author: AOYAGI, J.

text:
    STATE of Oregon, Plaintiff-Respondent, v. Francis Paul WEAVER, Defendant-Appellant.
    A161899
    Court of Appeals of Oregon.
    Argued and submitted April 24, 2018. March 6, 2019
    Neil F. Byl, 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.
    Jennifer S. Lloyd, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.
   AOYAGI, J.

Defendant was convicted of murder, robbery, and other crimes. On appeal, he raises two assignments of error. Both relate to a plea agreement between the state and one of defendant's co-conspirators, Orren, in which Orren committed to invoke his Fifth Amendment right against self-incrimination if called to testify at defendant's trial. In his first assignment of error, defendant argues that the trial court erred in "permitting the state" to deprive defendant of his ability to call Orren as a fact witness. In his second assignment of error, defendant argues that the trial court erred in excluding Orren's plea agreement from evidence. For the following reasons, we affirm.

I. THE CRIMES

Because of the posture of this appeal, we describe both the state's and defendant's versions of events, briefly, based on evidence presented at defendant's trial.

A. The Prosecution Theory

According to the state's theory of the case, defendant was the leader of a conspiracy that resulted in a murder. Defendant contacted the victim, who lived in Grants Pass, and asked him to drive to Portland to sell a large quantity of marijuana to defendant. On the night that the victim drove to Portland, defendant enlisted Orren (defendant's neighbor and close friend), Endicott (Orren's wife), Smith (defendant's girlfriend), and Bettencourt (a friend) to conduct a "smash and grab." The preparation took at least six hours. During that time, defendant stole a handgun from a friend's house and gave it to Orren. Defendant also procured a shotgun that Orren handled.

After several failed attempts to isolate the victim's car in a favorable location, the crime came to fruition in the parking lot behind defendant's and Orren's apartment complex. Orren and Bettencourt approached the victim's car. Bettencourt did not want to proceed when he realized that the victim was still in the car, but Orren said that he wanted to "go get this loot." Orren opened the driver's door, shot the victim with the handgun, and fired again as the victim tried to drive away. (The victim, who was shot in the face and back, was later declared dead at the scene.) Orren and Bettencourt ran back to Orren's apartment. Orren told Endicott that he had killed the victim. Defendant came in and asked, "What the fuck happened?" Bettencourt said that he did not know and to ask Orren. Defendant asked if they got the marijuana. When Bettencourt said no, defendant told Orren and Bettencourt to "[g]o get the package," and one of them swore at him. Defendant ran out of the apartment.

B. The Defense Theory

According to defendant, he and the victim together hatched a plan to steal marijuana from the victim's supplier in Grants Pass. The victim would drive to Portland with the marijuana, and defendant would stage a break-in of the victim's car. The victim was not supposed to be in the car. The victim would report the "theft" to his supplier, and then defendant and the victim would sell the marijuana and split the proceeds. Defendant had not told Orren about the victim being in on the plan. But the plan did not involve guns or violence. Defendant did not know that anyone had weapons. According to defendant, Orren shot the victim "for no apparent reason."

II. THE CHARGES AND PRETRIAL PROCEEDINGS

The state charged defendant, Orren, Bettencourt, and Endicott with multiple crimes. While defendant was awaiting trial, Orren, Bettencourt, and Endicott entered into plea agreements. Bettencourt and Endicott each pleaded guilty to one count of first-degree robbery with a firearm, and each was sentenced to 90 months. Orren pleaded guilty to aggravated murder and first-degree robbery with a firearm; the state agreed to recommend a prison sentence of 30 years to life and not to seek the death penalty, but sentencing was set over until completion of the prosecution of Orren's co-defendants.

All three plea agreements addressed defendant's trial. Bettencourt's and Endicott's plea agreements required them to testify truthfully at defendant's trial. Orren's plea agreement was different. It required Orren to assert his Fifth Amendment rights if called to testify at defendant's trial and also barred him from cooperating with the defense. The stated reason for this provision was to "protect the [s]tate" from "untruthful and/or false testimony." According to the state, as represented to the trial court, Orren had admitted to shooting and killing the victim, but he expressly refused to "snitch" on anyone else. He therefore would not talk to the state about anyone else's involvement.

The relevant part of Orren's plea agreement-which the state now recognizes was "ill-advised"-provides:

"Part II: The defendant, Michael Orren, agrees to the following:
"A. To not testify or otherwise cooperate in any way on behalf of any of the codefendants, State v. Shannon Bettencourt , Clackamas County Circuit Court case CR1400330, State v. Francis Paul Weaver , Clackamas County Circuit Court case CR1400331, and State v. Brittany Christine Endicott , Clackamas County Circuit Court case 1400333. In regards to a trial, hearing, grand jury and any other proceedings involving any of the co-defendants, Mr. Orren agrees to assert his Fifth Amendment Right against self-incrimination and not to testify on behalf of any of the codefendants. This agreement is meant to protect the State from Mr. Orren providing untruthful and/ or false testimony to include untruthful and/or false testimony about the murder and robbery of [the victim] to include, but not limited to, the specific involvement and criminal culpability of the co-defendants.
"B. The failure to comply with any condition(s) of this agreement will result in a finding by the State of non-compliance with the terms and conditions of this agreement, and, accordingly, a request by the state to the trial judge and/or sentencing judge, to so find and to thereby deprive Mr. Orren of any and all benefits of this agreement."

