author: HADLOCK, P. J.

text:
    STATE of Oregon, Plaintiff-Respondent, v. Christopher Allen Marc SLAVIAK, Defendant-Appellant.
    A162308
    Court of Appeals of Oregon.
    Argued and submitted July 30, 2018. April 3, 2019
    Emily P. Seltzer, 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.
    David B. Thompson, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rolf C. Moan, Assistant Attorney General.
    Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.
   HADLOCK, P. J.

Defendant appeals a judgment of conviction for two counts of first-degree sexual abuse, ORS 163.427, and one count of attempted first-degree sexual abuse, ORS 163.427 and ORS 161.405. Defendant does not challenge the conviction for attempted sexual abuse and our opinion in this case does not disturb that conviction. Defendant does, however, challenge the two sexual-abuse convictions. He contends that the trial court plainly erred by not giving a jury concurrence instruction related to those two counts. For the reasons set out below, we agree that a concurrence instruction was plainly required in the circumstances present here. We also conclude that this is an appropriate case in which to exercise our discretion to address that error. Accordingly, we reverse and remand defendant's convictions for first-degree sexual abuse, remand for resentencing, and otherwise affirm.

Under State v. Ashkins , 357 Or. 642, 659, 357 P.3d 490 (2015), a jury concurrence instruction is required when an indictment charges a single offense, but "the evidence permit[s] the jury to find any one or more among multiple, separate occurrences of that offense involving the same victim and the same perpetrator" if the state has not elected which occurrence constitutes the crime. In determining whether a concurrence instruction was required, we must consider all pertinent evidence admitted at trial. We summarize that evidence here, along with the pertinent procedural facts.

Defendant was charged with two counts of first-degree sexual abuse as follows, the first involving the victim's genital area and the second involving her breast:

"COUNT 1 The defendant, on or about May 24, 2015, in Clackamas County, Oregon, did unlawfully and knowingly, by means of forcible compulsion, subject [the victim] to sexual contact by touching her genital area, a sexual and intimate part of [the victim].
"COUNT 2 The defendant, on or about May 24, 2015, in Clackamas County, Oregon, did unlawfully and knowingly, by means of forcible compulsion, subject [the victim], to sexual contact by touching her breast[,] an intimate part of [the victim]."

The case was tried to a jury. The victim testified that, on the evening in question, her boyfriend (Bustillos), a mutual friend (McLean), and defendant, whom the victim had not previously met, joined the victim at the apartment she shared with Bustillos. After spending a few hours together, the group walked to a pub, spent some time there, and then started walking back to the apartment. Bustillos and McLean stopped at a store, but defendant and the victim went on to the apartment. The victim testified that defendant started grabbing his crotch, then followed her when she went into the bathroom to get away from him. In the bathroom, defendant rubbed himself against the victim and grabbed her neck, "pulling [her] down and trying to get [her] to suck his penis." The victim fought, pushing defendant away and telling him "no," before she managed to leave the room. Those events formed the basis for the attempted sexual abuse charge, which is not at issue on appeal.

The victim also testified about the subsequent events that served as the basis for the two charged counts of sexual abuse-one count for touching her breast and one for touching her genital area. The victim testified that, after leaving the bathroom, she went to her bedroom to retrieve pepper spray, but defendant followed her, pushed her onto the bed, and began "groping [her] breasts and grabbing [her] vagina forcefully." The victim repeatedly told defendant to stop, but he did not. After five or 10 minutes, the victim was able to push defendant off of her and leave the room. She got as far as the kitchen before defendant "pushed [her] against the edge of the refrigerator full-force with his arm on [her] chest," and began "fondling [her] again and * * * grabbing [her] crotch and [her] breasts." At some point, the victim could hear Bustillos and McLean coming toward the apartment. Defendant stopped what he was doing and sat on the couch "like nothing ever happened." The victim told Bustillos and McLean that defendant had tried to force himself on her. Defendant fought with Bustillos, then left.

Police officer Wiesman was dispatched to the apartment and spoke with the victim for about an hour. During that conversation, the victim said that defendant had followed her into the bedroom, grabbed her breast, and tried to pull her pants down. The victim did not say anything about defendant grabbing her genital area while they were in the bedroom. Nor did she tell Wiesman about having been in the kitchen with defendant. Rather, she told Wiesman that she had stayed in the bedroom until she thought she heard Bustillos' and McLean's voices outside, then went into the living room, where defendant grabbed her crotch while she looked out the window.

Bustillos and McLean also testified. Bustillos said that the victim told him that defendant exposed his penis in the bathroom and started "groping up against her," that "it led out to the kitchen," and that-in the bedroom-defendant and the victim were "on the bed and he was trying to pull down her sweats, but she said that luckily they were tight, too tight, and she was pushing him off." McLean testified that the victim had said that defendant "tried to force himself on her and exposed himself to her."

During closing argument, the state discussed both the bedroom encounter and the kitchen encounter, describing each as involving forcible touching of both the victim's breasts and her genital area. The state later explained the bases for the two counts of first-degree sexual abuse, "one for fondling her breast and one for grabbing her vaginal area. * * * Again Count 1, sexual abuse in the first degree. That's for grabbing the breasts. Count 2, sexual abuse in the first degree, the vaginal area." In his closing argument, defendant focused on the discrepancies between the victim's account to police and her testimony about what happened in the bedroom and the kitchen. In its rebuttal, the state attempted to shift the jury's focus to the bedroom: "The bedroom incident, he * * * starts fondling her breasts and her vaginal areas, he's guilty of sexual abuse in the first degree, period, end of story right there." The state then suggested that the jury could convict defendant of both counts of sexual abuse based on the bedroom incident even if it was not persuaded about what happened in the kitchen:

"We know that happens again in the kitchen. Okay? That doesn't add, necessarily, to the charges, but it adds to what we know-it adds to her story, and that's part of her story. When he pushes her down, face down on the bed, flips her over, climbs on top of her and starts fondling or grabbing her breasts, tugging on her pants and up in her vaginal area, he's guilty right there. So we don't need to get into the bathroom. If you had issues in your mind about what happened-excuse me, the kitchen. If you have issues about the kitchen, you can stop right there."

Defendant did not ask the court to require the state to elect the occurrence (bedroom or kitchen) on which it would proceed or to instruct the jury that it had to concur on the occurrence that constituted the basis for each count of sexual abuse. Nor did the court do either of those things; its instructions to the jury did not include a concurrence instruction. The court did instruct the jury that, "to establish the crime of sexual abuse in the first degree, the State must prove beyond a reasonable doubt * * * that the act occurred on or about May 24th, 2015," and that "ten or more jurors must agree on your verdict." The verdict form asked the jury to indicate whether defendant was guilty or not guilty "of the charge of Sexual Abuse in the First Degree as alleged in Count 1 of the Indictment"; it included analogous directions with respect to Counts 2 and 3. The jury returned guilty verdicts on each count.

On appeal, defendant argues that the trial court plainly erred by failing to instruct the jury that, to render guilty verdicts on Counts 1 and 2, at least 10 jurors had to concur on which occurrence constituted the sexual abuse for the purpose of each count. Defendant asserts that jurors could find from the evidence that defendant sexually abused the victim by touching her genitals either in the bedroom or in the kitchen (for Count 1) and sexually abused the victim by touching her breasts either in the bedroom or in the kitchen (for Count 2). Defendant argues that the trial court was therefore required to give a concurrence instruction because the state did not elect the incident on which it would rely. Further, defendant argues that the error was not harmless and he urges us to exercise our discretion to correct the error.

The state acknowledges that, when the evidence would permit the jury to find multiple, separate occurrences of a crime charged as a particular count in the indictment, election or a concurrence instruction ordinarily is required. Nonetheless, the state argues that no such instruction was required in this case because other information given to the jury obviated the need for a concurrence instruction. At least, the state contends, that is a plausible argument under State v. Rodriguez-Castillo , 210 Or. App. 479, 151 P.3d 931 (2007), rev'd on other grounds , 345 Or. 39, 188 P.3d 268 (2008), so there is not plain error on this record. The state also contends that we should not exercise our discretion to correct an error if one exists because any error was "not particularly grave or prejudicial" and because reviewing for plain error gives defendants incentive not to request concurrence instructions in similar cases. Finally, the state asserts that "the jury's instructions, the verdict form, and the prosecutor's emphasis at closing argument on a particular occurrence"-the bedroom incident-rendered any error harmless.

We begin our analysis by determining whether the trial court plainly erred. To constitute plain error, the error must (1) be one of law; (2) be apparent, obvious, or not reasonably in dispute; and (3) "appear on * * * the record." Ailes v. Portland Meadows, Inc. , 312 Or. 376, 381-82, 823 P.2d 956 (1991). Here, the parties' disagreement centers on whether it is "reasonably in dispute" that the trial court erred by not giving a concurrence instruction.

That disagreement is resolved by Ashkins and State v. Pipkin , 354 Or. 513, 316 P.3d 255 (2013). In Pipkin , the Supreme Court explained that, under Article I, section 11, of the Oregon Constitution, jurors can return a guilty verdict only if they "agree that the state has proved each legislatively defined element of a crime." Pipkin , 354 Or. at 527, 316 P.3d 255. Two situations implicate that right: the first is "when a statute defines one crime but specifies alternative ways in which [it] can be committed," and the second is "when the indictment charges a single violation of a crime but the evidence permits the jury to find multiple, separate occurrences of that crime." Id. at 516-17, 316 P.3d 255. The court addressed the latter kind of situation in Ashkins , explaining that, when an indictment charges "a single occurrence of each offense, but the evidence permit[s] the jury to find any one or more among multiple, separate occurrences of that offense involving the same victim and the same perpetrator," the defendant is entitled to a concurrence instruction unless the state "elect[ed] which occurrence it would prove." 357 Or. at 659, 357 P.3d 490. At least after Ashkins , it is beyond dispute that a jury concurrence instruction (or election by the state) is required in those circumstances.

