author: POWERS, J.

text:
    Donald R. MORRIS and Lisa Ann Morris, nka Lisa Ann Snider, Plaintiffs-Appellants, v. Timothy R. KANNE and Susan M. Lind, Defendants-Respondents.
    A160272
    Court of Appeals of Oregon.
    Argued and submitted April 26, 2017. January 16, 2019
    Kenneth P. Childs, Portland, argued the cause for appellants. Also on the briefs was Stoel Rives LLP.
    Mary W. Johnson argued the cause for respondents. Also on the brief was Mary W. Johnson, P. C.
    Before DeVore, Presiding Judge, and Powers, Judge, and Garrett, Judge pro tempore.

      Powers, J., vice Duncan, J. pro tempore.

   POWERS, J.

In this property dispute between two neighbors, plaintiffs appeal from a general judgment arguing, among other things, that the trial court erred in granting summary judgment to defendants on plaintiffs' claim for adverse possession and denying plaintiffs' cross-motion for summary judgment on the same claim. Plaintiffs further assert that the trial court erred in awarding defendants an enhanced prevailing party fee, and that the trial court erred in awarding attorney fees to defendants in a supplemental judgment. We conclude that, viewing the evidence in the light most favorable to plaintiffs, plaintiffs failed to produce evidence of hostility for purposes of adverse possession and, as such, the trial court did not err in granting summary judgment to defendants on plaintiffs' claim for adverse possession. We further conclude that the trial court erred in awarding defendants $2,500 as an enhanced prevailing party fee without providing a sufficient explanation of the basis for its decision, and that the trial court erred in considering the factors listed in ORS 20.075 when it made its determination on whether to award attorney fees under ORS 20.105(1). Thus, we vacate and remand the enhanced prevailing party fee and the award of attorney fees, and otherwise affirm the judgments.

In an appeal arising from cross-motions for summary judgment, the granting of one motion and the denial of the other are both reviewable. Eden Gate, Inc. v. D&L Excavating & Trucking, Inc. , 178 Or. App. 610, 622, 37 P.3d 233 (2002). Where, as here, plaintiffs assign error to both the granting of defendants' motion and the denial of plaintiffs' motion, we review each motion to determine "whether there are any disputed issues of material fact and whether either party was entitled to judgment as a matter of law." Vision Realty, Inc. v. Kohler , 214 Or. App. 220, 222, 164 P.3d 330 (2007). There is no genuine issue of material fact if, based on the record, "no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment." ORCP 47 C. "In determining whether a genuine factual dispute exists, we review the record in the light most favorable to the nonmoving party" and draw all reasonable inferences in the nonmoving party's favor. Whalen v. American Medical Response Northwest , 256 Or. App. 278, 280, 300 P.3d 247 (2013). We state the facts below in a manner consistent with those standards.

The parties own adjoining tracts of land in Clackamas County that were once part of a single parcel of land owned by the Carsons. The property in dispute is a strip of land-a driveway approximately 18.5 feet wide-that has fences running parallel on either side. The fence to the east of the driveway, the disputed fence, was built by the Carsons before either of the parties in this case acquired their respective properties. The properties are configured as follows:

In 1963, the Carsons partitioned their property, selling one tract to plaintiff Donald Morris, while retaining the other tract. Morris later granted an undivided one-half interest in his tract to his daughter, plaintiff Lisa Snider (hereinafter collectively referred to as plaintiffs). According to plaintiffs' deeds-both the 1963 deed and the later deed that granted Snider an interest in the property-the eastern boundary of their property did not align with the disputed fence line, nor did it align with the parallel fence line; rather, the boundary fell within the strip of land between the two fences.

In 1965, the Carsons sold their remaining tract to the Husemans, who in 1997 sold it to defendants, Timothy Kanne and Susan Lind. According to defendants' deed, the western boundary did not align with either fence line; rather, the boundary aligned with the eastern boundary of plaintiffs' tract and fell within the strip of land between the two fences.

In 1983, the Husemans asked Morris to replace the disputed fence. At that time, Morris suggested that a survey be done to verify the true boundary location because he believed that neither property had been surveyed officially. The survey, however, was not completed, and the Husemans erected a new fence in the same location.

In 2011, Morris fenced over the gates in the disputed fence and electrified that portion of the fence. Before 2011, the gates remained unlocked, and defendants and their predecessors occasionally used the gates to access the adjoining property. The parties disputed the extent and frequency of that use; however, the parties agreed that access was available and that both parties engaged in uses of the disputed strip without interference from the other on occasion. The parties further agreed that there is a separate driveway that served as defendants' primary access route to their property.

In 2013, plaintiffs obtained a survey of their property, which revealed that the boundary line fell between their property and defendants' property, roughly in the middle of the narrow strip between the two fences. Defendants also got a survey of the tract, which revealed that the boundary line was in the same location as plaintiffs' survey. Plaintiffs then initiated this action that sought title of the entire disputed driveway to the east fence.

Plaintiffs' complaint asserted five legal theories, the focus of which was to lay claim to title over the disputed driveway: (1) boundary by agreement; (2) boundary by acquiescence; (3) adverse possession; (4) trespass to land; and (5) trespass to chattels. Defendants responded by asserting a number of counterclaims asserting their right over the disputed driveway. On cross-motions for summary judgment, the trial court disposed of plaintiffs' first three claims, claims (1) to (3) above, by granting defendants' summary judgment motion and denying plaintiffs' cross-summary judgment motion on the same basis, and that ruling rendered claims (4) and (5) moot.

In granting defendants' summary judgment motion on plaintiffs' claim for adverse possession, the trial court focused on the element of hostility. "Based on the evidence in the record," the trial court concluded, "no reasonable juror could find that [plaintiffs] established an intent to appropriate the disputed land to themselves, to the exclusion of all others, at any time prior to 2011, even in the light most favorable to [plaintiffs]." The trial court explained that the evidence submitted by plaintiffs was that "there was never any conflict between the neighboring property owners about the disputed fence or the strip of land to the west of it, until 2011 when [plaintiffs] fenced over the gates and electrified that section of fencing."

The parties then proceeded to trial, after which the court, among other things, allowed defendants' claim for attorney fees and an enhanced prevailing party fee on the ground that plaintiffs' claims were objectively unreasonable. Plaintiffs now appeal.

On appeal, plaintiffs raise six assignments of error. We write to discuss only three: the trial court's grant of summary judgment to defendants on plaintiffs' adverse possession claim; the trial court's award of an enhanced prevailing party fee to defendants; and the trial court's award of attorney fees to defendants. We reject plaintiffs' remaining assignments of error without written discussion.

To prevail on a claim of adverse possession at common law, claimants must "prove by clear and convincing evidence that they, or they and their predecessors in interest, maintained actual, open, notorious, exclusive, hostile, and continuous possession of the property for a ten-year period." Stiles v. Godsey , 233 Or. App. 119, 124, 225 P.3d 81 (2009).