In June 2015, the state filed a pretrial motion. At that time, defendant's trial was scheduled to begin in November. The state expressed a belief that defendant might call Orren to the stand at trial "to assert the privilege in front of the jury" or, alternatively, might offer Orren's plea agreement into evidence "to somehow insinuate that the State [was] keeping material information from [the defense]." The state pointed out that Orren remained in legal jeopardy, asserting, "In the case of a co-conspirator or accomplice, the right against self-incrimination endures until the witness has been convicted, sentenced, and exhausted all appeal rights." It cited State v. Barone , 329 Or. 210, 231-32, 986 P.2d 5 (1999), and State v. Abbott , 275 Or. 611, 616-17, 552 P.2d 238 (1976), in support of that assertion. The state then argued that having Orren invoke his Fifth Amendment rights in front of the jury would violate OEC 513, regarding witness claims of privilege, and that admitting the plea agreement would violate both OEC 402, regarding relevance, and OEC 513. The state asked that defendant "not be allowed to introduce the written plea agreement in [Orren's case], make any reference to the agreement, or otherwise require Mr. Orren to invoke his right against self-incrimination in front of the jury."

The trial court held a hearing on the state's motion in July 2015. The hearing began with Orren's attorney objecting to Orren being called for any purpose. Orren's attorney drew the court's attention to a document, signed by Orren and recently filed with the court, in which Orren objected to being called as a witness "by any party in any civil or criminal matter" and stated that he would "refuse to answer all questions and invoke his right to remain silent" if called. The state pointed out that it had wanted Orren present at the hearing to invoke in person but that Orren's attorney had insisted on a written invocation. Orren's attorney argued that no one could call Orren for any reason because he was still in jeopardy, had previously invoked, and was continuing to invoke.

Defendant (who had not filed a written opposition to the state's motion) argued next. First, he asserted that Orren could not invoke his Fifth Amendment rights because he was no longer in jeopardy or had waived those rights in his plea agreement. Defendant argued that point in detail, including that Orren was no longer in jeopardy under the jeopardy analysis in Barone . Second, defendant explained why he believed Orren's plea agreement was relevant under OEC 402 and satisfied hearsay exceptions in OEC 803. As to relevance, defendant argued that the plea agreement made it reasonable for the jury to infer that Orren had "exculpatory evidence" that the state was trying to hide. Third, defendant asked the court to "look at the language in the plea agreement" in deciding the state's motion and, because the state was "requiring Mr. Orren to be a roadblock to finding the truth," allow Orren's plea agreement into evidence, regardless of whether defendant could call Orren to testify.

The state, which argued last, asserted that Orren's plea agreement was irrelevant because Orren had not provided any information to the state. The state insisted that it was not withholding any exculpatory evidence from defendant. The state then reiterated the arguments in its written motion.

The trial court took the matter under advisement. While it was under advisement, defendant submitted a witness list that included Orren's name.

In August 2015, the trial court ruled on whether Orren "was going to be compelled to come in and testify." It explained that it had reviewed Barone and Abbott and had concluded that the accomplices who were ordered to testify in those cases were differently situated than Orren. Because Orren had not yet been sentenced, the court was "not going to order [Orren] to testify at trial."

As for whether the trial court would allow Orren's plea agreement into evidence, the court reserved ruling. It asked defendant to file a brief explaining how the plea agreement was legally relevant. Defendant subsequently did so, arguing that it was relevant because it would permit the jury to infer that "Orren has exculpatory evidence which the State is requiring him not to provide-to get his deal." Defendant then compared the plea agreement to witness tampering and quoted from State v. York , 291 Or. 535, 632 P.2d 1261 (1981), in which the Supreme Court warned that defendants cannot wait until trial to raise an issue about prosecutorial interference with witnesses. Instead, "[w]hen access to witnesses is impaired by prosecutorial misconduct, the defendant must first take appropriate action to overcome the obstacle sought to be imposed by the prosecutor," if possible, specifically by seeking a remedy that "may eradicate the possible prejudice" and "cure the problem." Id . at 543, 632 P.2d 1261. Defendant asserted that he was "taking those steps here and now" by seeking admission of the plea agreement.

In November 2015, the court held another hearing on the admissibility of Orren's plea agreement. The state reiterated its same arguments, including that the plea agreement was inadmissible under OEC 513. It again stressed that it was not withholding any exculpatory evidence. Defendant responded that the state was obviously lying and "ha[d] something to hide" or else it would not have required Orren not to testify as part of his plea agreement. Defendant described the plea agreement as "tantamount to tampering with a witness by making him unavailable." At the conclusion of the hearing, the trial court ruled, based on OEC 513, that it would not admit Orren's plea agreement into evidence because of its reference to the Fifth Amendment. The court stated in its written order, "The court will not allow the plea agreement to be introduced as evidence during trial because of the reference to Mr. Orren invoking his 5th Amendment right against self-incrimination."

Trial began in late February 2016. Consistent with the court's pretrial rulings, defendant did not call Orren to testify or offer his plea agreement into evidence. During jury instructions, the trial court instructed the jury: "The jury is not to consider the fact that Michael Orren did not testify at this trial, or construe it against any party."

The jury convicted defendant of murder with a firearm, ORS 163.115 (2013), two counts of robbery in the first degree with a firearm, ORS 164.415, conspiracy to commit robbery in the first degree with a firearm, ORS 164.415 and ORS 161.450, robbery in the second degree with a firearm, ORS 164.405, conspiracy to commit robbery in the second degree, ORS 164.405 and ORS 161.450, and felon in possession of a firearm, ORS 166.270. Defendant appeals.

