State v. Her

NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER Electronically Filed Intermediate Court of Appeals CAOT-XX-XXXXXXX 20-JUN-2025 07:59 AM Dkt. 5 ODSLJ NO. CAOT-XX-XXXXXXX IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI I JASON FLETCHER, Petitioner, v STATE OF HAWAI I, Respondent. ORDER (By: Leonard, Acting Chief Judge, Hiraoka, Wadsworth, JJ.) Upon review of the record, the court finds that self- represented Petitioner Eric Fletcher's (Fletcher) April 25, 2025 Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody appears to seek affirmative relief in the nature of a federal petition for writ of habeas corpus, which this court lacks jurisdiction to decide. Therefore, IT IS HEREBY ORDERED that case No. CAOT-XX-XXXXXXX is dismissed for lack of jurisdiction without prejudice to Fletcher seeking relief from the appropriate court having jurisdiction. Dated: Honolulu, Hawai i June 20, 2025. /s/ Katherine G. Leonard Acting Chief Judge /s/ Keith K. Hiraoka Associate Judge /s/ Clyde J. Wadsworth Associate Judge

NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 18-JUN-2025 08:02 AM Dkt. 68 SO NOS. CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI I STATE OF HAWAI I, Plaintiff-Appellee, v. ROBERT ERRTTE MILLARD, Defendant-Appellant APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT HONOLULU DIVISION (CASE NOS. 1DCW-XX-XXXXXXX and 1DCW-XX-XXXXXXX) SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Hiraoka and Wadsworth, JJ.) Defendant-Appellant Robert Errtte Millard (Millard) appeals from (1) the July 7, 2023 Notice of Entry of Judgment and/or Order (1DCW-XX-XXXXXXX Judgment) in 1DCW-XX-XXXXXXX,1 and (2) the August 11, 2023 Notice of Entry of Judgment and/or Order (1DCW-XX-XXXXXXX Judgment) in 1DCW-XX-XXXXXXX,2 entered by the Honolulu Division of the District Court of the First Circuit (District Court), in favor of Plaintiff-Appellee State of Hawai i (State).3 Millard raises a single point of error on appeal, arguing that the District Court erred in denying his motion to 1 The Honorable Thomas Haia presided. 2 The Honorable Myron Takemoto presided. 3 We consolidated the CAAP-23-449 and CAAP-23-524 appeals on December 13, 2023. In CAAP-23-449, Millard appeals the 1DCW-XX-XXXXXXX Judgment, and in CAAP-23-524, he appeals the 1DCW-XX-XXXXXXX Judgment.  NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER dismiss due to a defective complaint because the State did not separately execute the declaration. Upon careful review of the record and the briefs submitted by the parties, and having given due consideration to the arguments advanced and the issues raised, we resolve Millard's point of error as follows: On November 28, 2022, the State charged Millard via Complaint in 1DCW-XX-XXXXXXX as follows: The undersigned Deputy Prosecuting Attorney [(DPA)] of the City and County of Honolulu, State of Hawai i charges: On or about November 27, 2022, in the City and County of Honolulu, State of Hawai i, ROBERT ERRTTE MILLARD did intentionally, knowingly, or recklessly cause bodily injury to wit, physical pain, to [Complaining Witness (CW)], thereby committing the offense of Assault in the Third Degree, in violation of Section 707-712(1)(a) of the Hawai i Revised Statutes. "Bodily injury" includes physical pain, illness, or any impairment of physical condition. I, [DPA], declare under penalty of law that the foregoing is true and correct to the best of my knowledge and belief. The 1DCW-XX-XXXXXXX Complaint was dated and electronically signed by the DPA. On March 14, 2022, the State charged Millard via Complaint in 1DCW-XX-XXXXXXX as follows: The undersigned Deputy Prosecuting Attorney of the City and County of Honolulu, State of Hawai i charges: COUNT 1: On or about March 11, 2022, in the City and County of Honolulu, State of Hawai i, ROBERT ERRTTE MILLARD did intentionally, knowingly, or recklessly cause bodily injury to [CW], thereby committing the offense of Assault in the Third Degree, in violation of Section 707-712(1)(a) of the Hawai i Revised Statutes. COUNT 2: On or about March 11, 2022 in the City and County of Honolulu, State of Hawai i, ROBERT ERRTTE MILLARD, with intent to harass, annoy, or alarm [CW], did strike, shove, kick, or otherwise touch [CW] in an offensive manner and/or subject [CW] to offensive physical contact and/or did insult, taunt, or challenge [CW] in a manner likely to provoke an immediate violent response and/or that would cause [CW] to reasonably believe that ROBERT ERRTTE MILLARD intended to cause bodily injury to [CW] or damage to the property of [CW] thereby committing the offense of 2  NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER Harassment, in violation of Section 711-1106(1)(a) and/or 711-1106(1)(b) of the Hawai i Revised Statutes. I, [DPA], declare under penalty of law that

