its modified order a prohibition against tampering or reassembling the engine.

¶26 Spoliation occurs when evidence relevant to prospective civil litigation is destroyed, adversely affecting the ability of the litigant to prove his or her claim. Barnett v. Simmons , 2008 OK 100, ¶21, 197 P.3d 12. Brown cites no authority showing that a trial court must enter a preemptive order to prevent spoliation. We find no error in the court's order regarding the prospect of spoliation.

¶27 Brown also proposes that the modified order deprived him of property without due process of law guaranteed by the Oklahoma Constitution, Art. 2, § 7 and the 14th Amendment of the United States Constitution. His argument is that he was not permitted an opportunity to present evidence on the amount of time it would take him to document the status of the engine, implying that the six days provided by the court was inadequate. We disagree.

¶28 Brown was served with notice of this replevin action approximately one week before the hearing. He testified that the engine is sitting on the shelves of two large carts in his shop. His exhibits included an itemized list of engine parts and the labor he performed. Brown cited authority generally stating the fundamental right to due process of law, but he has not explained why the trial court's order permitting him approximately one week to photograph the engine parts constitutes a deprivation of property without notice and an opportunity to be heard. Actual prejudice is a necessary element of a due process claim which makes the claim ripe for adjudication. Walters v. Oklahoma Ethics Commission , 1987 OK 103, ¶19, 746 P.2d 172, 177. Brown has not met this burden.

CONCLUSION

¶29 An action for statutory replevin allows for prejudgment delivery of the property based upon (1) a verified petition at the commencement of the action, or (2) a finding of probable merit at a preliminary evidentiary hearing. 12 O.S. § 1571. A writ of replevin properly founded upon evidence at the hearing provided for by § 1571 is not invalidated by lack of a verified petition. Unless the writ issues at the commencement of the action and based solely on the verified allegations of the petition, the sufficiency of the petition is governed by the Oklahoma Pleading Code. Finally, prejudgment delivery of specific personal property pursuant to 12 O.S. § 1571 et seq . is a provisional remedy within the meaning of 12 O.S. § 952(b)(2) and 12 O.S. § 993(A)(3).

¶30 The trial court's Order on Defendant's Emergency Motion to Stay Execution of the Writ of Replevin, filed August 4, 2017, is AFFIRMED.

JOPLIN, P.J., and BUETTNER, J., concur.

      Donald McDaniel, d/b/a McDaniel Aviation, is alleged to be the agent for Bulard. Both are plaintiffs in the action and they are referred to in this opinion as "Bulard."

      In their response to the petition in error, appellees asserted that other trial issues are still pending and the writ of replevin is not a final appealable order pursuant to 12 O.S. § 951, § 952, § 953, and § 994. We ordered appellant to show cause why the appeal should not be dismissed for lack of an appealable order. The parties filed briefs.

      The Oklahoma Pleading Code governs the procedure in district courts of Oklahoma in all suits of a civil nature whether cognizable as cases at law or in equity. 12 O.S. § 2001.

      "Provisional Remedy" is defined by Black's Law Dictionary, Revised Fourth Edition, 1968, as "a remedy provided for present need or for the immediate occasion; one adapted to meet a particular exigency. Particularly, a temporary process available to a plaintiff in a civil action, which secures him against loss, irreparable injury, dissipation of the property, etc., while the action is pending. Such are the remedies by injunction, appointment of a receiver, attachment, or arrest. The term is chiefly used in the codes of practice. Snavely v. Abbot [Abbott] Buggy Co. , 36 Kan. 106, 12 P. 522." For further discussion of Snavely v. Abbott see fn. 8.

      Both legal and equitable rights may be determined in a statutory action for replevin. Kansas City Hay Press Co. v. Williams , 1915 OK 591, ¶2, 51 Okla. 6, 151 P. 570, 571.

      Title 12 O.S. § 1571 et seq .

      A plaintiff in an action to recover the possession of specific personal property may claim the delivery of the property at the commencement of the suit. 12 O.S. § 1571(A). The court may compel the delivery of the property before or after judgment. § 1583. A hearing may be conducted to determine whether an order for prejudgment delivery of the property should issue according to the probable merit of the plaintiff's petition. § 1571(A)(3). The order shall not be issued without an undertaking and bond. §§ 1573-1574.