III. FIRST ASSIGNMENT OF ERROR

Article I, section 11, of the Oregon Constitution provides, in relevant part, that, "[i]n all criminal prosecutions, the accused shall have the right to * * * have compulsory process for obtaining witnesses in his favor." The compulsory process clause "protects both the right to the attendance of the witness and the testimony of the witness." State v. Mai , 294 Or. 269, 272, 656 P.2d 315 (1982). "In this respect, we construe the state compulsory process clause in the same way as the Supreme Court [has] construed the virtually identical federal counterpart," that is, the Sixth Amendment to the United States Constitution. Id . The Sixth Amendment states that, "[i]n all criminal prosecutions, the accused shall enjoy the right * * * to have compulsory process for obtaining witnesses in his favor." That provision has been described by the federal courts as "protect[ing] a defendant from loss of defense witness testimony through improper government interference." State v. Huffman , 65 Or. App. 594, 598-600, 672 P.2d 1351 (1983).

In his first assignment of error, defendant contends that the trial court erred in "permitting the state to deprive defendant of his right to call David Orren as a witness over defendant's objections." Essentially, defendant argues that (1) the prosecution violated defendant's compulsory process rights under Article I, section 11, of the Oregon Constitution and the Sixth and Fourteenth Amendments to the United States Constitution, by entering into a plea agreement with Orren that made Orren unavailable as a witness at defendant's trial; and (2) the trial court "permitted" the state to do so. In response, the state argues that defendant's first assignment of error is unpreserved or, alternatively, fails on the merits. In so arguing, the state does not defend Part II.A of Orren's plea agreement. To the contrary, it is candid on this point in its answering brief:

"As a preliminary matter, the state wishes to emphasize that it understands-and does not contest-that plea agreements such as the one at issue in this case are disfavored because of the potential impact on other defendants' constitutional rights to compulsory process. For that reason, the state acknowledges that its decision to enter an agreement requiring the exercise of a privilege was ill-advised. But the question before the court in this case is whether defendant is entitled to reversal of his conviction based on his claim that his constitutional compulsory-process rights were violated by the agreement. The record does not support his claim of a constitutional violation."

We begin our analysis of the first assignment of error by observing that defendant is decidedly vague as to how exactly the trial court "permitted" the state to allegedly interfere with his compulsory process rights. In his opening brief, defendant argues extensively about compulsory process, but he does not clearly identify the ruling to which he is assigning error. See ORAP 5.45(3), (4)(a) (requiring identification of challenged ruling in opening brief). Only at oral argument, in response to questioning, did defendant expressly identify the ruling that is the subject of his first assignment of error: the trial court's ruling that, because Orren had not yet been sentenced, it was "not going to order him to testify at trial."

Upon scrutiny, however, that ruling was quite narrow in scope and did not include any ruling on compulsory process issues.

It was the state that first raised the prospect of defendant calling Orren to the stand, when it asked that defendant not be permitted to call Orren to invoke the Fifth Amendment in the jury's presence. Shortly thereafter, Orren filed a written invocation of his Fifth Amendment rights. The court then held a hearing at which defendant never expressed any interest in calling Orren to invoke in front of the jury. Instead, defendant argued that Orren could not invoke the Fifth Amendment (with or without the jury present) because he was no longer in jeopardy or had waived his Fifth Amendment rights. In other words, rather than respond to the issue on which the state had moved, defendant argued that Orren could be compelled to testify because he no longer had any Fifth Amendment rights to invoke.

In that context, when the trial court ruled that it was "not going to order [Orren] to testify at trial," it was ruling on a very specific issue-whether Orren was still in jeopardy and therefore could not be compelled to testify because of his rights against self-incrimination. That is clear from the court's reliance on Barone and Abbott (see 296 Or. App. at 459 n. 1, 439 P.3d at 535 n. 1), from its statement about Orren not having been sentenced yet, and from its description of what it was denying as defendant's motion (see 296 Or. App. at 459 n. 2, 439 P.3d at 535 n. 2). Defendant seizes on the general wording of the court's oral ruling to try to characterize it as a compulsory process ruling, but that was not the issue on which the court ruled because that was not the issue before it.

Defendant never mentioned compulsory process in connection with the state's motion, nor did he make any reference to Article I, section 11, of the Oregon Constitution or to the Sixth Amendment of the United States Constitution. Of course, that in and of itself is not dispositive of preservation. What is dispositive, as to the first assignment of error, is that defendant never asked the court to do anything about Orren's availability (or lack thereof) to testify. For example, defendant never asked the court to determine whether the plea agreement had affected Orren's decision to invoke the Fifth Amendment and, if so, to declare Part II.A unenforceable or otherwise free Orren to testify. See York , 291 Or at 543, 632 P.2d 1261 (when prosecutorial misconduct impedes defense access to a witness, the defendant should, if possible, ask the court for a remedy that will "overcome" the obstacle sought to be imposed by the prosecutor and "cure" the problem). Although the trial court could not have ordered Orren to testify while he remained in legal jeopardy-and it should be noted that the court ruled only that it would not order Orren to testify-it could have potentially freed Orren to testify voluntarily, if defendant had established prosecutorial misconduct or a compulsory process violation and requested such a remedy. Defendant did not do so. The only argument that he made regarding Orren's testimony was that Orren was no longer in jeopardy or had waived his Fifth Amendment rights and therefore was similarly situated to the accomplice in Barone who was ordered to testify.

Although defendant on appeal emphasizes his repeated criticism of Orren's plea agreement to the trial court, the timing and context of that criticism is important. At the first hearing on the state's motion, defendant commented negatively on the plea agreement, but he did so in support of his argument for allowing admission of the plea agreement into evidence at trial. Defendant described the basic terms of Part II.A, stated that "[t]he only implication there is [that] Mr. Orren has exculpatory evidence which the State is requiring him not to provide in order to get his deal," and concluded:

"The State is requiring Mr. Orren to be a roadblock to finding the truth. And based on that, Your Honor, Mr. Weaver should be allowed to introduce into evidence, if he can't call Mr. Orren. But even if he can, in any way, shape, or form , he should be able to introduce the petition to enter a plea of guilty, the plea agreement, and the judgment and the amended judgment. And he should be able to argue any and all inferences he can come up with regarding those documents."