On appeal, plaintiffs argue that the trial court erred in concluding that there was insufficient evidence of hostility. The element of hostility-whether the use is hostile to the interests of the owner-can be established in one of two ways. One way that a claimant can establish hostility is if the claimant can demonstrate that he or she subjectively intended to possess the property as the owner, not in subordination to the true owner. Hoffman v. Freeman Land and Timber, LLC. , 329 Or. 554, 561, 994 P.2d 106 (1999) ; see Sertic v. Roberts , 171 Or. 121, 134, 136 P.2d 248 (1943) ("Adverse possession depends upon the intent of the occupant to claim and hold real property in opposition to all the world."). Another way that a claimant can establish hostility is by relying on the "pure mistake" doctrine, which does not require an inquiry into the claimant's subjective intent to possess the property as the true owner. Faulconer v. Williams , 327 Or. 381, 389, 964 P.2d 246 (1998). To the extent that plaintiffs' hostility argument on appeal relies on the "pure mistake" doctrine, it does not provide a basis to reverse the trial court's ruling, because that argument was not raised during the summary judgment proceedings. See State v. Wolfgang , 278 Or. App. 781, 786, 379 P.3d 759, rev. den. , 360 Or. 465, 384 P.3d 157 (2016) ("Arguments on appeal will be deemed unpreserved if they present discrete legal theories that could, and should, have been raised below." (Internal quotation marks and citation omitted.) ); see also Fisher v. Angelozzi , 285 Or. App. 541, 550, 398 P.3d 367 (2017) (concluding that we will not consider an alternative basis for affirmance "if the losing party might have created a different record below had the prevailing party raised that issue, and that record could affect the disposition of the issue" (emphasis and citation omitted) ). To the extent that plaintiffs reprise their contention that they subjectively intended to possess the property as the true owner, the material facts are undisputed, leaving a question of law as to how to construe those facts. We conclude that those facts do not show hostility for purposes of adverse possession.

According to plaintiffs, the eastern fence was treated as a boundary line since Morris purchased their property. Plaintiffs asserted that, until the survey was completed, defendants "never raised any issues * * * about the location of the boundary" and that the fence always was treated as the true boundary. Plaintiffs acknowledged that two unlocked gates existed in the disputed fence, but asserted that "it is exceedingly rare that they have been used" and that defendants never used them without their knowledge. Plaintiffs further asserted that defendants and their predecessors primarily used a different driveway to access their property and that the gates in the disputed fence were used only on rare occasions to allow interaction and cooperation with their various neighbors residing on the adjoining property. Plaintiffs contended that they regularly have occupied, maintained, and used the disputed property and that defendants never attempted to occupy or possess the disputed strip of property until plaintiffs commenced this action.

Even viewed in the light most favorable to plaintiffs, the evidence in the record falls short of creating a genuine issue of material fact that plaintiffs' use of the disputed property is hostile to the interests of defendants. Plaintiffs' maintenance and use of the disputed strip of land does not suggest hostility because plaintiffs' use was not inherently inconsistent with defendants' rights as the true owner. Nothing about plaintiffs' use of the disputed property would suggest to a true owner that plaintiffs were attempting to indicate a claim of right to their property. The evidence concerning the construction and replacement of the fence is not, in and of itself, sufficient to create an issue of fact concerning hostility. This is not a case where the existence of a fence purports to communicate an intent to appropriate land. Although construction of a fence can suffice to indicate hostility, see Slak v. Porter , 128 Or. App. 274, 280-81, 875 P.2d 515 (1994), it is undisputed that the fence's original construction predated the parties' ownership of their respective parcels. Plaintiffs' mere use and occasional maintenance of the gravel on the disputed property is not significant enough to convey to defendants that plaintiffs subjectively intended to possess the property as the true owner. Additionally, plaintiffs' assertions that defendants never affirmatively attempted to occupy the disputed property or never raised any issues about plaintiffs' use of the disputed property are misguided, as it is plaintiffs' burden to establish ownership.

Thus, even assuming that the other elements of adverse possession were met, plaintiffs did not present evidence such that an objectively reasonable juror could find that plaintiffs intended to claim the strip of land against defendants' interests as the true owners for the requisite 10-year period. Plaintiffs' conduct and use of the strip was not significant enough to constitute evidence that plaintiffs used the land intending to be its true owner and not in subordination to the true owner. Therefore, plaintiffs failed to offer evidence that their use was hostile, and their claim for adverse possession must fail. The trial court did not err in granting summary judgment to defendants on plaintiffs' claim for adverse possession or in denying plaintiffs' cross-motion for summary judgment on the same claim.

Next, plaintiffs assign error to the trial court's award of an enhanced prevailing party fee to defendants in the amount of $2,500. Plaintiffs argue that the enhanced prevailing party fee was legal error, because the court did not properly consider the factors laid out in ORS 20.190(3). According to plaintiffs, the explanation given in the trial court's letter opinion for the enhanced prevailing party fee is insufficient.

Because ORS 20.190(3) provides that the court may award an enhanced prevailing party fee, we review the ultimate decision whether to award an enhanced prevailing party fee for an abuse of discretion. Shumake v. Foshee , 197 Or. App. 255, 260-61, 105 P.3d 919 (2005). That decision, however, depends on the court's evaluation of the ORS 20.190(3) factors, some of which involve findings of fact-which will be reviewed for any evidence-and some of which involve legal determinations-which will be reviewed for legal error. Id. at 261, 105 P.3d 919.

"[F]indings regarding fees need not be complex or lengthy and may be made in any terms clear enough to permit meaningful review. Brief descriptions of, or citation to, the factor or factors involved would be sufficient." Wright v. Jones , 155 Or. App. 249, 253, 964 P.2d 1048 (1998) (internal citation omitted). On the other hand, findings that are too conclusory preclude our ability to conduct meaningful review. For example, in Seida v. West Linn-Wilsonville School District 3 J T , 169 Or. App. 418, 429, 9 P.3d 150 (2000), we vacated and remanded the enhanced prevailing party fee because the trial court's findings were too conclusory. In that case, the trial court found that

"(1) plaintiff's claim lacked objective reasonableness, (2) an award of the larger prevailing party fee would not deter others from asserting good faith claims in similar cases and (3) an award of the larger prevailing party fee might deter future meritless claims of this sort."

Id . at 428, 9 P.3d 150. Applying the requirements of McCarthy v. Oregon Freeze Dry, Inc. , 327 Or. 84, 957 P.2d 1200, adh'd to as clarified on recons. , 327 Or. 84, 957 P.2d 1200 (1998), we concluded that we were unable to review the court's application of the factors in ORS 20.190(3), because the trial court's findings were "too conclusory; they do not express the court's reasons as to why plaintiff's claims lacked objective reasonableness, or why the court believed that they were not brought in good faith, or why other statutory grounds for the fee were applicable." Seida , 169 Or. App. at 429, 9 P.3d 150.

In this case, the trial court's findings were similarly conclusory. The trial court found,

"[b]ased on the record of the case, and specifically the Motions for Summary Judgment, it is clear that Defendants are the prevailing parties. The court finds that Plaintiffs lacked any objectively reasonable basis to assert their claims on this case. Therefore, the Court finds for Defendants as to their request for enhanced prevailing party fees and awards prevailing party fees in the amount of $2500."