      In 1887, the Supreme Court of Kansas, citing the progenitor of 12 O.S. § 952, included replevin pendente lite (pending the suit) in its recitation of provisional remedies that could result in an interlocutory order. Snavely v. Abbott Buggy Co. , 36 Kan. 106, 12 P. 522 (1887).

      Property held by a party under bond in a replevin action is conditioned on its redelivery in the event he should not prevail in the action. Mid-Continent Motor Company v. Art Harris Transfer Company , 1924 OK 107, ¶0, 97 Okla. 139, 223 P. 130 (syllabus by the court).

      Replevin is not, categorically, a provisional remedy. In many cases the determination of possession is made only after a trial on the merits. See Hopkins v. West , 2009 OK CIV APP 104, ¶13, 229 P.3d 560, 564. A final order of possession in a replevin case is not a provisional remedy. The provisional remedy is the court's prejudgment (interlocutory) determination of possession based on (1) a verified petition at the commencement of the action, or (2) a finding of probable merit at a preliminary evidentiary hearing . See 12 O.S. § 1571.

      Title 12 O.S. § 1571 provides:
      A. The plaintiff in an action to recover the possession of specific personal property may claim the delivery of the property at the commencement of suit, as provided herein.
      1. The petition must allege facts which show:
      a. a description of the property claimed,
      b. that the plaintiff is the owner of the property or has a special ownership or interest therein, stating the facts in relation thereto, and that he is entitled to the immediate possession of the property,
      c. that the property is wrongfully detained by the defendant,
      d. the actual value of the property, provided that when several articles are claimed, the value of each shall be stated as nearly as practicable,
      e. that the property was not taken in execution on any order or judgment against said plaintiff, or for the payment of any tax, fine or amercement assessed against him, or by virtue of an order of delivery issued under this chapter, or any other mesne or final process issued against said plaintiff; or, if taken in execution or on any order or judgment against the plaintiff, that it is exempt by law from being so taken, and
      f. the prayer for relief requests that the court issue an order for the immediate delivery of the property.
      2. The above allegations are verified by the party or, when the facts are within the personal knowledge of his agent or attorney and this is shown in the verification, by said agent or attorney.
      3. A notice shall be issued by the clerk and served on the defendant with the summons which shall notify the defendant that an order of delivery of the property described in the petition is sought and that the defendant may object to the issuance of such an order by a written objection which is filed with the clerk and delivered or mailed to the plaintiff's attorney within five (5) days of the service of the summons. In the event that no written objection is filed within the five-day period, no hearing is necessary and the court clerk shall issue the order of delivery. Should a written objection be filed within the five-day period specified, the court shall, at the request of either party, set the matter for prompt hearing. At such hearing the court shall proceed to determine whether the order for prejudgment delivery of the property should issue according to the probable merit of plaintiff's petition. Provided, however, that no order of delivery may be issued until an undertaking has been executed pursuant to Section 1573 of this title.
      Nothing contained in this act shall prohibit a party from waiving his right to a hearing or from voluntarily delivering the goods to the party seeking them before the commencement of the proceedings or at any time after institution thereof.
      B. Where the notice that is required by subsection A of this section cannot be served on the defendant but the judge finds that a reasonable effort to serve him was made and at the hearing the plaintiff has shown the probable truth of the allegations in his petition, the court may issue an order for the prejudgment delivery of the property. If an order for the delivery of the property is issued without actual notice being given the defendant, the defendant may move to have said order dissolved and, if he does not have possession of the property, for a return of the property. Notice of said motion with the date of the hearing shall be served upon the attorney for the plaintiff in the action. The motion shall be heard promptly, and in any case within five (5) days after the date that it is filed. The court must grant the motion unless, at the hearing on defendant's motion, the plaintiff proves the probable truth of the allegations contained in his petition. If said notice is filed before the sheriff turns the property over to the plaintiff, the sheriff shall retain control of the property pending the hearing on the motion.
      C. The court may, on request of the plaintiff, order the defendant not to conceal, damage or destroy the property or a part thereof and not to remove the property or a part thereof from the state or county, pending the hearing on plaintiff's request for an order for the prejudgment delivery of the property, and said order may be served with the summons.
      D. No action to recover the possession of specific personal property pursuant to this section may be brought against any city, county or state agency or an employee of a city, county, or state agency, if the claim alleges matters arising from incarceration, probation, parole or community supervision.