(Emphasis added.)

Later, defendant ramped up his criticism of Orren's plea agreement, characterizing it as equivalent to "witness tampering" and even once using the term "prosecutorial misconduct" in the brief that he filed after the August hearing. Defendant made those arguments after the court ruled on the issue of Orren testifying, however, and, again, he made them in support of the trial court allowing admission of Orren's plea agreement at defendant's trial, not as a basis to release Orren from the plea agreement or otherwise free him to testify. The only remedy that defendant requested for any possible prosecutorial misconduct regarding Orren's plea agreement was admission of the plea agreement at defendant's trial.

Defendant's first assignment of error thus relies on a mischaracterization of the challenged ruling. The thrust of defendant's argument on appeal is that the trial court should have protected defendant's compulsory process rights by ordering Orren to testify as a fact witness, but that it instead "permitted" the state to interfere with those rights by ruling that it would not order Orren to testify. That argument is unpreserved. Defendant never mentioned his constitutional rights to compulsory process, never cited the federal or state constitutional provisions on which he now relies, and never cited a case involving compulsory process rights. More importantly, defendant never asked the trial court to do anything to free Orren to testify voluntarily, let alone anything that would allow it to order Orren to testify, and thus prevent the state from interfering with defendant's compulsory process rights. The only argument that defendant made with respect to Orren testifying was that Orren was already in a position where he could be compelled to testify as a fact witness because he was no longer in jeopardy or had waived his Fifth Amendment rights. The trial court rejected that argument, and, on appeal, defendant does not challenge the legal correctness of that ruling. Rather, defendant effectively challenges a ruling that the court never made on an issue that was not presented.

"Each assignment of error must demonstrate that the question or issue presented by the assignment of error timely and properly was raised and preserved in the lower court." ORAP 5.45(4)(a). That includes identifying how and when the trial court ruled on the issue. See ORAP 5.45 (4)(a)(i), (ii). "Generally, an issue not preserved in the trial court will not be considered on appeal." State v. Wyatt , 331 Or. 335, 341, 15 P.3d 22 (2000) ; see also ORAP 5.45(1) (stating that, except for discretionary plain error review, "[n]o matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court"). Even constitutional claims generally must be preserved for appeal. See State v. Woods , 284 Or. App. 559, 564, 393 P.3d 1188 (2017) ("even an argument pertaining to due process rights must be properly preserved to be considered on appeal"); State v. Driver , 192 Or. App. 395, 405, 86 P.3d 53 (2004) (concluding that defendant's argument that he was denied his right to present a defense under the compulsory process clauses of the Oregon and federal constitutions was not preserved).

For the reasons explained, we agree with the state that defendant's first assignment of error is unpreserved. Further, defendant has not requested plain error review; that is, he does not contend that the trial court committed plain error by failing to intervene sua sponte to determine whether Orren would have testified but for the plea agreement and, if so, to prevent the state from interfering with Orren's availability to testify. The preservation issue is therefore dispositive.

See State v. Ardizzone , 270 Or. App. 666, 673, 349 P.3d 597 (2015) ("[W]e ordinarily will not proceed to the question of plain error unless an appellant has explicitly asked us to do so * * *. Defendant does not request plain error review in this case, and we therefore do not undertake that analysis."). We reject the first assignment of error.

IV. SECOND ASSIGNMENT OF ERROR

In his second assignment of error, defendant argues that the trial court "erred in refusing to allow defendant to submit evidence of and make reference to Orren's plea agreement with the state." The defense theory was that Orren acted alone and killed the victim unexpectedly during what was supposed to be a staged theft. Defendant wanted to admit Orren's plea agreement, in which Orren committed to invoke the Fifth Amendment if called to testify, "to show that the state was trying to keep evidence from the defense and the jury" and "was motivated to do so because Orren's testimony would have been helpful to defendant."

The trial court excluded Orren's plea agreement from evidence based on OEC 513, which provides:

"(1) The claim of a privilege, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by judge or counsel. No inference may be drawn from a claim of privilege.
"(2) In jury cases, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury.
"(3) Upon request, any party against whom the jury might draw an adverse inference from a claim of privilege is entitled to an instruction that no inference may be drawn therefrom."

Defendant argues that the trial court erred in relying on OEC 513 to exclude Orren's plea agreement. Specifically, defendant argues that OEC 513 is not implicated because his purpose in admitting the plea agreement would have been to comment on the state's conduct, not to comment on Orren's invocation of his Fifth Amendment rights. We are unpersuaded given the broad language of OEC 513.

Defendant wanted Orren's plea agreement in evidence so that he could urge the jury to infer from Orren's invocation of his Fifth Amendment rights, in the context of the plea agreement, that Orren's testimony would have been favorable to defendant if he had testified. Orren did not actually invoke his Fifth Amendment rights in front of the jury, but the plea agreement expressly referred to Orren invoking his Fifth Amendment rights if called to testify, and the argument that defendant wanted to make depended for its logic on the jury understanding that Orren either had invoked outside its presence or would invoke if called.

As such, we do not see how the plea agreement could be admitted without running afoul of OEC 513. First, defendant sought to comment to the jury on the reason that Orren was invoking his Fifth Amendment rights, which is a comment on a claim of privilege in contravention of OEC 513(1). The fact that the plea agreement supplied the reason, rather than the invocation itself, does not divorce the comment from the invocation. Second, defendant sought to have the jury infer from Orren's silence, brought about by his claim of privilege, that Orren's testimony would have been favorable to defendant. That requires drawing an inference from a claim of privilege, which also contravenes OEC 513(1). Finally, defendant sought to bring the jury's attention to the fact that Orren was not testifying because he was invoking the Fifth Amendment. That contravenes OEC 513(2), which requires that proceedings in jury trials "be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury." It is notable that OEC 513(2) says "without the knowledge of the jury," not only outside the presence of the jury.