The trial court did not explain why plaintiffs' claims were objectively unreasonable and the court did not cite to any of the other factors listed in ORS 20.190(3) in its explanation for the fee award. Because we are unable to conduct a meaningful review of the court's award, we vacate the enhanced prevailing party fee award and remand to the trial court.

Finally, plaintiffs assign error to the trial court's award of attorney fees to defendants under ORS 20.105, which provides that the court shall award reasonable attorney fees to the prevailing party upon a finding by the court that "there was no objectively reasonable basis for asserting the claim." According to plaintiffs, the attorney fee award was in error because the trial court applied the incorrect legal standard after making a finding that plaintiffs' claims lacked an objectively reasonable basis. "[W]hether a claims lacks an objectively reasonable basis is a legal question, and we review the trial court's ruling on that question for legal error." Williams v. Salem Women's Clinic , 245 Or. App. 476, 482, 263 P.3d 1072 (2011).

After trial, the court issued a letter opinion concluding that

"[b]ased on the record of the case, and specifically the Motions for Summary Judgment, it is clear that Defendants are the prevailing parties. The court finds that Plaintiffs lacked any objectively reasonable basis to assert their claims on this case."

The court then entered a general judgment, which provided defendants the opportunity to file a statement for costs and fees pursuant to ORS 20.105(1). After reviewing defendants' statement for costs and fees and plaintiffs' objections, the court entered a supplemental judgment, along with a letter opinion explaining the reasons for awarding fees. In particular, the court explained, "In determining whether to award attorney fees in this case, the court considered the following statutory factors[.]" (Emphasis added.) The court then discussed the factors listed in ORS 20.075(1) and (2). Although both subsections (1) and (2) could be appropriate when considering the amount of attorney fees when fees shall be awarded, subsection (1) is not appropriate when determining "whether" fees are to be awarded.

ORS 20.105(1) requires a court to award reasonable attorney fees "upon a finding by the court that * * * there was no objectively reasonable basis for asserting the claim." ORS 20.075(1), on the other hand, provides that the "court shall consider the following factors in determining whether to award attorney fees in any case in which an award of attorney fees is authorized by statute and in which the court has discretion to decide whether to award attorney fees." (Emphases added.) Thus, as plaintiffs point out, an attorney fee award under ORS 20.105(1) is a mandatory award upon a finding that a claim lacks an objectively reasonable basis, whereas ORS 20.075(1) is applied only to discretionary awards.

In Williams , we held that the trial court "strayed from the correct analysis" when determining whether the record was entirely devoid of support for the party's claim, as required by ORS 20.105(1), and instead identified ORS 20.075 factors that it took into account when awarding fees. 245 Or. App. at 482, 263 P.3d 1072. We explained that

"[t]he factors listed in the trial court's letter opinions reflect those specified in ORS 20.075, which apply when another source of law gives a court discretion to award attorney fees. ORS 20.075(1). But those factors do not apply to a court's decision whether to award fees when, as here, a party seeks a mandatory attorney fee award under ORS 20.105(1).
"When a trial court has applied an incorrect legal standard in assessing a party's claim, we sometimes remand so the trial court may apply the correct standard in the first instance. When the standard is purely legal, however, in the interest of judicial economy, we often apply the legal standard ourselves instead of remanding."

Williams , 245 Or. App. at 483, 263 P.3d 1072 (emphases in original; internal citations and footnote omitted).

Given our decision to vacate the enhanced prevailing party fee award and remand so that the trial court may consider that award under the factors in ORS 20.190(3), we conclude that the appropriate disposition with regard to attorney fees under ORS 20.105 is to vacate and remand so that the trial court can clarify and apply the correct standard as to whether to award attorney fees. See Williams , 245 Or. App. at 486, 263 P.3d 1072 ("[T]he objective reasonableness factor that a trial court must consider in determining whether [an enhanced prevailing party] fee award is appropriate requires the same analysis as the single issue that matters under ORS 20.105(1) -whether a party had no objectively reasonable basis for asserting the claim." (Internal quotation marks omitted.) )

Award of enhanced prevailing party fee under ORS 20.190(3) and award of attorney fees under ORS 20.105(1) vacated and remanded; otherwise affirmed.

      Plaintiffs assert on appeal that their claim vested in 1973 or, alternatively, in 1983. Adverse possession claims vesting before January 1, 1990, are governed by the common law, whereas claims vesting after that date are governed by ORS 105.620. Nooteboom v. Bulson , 153 Or. App. 361, 364 n. 1, 956 P.2d 1042, rev. den. , 327 Or. 431, 966 P.2d 222 (1998). In enacting ORS 105.620, the legislature codified the six common-law elements of adverse possession and "added one more-a person claiming adverse possession must have an honest belief throughout the 10-year period that he or she is the actual owner." Sea River Properties, LLC v. Parks , 355 Or. 831, 855, 333 P.3d 295 (2014). To the extent that plaintiffs argue in the alternative that we should look at any 10-year period during their ownership of the adjacent parcel, they do not make any distinction between their common law claim and any statutory claim.

      ORS 20.190(3) provides:
      "In addition to the amounts provided for in subsection (2) of this section, in any civil action or proceeding in a circuit court in which recovery of money or damages is sought, the court may award to the prevailing party up to an additional $5,000 as a prevailing party fee. The court shall consider the following factors in making an award under the provisions of this subsection:
      "(a) The conduct of the parties in the transactions or occurrences that gave rise to the litigation, including any conduct of a party that was reckless, willful, malicious, in bad faith or illegal.
      "(b) The objective reasonableness of the claims and defenses asserted by the parties.
      "(c) The extent to which an award of a larger prevailing party fee in the case would deter others from asserting good faith claims or defenses in similar cases.
      "(d) The extent to which an award of a larger prevailing party fee in the case would deter others from asserting meritless claims and defenses.
      "(e) The objective reasonableness of the parties and the diligence of the parties and their attorneys during the proceedings.
      "(f) The objective reasonableness of the parties and the diligence of the parties in pursuing settlement of the dispute.
      "(g) Any award of attorney fees made to the prevailing party as part of the judgment.
      "(h) Such other factors as the court may consider appropriate under the circumstances of the case."

      ORS 20.105(1) provides:
      "In any civil action, suit or other proceeding in a circuit court or the Oregon Tax Court, or in any civil appeal to or review by the Court of Appeals or Supreme Court, the court shall award reasonable attorney fees to a party against whom a claim, defense or ground for appeal or review is asserted, if that party is a prevailing party in the proceeding and to be paid by the party asserting the claim, defense or ground, upon a finding by the court that the party willfully disobeyed a court order or that there was no objectively reasonable basis for asserting the claim, defense or ground for appeal."