      The list of allegations in § 1571 appears to be a relic of common law replevin where an affidavit was required in addition to the petition. See Hutchings v. Cobble , 1911 OK 395, 30 Okla. 158, 120 P. 1013. When replevin first became a statutory remedy the affidavit was relevant only where the plaintiff sought to recover possession of specific personal property at the commencement of the suit, or at any time before an answer was filed. Hutchings , 1911 OK 395, ¶5, 30 Okla. 158, 120 P. 1013, 1015. The pleading standards for a petition for replevin were examined independently from the requirements of the affidavit. It has always been sufficient for a plaintiff to allege facts describing the property in controversy, showing that he is the owner or has a special interest in it, that he is entitled to its immediate possession, and the defendant wrongfully detains it from him. Sweeten , ¶¶26-31, citing Hivick v. Okla.-Colo. Oil & Gas Co. , 1923 OK 49, ¶0, 89 Okla. 181, 212 P. 420. In this case the petition alleges Bulard is the owner of the aircraft engine, it was delivered to Brown's shop for repair, Brown refused to return it upon demand, its value is $25,000.00, and Bulard is entitled to possession.

      A civil action is commenced by filing a petition with the court. 12 O.S. § 2003.

      Unless specifically required by rule or statute, pleadings need not be verified or accompanied by an affidavit. Heirshberg v. Slater , 1992 OK 84, ¶9, 833 P.2d 269, 274. Generally, a pleading that lacks a verification is not a jurisdictional defect. State ex rel. Dep't of Pub. Safety v. 1985 GMC Pickup, Serial No. 1GTBS14EOF2525894, OK Tag No. ZPE852 , 1995 OK 75, ¶19, 898 P.2d 1280, 1284. In a case decided before Oklahoma adopted notice pleading, it was held that a verified petition was required for a valid order for delivery made at the commencement of an action. Parker v. Henry , 1977 OK 13, ¶2, 559 P.2d 1249, 1250. Nothing in Parker suggests there was a hearing or even an appearance by the defendant before the writ of replevin issued.

      Though it was rendered unnecessary by the sworn testimony at the hearing, the plaintiffs' lawyer filed a Verification of Petition as a separate document after the action was commenced. It states: "Sam P. Daniel III, of lawful age, duly sworn on his oath, deposes and states: That he is the attorney for the Plaintiffs above named; that he has read the foregoing and the allegations contained in the Petition; and believes the testimony and evidence at trial will prove the facts and matters therein set forth are true and correct."

      In 1984 Oklahoma adopted the Oklahoma Pleading Code and became a notice pleading state. All that is required under notice pleading is that the petition give fair notice of the plaintiff's claim and the grounds upon which it rests. Title 12 O.S. § 2008 merely requires that the pleading shall contain "[a] short and plain statement of the claim showing that the pleader is entitled to relief." ... For most claims, the pleader need not utilize terms of art or legal phraseology. Gens v. Casady School , 2008 OK 5, ¶ 9, 177 P.3d 565, 569. Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleadings or motions are required. 12 O.S. § 2008(E)(1).

      Title 12 O.S. § 1573 provides:
      The order shall not be issued until there has been executed by one or more sufficient sureties of the plaintiff, to be approved by the clerk, an undertaking in not less than double the value of the property as stated in the petition to the effect that the plaintiff shall duly prosecute the action, and pay all costs and damages which may be awarded against him, including attorney's fees and, if the property be delivered to him, that he will return the same to the defendant if a return be adjudged; provided, that where the State of Oklahoma is party plaintiff, an undertaking in replevin shall not be required of the plaintiff, but a writ shall issue upon petition duly filed as provided by law. The undertaking shall be filed with the clerk of the court.
      Title 12 O.S. § 1573.1 provides:
      On application of either party which is made at the time of executing the replevin bond or the redelivery bond, or at a later date, with notice to the adverse party, the court may hold a hearing to determine the value of the property which the plaintiff seeks to replevy. If the value as determined by the court is different from that stated in the petition, the value as determined by the court shall control for purpose of Sections 1573 and 1577 of this title.