Here, the evidence admitted at trial would have allowed the jury to determine that defendant committed sexual abuse by touching the victim's genital area-and, therefore, was guilty of Count 1-either in the bedroom or, later, in the kitchen. The same is true with respect to Count 2. The two incidents were separated temporally and spatially; they were presented to the jury as distinct occurrences. And, as the state acknowledges, although the prosecutor's rebuttal argument sought to focus the jury's attention on the bedroom incident, the state "did not abandon any and all reliance on the kitchen incident." Because different jurors could have voted to convict on each count based on different factual findings (as between the bedroom and the kitchen), it is plain that a concurrence instruction was required.

As noted, the state's contrary argument relies heavily on our decision in Rodriguez-Castillo . In that case, we held that the trial court did not plainly err by failing to give a concurrence instruction in a case in which the defendant was charged with multiple counts of sexual abuse, including four counts that related to the defendant touching the victim in two different incidents that occurred on a single day. 210 Or. App. at 498, 151 P.3d 931. The defendant was convicted of a single count (Count 7) and argued, on appeal, that the trial court erred by failing to give a concurrence instruction "to ensure that all of the jurors who voted to convict agreed on the same set of underlying facts." Id. at 496, 151 P.3d 931. In rejecting that unpreserved argument, we asserted that the jury had other information that "left no room for doubt" about the need for that kind of concurrence. Id. at 497, 151 P.3d 931. That information included (1) instructions on Count 7 that "twice referred to the alleged crime as 'the act,' " (2) the indictment, which described each count as "separate and distinct" from the other acts alleged, and (3) the verdict form, which indicated generally that 10 or more jurors had to concur on each verdict. Id . at 497-98, 151 P.3d 931. We concluded that it "was clear to the jury" from that information "that Count 7 corresponded to a particular factual incident," so a concurrence instruction was unnecessary. Id . at 498, 151 P.3d 931. The state contends that Rodriguez-Castillo governs here because the jury in this case received similar information from the trial court; at least, according to the state, Rodriguez-Castillo means that the court's failure to give a concurrence instruction cannot have been plain error.

We disagree. First, we note that we decided Rodriguez-Castillo before Ashkins and that we held in Rodriguez-Castillo only-at most-that the trial court in that case did not plainly err by not giving a concurrence instruction. That holding was based not only on the other information given to the jury, but also on the state of the law at the time. We relied on the Supreme Court's decision in State v. Sparks , 336 Or. 298, 83 P.3d 304, cert. den. , 543 U.S. 893, 125 S.Ct. 219, 160 L.Ed.2d 158 (2004), for the proposition that concurrence instructions are not plainly required in cases in which "there was only one victim and one perpetrator associated with each count" charged. Rodriguez-Castillo , 210 Or. App. at 499-500, 151 P.3d 931. We reasoned that, because evidence about the multiple incidents in Rodriguez-Castillo also involved only one defendant and one victim, it followed from Sparks that the lack of a concurrence instruction did not establish plain error. Id . at 500-01, 151 P.3d 931. In Ashkins , however, the Supreme Court expressly rejected that understanding of Sparks , which the court explained had actually been decided on a different basis-not on the ground that a concurrence instruction may not be required when the evidence describes multiple occurrences, but they all involve the same victim and perpetrator. 357 Or. at 658-59, 357 P.3d 490. The legal underpinning of Rodriguez-Castillo therefore does not survive Ashkins 's holding that, when an indictment charges "a single occurrence of each offense, but the evidence permit[s] the jury to find any one or more among multiple, separate occurrences of that offense involving the same victim and the same perpetrator," either election or a concurrence instruction is required. Id. at 659, 357 P.3d 490.

Second, we are not persuaded by the state's effort to analogize this case to Rodriguez-Castillo , and to distinguish it from Ashkins , based on other information given to the jury. We acknowledge that the jury in this case received information similar to that on which we relied in Rodriguez-Castillo . But so did the jury in Ashkins . The Ashkins indictment, which was read to the jury, described each count in terms of "an act" that was "not part of the same criminal episode" alleged in other counts. 357 Or. at 644, 357 P.3d 490. The trial court also instructed the jury that "10 of the 12 of them must agree that the state established beyond a reasonable doubt the elements indicated in the charges of the indictment." State v. Ashkins , 263 Or. App. 208, 213, 327 P.3d 1191 (2014), aff'd , 357 Or. 642, 357 P.3d 490 (2015). That information is not meaningfully different from the information that we relied on in Rodriguez-Castillo in determining that it was not plain that the trial court should have given a concurrence instruction. In Ashkins , however, the existence of that information did not lead the Supreme Court to conclude that no concurrence instruction was needed. Thus, to the extent that Rodriguez-Castillo can be read to hold that a concurrence instruction may not be necessary if the jury receives that kind of other information, that aspect of the decision, too, is no longer viable in light of Ashkins .

For both of those reasons, Rodriguez-Castillo 's discussion of when jury concurrence instructions are necessary cannot survive Ashkins . That is, Rodriguez-Castillo does not cast any reasonable doubt on the applicability of the Supreme Court's subsequent decision in Ashkins to this case. Accordingly, it is "not reasonably in dispute" that the trial court committed legal error when it failed to give a concurrence instruction. Ailes , 312 Or. at 381, 823 P.2d 956. We proceed to consider the third Ailes requirement for "plain error," i.e. , whether the error appears on the record.

In that regard, the state argues that we would have to go outside the record to resolve competing inferences about why defendant did not request a concurrence instruction. The state contends that defendant may have deliberately chosen not to seek such an instruction, either in reliance on Rodriguez-Castillo or because such an instruction would reduce defendant's odds of acquittal "by causing the jury to focus exclusively on testimony from the victim" about the bedroom incident, which the state suggests was more problematic for defendant than her testimony about what happened in the kitchen. We are not persuaded. As defendant argues, a concurrence instruction would have required the jury to consider the inconsistencies in the victim's accounts of what occurred in each room. The record suggests no plausible reason why defendant would have wished to discourage the jury from doing that. See State v. Lovern , 234 Or. App. 502, 512, 228 P.3d 688 (2010) (" '[C]ompeting inferences,' for purposes of the plain error analysis, must be plausible.").

Finally, the state argues that, because the trial in this case occurred after the Supreme Court decided Ashkins , defendant may have been "gambling on the verdict," relying on the absence of a concurrence instruction to guarantee reversal on a plain-error basis if he ended up being convicted. That argument does not persuade us that the court's error was not plain. There may be cases in which the record supports an inference that such a choice occurred, but the record in this case does not do so. Cf. State v. Miranda , 290 Or. App. 741, 755, 417 P.3d 480 (2018) (rejecting a similar argument).

We also conclude that the trial court's error was not harmless. "A trial court's erroneous failure to give a concurrence instruction is not harmless when, given the evidence and the parties' theories, jurors could have based their verdicts on different occurrences." State v. Teagues , 281 Or. App. 182, 194, 383 P.3d 320 (2016) ; see also Mellerio v. Nooth , 279 Or. App. 419, 436, 379 P.3d 560 (2016), rev. den. , 361 Or. 803, 401 P.3d 1183 (2017) (trial counsel's failure to request concurrence instruction was not harmless because of risk that evidence could have persuaded individual jurors "as to one of the alleged incidents but not the other, or vice-versa, yielding an impermissible 'mix-and-match' verdict"). Here, some jurors could have been persuaded that defendant sexually abused the victim in the bedroom, and not in the kitchen (particularly given Wiesman's testimony that the victim did not describe having been abused in the kitchen). Other jurors might have found the victim's testimony about the kitchen incident more compelling than the bedroom testimony and may have voted to convict on that basis (particularly given the differences between the victim's testimony about what happened in the bedroom and what she told Wiesman). Still others might have felt it unnecessary to determine in which room defendant assaulted the victim, as long as they were convinced that he forcibly touched her breasts and genital area at some point during their time alone in the apartment. Thus, it is plausible to conclude that, as we put it in Mellerio , the jury may have reached "an impermissible 'mix-and-match' verdict." 279 Or. App. at 436, 379 P.3d 560. On this record, the absence of a concurrence instruction leaves us unable to conclude that there is "little likelihood that the error affected the verdict." Ashkins , 357 Or. at 660, 357 P.3d 490. Given the gravity of the error, we exercise our discretion to correct it.

Convictions for first-degree sexual abuse reversed and remanded; remanded for resentencing; otherwise affirmed.

      On one of the sexual abuse counts, the jury's guilty verdict was not unanimous. On appeal, defendant contends that the trial court erred when it imposed a judgment of conviction based on that nonunanimous vote. Because we reverse the conviction on other grounds, we need not address that argument.

      Both before and after Pipkin and Ashkins were decided, we have held that trial courts plainly erred by not giving concurrence instructions when the evidence would allow jurors to choose between multiple, separate occurrences of criminal conduct in finding the defendant guilty of a single count. See State v. Sippel , 288 Or. App. 391, 394, 406 P.3d 207 (2017) (trial court plainly erred by not giving concurrence instruction "given the manifest potential, based on the prosecutor's rebuttal, for the jury to find defendant guilty without actually agreeing on what conduct" constituted the charged crime); State v. Pervish , 202 Or. App. 442, 463, 123 P.3d 285 (2005), rev. den. , 340 Or. 308, 132 P.3d 28 (2006) (trial court plainly erred in failing to give a concurrence instruction where a particular count charged could have related to an offense committed against either of two victims). Based on the Supreme Court's controlling decision in State v. Phillips , 354 Or. 598, 317 P.3d 236 (2013), we also have repeatedly held that trial courts plainly err by not giving concurrence instructions when the jury could have found a defendant guilty on either a principal-liability theory or an aid-and-abet theory, and the state did not elect between the two. E.g. , State v. Miranda , 290 Or. App. 741, 755, 417 P.3d 480 (2018).

      We also explained in Rodriguez-Castillo that, "even if the failure to give [a concurrence] instruction were plainly erroneous, we would exercise our discretion not to consider the error." 210 Or. App. at 501, 151 P.3d 931. Given that discretionary determination, we had no need to decide, in the first instance, whether the trial court plainly erred in not giving the instruction. That aspect of the opinion therefore is arguably dictum .