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Oregon, Plaintiff-Respondent, v. Trena Annjelic HARPER, Defendant-Appellant.
    A161642
    Court of Appeals of Oregon.
    Submitted November 21, 2017. February 13, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Sarah De La Cruz, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Leigh A. Salmon, Assistant Attorney General, filed the brief for respondent.
    Before Ortega, Presiding Judge, and Powers, Judge, and Garrett, Judge pro tempore.
    GARRETT, J. pro tempore Defendant appeals a judgment of conviction for possession of methamphetamine, ORS 475.894, raising three assignments of error. We reject the first assignment without discussion and write to address the second and third assignments, in which defendant argues that the trial court erroneously denied her motion for a judgment of acquittal (MJOA) and incorrectly instructed the jury. Both assignments of error rely on defendant's contention that the state was required to prove that she knew that the illicit substance she possessed was methamphetamine. We agree with defendant's interpretation of the statute and therefore reverse and remand her conviction on count one for possession of methamphetamine.
    Where, as here, a challenge to the denial of a MJOA "turns on questions of statutory construction," we review for legal error. State v. Girard , 284 Or. App. 845, 847, 395 P.3d 645 (2017) (citing State v. Hunt , 270 Or. App. 206, 210, 346 P.3d 1285 (2015) ). "Then, based on the proper construction of the statute, we view the evidence in the light most favorable to the state to determine whether a rational factfinder could have found the elements of the offense beyond a reasonable doubt." State v. Holsclaw , 286 Or. App. 790, 792, 401 P.3d 262, rev. den. , 362 Or. 175, 406 P.3d 610 (2017). We also review the trial court's jury instructions for legal error. State v. Sparks , 267 Or. App. 181, 195, 340 P.3d 688 (2014), rev. den. , 357 Or. 325, 354 P.3d 697 (2015) (citing State v. Barnes , 329 Or. 327, 333, 986 P.2d 1160 (1999) ). "A trial court commits reversible error when it incorrectly instructs the jury on a material element of a claim or defense and that instructional error permits the jury to reach a legally erroneous result." Id. (citing Wallach v. Allstate Ins. Co ., 344 Or. 314, 326, 329, 180 P.3d 19 (2008) ).
    The facts relevant to our review are undisputed. Defendant was arrested following an altercation with a family member. During an inventory search of defendant's purse, officers found methamphetamine and a methamphetamine pipe. Defendant was charged with possession of methamphetamine, ORS 475.894(1).
    At trial, defendant testified that, at the time of the search, she did not know that the substance in her purse was methamphetamine. She testified that she believed the substance was "crackle or shatter or some type of THC product" left in her purse by friends. Deputy Iverson, one of the arresting officers, testified that he formed the belief at the scene that defendant was under the influence of methamphetamine at the time. He based that belief on defendant's behavior-she was agitated and hostile, had rapid arm movements, was sweating, and her speech was animated-which, according to his training and experience as a drug recognition expert, was consistent with methamphetamine intoxication. Deputy Zaugg, another arresting officer, testified that after the substance tested positive for methamphetamine at the scene, defendant did not appear to be surprised when Zaugg informed her that she was being charged with possession of methamphetamine.
    Defendant moved for a judgment of acquittal, arguing that she lacked the requisite mental state under ORS 475.894(1) (making it "unlawful for any person knowingly or intentionally to possess methamphetamine") because she did not know that the substance in her purse was methamphetamine. After her MJOA was denied, defendant objected to the state's proposed jury instructions on the same substantive ground. The trial court overruled her objection and issued the following jury instruction:

      Defendant was also convicted of resisting arrest, ORS 162.315. Defendant does not assign error to that part of the judgment.

      ORS 475.894 was amended in 2017, see Or. Laws 2017, ch. 706, § 15. Because the amendment does not affect our analysis, we refer to the current version in this opinion.

   "In this case the State must prove beyond a reasonable doubt that the defendant knew of both the presence and the narcotic or illicit nature of the substance. The State does not need to prove that the defendant knew the specific identity of the substance."

The jury found defendant guilty of possession of methamphetamine.

On appeal, defendant reprises the argument she made below. As we understand it, defendant neither disputes that the evidence was sufficient to support a finding that she knowingly possessed a controlled substance nor does she dispute that that substance was, in fact, methamphetamine. Her narrow argument is that, to convict a person of the specific offense of possession of "methamphetamine" under ORS 475.894, the state must prove that the person knew that the substance in his or her possession was methamphetamine specifically, as opposed to a controlled substance generally. That is, defendant argues that the identity of the substance as "methamphetamine" is a material element of the offense to which the required mental state of "knowingly or intentionally" applies. The state disagrees.

Defendant's argument relies on ORS 161.095(2), which provides:

"Except as provided in ORS 161.105 , a person is not guilty of an offense unless the person acts with a culpable mental state with respect to each material element of the offense that necessarily requires a culpable mental state."

(Emphases added.) The state, in turn, relies on ORS 161.105, which provides, in relevant part:

"(1) Notwithstanding ORS 161.095, a culpable mental state is not required if:
"* * * * *
"(b) An offense defined by a statute outside the Oregon Criminal Code clearly indicates a legislative intent to dispense with any culpable mental state requirement for the offense or for any material element thereof."

(Emphases added.)

There is no dispute that ORS 475.894 is "outside the Oregon Criminal Code" for purposes of ORS 161.105(1)(b). See ORS 161.005 (listing statutes constituting the Oregon Criminal Code). Therefore, we ask whether ORS 475.894(1)"clearly indicates a legislative intent to dispense with any culpable mental state requirement for the offense or any material element thereof." ORS 161.105(1)(b) ; see also State v. Rainoldi , 351 Or. 486, 268 P.3d 568 (2011). If the answer is yes, our analysis ends. Rainoldi , 351 Or. at 491, 268 P.3d 568. If the answer is no, "then the offense is treated as if it were part of the Oregon Criminal Code, subject to the requirement of ORS 161.095(2)." Id.

Because "the legislature has provided no guidance about how we should determine whether an offense 'clearly indicates' such legislative intent," the Supreme Court has identified a nonexhaustive list of factors to consider: (1) the text of the statute, (2) the nature of the element at issue, (3) the legislative history, and (4) the purpose of the statute. Id. at 492-95, 268 P.3d 568.

Here, the text of the statute is dispositive. See State v. Wiborg , 285 Or. App. 131, 137, 396 P.3d 258 (2017) (beginning and ending analysis with the text of the statute because it precluded "a determination that ORS 165.570(1) 'clearly indicates a legislative intent to dispense with' a culpable mental state"). ORS 475.894(1) provides, in part, "[i]t is unlawful for any person knowingly or intentionally to possess methamphetamine * * *." We have described similarly structured statutes as ambiguous because " '[a]s a matter of grammar * * * it is not at all clear how far down the sentence the word "knowingly" is intended to travel.' " State v. Schodrow , 187 Or. App. 224, 229-30, 66 P.3d 547 (2003) (quoting Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law § 27, 193 (1972)). That is, it is unclear at first blush whether, to be convicted, a defendant need only knowingly or intentionally possess a substance that turns out to be methamphetamine or whether the defendant must also know (or intend) that the substance is methamphetamine.