      Brown proposes the trial court erroneously took judicial notice of the valuation made in an unverified petition. Because we conclude the trial court did not abuse its discretion in setting the amount of the replevin bond, we need not consider the boundaries of judicial notice.


author: NELSON, J.

text:
    STATE of Oregon, Respondent on Review, v. Shannon Dewayne CARPENTER, Petitioner on Review.
    CC 15CR0052 (SC S065374)
    Supreme Court of Oregon.
    Argued and submitted September 13, 2018. August 8, 2019
    Rond Chananudech, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the brief for petitioner on review. Also on the brief was Ernest G. Lannet, Chief Defender.
    Greg Rios, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, and Nelson, Justices.

      Garrett, J., did not participate in the consideration or decision of this case.

   NELSON, J.

Defendant seeks review of an opinion of the Court of Appeals affirming his conviction for hindering prosecution under ORS 162.325(1)(a). Among other things, that statute prohibits "conceal[ing]" a person who has committed a crime punishable as a felony, with a requisite intent. The question that we address is whether defendant "concealed" a person for whom a felony arrest warrant had been issued when, upon questioning by a police detective, defendant falsely denied knowing or associating with the wanted person. In response to defendant's motion for a judgment of acquittal on the charge of hindering prosecution, the trial court concluded that defendant's denials amounted to concealing the wanted person's whereabouts, and it therefore denied defendant's motion. The Court of Appeals affirmed. State v. Carpenter , 287 Or. App. 720, 404 P.3d 1135 (2017). We conclude that, in requiring proof of "conceal[ing]" another person, ORS 162.325(1)(a) required the state to prove that defendant had hidden the wanted person from ordinary observation. We further conclude that the state's evidence-in this case, defendant's false denials of knowledge-did not satisfy that requirement, and we therefore reverse the judgment of conviction and remand to the Court of Appeals for further proceedings.

We set out the facts in the light most favorable to the state. State v. Makin , 360 Or. 238, 240, 381 P.3d 799 (2016). Detective Gardiner had an arrest warrant for a person named Haussler. After a neighbor had reported seeing Haussler on Haussler's property, Gardiner drove to Haussler's property to arrest him. The only structure on the property was a two-car garage with a door on the side. When Gardiner arrived at the property, he saw a white pickup truck parked in the driveway. As Gardiner was looking around the outside of the garage, he saw the side door swing open and then saw a person matching Haussler's description run away. Rather than chase that person, Gardiner looked in the garage and, after not seeing anybody inside, called for backup.

About a minute later, Gardiner saw defendant and a woman on the property. According to Gardiner, they "appeared to have come from inside the garage area." Gardiner approached them and told defendant that he was looking for Haussler and that he had a felony warrant for Haussler's arrest. Defendant denied knowing Haussler or knowing Haussler's whereabouts. Gardiner told defendant that he just saw someone run away whom he believed to be Haussler and advised defendant about the "hindering prosecution laws." Nevertheless, at least four times, defendant denied knowing Haussler. Gardiner asked who might have run away, and defendant said he did not know who had run and did not "acknowledge that anybody had run." Defendant denied coming onto the property with Haussler and claimed that he had arrived in the truck with only the woman.

After his conversation with defendant, Gardiner spoke to the neighbor who had reported seeing Haussler. The neighbor indicated that he saw Haussler arrive in the truck. With that information, Gardiner returned to defendant and again asked him if he knew Haussler. Defendant still denied knowing him. Gardiner later indicated that, at that point, he had believed that he had probable cause to arrest defendant for hindering prosecution, but had instead decided to pursue Haussler, whom Gardiner believed to be close by.

Later that day, officers found Haussler on nearby property. Haussler told officers that he had arrived at the property with defendant. Shortly after Haussler was arrested, officers arrested defendant for hindering prosecution and brought him to jail. Jail staff found two straws containing a controlled substance in defendant's shoe. The state charged defendant with hindering prosecution through concealment under ORS 162.325(1)(a), contending that defendant had concealed Haussler through what the state alleged were deceptive statements about knowing Haussler or his whereabouts. The state also charged defendant with possession of a Schedule II controlled substance. Before trial, defendant moved to suppress the evidence of the controlled substance, claiming that the officers had lacked probable cause to arrest him for hindering prosecution because his deceptive statements could not constitute concealment under ORS 162.325(1)(a) as a matter of law. The trial court denied that motion.

At trial, the state prosecuted defendant for concealing Haussler based on his responses to Gardiner's questions. At the close of the state's case, defendant moved for a judgment of acquittal, arguing that the state failed to present evidence that he had concealed Haussler under ORS 162.325(1)(a). The trial court denied the motion, and the jury found defendant guilty on both charges.