      Although the Supreme Court granted review in Rodriguez-Castillo , it was to address a hearsay question, not the concurrence-instruction issue. 345 Or. 39, 45, 188 P.3d 268 (2008). Nonetheless, it is worth noting that the court observed, in conducting a harmless-error analysis, that "the instructions and jury verdict forms provide no basis for determining which incident gave rise to the conviction," id . at 55, 188 P.3d 268, expressing apparent disagreement with our reasoning on that point.


source: Caselaw Access Project

author: AOYAGI, J.

license: Public Domain

text:
    STATE of Oregon, Plaintiff-Respondent, v. Jose Carlos PEREZ-CARDENAS, Defendant-Appellant.
    A162420
    Court of Appeals of Oregon.
    Submitted July 30, 2018. April 3, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Meredith Allen, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael A. Casper, Assistant Attorney General, filed the brief for respondent.
    Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.
   AOYAGI, J.

Defendant was convicted of one count of first-degree rape, ORS 163.375 (Count 1); and two counts of first-degree sexual abuse, ORS 163.427 (Counts 3 and 4). He was sentenced to 300 months' imprisonment on Count 1, 75 months' imprisonment on Count 3, and 75 months' imprisonment on Count 4, all to run concurrently. Defendant also was ordered to pay restitution. Defendant appeals, raising five assignments of error.

We reject defendant's first, second, and third assignments of error without written discussion.

In his fourth assignment of error, defendant asserts that the trial court plainly erred by entering separate convictions on Counts 3 and 4, and the state concedes the error. Count 3 alleged that defendant touched the victim's vagina with his fingers, while Count 4 alleged that defendant caused the victim to touch his penis. Defendant argues that, under ORS 161.067(3), the court should have merged the guilty verdicts on those two counts into a single conviction, because the two sexual contacts occurred during the same criminal episode and without any evidence of a significant pause. See ORS 161.067(3) (for a defendant's "repeated violations of the same statutory provision against the same victim" to be separately punishable, each violation must be separated by a sufficient pause to afford the defendant an opportunity to renounce his criminal intention). Defendant did not preserve the alleged error, but he asserts that it meets the requirements for plain error review and asks us to exercise our discretion to review it. See ORAP 5.45(1) (unpreserved errors will not be considered on appeal, except that "the appellate court may, in its discretion, consider a plain error"). The state concedes that the trial court committed plain error and does not dispute that it would be appropriate to exercise our discretion to correct it.

We may review an unpreserved error if the error is one of law, is obvious and not reasonably in dispute, and does not require us to go outside the record or choose between competing inferences to correct it. Ailes v. Portland Meadows, Inc. , 312 Or. 376, 381-82, 823 P.2d 956 (1991). Those requirements are met here. Whether multiple verdicts merge into a single conviction is a question of law. State v. Huffman , 234 Or. App. 177, 183, 227 P.3d 1206 (2010). On this record, the correct application of ORS 161.067(3) is obvious and not reasonably in dispute. See State v. Dugan , 282 Or. App. 768, 769, 387 P.3d 439 (2016) (concluding that two guilty verdicts for sexual abuse, based on touching two of the victim's body parts in a single incident, should have merged into a single conviction); State v. Nelson , 282 Or. App. 427, 431, 447, 386 P.3d 73 (2016) (concluding that guilty verdicts on three counts of sexual abuse should have merged into a single conviction, where defendant's conduct-which involved making sexual contact with three different body parts of the victim-occurred in one location, without pause in the defendant's aggression or any significant interruption). Lastly, nothing requires us to go outside the record or to choose between competing inferences.

The error therefore is plain, and, in light of the gravity of the error in imposing an additional conviction, and for the same reasons as described in State v. Steltz , 259 Or. App. 212, 220-21, 313 P.3d 312 (2013), we exercise our discretion to correct the error. In doing so, we note that the state concedes not only that the existing evidence was insufficient to support a finding of a sufficient pause for separate convictions but also that there is no "basis to conclude that the state might have been able to offer any such evidence had defendant raised this objection" to the trial court.

Finally, in his fifth assignment of error, defendant challenges an order requiring him to pay $ 1,195.55 in restitution. That argument appears to be unpreserved for reasons virtually identical to those in State v. Ixcolin-Otzoy , 288 Or. App. 103, 109-10, 406 P.3d 100 (2017). However, because the entire case must be remanded for resentencing in any event, we decline to address the fifth assignment of error. See State v. Zolotoff , 275 Or. App 384, 386, 365 P.3d 131 (2015) ("[W]hen this court orders a 'remand for resentencing' without expressly limiting the scope of remand, the trial court must resentence the defendant on each surviving count of conviction, and it may change the terms of the defendant's sentences, so long as the newly imposed sentences are lawful." (Emphases in original.)); State v. Dahl , 256 Or. App. 848, 849 n. 1, 302 P.3d 480, 481 (2013) (declining to address alleged plain error in restitution award, after concluding that the trial court erroneously failed to merge two guilty verdicts for assault into a single conviction, because the case was being remanded for resentencing in any event).

Convictions on Counts 3 and 4 reversed and remanded for entry of a judgment of conviction for one count of first-degree sexual abuse; remanded for resentencing; otherwise affirmed.

      At trial, the state's theory was that the contacts underlying Counts 3 and 4 occurred in a single incident, and the state concedes that there was no evidence of a pause between those two contacts, within the meaning of ORS 161.067(3).


text:
    In the MATTER OF M. G., a Person Alleged to have Mental Illness.
    State of Oregon, Respondent, v. M. G., Appellant.
    A166688
    Court of Appeals of Oregon.
    Submitted January 29, 2019. March 20, 2019
    Alexander C. Cambier and Multnomah Defenders, Inc., filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Christopher Page, Assistant Attorney General, filed the brief for respondent.
    Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.
   AOYAGI, J.

Appellant seeks reversal of an order continuing his commitment to the Oregon Health Authority for a period not to exceed 180 days, based on his being a person with mental illness and needing further treatment. In his single assignment of error, appellant contends that there was insufficient evidence to support the order. We agree and, accordingly, reverse.

Unless we exercise our discretion to review de novo , which we do not in this case, we view the evidence and permissible inferences therefrom in the light most favorable to the trial court's disposition to determine whether the record, so viewed, was legally sufficient to permit the court's decision. State v. L. R. , 283 Or. App. 618, 619, 391 P.3d 880 (2017). We state the facts in accordance with that standard. All of the facts come from the testimony of Dr. Read, appellant's attending psychiatrist at the Oregon State Hospital (OSH), who testified at appellant's recommitment hearing.

Appellant is a 51-year-old man with a longstanding diagnosis of schizoaffective disorder. He also has a cognitive disorder and hearing loss due to a childhood accident. Appellant has limited insight into his mental health condition. He does not believe his diagnosis, but, at the same time, "when he's doing better, he recognizes that he's okay on the medication."

Appellant did very well from 2004 to 2015, while living in a facility called Alberta Place, which provided medication reminders and "a lot of support." In 2015, appellant was "stepped down" to Harriot Court, a less structured environment in which appellant had to ask for his own medications and was not given reminders. He did not do as well there. Sometime around August 2016, appellant left Harriot Court. According to Read, it is unknown where appellant was living from August 2016 to May 2017.

In May 2017, the police found appellant in a public park. He was carrying a fake gun and did not obey orders. Believing that the gun was real, the officers shot at him. Appellant was not hurt, except that a bullet grazed his ear. Three days later, appellant tried to break into his family home, in which his mother and brother live, and which he has a delusional belief that he owns. Shortly thereafter, appellant, who was off his medications, was civilly committed as dangerous to self and others.

Appellant was held briefly at Unity Hospital. At Unity, he "was saying that he was a police officer and would point his finger at people and pretend to shoot." He also made calls to the Federal Bureau of Investigation (FBI) and the Central Intelligence Agency (CIA) regarding "his concerns about protecting others"; over the years, appellant has often had delusions about the FBI and the CIA and has had "a lot of contacts with upper government agencies regarding his concerns around protecting others, but also around some threats that he's made."

Appellant was transferred to OSH after a short time at Unity. Appellant showed a "great deal of improvement" at OSH. He took his medications consistently and was moved up in terms of privileges. He was "very pleasant most of the time" and "[did] relatively well." He did not make any threats against anyone while at OSH. Appellant improved "a great deal" from June to November, particularly in October and November.

Nonetheless, the Oregon Health Authority sought to continue appellant's commitment, pursuant to ORS 426.301, due to concerns that appellant would discontinue his medications if released to an unsupervised setting. As Read explained at appellant's hearing in November 2017, "the dilemma" was that appellant was doing well and would continue to do well as long as he stayed on his medications, but he needed to live somewhere like Alberta Place that would give him medication reminders, and the state had been unable to find him that kind of placement before his commitment expired. The possibility of appellant voluntarily extending his commitment for 60 days had been discussed with him, but he wanted a hearing, so recommitment was the only way to ensure that he stayed on his medications until an appropriate placement was located.

At the conclusion of the recommitment hearing, the trial court ordered the continuation of appellant's commitment for up to 180 more days, based on a finding that appellant was dangerous to others. Specifically, the court found that appellant has a mental disorder, that he would not be able to maintain his medications if released into an unsupervised environment, and that, without medication, he would "become dangerous due to his delusional thinking." Appellant appeals the order of continued commitment.

An involuntary civil commitment based on mental illness may be ordered for up to 180 days in an initial commitment proceeding. ORS 426.130(2). At the end of that period, if the person's status has not been changed to voluntary, the person "shall be released," unless the Oregon Health Authority certifies "that the person is still a person with mental illness and is in need of further treatment." ORS 426.301(1). If certification occurs, the person has the opportunity to "protest further commitment." ORS 426.301(5). Protesting further commitment triggers a hearing. ORS 426.303. After the hearing, the court must "determine whether the person is still a person with mental illness and is in need of further treatment." ORS 426.307(6). If so, the court may order commitment to continue for an additional indefinite period up to 180 days. Id .

In this case, the trial court determined that appellant was still a person with mental illness, specifically a mental disorder that made him dangerous to others, and was in need of further treatment. See ORS 426.005(1)(f)(A) (a "person with mental illness" includes someone who, "because of a mental disorder," is "dangerous to * * * others"). Appellant does not contest having a mental disorder. However, " ORS 426.005 precludes a court from committing a person on the basis of a mental disorder alone." State v. S.D.M. , 198 Or. App. 153, 161, 107 P.3d 683 (2005). The person must have "mental illness" within the meaning of ORS 426.005(1)(f), which, in this case, means that the state had to prove that appellant was still dangerous to others, as a result of his mental disorder, at the time of his recommitment hearing. "To justify continued commitment on the 'danger to others' ground, the state must do more than establish that appellant was dangerous to others at one time." State v. D. S. , 243 Or. App. 328, 333, 258 P.3d 1250 (2011). "[I]t must establish a factual foundation to predict appellant's future dangerousness based on his condition at the time of the hearing in the context of his history." Id .