We resolved that ambiguity in Schodrow. In that case, ORS 166.250(1) provided that it was unlawful for a person to "knowingly carr[y] any firearm concealed upon the person." Schodrow , 187 Or. App. at 229, 66 P.3d 547. The question on appeal was whether the "defendant need only knowingly carry an object that turns out to be a firearm or whether the defendant must also know that the object is a firearm." Id. at 228, 66 P.3d 547 (emphasis in original). We relied on the statutory definition of "knowingly" to resolve the ambiguity. ORS 161.085(8) provides that:

" 'Knowingly' or 'with knowledge,' when used with respect to conduct or to a circumstance described by a statute defining an offense, means that a person acts with an awareness that the conduct of the person is of a nature so described or that a circumstance so described exists ."

(Emphasis added). We concluded that:

"By force of that definition, to knowingly 'carry a firearm' requires more than the person's awareness that he or she is engaged in the conduct of carrying an object of some or any kind. Instead, either because carrying 'a firearm' is an aspect of the nature of the conduct or a circumstance described by the statute, a person must also be aware that the object he or she is carrying is a firearm. That awareness requires, in turn, knowledge that the weapon has the characteristics of a firearm-namely, as relevant to defendant's challenge, that it is readily capable of use as a weapon. See ORS 166.210(2).
"To conclude otherwise would render the prescribed culpable mental state a nullity and would effectively convert the crime into a strict liability offense. Under ORS 161.095(1), the 'minimal requirement for criminal liability' is performance by a person of conduct that includes a 'voluntary act' or failure to act. A 'voluntary act' means 'a bodily movement performed consciously and includes the conscious possession or control of property.' ORS 161.085(2). Thus, even if the legislature were to have dispensed with a culpable mental state for the crime of unlawful possession of a firearm-which it expressly did not-the state would be required to prove that the defendant was carrying property consciously, even if he or she was unaware of the nature of that property being carried (i.e. , that it was a firearm). Necessarily, then, for the prescribed mental state of "knowingly" to add anything to the crime's definition, it must modify more than the conduct of carrying an object or property and must extend as well to the nature of the object or property carried."

Schodrow , 187 Or. App. at 230-31, 66 P.3d 547.

Our reasoning in Schodrow applies with equal force here. Possessing "methamphetamine" is "an aspect of the nature of the conduct or a circumstance described by" ORS 475.894(1). Id. at 230, 66 P.3d 547. Indeed, it is the only circumstance to which the statute is addressed. As such, to be liable under that statute, a person must act with knowledge or intent as to the sole circumstance-possession of methamphetamine-that the statute covers. As in Schodrow , if the state were correct that the culpable mental state does not apply to the nature of the thing possessed, then the culpable mental state would add nothing to the statute. Thus, we conclude that the statute does not "clearly indicate" an intent to dispense with the mental state requirement as it pertains to possession of the prohibited substance, methamphetamine.

In resisting that conclusion, the state argues that this case is controlled by State v. Engen , 164 Or. App. 591, 993 P.2d 161 (1999), rev. den. , 330 Or. 331, 6 P.3d 1101 (2000) (holding that under former ORS 475.992 (1999), renumbered as ORS 475.752 (2011), which prohibited knowing possession of a "controlled substance," "the state is not required to prove a defendant's knowledge of the particular type of controlled substance possessed"). But that case involved a different statute prohibiting the possession of a "controlled substance." With ORS 475.894(1), the legislature has chosen to specifically prohibit the possession of "methamphetamine." As explained above, the legislature's choice of culpable mental state must apply to the only circumstance to which the statute is addressed, or the statute is rendered incoherent.

The state also argues that the legislative history of ORS 475.894 indicates that the legislature did not intend to apply a culpable mental state to the methamphetamine element of ORS 475.894(1). Even assuming, without deciding, that that is true, there is no way to interpret the statute in the way that the state proposes without either rendering the mental state a "nullity," Schodrow , 187 Or. App. at 230, 66 P.3d 547, or effectively replacing the word "methamphetamine" with another phrase, such as "controlled substance." We decline to interpret the statute "in a way that is inconsistent with its plain text." Suchi v. SAIF , 238 Or. App. 48, 55, 241 P.3d 1174 (2010), rev. den. , 350 Or. 231, 253 P.3d 1080 (2011) (citing State v. Gaines , 346 Or. 160, 173, 206 P.3d 1042 (2009) ); see also ORS 174.010 ("In the construction of a statute, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to assert what has been omitted, or to omit what has been inserted * * *."); Faverty v. McDonald's Restaurants , 133 Or. App. 514, 533, 892 P.2d 703 (1995), rev. dismissed , 326 Or. 530, 971 P.2d 407 (1998) ("Inchoate intentions are not law, only those intentions that are manifested in language that is enacted.").

Because the statute does not clearly indicate a legislative intent to dispense with the culpable mental state, we next determine whether methamphetamine is a "material element of the offense that necessarily requires a culpable mental state." ORS 161.095(2). We readily conclude that the character of the prohibited substance as "methamphetamine" is a material element of the offense. See State v. Simonov , 358 Or. 531, 537, 368 P.3d 11 (2016) (citing State v. Blanton , 284 Or. 591, 595, 588 P.2d 28 (1978) ) ("An element is 'material' unless it relates 'solely to the statute of limitations, jurisdiction, venue' or similar matters."). The only remaining question is whether that element "necessarily requires a culpable mental state." ORS 161.095(2).

An element necessarily requires proof of a culpable mental state if it "concern[s] the substance or quality of the crime-the harm or evil sought to be prevented, but not for elements concerning venue, jurisdiction, statute of limitations, or something similar." State v. Wier , 260 Or. App. 341, 346, 317 P.3d 330 (2013) (internal quotations omitted). Possession of methamphetamine is the sole subject matter of the statute. Thus, the mental state (knowingly or intentionally) necessarily applies.

In light of the foregoing, it was error for the trial court to instruct the jury that the state "does not need to prove that the defendant knew the specific identity of the substance." Because that instruction concerned one of the elements of the statutory offense and allowed the jury to reach an erroneous result, the error requires reversal. Wallach , 344 Or. at 329, 180 P.3d 19 ("[W]hen a trial court incorrectly instructs the jury on an element of a claim or defense and when that incorrect instruction permits the jury to reach a legally erroneous result, a party has established that the instructional error substantially affected its rights within the meaning of ORS 19.415(2).").

We reach a different conclusion, however, regarding the MJOA. Viewing the evidence in the light most favorable to the state, we conclude that a rational factfinder could conclude that defendant knew that she possessed methamphetamine. First, we note that "[p]roof of unlawful * * * possession of a controlled substance is prima facie evidence of knowledge of its character." ORS 167.238(1). See generally State v. Rainey , 298 Or. 459, 466, 693 P.2d 635 (1985) (explaining the impact of presumptions as applied to the accused in criminal cases); State v. Short , 88 Or. App. 567, 746 P.2d 742 (1987) (same); State v. Offord , 14 Or. App. 195, 512 P.2d 1375 (1973) (same). In addition, Iverson and Zaugg testified that a methamphetamine pipe was found in defendant's possession, that defendant appeared to be under the influence of methamphetamine, and that she appeared unsurprised when the officers told her that she was being charged with possession of methamphetamine. In total, the evidence was sufficient to permit a reasonable factfinder to conclude that defendant knew that the controlled substance in her possession was methamphetamine. Accordingly, the trial court did not err in denying defendant's MJOA.