Defendant appealed, arguing that the trial court erred in not granting his motions to suppress and for a judgment of acquittal because he had not "conceal[ed]" Haussler within the meaning of ORS 162.325(1)(a). After concluding that "conceal[ ]" was broad enough to encompass defendant's responses, the Court of Appeals determined that the officers had probable cause to arrest defendant and affirmed both convictions. Carpenter , 287 Or. App. at 722, 404 P.3d 1135.

We allowed review to determine the meaning of the word "conceal[ ]" under ORS 162.325(1)(a) and whether defendant's conduct-making false statements to the police-can constitute concealment under that statute.

The hindering prosecution statute, ORS 162.325, provides:

"(1) A person commits the crime of hindering prosecution if, with intent to hinder the apprehension, prosecution, conviction or punishment of a person who has committed a crime punishable as a felony, or with the intent to assist a person who has committed a crime punishable as a felony * * * the person:
"(a) Harbors or conceals such person; or
"(b) Warns such person of impending discovery or apprehension; or "(c) Provides or aids in providing such person with money, transportation, weapon, disguise or other means of avoiding discovery or apprehension; or
"(d) Prevents or obstructs, by means of force, intimidation or deception, anyone from performing an act which might aid in the discovery or apprehension of such person; or
"(e) Suppresses by any act of concealment, alteration or destruction physical evidence which might aid in the discovery or apprehension of such person; or
"(f) Aids such person in securing or protecting the proceeds of the crime."

(Emphasis added.)

The state argues that defendant concealed Haussler when defendant denied knowing Haussler and his whereabouts. Defendant disagrees and contends that the state did not show that he had physically hidden Haussler in any particular location, and that, therefore, the state did not prove that he "concealed" Haussler. We must thus construe ORS 162.325(1)(a) to determine whether "conceal" embodies the verbal statements at issue here.

In addressing the parties' arguments, we resolve the threshold statutory construction question consistently with our familiar methodology. See State v. Gaines , 346 Or. 160, 171-72, 206 P.3d 1042 (2009) (when construing a statute to determine the legislature's intent, the court examines text and context, and legislative history when appropriate). We then determine whether the state presented sufficient evidence from which a reasonable trier of fact could find facts to prove each of the essential elements of the offense (as applicable here)-intent and hindering prosecution by concealment-beyond a reasonable doubt. State v. Rader , 348 Or. 81, 91, 228 P.3d 552 (2010) ; see also State v. Turnidge , 359 Or. 364, 455, 374 P.3d 853 (2016) (explaining approach when motion for judgment of acquittal frames a threshold dispute about the meaning of a legal element).

We begin with the text of ORS 162.325(1)(a), which, as noted, prohibits "conceal[ing]" a person who has committed a crime punishable as a felony. The dictionary provides the following definitions of "conceal":

"1: to prevent disclosure or recognition of: avoid revelation of: refrain from revealing: withhold knowledge of: draw attention from: treat so as to be unnoticed < confessing * * * things a woman ought to ~ -Thomas Hardy>
"2: to place out of sight: withdraw from being observed: shield from vision or notice < it grew so thickly as to ~ the roof -Richard Jefferies>"

Webster's Third New Int'l Dictionary 468 (unabridged ed. 2002). Defendant contends, relying on the examples given, that the first sense refers to withholding or failing to disclose knowledge and that the second refers to physically shielding from sensory perception. He argues that the statute uses the term "conceals" in the second sense only because, in the hindering prosecution statute, "conceal" modifies a physical object, the person being concealed. The state counters that the text of the statute is not so limited. The state argues that the term "conceal" includes all acts that "draw attention from" and can encompass verbal as well as physical acts, including deceptive statements.

We acknowledge that it is unclear from the dictionary definition of "conceal," alone, whether the legislature intended the word to exclude verbal acts. See State v. Cloutier , 351 Or. 68, 96, 261 P.3d 1234 (2011) ("Dictionaries * * * do not tell us what words mean, only what words can mean, depending on their context and the particular manner in which they are used."). Here, we need not decide whether all verbal acts are excluded, but only whether the legislature intended to exclude deceptive statements, like the ones at issue in this case. As the definition indicates, concealment in all forms requires conduct that hides or secrets the object of concealment. It follows that, to understand whether conduct constitutes concealment, the conduct must be understood in relation to the object of concealment. In other words, the breadth of conduct that the legislature intended to criminalize under the word "conceals" must be understood in the context of any indicated object of concealment, together with an analysis of what acts might render that object hidden from another. We turn to the context of the statutory wording and any applicable legislative history to determine the breadth of the word "conceal" that the legislature intended. As explained below, we conclude that "conceal" requires conduct by the defendant that hides the person who committed a crime punishable as a felony from ordinary observation.