The state argues that the evidence was sufficient to establish appellant's ongoing dangerousness to others. In particular, it points to (1) appellant's attempt to break into his family home in May 2017, which he has a delusion that he owns, and the risk of his doing so again, because that delusion persisted at the time of the recommitment hearing; (2) the incident with the police in May 2017, during which appellant had a fake gun that looked real and behaved in an unspecified manner that led police to shoot at him; and (3) appellant's behavior at Unity in June 2017, "saying that he was a police officer and [pointing] his finger at people and pretend[ing] to shoot." We agree with appellant that that evidence was insufficient to establish that he was still dangerous to others at the time of his recommitment hearing in November 2017.

Read, who was not present for any of the foregoing incidents, provided little information about them. Regarding appellant's attempt to break into the family home in May 2017, that incident could be of particular relevance, given appellant's ongoing delusional belief that he owned that home at the time of the recommitment proceeding, except that there was no evidence that appellant acted violently towards anyone in the home or made any threats during the incident. An attempted break-in could involve violence or threats, but there was no evidence that it did here, let alone enough evidence to allow a prediction of future dangerousness. See State v. L. R. , 283 Or. App. 618, 625, 391 P.3d 880 (2017) ("Even evidence of past violent acts must provide a foundation to predict future dangerousness, not merely describe past isolated incidents.").

As for the police incident, appellant's conduct created an immediate danger to himself, as evidenced by his being shot at, and he was obviously perceived by the police as posing a danger to others, as he possessed what looked like a gun and failed to follow orders, but the fact remains that the gun was fake. The statute requires that appellant be dangerous to others-it is not enough that he was incorrectly perceived as dangerous on a particular occasion. Lastly, claiming that you are a police officer and pretending to shoot people with your finger while in a mental hospital is abnormal behavior, but it does not endanger anyone. See id . ("For the state to prove that actual future violence by the appellant is highly likely, it will generally have to provide evidence that shows that the appellant's threats of future violence are accompanied by an overt act demonstrating an intention and ability to carry out the threats or other circumstances indicating that actual future violence is highly likely.").

That leaves two additional pieces of evidence on which the state does not rely on appeal but which the trial court could have and so we address. Read testified that appellant's only history of threatening behavior was when he was off his medications. Asked to describe that history, Read responded, "Well, there was things in the past that included blowing up a dam and some things like that." He gave no further information and no time period, which is particularly significant given appellant's long period of stability at Alberta Place. A vague and grandiose threat at some unknown time in the past adds little to the danger-to-others analysis. See id. at 626, 391 P.3d 880 ("Although [the appellant] made threats of harm, no evidence was presented that appellant had harmed anyone, had attempted to harm anyone, or that any of his broad, vague threats would or could have been carried out.").

The only other potentially relevant evidence was testimony by Read that appellant's mother obtained a restraining order against appellant in August 2016, which expired in 2017, after an unspecified "assault" on mother. On appeal, appellant argues that Read's testimony was inaccurate hearsay. He asks us to take judicial notice of Oregon court records showing that appellant's mother actually obtained a restraining order against appellant's brother in August 2016, not appellant, and that the only restraining order that appellant's mother ever obtained against appellant was long ago in 2000. We need not decide whether it is appropriate to take judicial notice of that information because, in any event, bare evidence that appellant's mother obtained a restraining order against appellant in 2016 is of minimal significance. It is unknown on what basis any restraining order was sought, whether it was contested, or why it was granted. Reference to an "assault" is concerning. But "assault" means different things to different people, and the standard for a restraining order is not the same as the standard for involuntary civil commitment. That is, even if one meets the standard to obtain a restraining order against someone with a mental disorder, it does not necessarily follow that the restrained person qualifies to be involuntarily civilly committed or recommitted.

We recognize the difficult situation that the state was in. Read essentially testified that appellant was ready for release but for the inability to find him a placement in a supervised setting with medication reminders before his commitment expired. The trial court implicitly found that, because of his mental disorder, appellant was unlikely to stay on his medications without support, regardless of his intentions. Having successfully stabilized appellant after 180 days in the hospital, the state faced the prospect of having to release him, without an appropriate placement, and risk that he would stop taking his medications and end up back at square one.

Nonetheless, the legal standards for civil commitment derive from statute and reflect the significant liberty interests at stake. The determination of mental illness must be "based upon clear and convincing evidence," ORS 426.130(1)(a), which is a "rigorous" standard of proof that requires "evidence that is of extraordinary persuasiveness, and which makes the fact in issue highly probable." State v. J. T. C. , 284 Or. App. 38, 39, 392 P.3d 754, rev. den. , 361 Or. 645, 398 P.3d 42 (2017) (citation omitted). The evidence in this record was insufficient for the trial court to find that appellant was still dangerous to others within the meaning of ORS 426.005 (1)(f)(A) at the time of his recommitment hearing in November 2017.

Reversed.

      Read described the circumstances leading to appellant's initial commitment during his testimony at the recommitment hearing. Nothing from the initial commitment proceeding was put into the evidentiary record of the recommitment proceeding. See State v. C.H. , 179 Or. App. 563, 565 nn. 3 & 4, 41 P.3d 434 (2002) (addressing the scope of the evidentiary record in a commitment or recommitment proceeding, including that "[i]nitial commitment and further commitment are distinct proceedings" and that "the record of the former is not automatically incorporated into the record of the latter").

      Appellant's counsel made two hearsay objections during Read's testimony, which the trial court overruled. In context, it appears that the court may have intended to admit at least some of Read's testimony only as relevant to understanding the basis for Read's opinions, not for the truth of the matter asserted. However, the record is not clear. Because it does not affect our disposition, we assume for purposes of discussion that Read's testimony was admitted for all purposes.


author: PER CURIAM

text:
    In the MATTER OF the COMPENSATION OF Carolyn L. FARRUGGIA, Claimant.
    Carolyn L. Farruggia, Petitioner, v. The Paradies Shops, Respondent.
    A165908
    Court of Appeals of Oregon.
    Argued and submitted January 31, 2019. May 8, 2019
    Julene M. Quinn, Albany, argued the cause and filed the brief for petitioner.
    Howard R. Nielsen, Beaverton, argued the cause for respondent. Also on the brief was Bohy Conratt, LLP.
    Before Powers, Presiding Judge, and Hadlock, Judge, and Brewer, Senior Judge.
   PER CURIAM

Affirmed. Akins v. SAIF , 286 Or. App. 70, 398 P.3d 463, rev. den. , 362 Or. 94, 405 P.3d 155 (2017).


author: POWERS, P. J.

text:
    In the MATTER OF A. L. P., a Child.
    Department of Human Services, Petitioner-Respondent, v. G. C. P., Appellant.
    A168764
    Court of Appeals of Oregon.
    Submitted February 12, 2019. May 8, 2019
    Shannon Storey, Chief Defender, Juvenile Appellate Section, and Valerie Colas, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Patrick M. Ebbett, Assistant Attorney General, filed the brief for respondent.
    Before Powers, Presiding Judge, and Lagesen, Judge, and Brewer, Senior Judge.
   POWERS, P. J.

Father appeals from the juvenile court's judgment asserting jurisdiction over his four-year-old child, A, based on child suffering unexplained physical injuries. Father raises a number of assignments of error challenging the juvenile court's determination, including that the juvenile court erred in admitting testimony of a pediatrician that commented on the child's credibility. The Department of Human Services (DHS) concedes that the pediatrician's testimony constituted impermissible vouching and further concedes that the juvenile court's error was not harmless. We accept DHS's concessions on both points, and reverse the jurisdictional judgment.

Father and mother engaged in a contentious custody battle over child, in which they each contacted DHS to report concerns about each other. For instance, father called DHS in February 2018 to report concerns about an incident of domestic violence in mother's home. In May 2018, after noticing a bruise on child's face, mother called a DHS case-worker who instructed mother to take A for an examination at Liberty House, a child assessment center.

Dr. Hedlund, a pediatrician at Liberty House, examined child and observed a bruise on child's cheek, a cluster of bruises on child's left arm, some scratches on child's back and chest, and a scar on child's chin. During the examination, child told Hedlund that father caused the forearm bruise, that father hit and punched child, and that father pushed child into a shelf that resulted in the scar on child's chin. Hedlund testified that she did not follow up on child's statements because she was not a forensic interviewer. Hedlund made four diagnoses of child, including a diagnosis of "highly concerning for physical abuse."

Six days later, child returned to Liberty House for a follow-up interview with a child forensic interviewer. Hedlund testified that, during a forensic interview, the child is alone in the room with the forensic interviewer and there are also video cameras. Hedlund further explained that the medical provider sits in a separate room to take notes for the forensic interviewer and to observe the interview, which she did in this case. When questioned about her diagnosis of "highly concerning for physical abuse," the following exchange took place:

"[DHS's counsel]: And can you say to a reasonable degree of medical certainty that the bruise happened due to a nonaccidental injury?
"[Hedlund]: Based on [child] saying "Daddy did it," I-I trust a child when they say something like that.
"[Father's counsel]: Object as vouching. Move to strike.
"THE COURT: It's overruled.
"[Hedlund]: One of the hard pieces with diagnosing and why we use the phrase "highly concerning" and not "definitive this is," is because I didn't see it happen, so the injuries are consistent with what [child] said. So that's why I made the diagnosis of highly concerning.
"* * * * *
"[DHS's counsel]: Okay. How do you, as a doctor, assess out whether the child has been coached by another parent to perhaps say something?
"[Hedlund]: That is very challenging. That often comes out more in the interview setting, because they ask those specific questions and they're able to. When I interact with a child, I ask a question, they answer rapidly without thinking about it. You know, it's-the child's being honest and telling you is the perception. If that makes sense.
"[Father's counsel]: I'm going to object as vouching. Move to strike again.
"THE COURT: It's overruled."