For each of those reasons, we agree with the state that the trial court did not err in excluding Orren's plea agreement from the evidence at trial based on OEC 513. In so concluding, we note that defendant has never argued that his compulsory process rights trumped OEC 513, i.e. , that admission of Orren's plea agreement was a permissible remedy for a compulsory process violation even if OEC 513 otherwise would require exclusion of the plea agreement. Nor did defendant ever ask the trial court to admit a redacted version of the plea agreement, with the reference to Orren's invocation of the Fifth Amendment redacted. Rather, as he did in the trial court, defendant argues that OEC 513 does not apply and that the plea agreement should have been admitted in its entirety. Given the broad language of OEC 513, we reject that argument.

V. CONCLUSION

Having concluded that neither of defendant's assignments of error present a basis for reversal, the judgment of the trial court is affirmed.

Affirmed.

      In Abbott , 275 Or. at 614-17, 552 P.2d 238, the state called an accomplice, who it was undisputed was no longer in legal jeopardy, to testify at the defendant's trial. The accomplice refused to testify-which, over the defendant's objection, occurred in front of the jury-and was held in contempt. The Supreme Court recognized that the jury likely inferred from the accomplice's refusal to testify that the defendant was guilty. Because the accomplice was no longer in legal jeopardy, however, it held that the trial court had not erred in ordering him to testify. Similarly, in Barone , 329 Or. at 230, 986 P.2d 5, the state called an accomplice to testify, but he refused and was held in contempt. The dispositive issue was whether the accomplice remained in legal jeopardy, where he had been sentenced and had exhausted his direct appeals but hoped to pursue post-conviction relief in the future. The Supreme Court concluded that "[t]he possibility of future prosecution based on his testimony at defendant's trial was too remote to resurrect [the accomplice's] Fifth Amendment privilege." Id . The trial court therefore did not err in ordering him to testify.

      The trial court referred to the pending motion as defendant's motion. That was likely because of the evolution of the issue before it. The state had initially expressed concern that defendant might call Orren to invoke the Fifth Amendment in front of the jury. In response, defendant expressed no intention to do that; instead, he relied on Barone to argue that Orren could not validly invoke the Fifth Amendment (as he was no longer in jeopardy or had waived his Fifth Amendment rights) and therefore could be ordered to testify. The trial court's August 2015 ruling focused on defendant's argument.

      It is unknown whether the plea agreement affected Orren's availability to testify. The state argues that it is reasonable to infer on the existing record that Orren would have invoked the Fifth Amendment regardless, while defendant argues that it is reasonable to infer that Orren would have testified but for the plea agreement. In our view, the record is too underdeveloped to permit either inference. See State v. Mays , 269 Or. App. 599, 619-622, 346 P.3d 535 (2015) (trial court would have had to engage in fact-intensive inquiries to determine whether the defendant's compulsory process rights were violated, including whether the prosecutor had engaged in misconduct, whether it had "some effect on the witness's testimony," and whether it was harmless).

      We note that York involved alleged prosecutorial misconduct but did not raise compulsory process issues, because the prosecutor had allegedly interfered only with pretrial access to witnesses. Defendant relied on York in arguing for admission of Orren's plea agreement, however, and York gives some insight into the Oregon Supreme Court's view of appropriate remedies for prosecutorial interference with witness access.

      At the second hearing, while previewing his anticipated brief on relevance, defendant did ask the court to reconsider its prior ruling on Orren's testimony. However, that request was specifically directed to reconsideration of defendant's waiver arguments.

      We express no opinion on the viability of a plain-error argument. We note the absence of a request only to explain why preservation is dispositive.

      We are unaware of any precedent for such an argument and do not mean to suggest that defendant should have made such an argument. We seek only to make clear what defendant has and has not argued and, thereby, the scope of our ruling.

      To the extent that there was any way for defendant to make an argument about Orren's plea agreement without bringing to the jury's attention that Orren had invoked his Fifth Amendment rights, defendant has never articulated such an argument.


source: Caselaw Access Project

author: LAGESEN, P. J.

license: Public Domain

text:
    David CAMPOS, Plaintiff-Appellant, v. Dianna JENSEN, Defendant-Respondent.
    A165563
    Court of Appeals of Oregon.
    Argued and submitted August 28, 2018. March 6, 2019
    Jeffrey S. Frasier, Portland, argued the cause for appellant. Also on the briefs was Chenoweth Law Group, PC.
    Judy D. Snyder, Portland, argued the cause for respondent. Also on the brief was Law Offices of Judy Snyder.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   LAGESEN, P. J.

This is a tort action for defamation and invasion of privacy. Defendant's friend, Ferguson, accused plaintiff of sexual misconduct. The accusations resulted in criminal charges against plaintiff. He was acquitted of those charges. Before, during, and after plaintiff's trial, defendant made online statements about the case that were sympathetic to her friend. Plaintiff alleges that those statements were defamatory and effected a tortious invasion of privacy. On defendant's special motion to strike under Oregon's anti-Strategic Lawsuits Against Public Participation (anti-SLAPP) statute, ORS 31.150, the trial court concluded that the statements at issue were nonactionable statements of opinion protected by the First Amendment to the United States Constitution under the framework established in Neumann v. Liles , 358 Or. 706, 369 P.3d 1117 (2016), and dismissed the case. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The relevant facts are not disputed. As noted, defendant's friend, Ferguson, accused plaintiff of sexual misconduct. The accusations led to two criminal charges against plaintiff in Washington; a jury acquitted plaintiff of both charges. Before and shortly after plaintiff's trial, defendant posted two online statements about the charges on Ferguson's Facebook page. Additionally, during the trial, defendant posted a comment on the website for the newspaper The Columbian. Those statements form the basis of plaintiff's claims against defendant.