In construing a statute, "we do not look at one subsection of a statute in a vacuum; rather, we construe each part together with the other parts in an attempt to produce a harmonious whole." Lane County v. LCDC , 325 Or. 569, 578, 942 P.2d 278 (1997). The meaning of a term in a statute may be discerned by the other words grouped with that term, State v. Baker-Krofft , 348 Or. 655, 663, 239 P.3d 226 (2010), and we assume that the legislature did not intend any part of its enactment to be meaningless surplusage, State v. Clemente-Perez , 357 Or. 745, 755, 359 P.3d 232 (2015). But see Cloutier , 351 Or. at 97-98, 261 P.3d 1234 (noting that the creation of some measure of redundancy in the interpretation of a statute is not necessarily fatal to that interpretation).

At the outset, we note that the word "conceals" does not appear in isolation. Rather, as indicated, there is a statutory object of concealment: The statute requires that the defendant "conceals such person." ORS 162.325(1)(a). The legislature thus chose to limit the conduct that is criminalized to conduct intended to render such person hidden. This cannot be squared with the state's argument that the statutory wording encompasses all verbal acts that draw attention from a suspect. A deceptive statement that disclaims knowledge about a physical object's existence or past location may not, in and of itself, hide that physical object. Conduct that hides a physical object is conduct that inhibits ordinary observation of that object, at the time of the conduct. Thus, based on our examination of the text and context of ORS 162.325(1)(a), we initially conclude that disclaiming knowledge about a wanted person, including his or her past location, is not what ORS 162.325(1)(a) proscribes. That understanding is further supported by the other provisions that the legislature chose to include in the statute, as well as the legislative history, which we discuss next. The parties dispute the degree of significance that this court should place on the statutory provisions surrounding "conceal" in ORS 162.325(1)(a). Defendant contends that reading paragraph (1)(a) broadly (as the state argues) would render paragraph (1)(d)-which prohibits "deception" that obstructs the discovery or apprehension of the felon-meaningless, because any deception would be subsumed under paragraph (1)(a), which prohibits "conceal[ment]."

The state responds that the six categories of hindering prosecution, set out in ORS 162.325(1)(a) - (f), intentionally overlap, to effectuate the legislature's broad interest in deterring conduct that assists a person who has committed a felony in escaping justice. Due to that overlapping nature of the prohibitions, argues the state, "conceals" for purposes of ORS 162.325(1)(a) also would be deception for purposes of paragraph (1)(d). Stated another way, the state contends, paragraph (1)(d) serves as a catch-all for what is not covered in the other subparagraphs, but it does not prevent an act from being charged under another section.

To best understand the significance of the legislature's arrangement of ORS 162.325(1), it is helpful to briefly lay out the evolution of the crime of hindering prosecution, from the common law through enactment of ORS 162.325. See State v. Ofodrinwa , 353 Or. 507, 512, 300 P.3d 154 (2013) (preexisting common law and the statutory framework within which a statute was enacted provide context for the meaning of the terms in the statute); see also Montara Owners Assn. v. La Noue Development, LLC , 357 Or. 333, 341, 353 P.3d 563 (2015) ("The context for interpreting a statute's text includes the preexisting common law, and we presume that the legislature was aware of that existing law.").

Hindering prosecution descended from the common-law crime of accessory after the fact. State v. McCullough , 347 Or. 350, 354, 220 P.3d 1182 (2009). Although Oregon law has long codified the common-law crime of accessory after the fact, see General Laws of Oregon, Crim. Code, ch. LIII, § 692, p. 573-74 (Deady 1845-1864), accessory after the fact was most recently codified at former ORS 161.230 (1969), repealed by Or. Laws 1971, ch. 743, § 432. That statute provided,

"All persons are accessories who, after the commission of any felony, conceal or aid the offender, with knowledge that he has committed a felony, and with intent that he may avoid or escape from arrest, trial, conviction or punishment."