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 18-JUN-2025 07:58 AM Dkt. 65 SO NO. CAAP-XX-XXXXXXX IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I STATE OF HAWAI#I, Plaintiff-Appellee, v. CHARLESTON MAHOE, Defendant-Appellant (CASE NO. 1CPC-XX-XXXXXXX) AND STATE OF HAWAI#I, Plaintiff-Appellee, v. CHARLESTON MAHOE, SR., Defendant-Appellant (CASE NO. 1CPC-XX-XXXXXXX) APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT SUMMARY DISPOSITION ORDER (By: Leonard, Acting C.J., and Hiraoka and Wadsworth, JJ.) Defendant-Appellant Charleston Mahoe, also known as Charleston Mahoe, Sr. (Mahoe), appeals from the following orders (together, the Denial Orders) entered by the Circuit Court of the First Circuit: (1) the February 28, 2023 "Findings of Fact, Conclusions of Law, and Order Denying [Mahoe's] Motion to Dismiss Proceedings" in case no. 1CPC-XX-XXXXXXX (Case 823); and (2) the February 28, 2023 "Findings of Fact, Conclusions of Law, and Order Denying [Mahoe's] Motion to Dismiss Proceedings," in case no. 1CPC-XX-XXXXXXX (Case 829).1/ On June 22, 2017, Plaintiff-Appellee State of Hawai#i (State) charged Mahoe in Case 823 with Count 1, Assault in the Second Degree, and Count 2, Violation of a Temporary Restraining Order. On June 23, 2017, the State charged Mahoe in the 829 Case 1/ The Honorable Shirley M. Kawamura presided in both cases.  NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER with Counts 1 through 3, Terroristic Threatening in the First Degree, and Counts 4 through 9, Violation of a Temporary Restraining Order. Mahoe pleaded no contest to all counts in both cases, and on December 19, 2017, the circuit court sentenced him to HOPE probation. On June 24, 2022, the State moved in both cases to revoke Mahoe's probation and resentence him. On December 22, 2022, Mahoe filed a Motion to Dismiss Proceedings (Motion to Dismiss) in each case. Mahoe argued that the Hawai#i Supreme Court's decision in State v. Obrero, 151 Hawai#i 472, 517 P.3d 755 (2022), required dismissal due to the State's failure to comply with HRS § 801-1's indictment-or- information requirement. On February 28, 2023, the circuit court entered the Denial Orders, which denied the respective Motions to Dismiss. On May, 11, 2023, the circuit court filed Orders of Resentencing Revocation of Probation. On appeal, Mahoe contends that the circuit court erred in applying "the Motta/Wells standard" to his "Obrero claim" and denying his Motions to Dismiss on that basis. After reviewing the record on appeal and the relevant legal authorities, and giving due consideration to the issues raised and the arguments advanced by the parties, we resolve Mahoe's appeal as follows: The Hawaii Supreme Court has held that "Obrero applies to cases that were pending trial before the decision. Obrero does not apply retroactively to defendants who pled out or to defendants convicted after a trial." State v. Bautista, 153 Hawai#i 284, 289, 535 P.3d 1029, 1034 (2023). The supreme court further held that "defendants awaiting sentencing . . . are foreclosed from having their pleas nullified or their trial convictions overturned" pursuant to Obrero. Id. Here, Mahoe pled out, was convicted, and was sentenced to probation with special conditions before Obrero was decided. He was awaiting resentencing when he first raised his argument based on Obrero. Pursuant to Bautista, Obrero did not apply to 2  NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER his cases. Accordingly, the circuit court did not err in denying the Motions to Dismiss. Therefore, the respective February 28, 2023 Denial Orders entered by the Circuit Court of the First Circuit in Case 823 and Case 829 are affirmed. DATED: Honolulu, Hawai#i, June 18, 2025. On the briefs: /s/ Katherine G. Leonard Taryn R. Tomasa, Acting Chief Judge Deputy Public Defender, for Defendant-Appellant. /s/ Keith K. Hiraoka Brian Vincent, Associate Judge Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee. /s/ Cly

