Dunning’s 2009 convictions reversed
Last week the Oregon Court of Appeals reversed Donna Carol Dunning’s 2009 convictions for attempted murder and assault in a Jan. 18, 2007, incident on Wallowa County’s rugged Buford Ridge.
Two men, including Dunning’s cousin Dennis Beach and her friend Shane Huntsman, died in the incident, which was essentially a confrontation over cattle. Huntsman shot Beach off of a horse and Beach’s son, Travis, subsequently shot Huntsman.
Dunning, now 63, was accused of beating Travis Beach over the head with a rock during his struggle with Huntsman over the rifle. She was found guilty in a jury trial held in Wallowa County Circuit Court in February 2009, and was sentenced to more than seven years in prison.
Her case has been remanded back to the circuit court for a new trial.
In a decision written by presiding judge P.J. Schuman, the appeals court found that the trial court had erred in allowing then-Wallowa County Sheriff’s deputy Eric Kozowski to testify as an expert witness on memory. The appeals court noted that there were only two living witnesses to the events on Buford Ridge – Dunning and Travis Beach – and their versions differed dramatically.
According to Schuman’s written account, Beach’s statements to emergency responders shortly after the incident did not include the assault allegation against Dunning. “He did not say at that time that defendant hit him with the rock; he made that allegation for the first time five days later, after retaining counsel,” the judge wrote.
During the trial, Kozowski testified that as time passes after a traumatic event, a person’s memory of that event improves.
After analyzing the police officer’s qualifications, the appeals court agreed with the defense that Kozowski did not qualify as an expert on the subject of changing memory after a traumatic event.
The appeals court also stated that as an “expert witness” testifying to help minimize one of the prosecution’s weaknesses – the changing memory of its only eyewitness – Kozowski’s testimony potentially affected the verdict in the trial.
“On this record, we are unable to conclude that there was little likelihood that his testimony affected the verdict. We must therefore reverse and remand,” the appeal opinion states.
The defendant, through defense attorney Wes Williams of La Grande, appealed her conviction on the basis of three assignments of error, including the question of the police officer’s memory expert status.
The other two appeal issues, which the appeals court dismissed, were the trial court’s refusal to allow the defense to impeach Travis Beach by questioning him about his probationary status, and its denial of the defense’s request to cross-examine Travis Beach on his criminal record.
Wes Williams said his client remains incarcerated at Coffee Creek Correctional Facility in Wilsonville.
Williams said he believes Dunning is innocent of the charges against her “factually and legally, and she has been wrongfully incarcerated.”
Dunning was sentenced to 70 months for the aggravated assault charge and 90 months for the attempted murder charge, both to run concurrently. Her attorney filed a motion to release Dunning, pending a new trial, Friday, Sept. 23, just two days after receiving the appeals court opinion.
Wallowa County District Attorney Mona K. Williams said that the state appellant division still has several options, including asking the Oregon Supreme Court to review the appeals court’s reversal, before the appeal decision is final.
The district attorney said it is “premature” to decide about whether to try Dunning again.
© 2011 Wallowa County Chieftain