Former ORS 161.230 (1969).

In Clifford , this court construed former ORS 161.230 (1969) to determine whether a defendant could be convicted for lying to police about whether he had recently seen a person wanted for a felony. State v. Clifford , 263 Or. 436, 441, 502 P.2d 1371 (1972). After noting that treatises "describing criminal conduct uniformly consist[ed] of an affirmative act from which the intention to aid an offender to escape arrest, conviction, or punishment is obvious," this court explained that, at common law, "a mere denial of knowledge of the whereabouts of an offender" would not amount to accessorial conduct. Id . at 441, 502 P.2d 1371. Because "[t]he language of ORS 161.230 indicate[d] no legislative intent to go beyond the traditional [common-law] definition of an accessory after the fact," this court held that mere denials of knowledge were insufficient for conviction. Id . at 440, 502 P.2d 1371. The effect of the holding in Clifford was temporally confined, however, by the enactment of the current statute, ORS 162.325, in 1971, which further codified the legislature's intended prohibitions. Or. Laws 1971, ch. 743, § 207.

The hindering prosecution statute was enacted as part of the 1971 revisions of the Oregon Criminal Code, initially drafted and proposed by the legislatively created Criminal Law Revision Commission. The commentary to the final draft that would later become ORS 162.325 states that that provision was derived from laws in Michigan and New York, and the Model Penal Code. Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report § 207, 206 (July 1970).

At the time of the commission's work, section 242.3 of the Model Penal Code provided:

"A person commits an offense if, with purpose to hinder the apprehension, prosecution, conviction or punishment of another for crime, he:
"(a) harbors or conceals the other; or
"(b) provides or aids in providing a weapon, transportation, disguise or other means of avoiding apprehension or effecting escape; or
"(c) conceals or destroys evidence of the crime, or tampers with a witness, informant, document or other source of information, regardless of its admissibility in evidence; or
"(d) warns the other of impending discovery or apprehension, except that this paragraph does not apply to a warning given in connection with an effort to bring another into compliance with the law; or
"(e) volunteers false information to a law enforcement officer. "

Model Penal Code, § 242.3, at 214 (Proposed Official Draft 1962) (emphases added). In discussing paragraph (b)-which prohibits providing or aiding in providing a means of avoiding apprehension or effecting escape-the commentary to that section explains the necessity of limiting the kinds of aid which will be made criminal, "because of the possible application * * * to a person who merely refuses to answer police questions about the fugitives or gives misleading answers." Model Penal Code Commentary, (Tentative Draft No. 9, at 199 (1959)) (noting that, by specifying the prohibited means of assistance, this provision does not apply to refusing to answer police questions about the fugitive or giving misleading answers to the police). The commentary further specifies that, among the activities brought within the scope of the "harbor[ing]" or "conceal[ing]" prohibitions in paragraph (a), harboring or concealing requires "proof that [the fugitive] was hidden or secreted by the actor." Id . at 200. In other words, the Model Penal Code commentary reveals that its drafters understood that misleading statements to the police would not be punishable as concealing the other person. That understanding is confirmed by additional commentary that specifies that the "borderline case of 'volunteered' misinformation to the police, dealt with in clause (e) of subsection (1), would not be covered elsewhere, and is intended to reach those who take the initiative in throwing the police off track." Id . at 201.

Having laid out the evolution of ORS 162.325(1), two observations are apparent. First, as Clifford demonstrates, the conduct criminalized by prohibitions on "conceal[ment]" did not historically include deception. Second, the legislature acted in 1971 to criminalize deception; however, as explained below, it chose wording that is not compatible with the state's proposed application of the word "conceals." The legislature intended to incorporate the proof of an additional fact to prosecute misleading statements that are not required to prosecute concealment itself, and that intent would be undermined by the state's proposed definition.

In drafting ORS 162.325(1), the commission modified the Model Penal Code draft by eliminating section 242.3(e) and, instead, requiring proof of an additional fact to prosecute deception in ORS 162.325(1)(d). Under Model Penal Code section 242.3(e), volunteering false information to a law enforcement officer was sufficient, with proof of the requisite intent, to impose criminal liability. Under ORS 162.325(1)(d), however, the legislature departed from the Model Penal Code provision, instead requiring that the deception have the specified effect: preventing or obstructing anyone from performing an act which might aid in the discovery or apprehension of a person who has committed a crime punishable as a felony. Thus, the legislature chose to impose a higher standard for deceptive statements to be prosecuted than was originally present in the Model Penal Code.