Conviction on count one for possession of methamphetamine reversed and remanded; otherwise affirmed.


text:
    STATE of Oregon, Plaintiff-Respondent, v. Deborah Lee RONDEAU, Defendant-Appellant.
    A162393
    Court of Appeals of Oregon.
    Argued and submitted January 9, 2018. January 24, 2019
    Kali Montague, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
    E. Nani Apo, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.
   AOYAGI, J., Defendant was stopped for a traffic violation while bicycling. During the stop, the officer began investigating defendant for driving under the influence of intoxicants (DUII), specifically marijuana. The officer asked defendant a series of questions, which ultimately led to the seizure of methamphetamine and a pipe. Defendant was charged with unlawful possession of methamphetamine, ORS 475.894. Before trial, defendant moved to suppress the evidence on the ground that it was obtained during an unlawful extension of the stop. The state countered that the officer had reasonable suspicion of DUII and that his questions were therefore reasonable and did not unlawfully extend the stop. The trial court denied the motion. Defendant was convicted. On appeal, she assigns error to the denial of her motion to suppress. For the reasons that follow, we conclude that the trial court erred in denying defendant's motion to suppress and, accordingly, reverse and remand.

We review a trial court's denial of a motion to suppress for legal error. State v. Ehly , 317 Or. 66, 75, 854 P.2d 421 (1993). We are bound by the trial court's factual findings if they are supported by evidence in the record. Id. If the trial court did not make an express finding on a necessary fact, we presume that the court found the facts in a manner consistent with its decision. State v. Roesler , 235 Or. App. 547, 550, 234 P.3d 1004 (2010). We state the facts accordingly.

On an October night, Deputy Stevens was on patrol when he saw defendant, who was riding a bicycle, run a stop sign. Stevens stopped defendant for failing to obey a traffic control device, which is a traffic violation. Stevens immediately smelled a "heavy odor of marijuana" coming from defendant's person. Based on defendant having run a stop sign and the odor of marijuana, Stevens suspected that defendant was under the influence of intoxicants. He began to investigate a possible DUII offense.

Stevens asked defendant for her identification and at some point ran her name through dispatch. Stevens told defendant that he could smell the marijuana on her and asked when she had last smoked. Defendant replied that she had smoked "[e]arlier in the day." Based on his training and experience, Stevens did not consider that answer consistent with the odor coming from her person. Stevens asked defendant whether she had any marijuana on her. She said that she did and handed him a small sealed plastic bag of marijuana. In Stevens's experience from prior DUII and drug-related cases, once he finds one drug-related item, he is typically "able to locate additional items." He also suspected that defendant had more marijuana on her because of "the amount of marijuana that [he] was smelling coming from her person." Stevens "didn't believe, at that time, that that was all she had on her," so he asked defendant for consent to search her.

Defendant consented to a search of her person and also, at some point, to a search of at least one bag that she had with her. Stevens found more marijuana and a Bluetooth headset case. Stevens requested and obtained consent to open the headset case and, inside it, found a glass pipe that he suspected contained methamphetamine residue. Stevens asked defendant "where her meth was." Defendant denied having any methamphetamine on her. She then told Stevens that she was trying to get home for a family dinner and was concerned whether she was going to jail. Stevens told defendant that, if she gave him her methamphetamine, he would not arrest her but would just refer the matter to the district attorney's office. Defendant removed a small plastic bag of methamphetamine from her pocket and gave it to Stevens. At that time, Stevens received another call, told defendant that he would refer the matter, and departed. The stop had lasted about 22 minutes.

The state charged defendant with one count of unlawful possession of methamphetamine, ORS 475.894. Defendant moved to suppress the evidence, arguing that it was obtained during an unlawful extension of the stop in violation of Article I, section 9, of the Oregon Constitution. The state asserted that Stevens's questions were justified by reasonable suspicion of DUII and, once he found the glass pipe, by reasonable suspicion of possession of methamphetamine. Defendant conceded that Stevens had reasonable suspicion of DUII but argued that his questions about drug possession were not reasonably related to the DUII investigation and had unlawfully extended the stop.

The trial court concluded that Stevens had reasonable suspicion that defendant had committed DUII and that Stevens therefore was allowed to ask the questions that he asked. The court denied defendant's motion. Defendant then entered into a conditional plea agreement, by which she retained the right to appeal the denial of her motion to suppress. On appeal of the resulting judgment of conviction, defendant raises a single assignment of error, challenging the denial of her motion to suppress.

We begin our discussion with an overview of Article I, section 9, as relevant to stops. Article I, section 9, establishes the right of the people "to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure." A "stop" is a type of seizure, specifically "a temporary restraint of a person's liberty for the purpose of criminal investigation." State v. Rodgers/Kirkeby , 347 Or. 610, 621, 227 P.3d 695 (2010). A stop may be initiated when an officer has reasonable suspicion of criminal activity or probable cause for a noncriminal traffic violation. Id . at 621, 623, 227 P.3d 695.

With respect to a stop for a traffic violation, "[p]olice authority to detain a motorist dissipates when the investigation reasonably related to that traffic infraction, the identification of persons, and the issuance of a citation (if any) is completed or reasonably should be completed." Id. at 623, 227 P.3d 695. Police conduct that is "beyond that reasonably related to the traffic violation * * * must be justified on some basis other than the traffic violation." Id. (emphasis in original); see also State v. Watson , 353 Or. 768, 778, 780, 305 P.3d 94 (2013) (an officer's conduct during a traffic stop must be "reasonably related" to the lawful purposes of the stop and reasonably necessary to effectuate those purposes). For example, if an officer develops reasonable suspicion of criminal activity during a traffic stop, the officer may investigate the suspected crime and does not unlawfully extend the traffic stop by doing so. State v. Gomes , 236 Or. App. 364, 371-72, 236 P.3d 841 (2010) ; see also State v. Pichardo , 360 Or. 754, 760, 388 P.3d 320 (2017) (a criminal investigation "can entail a broader range of questions" than a noncriminal traffic investigation, but the inquiries must still have a "reasonable, circumstance-specific" relationship to the criminal investigation).

In order to establish that an officer's conduct during a traffic stop was reasonably related to the lawful purposes of the stop, the state must be able to point to a "reasonable, circumstance-specific" relationship between the challenged conduct and the lawful purposes of the stop. Pichardo , 360 Or. at 760, 388 P.3d 320 ; accord. Rodgers/Kirkeby , 347 Or. at 623, 227 P.3d 695 ; see also, e.g ., State v. Maciel , 254 Or. App. 530, 537, 295 P.3d 145 (2013) (traffic stop unlawfully extended when officer, who had reasonable suspicion of car theft but not drug trafficking, stopped investigating car theft to investigate drug trafficking). "Whether an officer's conduct constitutes an unlawful extension of a traffic stop is a question of law." State v. Dennis , 250 Or. App. 732, 737, 282 P.3d 955 (2012).