Defendant made the first statement in response to a Facebook post by Ferguson. Ferguson's post stated:

"Tomorrow is a big day for me, [it's] a big day for a few folks, actually. I am eager to witness the judicial system working at full capacity! At the end of this trial, there will be 12 people that will decide the outcome of a very disturbing experience that I had almost a year and a half ago. IS he guilty or isn't he? NO matter what, he IS GUILTY. I am confident that my strength and conviction will play a big part in the outcome and I trust how that will be presented to all parties. A woman can be friendly, she can smile a lot, she can be funny, open and direct. Judge how you wish, but please know that these qualities, in NO way give anyone permission to force themselves onto her!"

(Uppercase in original.) Defendant, among others, commented on that Facebook post. Defendant's comment stated:

"[W]e are 100% standing with you and by you. [W]e know who you are. [S]o we know this man is 100% guilty, and needs to pay the price for his lack of character and his criminal behavior.... [I'm] so sorry you had to experience something like this in your life, and [I] am praying for you and this case...... You are one of the best people I know .... [heart emoticon you]."

Defendant made the second statement during plaintiff's criminal trial, with a post on the website for The Columbian . The paper had published an article about the case that described Ferguson's allegations and plaintiff's position as "a case of 'he-said, she-said' and that it was a consensual encounter," and that Ferguson's version of events was not true. Defendant's comment stated:

"I know this person on a person[al] level, and she is telling the truth.....she is a fine [upstanding] person, a great mother, and a person of respectability and honesty.....she would never ever make this up....it happened, you can believe it......I hope this creep gets what he deserves.....what he did was traumatizing and just plain wrong.....He is a liar.....and a sexual predator....BEWARE.....!!!"

(Uppercase in original.)

Defendant made the third statement on Ferguson's Facebook page after the jury acquitted plaintiff. Responding to the acquittal, Ferguson posted "OJ got off too...but we all know he did it." Defendant commented on the post:

"Yes, and we all know this guy did it too. Justice at its worst...so sorry they couldn't get it right....[it's] a tragedy, for the community...hugs girl....we all stand with you, for you, and against him."

Soon thereafter, plaintiff filed this action. Defendant filed a special motion to strike under ORS 31.150. Defendant asserted that her comments "are written statements made in a public forum or public place in connection with an issue of public interest, ORS 31.150(2)(d)," and "[plaintiff] cannot meet his burden of establishing that there is a probability that he will prevail on the claims, ORS 31.150(3)," entitling her to dismissal of the case. In particular, defendant contended that under Neumann , 358 Or. 706, 369 P.3d 1117, her statements qualified as opinions that were protected by the First Amendment and were, therefore, not actionable.

Plaintiff opposed the motion. He did not dispute that defendant's statements were the type that permitted her to invoke the anti-SLAPP procedures, but, instead, contested defendant's assertion that her statements qualified as nonactionable opinions under Neumann , arguing that each statement was "presented as an unqualified statement of fact and is thus not subject to First Amendment protection."

Following a hearing, the trial court granted the motion. Applying the Neumann framework, the trial court ruled:

"Given the totality of relevant circumstances, the nature of the statements, their form and, importantly, their context as commentary to other articles and comments not written by [defendant], I find that a reasonable factfinder could not conclude that the statements made by [defendant] implied an assertion of objective facts. Read as a whole, the statements clearly reflect [defendant's] personal and subjective impressions and opinions based on her support for Ms. Ferguson."

Plaintiff appealed.

On appeal, plaintiff raises 11 assignments of error that present, essentially, one question: Did the trial court err when it concluded that, under Neumann , none of the identified statements are actionable? Plaintiff contends that at least some of the sentences in defendant's three online statements imply assertions of objective facts, so as to render the First Amendment protection for opinions inapplicable. Defendant responds that the trial court correctly understood Neumann to require it to view each statement as a whole within its surrounding context and that, so viewed, the court rightly determined that none of defendant's words were actionable.

II. STANDARD OF REVIEW

We review for legal error a trial court's ruling on a special motion to strike under ORS 31.150. Neumann v. Liles , 261 Or. App. 567, 572-73, 323 P.3d 521 (2014), rev'd on other grounds , 358 Or. 706, 369 P.3d 1117 (2016).

III. ANALYSIS

A. The Neumann Framework

As framed by the parties' arguments both below and on appeal, the sole issue before us is whether any of defendant's online statements-or any parts of those statements-are actionable under the framework established in Neumann. Under that framework, where a statement addresses a matter of public concern, the "dispositive question is whether a reasonable factfinder could conclude that the statement implies an assertion of objective fact." Neumann , 358 Or. at 718-19, 369 P.3d 1117. To answer that question, we must examine the statements at issue under a three-part test:

"(1) [W]hether the general tenor of the entire publication negates the impression that the defendant was asserting an objective fact; (2) whether the defendant used figurative or hyperbolic language that negates that impression; and (3) whether the statement in question is susceptible of being proved true or false. Under that framework, we do not consider the defendant's words in isolation. Rather, we must consider 'the work as a whole, the specific context in which the statements were made, and the statements themselves to determine whether a reasonable factfinder could conclude that the statements imply a false assertion of objective fact and therefore fall outside the protection of the First Amendment.' "

Id. at 719, 369 P.3d 1117 (internal citation omitted).