The state's interpretation of the word "conceal" would undercut the legislature's choice to depart from the Model Penal Code's broader criminalization of volunteering false information. Unlike the deception prohibited by ORS 162.325(1)(d), concealment in paragraph (1)(a) does not require that the concealment "prevent[ ] or obstruct[ ] *** anyone from performing an act which might aid in the discovery or apprehension of" a person who has committed a crime punishable as a felony. Under the state's proposed definition, all deceptive acts that draw away attention from the wanted person would be punishable as concealment, regardless of whether they, in fact, prevented or obstructed acts which might lead to the discovery or apprehension of the suspect. That would undermine the legislature's chosen standard for what constitutes hindering prosecution through deception. Because the legislature took steps to limit the circumstances in which deception would be criminalized, it would be inconsistent to negate that choice by providing for deceptions not punishable under paragraph (1)(d) to be punishable under paragraph (1)(a).

Taking into consideration the definition of "conceals," the context of other relevant parts of the statute, and the legislature's choice to depart from the Model Penal Code to require proof of additional facts before a person can be prosecuted for deception, it is apparent that the legislature did not intend the term "conceals" in ORS 162.325 (1)(a) to include denying knowledge about a wanted person or his or her whereabouts. Instead, "conceal[ ]" requires conduct by the defendant that hides the statutory object of concealment-a person who committed a crime punishable as a felony-from ordinary observation.

In this case, no reasonable trier of fact could have found that the state's evidence established that defendant had violated ORS 162.325(1)(a). In response to Gardiner's questioning, defendant denied knowing Haussler, knowing Haussler's whereabouts, and coming onto the property with Haussler. He claimed that he had arrived in the truck with only the woman. Defendant's statements, whether true or false, did not conceal Haussler himself.

In sum, to establish that defendant had "conceal[ed]" Haussler for the purposes of hindering prosecution, ORS 162.325(1)(a), the state was required to prove that defendant (1) committed conduct that hid Haussler from ordinary observation; and (2) did so with the intent to hinder Haussler's apprehension, prosecution, conviction or punishment. The state failed to prove that defendant's conduct hid Haussler from ordinary observation. The trial court therefore erred in denying defendant's motion for judgement of acquittal.

The decision of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for further proceedings.

      The Court of Appeals, considering the facts in the light most favorable to the judgment of conviction, understood the testimony that defendant had not "acknowledged" that anyone had fled to mean that defendant had denied that anyone had fled.

      Defendant's petition for review challenged only the trial court's denial of his motion for a judgment of acquittal. As explained below, we agree that the trial court erred in denying that motion. We therefore remand to the Court of Appeals for further consideration of the effect of our decision on defendant's assignment of error challenging the trial court's denial of his motion to suppress the evidence of drug possession that police found after defendant's arrest.

      Because Clifford was decided after the enactment of ORS 162.325, we do not rely on Clifford as context for the interpretation of that statute. Nonetheless, that case provides an historical account of the common law, of which we presume the legislature would have been aware.

      When evaluating statutes developed by the Criminal Law Revision Commission, we look to both the commentary and the discussions that preceded the adoption of the final draft as legislative history for the resulting laws. Gaines , 346 Or. at 178, 206 P.3d 1042.

      At the time that the commission drafted the hindering prosecution statute, the American Law Institute had published the latest proposed official draft of the Model Penal Code with commentary in 1962. Model Penal Code, § 242.3 at 215 (Proposed Official Draft 1962). The Model Penal Code section on hindering prosecution was renumbered from section 208.32 to section 242.3, but the substantive commentary to that section remained in Tentative Draft No. 9, published in 1959. Id .

      Both parties point to a discussion in a commission subcommittee meeting considering the hindering prosecution statute, and both argue that that legislative history supports their interpretation of the statute. Because that discussion does not provide clear evidence of the legislature's intended meaning of "conceals," we do not comment on it except to say that it appears consistent with what we have derived as the legislature's intent, as demonstrated through the evolution of the statute, wording chosen in the final act, and departures made from the Model Penal Code.

      In deciding that ORS 162.325(1)(a) excludes the conduct at issue in this case, we leave the question of whether "conceals" excludes all verbal acts for another day.