The juvenile court took the matter under advisement at the conclusion of the hearing and later issued a judgment asserting jurisdiction over child on the ground that, as to father, child "suffered unexplained physical injury while in the custody and care of Father."

On appeal, father advances four assignments of error, one of which is dispositive and obviates the need to address his other assignments of error. In his fourth assignment of error, father argues that the juvenile court erred in overruling his objections to Hedlund's testimony as impermissible vouching. See, e.g. , State v. Middleton , 294 Or. 427, 438, 657 P.2d 1215 (1983) ("[I]n Oregon a witness, expert or otherwise, may not give an opinion on whether he [or she] believes a witness is telling the truth. We reject testimony from a witness about the credibility of another witness[.]"). DHS concedes that Hedlund's objected-to testimony should have been excluded as an impermissible comment on the credibility of another witness. DHS further concedes that the juvenile court's error is not harmless. Those concessions are well taken.

In State v. Beauvais , 357 Or. 524, 543, 354 P.3d 680 (2015), the Supreme Court explained that "[a] direct comment on the credibility of a witness or a statement that is 'tantamount' to stating that another witness is truthful is not admissible, even if it is offered as part of a discussion of an admissible medical diagnosis." More recently, the court explained that

"when a party objects to testimony as improper vouching, a court must determine whether the testimony provides an opinion on truthfulness or, instead, provides a tool that the factfinder could use in assessing credibility. *** If a court determines that testimony constitutes vouching because it provides an opinion about the truthfulness of another witness and not information that could be helpful to [the factfinder] in forming [its] own opinion[ ] about that subject, the court must prohibit the testimony. If the testimony does not provide such an opinion, the court must then consider any other objections to the testimony that are raised by the parties.

State v. Black , 364 Or. 579, 593, 437 P.3d 1121 (2019). Applying the foregoing, we conclude that the juvenile court erred.

Although DHS concedes that both of Hedlund's statements were vouching, Hedlund's second statement-regarding a child answering "without thinking about it" because "the child's being honest and telling you is the perception"-arguably could be a tool that the factfinder could have used in assessing credibility. We need not resolve that issue, however, because we reverse the judgment based on the admission of Hedlund's first statement and because, as we will explain, the issue will not arise again in the context of this case.

We readily conclude that Hedlund's first statement that "I trust a child when they say something like that" is a direct comment on child's credibility. Thus, we hold that the juvenile court erred by admitting Hedlund's testimony that provided an opinion on the truthfulness of another witness. Moreover, because the central issue before the juvenile court was whether father physically abused child and Hedlund's impermissible vouching testimony attempted to speak authoritatively to that issue, we further conclude that the error was not harmless. See, e.g. , State v. Keller , 315 Or. 273, 286, 844 P.2d 195 (1993) (concluding that a medical doctor with extensive professional experience in the area of child sexual abuse that testified authoritatively and in a detailed manner while commenting on a child's credibility "presumably was persuasive to the trier of fact" and therefore not harmless).

Finally, having concluded that the juvenile court erred and that the evidentiary error is not harmless, we turn to the appropriate disposition. While father's appeal was pending and before DHS filed its brief, the juvenile court terminated the wardship and issued a judgment of dismissal after a review hearing. See generally ORS 419B.449 (providing for review hearings by the juvenile court). DHS does not move to dismiss this appeal as moot, however, because of the potential effects this judgment may have on father's rights in the future. Accordingly, because no further proceedings are necessary, we simply reverse the juvenile court's judgment.

Reversed.


author: YU, J.

text:
    Jerry L. BARR III, Respondent, v. SNOHOMISH COUNTY SHERIFF, Petitioner.
    No. 96072-1
    Supreme Court of Washington.
    Argued January 17, 2019 Filed: MAY 09, 2019
    Lyndsey Marie Downs, Civil Division, Snohomish County Prosecutor's Office, 3000 Rockefeller Avenue, # MS504, Everett, WA 98201-4046, for Petitioner.
    Vitaliy Kertchen, Kertchen Law, PLLC, 917 S. 10th Street, Tacoma, WA 98405-4522, for Respondent.
    Schoen R. Parnell, Parnell Defense, PLLC, 3405 188th Street SW, Suite 301, Lynnwood, WA 98037-4744, for Amicus Curiae (Washington Association of Criminal Defense Lawyers).
    Michael E. McAleenan, Jr., Andrea Heidi Brewer, Robert Eugene Mack, Smith Alling P.S., 1501 Dock Street, Tacoma, WA 98402-3209, for Amicus Curiae (Washington Association of Sheriffs and Police Chiefs).
   YU, J.

¶ 1 This case asks us to decide whether the Snohomish County sheriff (the Sheriff) is required to issue a concealed pistol license (CPL) to an individual whose sealed juvenile record includes adjudications for class A felonies. In this case, the answer is no. The Sheriff is not required to issue a CPL to a person who "is prohibited from possessing a firearm under federal law." RCW 9.41.070(1)(a). Due to respondent Jerry Barr's class A felony adjudications, federal law provides that it is unlawful for him to "possess in or affecting commerce, any firearm or ammunition." 18 U.S.C. § 922(g). We therefore reverse the Court of Appeals and hold that Barr is not entitled to a writ of mandamus requiring the Sheriff to issue him a CPL.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

¶ 2 In 1992, when he was a juvenile, Barr was adjudicated guilty of three offenses, two of which are classified as class A felonies. His criminal history also includes three convictions as an adult between 1996 and 2000.

¶ 3 In 2016, Barr received an order restoring his firearm rights as to the three adult convictions and one of the offenses he committed as a juvenile. The order was issued pursuant to RCW 9.41.040(4), which allows a court to restore firearm rights after an individual has spent a number of consecutive years in the community without being convicted of any other crimes. RCW 9.41.040(4) does not apply to class A felonies and sex offenses.

¶ 4 Barr's remaining two juvenile adjudications are class A felonies. In September 2016, Barr secured orders sealing the records of these two adjudications and declaring that "[s]o long as this case remains sealed, the offenses ... do not prohibit [Barr] from possessing firearms under RCW 9.41.040." Clerk's Papers (CP) at 46-47.

¶ 5 With these orders in hand, Barr applied for a CPL from the Sheriff in November 2016. The Sheriff denied the application based on the two sealed class A felonies, which were revealed in a search of the National Instant Criminal Background Check System and the Washington State Patrol criminal history database. The Sheriff determined that the two class A felonies, whether sealed or not, prohibited Barr from possessing a firearm pursuant to 18 U.S.C. § 922(g)(1), which made him ineligible for a CPL. Id. at 61.

¶ 6 Barr petitioned the Thurston County Superior Court for a writ of mandamus requiring the Sheriff to issue the CPL. The writ was denied, and Barr sought review in the Court of Appeals. In a published decision, Division Two reversed and remanded with an order to issue the writ. Barr v. Snohomish County Sheriff , 4 Wash. App. 2d 85, 89, 419 P.3d 867 (2018). The Sheriff petitioned for review in this court, which we granted. Barr v. Snohomish County Sheriff , 191 Wash.2d 1019, 428 P.3d 1171 (2018). We also asked the parties to address in their supplemental briefs "whether a juvenile conviction which has been sealed is still a 'conviction' for purposes of the state and federal firearm statutes." Letter from Susan L. Carlson, Supreme Ct. Clerk, Wash., to the parties (Nov. 5, 2018), Barr v. Snohomish County Sheriff No. 96072-1.

ISSUES

¶ 7 A. Does the Sheriff have a mandatory duty to issue Barr a CPL?

¶ 8 B. Is Barr entitled to attorney fees and costs on review?

ANALYSIS

¶ 9 RCW 9.41.0975(2)(a) allows an applicant to petition for a writ of mandamus directing an issuing agency to issue a CPL "wrongfully refused." A CPL is wrongfully refused if the issuing agency has a mandatory duty to issue one and refuses to do so. See RCW 7.16.160 (writ issued to "compel the performance of an act which the law especially enjoins as a duty resulting from an office").

We therefore must decide whether RCW 9.41.070 imposes a mandatory duty on the Sheriff to issue Barr a CPL. "The determination of whether a statute specifies a duty that the person must perform is a question of law."

River Park Square, LLC v. Miggins , 143 Wash.2d 68, 76, 17 P.3d 1178 (2001). We review questions of law de novo. Cost Mgmt. Servs., Inc. v. City of Lakewood , 178 Wash.2d 635, 641, 310 P.3d 804 (2013).

A. The Sheriff did not wrongfully refuse to issue Barr a CPL

¶ 10 To determine whether the Sheriff had a mandatory duty to issue a CPL to Barr, we look to the plain language of the CPL statute. RCW 9.41.070(1)(a) provides in relevant part that "the sheriff of a county shall within thirty days after the filing of an application of any person, issue a license to such person to carry a pistol concealed on his or her person," unless the applicant "is prohibited from possessing a firearm under federal law." The issuing authority is required to perform a criminal history background check and "shall deny a permit to anyone who is found to be prohibited from possessing a firearm under federal or state law." RCW 9.41.070(2)(b).

¶ 11 Federal law provides that if a person "has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year," then it is unlawful for that person to "possess in or affecting commerce, any firearm or ammunition." 18 U.S.C. § 922(g). "What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held." 18 U.S.C. § 921(a)(20). In addition, "[a]ny conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction." Id.

¶ 12 Our inquiry is thus straightforward. First, we ask whether Barr has been convicted of a crime punishable by over one year of imprisonment pursuant to Washington law. Van Der Hule v. Holder , 759 F.3d 1043, 1046 (9th Cir. 2014)

(quoting United States v. Valerio , 441 F.3d 837, 840 (9th Cir. 2006) ). As detailed below, we conclude that he has. We then ask whether any of the specified subsequent events (expungement, setting aside, pardon, or restoration of civil rights) have occurred. Id. Again as detailed below, we conclude they have not. Therefore, the Sheriff correctly determined that Barr is prohibited from possessing firearms pursuant to federal law. As a result, the Sheriff is not required to issue Barr a CPL.