Neumann illustrates the analysis required under that framework. At issue in Neumann was whether the defendant's online review of a wedding venue, posted on Google Reviews, was entitled to First Amendment protection. The review was as follows:

" 'Disaster!!!!! Find a different wedding venue.
" 'There are many other great places to get married, this is not that place! The worst wedding experience of my life!
The location is beautiful the problem is the owners.
Carol (female owner) is two faced, crooked, and was rude to multiple guest[s]. I was only happy with one thing. It was a beautiful wedding, when it wasn't raining and Carol and Tim stayed away. The owners did not make the rules clear to the people helping with set up even when they saw something they didn't like they waited until the day of the wedding to bring it up. They also changed the rules as they saw fit. We were told we had to leave at 9pm, but at 8:15 they started telling the guests that they had to leave immediately. The "bridal suite" was a tool shed that was painted pretty, but a shed all the same. In my opinion [s]he will find a why [sic ] to keep your $500 deposit, and will try to make you pay even more.' "

Id . at 719, 369 P.3d 1117.

Examining the review under the three-part test, the Supreme Court concluded that it was protected under the First Amendment. Assessing the general tenor of the review, the court acknowledged that several individual statements contained within it could, "[s]tanding alone, create the impression that [the speaker] was" making objective assertions of fact about the venue owner's conduct. Id . at 722, 369 P.3d 1117. Nevertheless, the review had to be considered as a whole and, when considered as a whole, "the general tenor of the review thus reflects [the speaker's] negative personal and subjective impressions and reactions as a guest at the venue and negates the impression that [the speaker] was asserting objective facts." Id . at 721, 369 P.3d 1117. Looking at the wording of the review, the court noted that the speaker's use of hyperbolic vocabulary tended to "further negate any impression that [the speaker] was asserting objective facts." Id . Finally, the court concluded that the review was not capable of being proved true or false. When considered as a whole, it "generally reflect[ed] a strong personal viewpoint as a guest at the wedding venue." Id. In reaching that conclusion, the court again acknowledged that certain sentences contained within the review, when viewed in isolation, could be read to assert statements that were susceptible to being proved true or false. Id. at 721-22, 369 P.3d 1117. But, the court emphasized, the proper analysis requires an examination of individual statements within the context of the review as a whole, a context which demonstrated in that instance that the statements were "not provably false" but, rather, statements of opinion or speculation. Id .

In this case, plaintiff conceded below that defendant's statements involved a matter of public concern for purposes of the Neumann analysis. In view of that concession, our only task is to determine whether, under Neumann 's three-part test, the challenged statements constitute protected, nonactionable opinions. We address each of the statements in turn. For the reasons explained, we ultimately conclude that each of the challenged statements, when viewed through the Neumann lens, constitutes defendant's nonactionable opinion regarding Ferguson's character and credibility.

B. Defendant's First Statement

As noted, the first statement at issue took the form of a comment on a Facebook post by Ferguson. The post stated:

"Tomorrow is a big day for me, [it's] a big day for a few folks, actually. I am eager to witness the judicial system working at full capacity! At the end of this trial, there will be 12 people that will decide the outcome of a very disturbing experience that I had almost a year and a half ago. IS he guilty or isn't he? NO matter what, he IS GUILTY. I am confident that my strength and conviction will pay a big part in the outcome and I trust how that will be presented to all parties. A woman can be friendly, she can smile a lot, she can be funny, open and direct. Judge how you wish, but please know that these qualities, in NO way give anyone permission to force themselves onto her!"

(Uppercase in original.) Defendant, among others, commented on the Facebook post, stating:

"[W]e are 100% standing with you and by you. [W]e know who you are. [S]o we know this man is 100% guilty, and needs to pay the price for his lack of character and his criminal behavior.... [I'm] so sorry you had to experience something like this in your life, and [I] am praying for you and this case...... You are one of the best people I know .... [heart emoticon you]."

The first inquiry is whether the general tenor of the entire publication negates the impression that defendant was asserting an objective fact about plaintiff. Neumann , 358 Or. at 719, 369 P.3d 1117. It does. From the outset, it is apparent that defendant is describing her personal opinion and feelings based on her relationship with Ferguson: "[W]e know who you are. [S]o we know this man is 100% guilty. *** You are one of the best people I know." That is, defendant's statements communicate that her relationship with Ferguson is why she "knows" that plaintiff is guilty. That negates the impression that she is making an assertion of objective fact and instead, in context, implies that defendant is expressing her support for her friend based on their friendship.

Plaintiff argues that, because defendant "states that she knows 'this man is 100% guilty,' readers could conclude she had additional facts indicative of Plaintiff's guilt," and that, under Oregon law, to determine whether a statement is actionable, "Oregon courts have routinely stated that part of the analysis includes whether a purported statement 'implies the existence of undisclosed facts.' Hickey v. Settlemier , 141 Or. App. 103, 110 [, 917 P.2d 44] (1996)." We disagree that defendant's comment, when viewed in context as Neumann directs, reasonably can be read to imply the existence of undisclosed facts. Although, divorced from its context, the statement might convey the impression that plaintiff identifies, we understand Neumann to mandate consideration of the words extracted by plaintiff within the context of defendant's entire statement. Looking at the entire statement, defendant's comment explicitly ties her expression of belief that plaintiff is 100 percent guilty to the fact that she is familiar with Ferguson's character: "[W]e know who you are." Additionally, the statement was posted directly on Ferguson's Facebook page in response to Ferguson's own posting about the incident. When the statement is considered as whole within that context, its general tenor tends to negate the impression that the statement is one of objective fact or anything other than an unqualified statement of support for a trusted friend.