360 June 18, 2025 No. 548 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1). IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. NATHANIEL FOREST LaFLAMME, Defendant-Appellant. Marion County Circuit Court 22CR29404; A180399 Tracy A. Prall, Judge. Submitted November 25, 2024. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Shawn Wiley, Deputy Public Defender, Oregon Public Defense Commission, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, E. Nani Apo, Assistant Attorney General, and Lani Augustine, Certified Law Student, filed the brief for respondent. Before Ortega, Presiding Judge, Lagesen, Chief Judge, and Hellman, Judge.* LAGESEN, C. J. Affirmed. ____________ * Lagesen, Chief Judge vice Mooney, Senior Judge. Nonprecedential Memo Op: 341 Or App 360 (2025) 361 LAGESEN, C. J. Defendant appeals a judgment of conviction for, among other things, one count of second-degree assault, in violation ORS 163.175. The state charged that defendant com- mitted that offense by “knowingly caus[ing] physical injury to [the victim] by means of a dangerous weapon, to-wit: a boot.” On appeal, defendant raises two unpreserved assignments of error, contending that the trial court erred by (1) failing to acquit him of second-degree assault on its own motion on the ground that the evidence was insufficient to show that his footwear was a dangerous weapon; and (2) failing to instruct the jury that it had to find that defendant knew that his foot- wear had the characteristics of a dangerous weapon. Because those assigned errors are unpreserved, defendant requests that we review for plain error and exercise our discretion to correct those ostensible plain errors. We affirm. An unpreserved assignment of error is subject to review and potential correction pursuant to plain-error review if the alleged error is “obvious and not reasonably in dispute.” State v. Perez, 373 Or 591, 604, 568 P3d 940 (2025). We start by assessing defendant’s first contention, that the trial court plainly erred by failing to determine, on its own motion, that the evidence was insufficient to support a finding that defendant’s shoe was a dangerous weapon. To prove that defendant’s boot was a “dangerous weapon,” the state had to present evidence that under the circumstances in which defendant’s boot was used (stomping on the victim’s eye after pushing her to the ground), defendant’s footwear was “readily capable of causing death or serious physical injury.” ORS 161.015(1). The victim testified that defen- dant’s shoe was a Romeo work shoe: “It’s a Romeo. It’s a type of work shoe in the line of—like you’d call it country-looking wear.” The victim further testified that the boot was “pretty decent” in terms of heaviness. Finally, the victim testified that she could not open her eyes for a couple of days, that the doctor had to pry her eye open, and that her eye took a cou- ple of months to heal. Given that evidence about the nature of defendant’s shoe and the extent of injury inflicted, it is not obvious to us that the evidence about defendant’s footwear was insufficient to permit a finding that defendant’s shoe 362 State v. LaFlamme was readily capable of causing serious physical injury under the circumstances in which defendant used it. In arguing to the contrary, defendant emphasizes State v. Werder, 112 Or App 179, 828 P2d 474 (1992), in which we concluded that the evidence was insufficient to permit a finding that the defendant’s tennis shoes were used as a dangerous weapon when the defendant kicked the victim. Defendant urges us to conclude that the facts in this case are so closely aligned to those in Werder that it is neces- sarily obvious that, as in Werder, the evidence is not suffi- cient to permit a finding that the shoe was readily capable of causing serious physical injury under the circumstances in which defendant used it. In Werder, however, there was “no description of [the] tennis shoe in evidence.” Id. at 182. Here, the record offers more about the character of the shoe: a decently heavy Romeo-style work shoe.1 Given that differ- ence between the record in this case and the one in Werder, it is not obvious that Werder compels the conclusion that the evidence here is insufficient to support a finding that defendant’s shoe was a dangerous weapon under the circum- stances in which he used it. With respect to defendant’s second assignment of error, the state concedes that the trial court