Existing case law illustrates what does and does not constitute a reasonable relationship between officer conduct and the lawful purposes of a stop. For example, in State v. Fair , 353 Or. 588, 609-11, 302 P.3d 417 (2013), which the state cites in its briefing, officers responded to an incomplete 9-1-1 call, arrested the defendant's husband for assault, and temporarily seized the defendant to interview her as a material witness. While questioning her, the officers checked for outstanding warrants and asked about prior arrests. The Supreme Court concluded that, on the particular facts of the case, those inquiries were "reasonably necessary to determine defendant's identity" and "served two purposes reasonably related at that point to the reasons for temporarily detaining" her. Id . at 614, 302 P.3d 417. Specifically, verifying the information in the database could potentially validate the defendant's identity, and asking about prior arrests was a way to "ascertain whether the defendant had a prior history of domestic violence," which was reasonably related to whether she or her husband was the assailant in the incident under investigation. Id.

A more recent case is State v. Miller , 363 Or. 374, 422 P.3d 240, adh'd to as modified , 363 Or. 742, 428 P.3d 899 (2018). The defendant in that case was lawfully stopped on suspicion of DUII. Id. at 379, 422 P.3d 240. After conducting a records check and before administering field sobriety tests, the deputy asked the defendant whether he had a firearm. Id. at 377, 422 P.3d 240. The deputy testified that he asked that question because he believed that the defendant might be intoxicated, that the defendant might have committed a crime (DUII), that "performing the field sobriety tests would put him in a compromising situation," and that there was "absolutely nothing safe about administering field sobriety tests on the side of the road at 12:30 in the morning." Id. at 385, 387-88, 422 P.3d 240 (internal quotation marks omitted). Given those circumstances, the Supreme Court held that the state had met its burden to prove that the question about weapons was reasonably related to the DUII investigation and reasonably necessary to effectuate it. Id. at 388, 422 P.3d 240.

By contrast, in State v. Miller , 267 Or. App. 382, 383, 392, 340 P.3d 740 (2014) ( Miller A150565 ), on which defendant relies, we concluded that a stop was unlawfully extended when the state failed to establish that the deployment of a drug-detection dog was reasonably related to the lawful purposes of a stop. During a traffic stop, an officer developed reasonable suspicion that the defendant was driving under the influence of a narcotic. Id . at 390, 340 P.3d 740. He asked the defendant about recent drug use, including what appeared to be fresh needle marks on his arm, and the defendant admitted to past heroin use but denied current use. The officer did not believe him given what he saw. Id. at 384, 340 P.3d 740. Meanwhile, the officer's partner called for a drug-detection dog due to his own suspicions from talking to a passenger in the vehicle. Id. at 386, 340 P.3d 740. When the drug-detection dog arrived, both officers took time to deploy the dog, rather than continuing to investigate the traffic violation and the defendant's potential DUII. Id. at 386, 391, 340 P.3d 740.

We concluded that the extension of the stop to deploy the drug-detection dog was not supported by reasonable suspicion of criminal activity and "cannot be supported as reasonably related to [the officer's] suspicion of DUII." Id. at 392, 340 P.3d 740 (internal quotation marks omitted). On the latter point, we explained that the "gravamen" of the crime of DUII "of course, is driving under the influence of an intoxicant," and that a drug-detection dog "detects the presence of drugs, not whether a person is intoxicated ." Id . (emphasis added). The time that the officers spent deploying the dog therefore was not reasonably related to the DUII investigation. Id. ; see also Pichardo , 360 Or. at 761, 388 P.3d 320 (noting that "[a] search of defendant's person for drugs would reveal, at most, that he had drugs on him," but it would "say nothing about where or when he got them," and it was the latter that was potentially related to the suspected crime). We then proceeded to consider whether the dog deployment was justified by reasonable suspicion of unlawful drug possession and concluded that it was not. See Miller A150565 , 267 Or. App. at 395, 340 P.3d 740.

More recently, in State v. Aguirre-Lopez , 291 Or. App. 78, 79, 419 P.3d 751 (2018), the defendant was stopped for a traffic violation related to his brake lights. When asked for his license and registration, the defendant provided an identification card instead of a driver's license and a vehicle registration with a different name. The defendant told the officer that he had borrowed the vehicle from his cousin. Id . The officer then asked extensive questions about the cousin, which the defendant later argued had unlawfully extended the stop. Id. at 80-81, 419 P.3d 751. The state argued that the questions were reasonably related to the traffic investigation because the officers wanted to ensure that the defendant lawfully possessed the vehicle in case they ultimately let him drive away. Id. at 82, 419 P.3d 751. We reversed the denial of the defendant's motion to suppress, concluding that the questions about the cousin did not reasonably relate to an investigation of the brake-light violation or the defendant's driving privileges, but instead were an attempt to determine whether the defendant was engaged in a crime such as unlawful use of a vehicle. Id. at 85, 87, 419 P.3d 751. "[T]he fact that a stopped driver might commit UUV if he drove away in a stolen car, or might commit a drug-trafficking crime if he drove away with drugs in his vehicle, does not give an officer justification for extending a traffic stop to investigate those possible crimes absent reasonable suspicion that the crimes have occurred or are about to occur." Id . at 85, 419 P.3d 751.

That brings us back to the facts of this case. Defendant does not dispute that the initial traffic stop was lawful, that Stevens had reasonable suspicion of DUII, and that Stevens's question about when she had last smoked marijuana was reasonably related to the DUII investigation. Defendant argues that Stevens unlawfully extended the stop, however, when he asked her questions relevant to marijuana possession, as distinct from use. Specifically, she challenges (1) Stevens's question whether she had any marijuana on her, and (2) Stevens's request to search her. Defendant argues that those questions were not reasonably related to the DUII investigation. The state argues that they were reasonably related to the DUII

investigation because, given the strong odor of marijuana on defendant's person, Stevens disbelieved defendant's claim that she had last smoked "[e]arlier in the day."

We need not decide whether the officer's first question-whether defendant had any marijuana on her-was reasonably related to the DUII investigation. That is because we conclude that his second question-requesting consent to search her-was not reasonably related to the DUII investigation.

When Stevens asked defendant whether she had any marijuana on her, she said that she did and produced a small bag of marijuana. Stevens's explanation for then asking defendant if she would consent to a search was that he did not feel that the amount of marijuana in the bag "matched up with the amount of marijuana that [he] was smelling coming from her person" and he "didn't believe, at that time, that that was all she had on her." Based on that testimony, the state argues that Stevens's question was reasonably related to the DUII investigation because he was trying to reconcile his reasonable suspicion of DUII with defendant's claim to have smoked "[e]arlier in the day" and the odor coming from her person.