1. Barr's sealed juvenile adjudications are convictions

¶ 13 The parties do not dispute that Barr's juvenile adjudications qualified as "convictions" before they were sealed. We agree with the parties on this point. Our state firearms statute provides that "a person has been 'convicted', whether in an adult court or adjudicated in a juvenile court, at such time as a plea of guilty has been accepted, or a verdict of guilty has been filed." RCW 9.41.040(3) (emphasis added). The legislature has thus made it clear that in the context of firearm possession, an unsealed juvenile adjudication carries the same consequences as an adult conviction. See In re Det. of Anderson , 185 Wash.2d 79, 86, 368 P.3d 162 (2016) ("when considering whether a statutory reference to convictions includes juvenile adjudications," courts must "consider the particular statutory context and purposes to determine what the legislature intended").

¶ 14 The parties' disagreement focuses on what happens to disqualifying juvenile adjudications after they are statutorily sealed. Barr argues that once the records of his juvenile adjudications were sealed, they were no longer "convictions" because the record sealing statute provides that once the records are sealed, "the proceedings in the case shall be treated as if they never occurred." RCW 13.50.260(6)(a). Barr Teasons that if the proceedings are treated as if they never occurred, the result-a conviction-must also be treated as if it never occurred. Therefore, a sealed juvenile adjudication is no longer a "conviction."

¶ 15 The problem with this argument is that it sidesteps the required federal statutory analysis. Under that analysis, the question is not how a conviction is currently treated by state law. Instead the question is whether there was a conviction and, if so, whether a subsequent event has occurred such that the conviction is no longer "considered a conviction" that prohibits firearm possession pursuant to the federal statute. 18 U.S.C. § 921(a)(20). Thus, our inquiry at the first step is limited to asking whether there was, in fact, a conviction of a crime punishable by over one year of imprisonment as a matter of state law. Siperek v. United States , 270 F. Supp. 3d 1242, 1248 (W.D. Wash. 2017).

¶ 16 Washington State law clearly provides that Barr's juvenile class A felonies are convictions punishable by over one year imprisonment. While the sealing order makes those convictions invisible to most people, they do still exist. Id. at 1248-49. This conclusion is evident from the simple fact that the sealing order will be nullified by "[a]ny charging of an adult felony subsequent to the sealing." RCW 13.50.260(8)(b). If that happens, the convictions do not somehow come back into existence; they merely come back into public view.

¶ 17 Moreover, it is evident that the Sheriff was required to consider Barr's juvenile class A adjudications when deciding whether to issue him a CPL. The Sheriff was required by statute to check "the Washington state patrol electronic database," RCW 9.41.070(2)(a), and the state patrol database must "provide[ ] criminal justice agencies access to sealed juvenile records information," RCW 13.50.260(8)(d). If the legislature requires law enforcement to search a database that must contain information on sealed convictions, then the legislature must have intended that law enforcement use information about the sealed convictions in determining whether to issue a CPL.

¶ 18 Barr's juvenile adjudications are clearly convictions that do still exist as a matter of state law, the sealing order notwithstanding. We must therefore ask whether Barr has obtained expungement, setting aside, pardon, or restoration of civil rights in relation to those convictions.

2. None of the subsequent events specified by 18 U.S.C. § 921(a)(20) have occurred

¶ 19 As a matter of federal law, "[a]ny conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter." 18 U.S.C. § 921(a)(20). A sealing order is not equivalent to an expungement, and Barr does not argue that his class A felonies have been set aside or pardoned, or that he has had his civil rights restored in relation to those convictions. Therefore, they remain disqualifying predicate convictions for purposes of 18 U.S.C. § 922(g).

¶ 20 Barr relies heavily on In re Firearm Rights of Nelson , 120 Wash. App. 470, 85 P.3d 912 (2003), and at first glance, the underlying facts of Nelson appear similar to this case. In 1992, Nelson pleaded guilty as a juvenile to unspecified serious offenses that would have prohibited him from possessing a firearm. Id. at 472-73, 85 P.3d 912. In 2000, he applied for and received an order "sealing and expunging" his juvenile convictions. Id. at 473, 85 P.3d 912. Based on this order, Nelson held "that RCW 9.41.040 does not make it unlawful for Nelson to carry a firearm so long as he has no convictions other than those expunged." Id. at 481, 85 P.3d 912. However, Barr's reliance on Nelson is misplaced for two reasons.

¶ 21 First, the issue in Nelson was whether, as a matter of state law, "carrying a firearm is unlawful for a person who committed serious offenses as a juvenile, but has since obtained a court order expunging the record of those offenses." Id. at 472, 85 P.3d 912. Here, we do not need to decide whether state law prohibits Barr from possessing or carrying a firearm, and we expressly decline to do so. The only issue in this case is whether the Sheriff is required to issue Barr a CPL. The Sheriff declined to issue Barr a CPL after determining that federal law prohibited Barr from possessing firearms. Therefore we can and do decide this case based solely on the federal firearms statutes.

¶ 22 Second, Nelson explicitly states that the juvenile records at issue there were expunged, while Barr's were merely sealed. Some courts have read Nelson to mean that "the sealing of a juvenile case constitutes expungement of the juvenile offense," but that is not the case. Siperek, 270 F. Supp. 3d at 1249. As detailed above, sealing merely hides a record from the view of the general public. Nelson, meanwhile, "had a full expungement, and the records have been destroyed." Nelson , 120 Wash. App. at 474, 85 P.3d 912. Therefore, "there [were] no longer official records of any such [disqualifying] offense." Id. at 480, 85 P.3d 912. That is clearly not the case here, so Nelson does not apply.

¶ 23 For purposes of the federal firearms statutes, Barr's juvenile class A felonies are convictions punishable by over one year of imprisonment as a matter of state law. They remain convictions even though they have been sealed because they unquestionably still exist and the Sheriff was required to access them through the Washington State Patrol electronic database to determine whether to issue Barr a CPL. Barr's convictions have not been expunged or set aside, and Barr has not received a pardon or restoration of civil rights for these convictions. The Sheriff therefore correctly determined that it was not required to issue Barr a CPL and Barr is not entitled to a writ of mandamus.

B. Barr is not entitled to attorney fees or costs on review

¶ 24 Barr requests attorney fees on review pursuant to RAP 18.1(a) and RCW 9.41.0975(2), which provides that an individual who successfully petitions for a writ of mandamus to obtain a CPL is entitled to reasonable attorney fees and costs. Because we hold Barr is not entitled to a writ of mandamus, he is not entitled to attorney fees or costs on review.

CONCLUSION

¶ 25 This case presents a narrow question to which we provide a narrow answer. The Sheriff was not required to issue Barr a CPL because, the sealing order notwithstanding, Barr's class A felony adjudications are predicate, disqualifying convictions for purposes of 18 U.S.C. § 922(g). We express no opinion on Barr's right to possess firearms as a matter of state law. We therefore reverse the Court of Appeals and hold that the trial court correctly denied Barr's petition for a writ of mandamus.

WE CONCUR:

Fairhurst, C.J.

Johnson, J.

Madsen, J.

Owens, J.

Stephens, J.

González, J.

Wiggins, J.

Gordon McCloud, J.

      Because the records of these juvenile adjudications are sealed, we do not identify the exact offenses.

      "A person who is prohibited from possessing, shipping, transporting, or receiving firearms or ammunition may make application to the Attorney General for relief from the disabilities imposed by Federal laws." 18 U.S.C. § 925(c). There is no indication that Barr has made such an application.

      If any such subsequent event had occurred, we would need to engage in a third step and ask whether the pardon, expungement, or restoration of civil rights expressly prohibits firearm possession. Van Der Hule , 759 F.3d at 1046.

      It is also undisputed that the offenses at issue here were punishable by imprisonment over one year pursuant to Washington State law. See former RCW 13.40.0357 (1992).

      As noted above, Barr did obtain an order in relation to his class A felonies declaring that "[s]o long as this case remains sealed, the offenses ... do not prohibit respondent from possessing firearms under RCW 9.41.040." CP at 46-47. However, this order does not restore his civil rights for purposes of 18 U.S.C. § 921 (a)(20) because "the civil rights relevant under [that] provision are the rights to vote, hold office, and serve on a jury." Logan v. United States, 552 U.S. 23, 28, 128 S. Ct. 475, 169 L.Ed. 2d 432 (2007). Barr's order purports only to allow him to possess a firearm on a conditional basis as a matter of state law.

      The parties disagree on whether Nelson was qualified to have his records expunged pursuant to the sealing and expungement statutes in place at the time. We need not decide that question. It is clear from the opinion that properly or not, Nelson's records were in fact expunged and destroyed.


author: Gonzalez, J. MADSEN, J. (dissenting)

text:
    STATE of Washington, Petitioner, v. David Zachery MORGAN, Respondent.
    No. 96017-8
    Supreme Court of Washington.
    Argued January 17, 2019 Filed MAY 16, 2019
    Seth Aaron Fine, Attorney at Law, Snohomish County Prosecutor's Office, 3000 Rockefeller Avenue, Everett, WA 98201-4060, for Petitioner.
    Kathleen A. Shea, Luminata, PLLC, 2033 6th Avenue, Suite 901, Seattle, WA 98121-2568, for Respondent.
   Gonzalez, J.

¶1 David Morgan was convicted by a jury of first degree assault, attempted murder, and arson. A bloodstain pattern analysis performed on his clothing suggested he was in close proximity to the victim when she suffered her injuries. We must decide if the warrantless seizure of his clothing, which officers reasonably concluded contained evidence, was justified by an exception to the warrant requirement.

¶2 Based on our inconsistent articulation of the plain view doctrine, the Court of Appeals found that the State was required to establish inadvertence as a separate element and reversed Morgan's convictions. We hold inadvertence is not a separate element required under the plain view doctrine, reinstate Morgan's convictions, and remand to the Court of Appeals for further proceedings in that court.

FACTS

¶3 Morgan and his ex-wife, Brenda, shared custody of their daughter. About the time Brenda came to pick up their daughter from Morgan's house, Morgan's house was in flames. Firefighters found Morgan kneeling in his driveway, hair singed and barely able to speak. A firefighter repeatedly asked Morgan if anyone was in the burning house. After a period of silence, Morgan directed firefighters to the garage, where Brenda was lying in a pool of blood. Brenda was nonresponsive and badly injured, with multiple lacerations on her head, fractures, and severe burns on her upper body. Morgan and Brenda's clothing smelled of gasoline. Medics transported them to separate hospitals, observing blood on Morgan's clothing.