No. 556 June 18, 2025 397 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1). IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. AUSENCIO ZURITA SOLANO, aka Ausencio Solano Zurita, aka Ausencio Zuritasolano, Defendant-Appellant. Clackamas County Circuit Court 19CR58379; A182148 Thomas J. Rastetter, Judge. Submitted April 21, 2025. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Daniel C. Bennett, Deputy Public Defender, Oregon Public Defense Commission, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Patricia G. Rincon, Assistant Attorney General, filed the brief for respondent. Before Ortega, Presiding Judge, Hellman, Judge, and O’Connor, Judge. O’CONNOR, J. Affirmed. 398 State v. Solano O’CONNOR, J. Defendant was convicted of first-degree rape, ORS 163.375, and two counts of first-degree sexual abuse, ORS 163.427. In defendant’s sole assignment of error, he argues that the trial court plainly erred when it allowed the pros- ecutor to make three statements in closing argument that denied him a fair trial.1 We conclude that the statements were not obviously improper and therefore affirm. In closing argument, the prosecutor made the fol- lowing statements to the jury: “And so here’s the proposition I have for you; What you saw from [the victim] yesterday on that witness stand detailing this rape and sexual abuse, that was either real raw emotion of someone doing their best to recap in front of you strangers, this [j]udge, and this courtroom what hap- pened, or it was rehearsed. It was real or rehearsed and that’s your decision today[.] “* * * * * “Does she have a motive to make this up? I told you, this comes down to her testimony ultimately, whether it is real or rehearsed, whether this is a grand conspiracy orches- trated by [the victim] or if she’s just here doing the best she can to tell you about what happened. “* * * * * “[W]as [the victim]’s testimony, was her description here what happened, was it real or rehearsed? Is this a grand conspiracy by [the victim] to set up someone that was no longer in her life[?]” Defendant did not object to the statements during trial. To reach an unpreserved error as plain error, we must determine that the assigned error is (1) one of law; (2) obvi- ous and not reasonably in dispute; and (3) apparent on the face of the record. State v. Chitwood, 370 Or 305, 311, 518 P3d 903 (2022). If the error is plain, we may exercise our discretion to correct it if the prosecutorial statements were 1 Defendant asserts that the statements were made in the state’s closing rebuttal, which made them all the more prejudicial because it left him without an opportunity to respond during the trial. However, our review of the record shows that the prosecutor made the statements in the state’s first closing argument. Nonprecedential Memo Op: 341 Or App 397 (2025) 399 “so prejudicial that they deprived defendant of a fair trial.” Id. at 314. In defendant’s view, the prosecutor’s statements were obviously improper because they improperly shifted the burden to defendant by suggesting that defendant failed to show evidence to undermine an element, disparaged defense counsel and mischaracterized their role, commented on defendant’s exercise of his constitutional rights, and imper- missibly urged the jury to decide the case on an improper basis. Defendant argues that even if he had objected to the “numerous comments,” a curative instruction from the trial court could not have overcome their cumulative prejudicial effect. The state responds that the statements were not obvi- ously improper, and even if they were, the comments were not so prejudicial as to be incurable with a jury instruction and deprive defendant of a fair trial. A prosecutor may not “encourage the jury to decide the case on an improper basis,” Chitwood, 370 Or at 315; give personal opinions on witness credibility, State v. Sperou, 365 Or 121, 134, 442 P3d 581 (2019); or make statements about the jury’s fact-finding function that are likely to confuse the jury, State v. Totland, 296 Or App 527, 530-31, 438 P3d 399, rev den, 365 Or 502 (2019). However, a prosecutor has “wide latitude to make arguments from the evidence,” and they may “argue that the jury should regard a witness as cred- ible (or not) based on, for instance, the witness’s demeanor and