The problem with the state's argument is that the state does not explain how the quantity of unconsumed marijuana in defendant's possession was relevant to whether she had committed DUII, particularly when defendant had already produced one bag of marijuana in response to Stevens's prior question. To the extent that current possession is relevant to recent consumption for purposes of DUII (an issue on which we do not opine), the first bag established current possession. Finding additional marijuana would not advance the DUII investigation or help prove DUII but, rather, would only be relevant to potentially proving unlawful possession. See ORS 475B.337 (making it unlawful to possess over one ounce of "usable marijuana" in a public place). Like the officers' conduct in Miller A150565 , Stevens's question related to unlawful drug possession, not DUII.

In reaching that conclusion, the state urges us not to rely on Miller A150565 , seizing on an inconsistency between the opinion's text and a footnote therein to argue that it is not controlling. In the text, we expressly stated that the officers' time deploying a drug-detection dog was not reasonably related to the DUII investigation and explained why that was so. See Miller A150565 , 267 Or. App. at 392, 340 P.3d 740. In a footnote, however, we said that the state had not argued and that we expressed "no opinion" on whether the dog sniff was justified as reasonably related to a DUII investigation. Id . at 393 n. 7, 340 P.3d 740. We acknowledge that those statements are irreconcilable. However, regardless of how we might resolve that contradiction, it would not change the result in this case. The reasonable-relationship inquiry is always case-specific and circumstances-specific. In this case, the state has not identified a reasonable, circumstance-specific relationship between the DUII investigation and Stevens's request to search defendant.

We normally would close by saying that the stop was unlawfully extended, that evidence seized as a result of the unlawful extension should have been suppressed, and that defendant's motion was erroneously denied. In this case, however, the state urges us to exercise our discretion to affirm the denial of the motion to suppress on an alternative basis not raised in the trial court. We therefore address that issue next.

The state argues for the first time on appeal that, even if the trial court was wrong that Stevens's question about consent to search was reasonably related to the DUII investigation, the court was "right for the wrong reason" because Stevens had reasonable suspicion that defendant possessed a criminal amount of marijuana. In response, defendant argues that the record does not support affirmance on that ground and that, in any event, we should not affirm on that ground because the record might have developed differently if it had been raised in the trial court. See Outdoor Media Dimensions Inc. v. State of Oregon , 331 Or. 634, 659-60, 20 P.3d 180 (2001) (stating requirements to affirm on an alternative basis not raised in the trial court, including that the evidentiary record must be materially the same as would have developed if the argument had been raised).

We are skeptical that the existing record could establish that Stevens had reasonable suspicion that defendant possessed a criminal amount of marijuana, especially because the trial court implicitly found that Stevens smelled smoked marijuana, not unburned marijuana, on defendant's person. See Miller A150565 , 267 Or. App. at 393, 340 P.3d 740 (reasonable suspicion that someone is under the influence of a drug is insufficient on its own to create reasonable suspicion of drug possession). In any event, we are unpersuaded that the record would not have developed differently had that argument been raised in the trial court. "[E]ven if the record contains evidence sufficient to support an alternative basis for affirmance, if the losing party might have created a different record below had the prevailing party raised that issue, and that record could affect the disposition of the issue, then we will not consider the alternative basis for affirmance." Outdoor Media Dimensions Inc. , 331 Or. at 660, 20 P.3d 180 (emphasis in original). Here, if the state had raised the issue earlier, defendant could have asked Stevens about the exact nature of what he smelled, about any perceived relationship between that odor and a criminal quantity of unconsumed marijuana, and about how much marijuana was in the bag that defendant handed to him. Defendant also could have explored whether Stevens subjectively believed that he had reasonable suspicion of criminal possession of marijuana, a topic that Stevens addressed, at best, only indirectly in his testimony at the suppression hearing.

In sum, we conclude that Stevens's request to search defendant was not reasonably related to the DUII investigation and unlawfully extended the stop in violation of defendant's Article I, section 9, rights. That unlawful extension led to the discovery of the methamphetamine and the glass pipe. The trial court therefore erred in denying defendant's motion to suppress.

Reversed and remanded.

      See ORS 813.010 (defining the crime of DUII); ORS 814.400 (making the vehicle code generally applicable to bicyclists); see also State v. Abbey , 239 Or. App. 306, 309, 245 P.3d 152 (2010), rev. den. , 350 Or. 423, 256 P.3d 1097 (2011) (recognizing application of DUII statute to bicyclists).

      Stevens testified that police officers normally do not allow DUII suspects to resume driving without determining whether they are impaired, but that it is sometimes necessary to elect between calls. Stevens chose to let defendant resume bicycling so that he could attend to an emergency call.

      We have held that an officer's questioning of a person during an "unavoidable lull," such as while the officer awaits the results of a records check in a traffic stop, does not extend the duration of the stop and therefore does not violate Article I, section 9. State v. Dennis , 250 Or. App. 732, 737, 282 P.3d 955 (2012). This case does not involve an unavoidable lull.

      Relatedly, the state argues that it would be inconsistent with Pichardo to read Miller A150565 to mean that questions about drug possession can never be reasonably related to a DUII investigation. We do not read Miller A150565 to mean that, nor do we hold that here. Rather, we conclude only that, in this case, the state did not establish a reasonable, circumstance-specific relationship between the DUII investigation and Stevens's request for consent to search defendant.

      Stevens testified that he was familiar both with the smell of "non-burnt" marijuana and with the "smoked smells." He did not expressly testify as to which he smelled on defendant's person, but he did testify that the odor immediately caused him to suspect that defendant had committed DUII, i.e. , that she had consumed marijuana. It therefore was reasonable for the trial court to infer that Stevens smelled smoked marijuana. Cf. State v. Vennell , 274 Or. App. 94, 97-98, 359 P.3d 1255 (2015), rev. den. , 358 Or. 529, 367 P.3d 529 (2016) (trial court could reasonably infer from context of an officer's testimony that the "strong odor of marijuana" that he smelled on the defendant's person was an odor he recognized as unburned marijuana). And the trial court necessarily did make an implicit finding that Stevens smelled smoked marijuana when it concluded that Stevens had reasonable suspicion of DUII based on the smell.

      In Vennell , 274 Or. App. at 98, 359 P.3d 1255, we concluded that an officer developed reasonable suspicion of criminal marijuana possession when he smelled a strong odor of unburned marijuana coming from the defendant's person. When Vennell was decided, all marijuana possession was unlawful, but the quantity determined whether it was a crime. See former ORS 475.864 (2013). By the time that defendant in the present case was stopped, possession of up to one ounce of marijuana was lawful. See former ORS 475.864(6)(a) (2014). Currently, it is lawful to possess up to one ounce of usable marijuana in a public place, a violation to possess more than one ounce but not more than two ounces, and a crime to possess more than two ounces. ORS 475B.337. Defendant questions whether Vennell remains good law and identifies this as a "novel" issue that she could have raised and on which she could have developed the record, if the state had argued in the trial court that Stevens had reasonable suspicion of criminal marijuana possession.