¶4 A supervising officer promptly told Officer Christopher Breault to "collect Morgan's clothing [from the hospital] and try to get an initial statement." Clerk's Papers (CP) at 208. A crime scene technician was also dispatched to collect Brenda's clothing.

¶5 Officer Breault spoke with Morgan in his hospital room for hours. Morgan disclosed that his daughter was safe at Morgan's mother's home during the fire. Morgan said he woke up to find his house on fire. He said he then found Brenda in his house with her sweater burning and tried to help her remove it. At some point during their conversation, Officer Breault noticed that hospital staff had put Morgan's clothing in "several plastic shopping like bags" and left his clothing on the counter in Morgan's hospital room. 1 Verbatim Report of Proceedings (Feb. 4, 2016) at 151, 154-55. The officer later testified that it "was almost like [the clothing was] in like some sort of gift bag; it looked like it had a hospital logo on it. And they were just regular plastic bags that you could get at a store." Id. at 158. When the crime scene technician arrived with arson bags designed to preserve evidence, he and Officer Breault secured Morgan's clothing. Officer Breault also secured a utility knife with dried blood on the handle from a counter near the clothing. Hospital staff told Officer Breault they found the knife in Morgan's clothing.

¶6 Morgan was charged with attempted first degree murder, first degree arson, and first degree assault. He unsuccessfully moved to suppress the seized clothing. The trial court rejected the State's plain view argument because Officer Breault did not find it inadvertently and he could not examine the clothing without removing it from the plastic hospital bags. Nonetheless, the trial court found that the removal of Morgan's clothing was justified by exigent circumstances because "there are special bags that have been designed and are available to put clothing and other items into so as to preserve that particular evidence." Id. at 182.

¶7 The Court of Appeals found the State had not met its burden of establishing exigent circumstances because it had not shown applying for a warrant would have resulted in a loss of evidence. It also rejected the State's claim that the plain view doctrine applied because Officer Breault did not smell gasoline or see blood through the plastic hospital bags or come across it inadvertently. The State sought, and we granted, review. State v. Morgan, 191 Wash.2d 1026, 428 P.3d 1170 (2018).

ANALYSIS

¶8 We are faced with a warrantless seizure of clothing associated with criminal activity. Under the robust privacy protections of our constitution, any state intrusion into private affairs must be done under "authority of law." WASH. CONST. art. I, § 7. "Authority of law" generally means a warrant or a well-established exception to the warrant requirement. State v. Ladson, 138 Wash.2d 343, 350, 979 P.2d 833 (1999) (citing City of Seattle v. McCready, 123 Wash.2d 260, 273, 868 P.2d 134 (1994) ). The plain view doctrine and exigent circumstances are well-established exceptions. We hold the State failed to establish that exigent circumstances justified the intrusion, but it did justify the intrusion under the plain view doctrine.

¶9 We agree with the Court of Appeals' conclusion that the State did not meet its burden to show that exigent circumstances existed when Officer Breault seized Morgan's clothing. The State "must establish the exception to the warrant requirement by clear and convincing evidence." State v. Garvin, 166 Wash.2d 242, 250, 207 P.3d 1266 (2009) (citing State v. Smith, 115 Wash.2d 775, 789, 801 P.2d 975 (1990) ). Critically, the exigent circumstance "exception requires a compelling need for officer action and circumstances that make the time necessary to secure a warrant impractical." State v. Baird, 187 Wash.2d 210, 221, 386 P.3d 239 (2016) (plurality opinion) (citing Missouri v. McNeely, 569 U.S. 141, 149-50, 133 S. Ct. 1552, 185 L.Ed.2d 696 (2013) ). While the State had a legitimate concern that trace evidence on Morgan's clothing could be contaminated by Morgan or hospital staff, the officers exhibited no urgency in collecting the clothing, which sat undisturbed on the counter for hours, including when Morgan was alone with hospital staff.

¶10 We disagree, however, with the Court of Appeals' application of the plain view doctrine. We have been inconsistent in articulating the elements the State must establish to justify a warrantless intrusion under the plain view doctrine. We have said the plain view doctrine applies "when the police (1) have a valid justification to be in an otherwise protected area and (2) are immediately able to realize the evidence they see is associated with criminal activity." State v. Hatchie, 161 Wash.2d 390, 395, 166 P.3d 698 (2007) (citing State v. Myers, 117 Wash.2d 332, 346, 815 P.2d 761 (1991) ). But in some cases, we have also articulated a third element, inadvertence. See, e.g., State v. Kull, 155 Wash.2d 80, 85 & n.4, 118 P.3d 307 (2005).

¶11 We take this opportunity to clarify the law. Properly understood, there is no separate inadvertence requirement in the plain view doctrine. Officers are not restricted to seizing evidence solely when they come across the evidence unintentionally and inadvertently. As the United States Supreme Court held, "[I]nadvertence is a characteristic of most legitimate 'plain-view' seizures" but "it is not a necessary condition." Horton v. California, 496 U.S. 128, 130, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990).

¶12 Officers are "entitled to keep [their] senses open to the possibility of contraband, weapons, or evidence of a crime." State v. Lair, 95 Wash.2d 706, 719, 630 P.2d 427 (1981). There is, however, an article I, section 7 requirement that a seizure not be based on pretext. See, e.g., State v. Montague, 73 Wash.2d 381, 385, 438 P.2d 571 (1968). "Put simply, the law does not vest in police the discretion to seize first and decipher a piece of evidence's incriminating nature later." Katie Farden, Recording a New Frontier in Evidence-Gathering: Police Body-Worn Cameras and Privacy Doctrines in Washington State, 40 SEATTLE U. L. REV. 271, 284-85 (2016). Thus, a plain view seizure is legal when the police (1) have a valid justification to be in an otherwise protected area, provided that they are not there on a pretext, and (2) are immediately able to realize the evidence they see is associated with criminal activity.

¶13 Here, Morgan challenged the seizure of his clothing. Morgan does not dispute that "the officers had a lawful reason to be in the hospital room." CP at 306-07. The State need show only that it was immediately apparent that the clothing was associated with criminal activity, which it aptly does.

¶14 Objects are immediately apparent under the plain view doctrine "when, considering the surrounding circumstances, the police can reasonably conclude" that the subject evidence is associated with a crime. State v. Hudson, 124 Wash.2d 107, 118, 874 P.2d 160 (1994) (citing Lair, 95 Wash.2d at 716, 630 P.2d 427 ). Certainty is not necessary.

¶15 Morgan's clothing was expected to be in the hospital room and was detectable in the plastic hospital bags on the counter. Officer Breault's supervising officer, having become aware of the evidentiary value of Morgan's clothing-including that it smelled like gasoline-instructed Officer Breault to collect it. Without examining the clothing, Officer Breault reasonably concluded that Morgan's clothing would have evidentiary value given the conversation he had had with Morgan and observations he made during that time, including a knife with dried blood on the handle.

¶16 In light of the fire, Brenda and Morgan's respective injuries, the supervising officer's knowledge, and observations by Officer Breault and others, there were more surrounding circumstances than necessary. Officer Breault did not have to manipulate the bags to know what they contained. He reasonably concluded that the clothing contained evidence associated with suspected criminal activity. Nothing in this record suggests any ambiguity; it is clear from context that the plastic hospital bags contained the clothing hospital staff removed in treating Morgan. Thus, the State met its burden to show that Officer Breault lawfully seized Morgan's clothing under the plain view doctrine.

CONCLUSION

¶17 While exigent circumstances did not exist, the plain view doctrine permitted the seizure of Morgan's clothing. We reverse and remand to the Court of Appeals for further proceedings in that court.

WE CONCUR:

Fairhurst, C.J.

Johnson, J.

Owens, J.

Stephens, J.

Wiggins, J.

Yu, J.

MADSEN, J. (dissenting)

¶18 I disagree with the majority that the seizure of David Morgan's clothes falls under the plain view exception to the search warrant requirement. Under the plain view doctrine, it must be immediately apparent to the seizing officer that evidence he has discovered is associated with criminal activity. The majority's holding here divorces the observations of the seizing officer from the seizure. Instead, the majority says that if an officer has information from a civilian witness who has observed evidence that may indicate criminal activity when that evidence was at a different location, a different officer, who was not informed that evidence was incriminating and who did not himself observe anything incriminating, may seize that evidence in a different location under the plain view doctrine-a doctrine meant solely to allow law enforcement an exception to obtain evidence without a warrant when it is obvious to the seizing officer that the evidence is associated with a crime. While the chain of events here clearly supports issuance of a warrant, it certainly does not fit within any of the "jealously and carefully drawn exceptions" to the warrant requirement.

¶19 In reaching this unprecedented application of the plain view doctrine, the majority, sub silentio, imports the "fellow officer" rule, which allows officers to make warrantless arrests on the strength of collective information.

Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 91 S. Ct. 1031, 28 L.Ed.2d 306 (1971). This rule has never been imported into the "plain view" exception for obvious reasons-it cannot be plain to the seizing officer that he is viewing incriminating evidence unless he observes it and is himself aware of the surrounding facts and circumstances. Because the majority severely undermines the search warrant requirement under article I, section 7 of our constitution, which has long been held to provide greater protections than the Fourth Amendment, I respectfully dissent. WASH. CONST. art. I, § 7 ; U.S. CONST. amend. IV.

Discussion

¶20 Our constitution provides that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." WASH. CONST. art. I, § 7. Generally, an officer acts under authority of law when executing a search and seizure under a valid warrant. State v. Miles, 160 Wash.2d 236, 244, 156 P.3d 864 (2007). Warrants must be supported by probable cause and describe the places to be searched or persons or things to be seized with particularity. State v. Perrone, 119 Wash.2d 538, 545, 834 P.2d 611 (1992). This is, of course, to prevent a " 'general, exploratory rummaging in a person's belongings.' " Id. (internal quotations omitted) (quoting Andresen v. Maryland, 427 U.S. 463, 480, 96 S. Ct. 2737, 49 L.Ed.2d 627 (1976) ). It is well settled that a warrantless search is per se unreasonable unless it falls under one of the " 'jealously and carefully drawn exceptions.' " State v. Hatchie, 161 Wash.2d 390, 395, 166 P.3d 698 (2007) (internal quotation marks omitted) (quoting State v. Hendrickson, 129 Wash.2d 61, 70, 917 P.2d 563 (1996) ). The plain view doctrine is one of those exceptions.

¶21 A plain view search is legal when officers (1) have a valid justification to be in an otherwise protected area and (2) are immediately able to recognize the evidence they see is associated with criminal activity. Id. at 395, 166 P.3d 698 (citing State v. Myers, 117 Wash.2d 332, 346, 815 P.2d 761 (1991) ). An object is immediately apparent under the second prong of a plain view search when, "considering the surrounding facts and circumstances, the police can reasonably conclude they have evidence before them." State v. Lair, 95 Wash.2d 706, 716, 630 P.2d 427 (1981). "In other words, police have immediate knowledge if the officers have a reasonable belief that evidence is present." State v. Munoz Garcia, 140 Wash. App. 609, 625, 166 P.3d 848 (2007) (emphasis added); see also State v. Kennedy, 107 Wash.2d 1, 10, 726 P.2d 445 (1986) (it is not an unlawful search and seizure when an officer, observing from a vantage point where he can legally be present, immediately recognizes an object as incriminating evidence). Probable cause is required to satisfy the immediate recognition prong of the plain view doctrine. Statev.Hudson, 124 Wash.2d 107, 118, 874 P.2d 160 (1994) (citing Arizona v. Hicks, 480 U.S. 321, 326, 107 S. Ct. 1149, 94 L.Ed.2d 347 (1987) ).

¶22 In this case, the officer who seized the clothing, Officer Christopher Breault, was initially dispatched to Morgan's hospital room to "give medical updates to Sergeant [Curtis] Zatylny" and to find more information about a possible missing child. 1 Verbatim Report of Proceedings (Feb. 4, 2016) at 115. At some point, Sergeant Zatylny ordered Officer Breault to seize Morgan's clothes as evidence. After going in and out of Morgan's hospital room, Officer Breault noticed Morgan's clothing had been placed "in several plastic bags that the hospital had provided and then placed on the back counter of the ... hospital room." Id. at 151. The bags had a hospital logo on it but otherwise "were just regular plastic bags that you could get at a store." Id. at 158.

¶23 The first step in our analysis must be a recognition that Morgan's clothing is a private affair and that he has an expectation that his privacy in the clothing is not disturbed without a warrant. Next, it is important to recognize that clothing is not inherently incriminating. Here, Officer Breault believed the bags he seized contained Morgan's clothing, but he did not observe anything about the clothing that could be described as incriminating. To justify the seizure, the State cites two cases it argues support the position that "surrounding facts and circumstances" in the context of plain view means any and all information that any police officer may know related to the investigation. See Suppl. Br. of Pet'r at 10-11. While the majority agrees with this broad reading of a "jealously and carefully drawn exception," those cases do not actually broaden the narrowly drawn plain view exception in the way the majority attempts to do here. In State v. Alger, a sleeping bag was seized under the plain view doctrine as evidence of statutory rape. 31 Wash. App. 244, 640 P.2d 44 (1982). But the officers who seized the evidence were themselves "acquainted with the details of the crime." Id. at 247, 640 P.2d 44. They were informed that sexual relations between the defendant and the victim occurred on a sleeping bag while she was on her menstrual cycle. Id. at 246, 640 P.2d 44. The sleeping bag was seized after it was clearly visible from their vantage point near the front door, based on the surrounding facts and circumstances known to the officers at the time those officers seized the evidence. Similarly, in State v. Weller, officers were called in to assist on a wellness check after a Child Protective Services investigator interviewed the defendant's children for possible abuse. 185 Wash. App. 913, 344 P.3d 695 (2015). The officers there interviewed two of the children who described being beaten with a board. Id. at 919, 344 P.3d 695. When the officers moved to the garage for greater privacy, the officers discovered a board that the children later indicated was used for their beatings. Id. The board-which the officers observed had a long groove in it and had discoloration that appeared to be dried blood-was seized by the officers. In both Alger and Weller , the seizing officer was aware of the "surrounding facts and circumstances" that justified the warrantless seizure of evidence.

¶24 Here, that is not the case. Officer Breault never testified to smelling any gasoline in the room or near the plastic bags, nor did he state he observed any blood on Morgan's clothing through the plastic bags. Indeed, the officer's description of the plastic bags suggests the clothing was not observable through the bags at all. Moreover, Officer Breault was not there to investigate any possible crime committed by Morgan. His only purpose for being there was to observe Morgan and to determine the location of the child who may have had a connection to the events. While firefighters and paramedics observed that the clothes belonging to Morgan's ex-wife, Brenda, smelled like gasoline in the ambulance, as did Morgan's clothing, all of that information was from a non-law-enforcement source and was relayed only to Sergeant Zatylny. Sergeant Zatylny himself did not notice any evidence of gasoline or other incriminating evidence when he responded to the residential fire. Crucially, none of the information regarding Morgan's or Brenda's clothing was relayed to Officer Breault. To discover that evidence, Officer Breault would have had to manipulate the bag's contents to determine whether the clothing actually contained incriminating evidence. But doing so would undoubtedly be an unlawful seizure. See State v. Johnson , 104 Wash. App. 489, 501-02, 17 P.3d 3 (2001) (discussing Hicks , 480 U.S. at 328-29, 107 S.Ct. 1149 (manipulating stereo equipment that an officer reasonably suspects may be incriminating evidence to determine the serial number, which would give the officer probable cause, constitutes an unlawful search under the plain view doctrine)).

¶25 While we have generally recognized that "a policeman in the course of a valid search is entitled to keep his senses open to the possibility of ... evidence of a crime," Lair, 95 Wash.2d at 719, 630 P.2d 427, we have never suggested knowledge obtained by one officer may be imputed to the seizing officer, who is completely unaware of the facts and circumstances leading up to the seizure based on "plain view."

Indeed, we have recognized only that a warrantless arrest, not a warrantless search and seizure, may be executed based on the cumulative knowledge possessed by a team of officers under the "fellow officer" rule. See State v. Bravo-Ortega, 177 Wash.2d 116, 297 P.3d 57 (2013). But to fall under the "fellow officer" rule, the information supplied must be from a law enforcement agency. See State v. Gaddy, 152 Wash.2d 64, 70-71, 93 P.3d 872 (2004). Here, the information obtained by the police came from first responders on the scene who were non-law-enforcement sources. Consequently, the officer's warrantless seizure could not fall under the fellow officer rule even if it were applied here.

¶26 In essence, the majority's holding that Sergeant Zatylny directing Officer Breault to collect Morgan's clothing falls under the plain view exception is really an "ends justify the means" argument since Officer Breault saw nothing to justify a plain view seizure. Importantly, Sergeant Zatylny was not present at Morgan's hospital room to perform a plain view seizure of the clothing. Sergeant Zatylny had more than enough information to obtain a warrant to collect Morgan's clothing. There was no concern that obtaining a warrant here would "be a needless inconvenience [or] dangerous-to the evidence or to the police themselves." Coolidge v. New Hampshire, 403 U.S. 443, 468, 91 S. Ct. 2022, 29 L.Ed.2d 564 (1971) (plurality portion). Given the facts and circumstances of the investigation, a telephonic warrant would have been easily obtainable, should have been obtained by police here, and, more importantly, is what our constitution required.

Conclusion

¶27 Clothing, without more, is not inherently incriminating evidence. The officer observing and seizing evidence under plain view, must be aware of the surrounding facts and circumstances to have probable cause justifying the warrantless seizure. Because the officer here was directed only to observe, gain information about a missing child, and, later, collect Morgan's clothing as evidence without knowing anything about a criminal investigation, the plain view exception to a warrant is not met. The majority's holding unnecessarily broadens our plain view doctrine and undermines the search warrant requirement under article I, section 7 of the Washington State Constitution. Probable cause to justify the warrantless seizure by the seizing officer was not met, and as such, I respectfully dissent.

Gordon McCloud, J.

      We use only her first name to avoid subjecting her to unwanted publicity. No disrespect is intended.

      The record contains no written findings or conclusions for the CrR 3.6 hearing, but the trial court's oral findings adequately present the issues for appellate review. The trial court's written CrR 3.5 findings concern some of Officer Breault's observations.

      "The requirements for plain view are (1) a prior justification for intrusion, (2) inadvertent discovery of incriminating evidence, and (3) immediate knowledge by the officer that [they] had evidence before [them]." Kull, 155 Wash.2d at 85, 118 P.3d 307 (citing State v. Chrisman, 94 Wash.2d 711, 715, 619 P.2d 971 (1980), rev'd, 455 U.S. 1, 102 S. Ct. 812, 70 L.Ed.2d 778 (1982) ). The intrusion is often the detention of a person or entry into a place, not the seizure of the evidence itself.

      The fact that the evidence in plain view is not contraband is of no relevance. See, e.g., State v. Weller, 185 Wash. App. 913, 926, 344 P.3d 695 (2015) (seizing a board associated with an assault); State v. Alger, 31 Wash. App. 244, 248, 640 P.2d 44 (1982) (seizing a sleeping bag associated with a rape).

      As the United States Supreme Court has noted, "[T]he use of the phrase 'immediately apparent' was very likely an unhappy choice of words, since it can be taken to imply that an unduly high degree of certainty as to the incriminatory character of evidence is necessary for application of the 'plain view' doctrine." Texas v. Brown, 460 U.S. 730, 741, 103 S. Ct. 1535, 75 L.Ed.2d 502 (1983).

      Conversely, an officer's suspicion that an expensive stereo in a rundown house was stolen would not allow the officer to manipulate it. Arizona v. Hicks, 480 U.S. 321, 326-27, 107 S. Ct. 1149, 94 L.Ed.2d 347 (1987) ; accord State v. Murray, 84 Wash.2d 527, 536, 527 P.2d 1303 (1974). This case is different because Officer Breault could reasonably conclude the clothing was associated with a crime without having to see blood or smell gasoline on the clothing through the plastic hospital bags.

      At most, Officer Breault noticed and later seized a utility knife with some dried blood near the bag of clothing. But Morgan does not dispute the seizure of the utility knife.