Relying on Bryant v. Recall for Lowell's Future Committee , 286 Or. App. 691, 692, 400 P.3d 980 (2017), plaintiff argues, alternatively, that "determining whether sufficient evidence exists to defeat a defendant's special motion to strike requires the court to rule on each potentially defamatory statement 'individually.' " In particular, plaintiff asserts that Bryant requires consideration of whether certain individual sentences contained in defendant's three online posts are, standing alone, capable of being understood as assertions of objective fact without regard to the context as a whole. According to plaintiff, when certain sentences in defendant's posts are viewed in isolation, such sentences could permit a reasonable factfinder to find that defendant was making defamatory assertions of objective fact, rather than protected statements of opinion.

We do not read Bryant to stand for that proposition with respect to statements such as those at issue in this case. In Bryant , the defendants' anti-SLAPP motion required us to consider seven statements that the defendants made in an election flyer about an opponent. 286 Or. App. at 693, 400 P.3d 980. The statements were individual, separated sentences, contained in a single document.

Id. Each of the sentences at issue made distinct allegations about the candidate. In that context, we stated:

"Thus, to establish a prima facie case to defeat defendants' special motion to strike, plaintiff had to produce sufficient evidence to show that defendants' statements imply an assertion of objective fact and cannot reasonably be interpreted in a manner that makes them 'factually correct.' Addressing that question requires that we address each of the seven statements individually."

Id. at 700, 400 P.3d 980. Plaintiff focuses in on the word "individually" and argues:

"In Bryant , the court confronted the question whether individual statements in a single publication were defamatory and considered each statement individually in making its determination. See Bryant , 286 Or. App. 691, 400 P.3d 980. Here, the potentially defamatory statements exist in not one, but three separate publications: a comment on the website of The Columbian , and two distinct Facebook comments, highlighting the need for individual consideration. The trial court did not afford Plaintiff the benefit of Oregon law in ruling on Defendant's motion because it failed to rule on each publication individually."

As plaintiff points out, the statements in Bryant were contained in a single document. What plaintiff does not point out is that each challenged statement in the flyer in Bryant was written as a single, stand-alone statement, visually separated from the other statements. Id. at 694, 400 P.3d 980. Each statement also appeared to address different content from the other statements. Id . They were not, as was the case in Neumann and is the case here, parts of a single, larger paragraph or statement that were visually and conceptually connected. It is under those circumstances that we concluded that each of the challenged statements required individual analysis without regard to the other stand-alone statements contained in the flyer. However, nothing in our analysis suggests that individual sentences contained in a paragraph or larger statement must be analyzed independently from the other sentences contained in the paragraph or larger statement. Indeed, Neumann explicitly instructs to the contrary that sentences contained in a larger statement must be evaluated in view of the whole. Neumann , 358 Or. at 719, 369 P.3d 1117. Thus, to the extent that plaintiff contends that we must assess the general tenor of certain sentences in each of the challenged online posts without regard to their surrounding context, we reject that assertion as contrary to Neumann .

The next step is to consider whether the use of "figurative or hyperbolic language *** negates the impression that [defendant] was asserting objective facts." Id . at 721, 369 P.3d 1117. Here, defendant's hyperbolic word choices do tend to negate the impression that she is asserting objective facts.

Defendant's statements that "we know this man is 100% guilty," "[plaintiff] needs to pay the price," and "[y]ou are one of the best people I know," are all hyperbolic statements of defendant's personal opinion. See generally Chief Aircraft, Inc. v. Grill , 288 Or. App. 729, 734, 407 P.3d 909 (2017) (use of the word "completely" makes a statement appear hyperbolic); Greenbelt Co-op. Pub. Ass'n v. Bresler , 398 U.S. 6, 13-14, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970) (use of the term "blackmail" in characterizing the negotiating position of a public figure who spoke at a heated public meeting was not defamatory as a matter of law, but was rhetorical hyperbole).

The final step under Neumann is to consider whether defendant's statement is susceptible of being proved true or false. Plaintiff argues that, in this case, defendant's statements can be proved true or false because we have the jury's verdict, unanimously acquitting him of the allegations. Plaintiff contends that "[a] person's innocence or guilt is a fact-based question. Defendant's statement is demonstrably false, and the court should not afford it First Amendment protection."

Although plaintiff may be correct that the question of his guilt or innocence is something that is susceptible of being proved true or false, the question here is whether the assertions communicated by defendant's statements are ones that are susceptible to being proved true or false. Again, when viewed as a whole in context as Neumann requires, defendant's statements express her personal opinion, based on her relationship with Ferguson and her inclination to credit Ferguson's version of events, that plaintiff is guilty. Defendant's statements about her own personal opinion are not ones that are capable of being proved true or false for purposes of the Neumann analysis. As we understand that analysis, the expression of a personal viewpoint is not something that is susceptible to being proved true or false. For those reasons, the trial court correctly concluded that defendant's first Facebook post was not actionable.

C. Defendant's Second Statement

The next statement at issue is defendant's comment on The Columbian website under the article discussing plaintiff's criminal trial. The comment stated:

"I know this person on a person[al] level, and she is telling the truth.....she is a fine [upstanding] person, a great mother, and a person of respectability and honesty.....she would never ever make this up....it happened, you can believe it......I hope this creep gets what he deserves.....what he did was traumatizing and just plain wrong.....He is a liar.....and a sexual predator....BEWARE.....!!!"

(Uppercase in original.) Again, as with the previous comment, the general tenor of the statement is one of opinion about Ferguson's credibility based on defendant's personal relationship with Ferguson. Defendant's statement that "I know this person on a person[al] level, and she is telling the truth," indicates that it is because she has a personal relationship with Ferguson that she knows that she is telling the truth. Defendant does not suggest at any point that she has firsthand knowledge about the incident involving plaintiff and Ferguson but, instead, emphasizes what she knows about Ferguson's character traits, describing her as "[upstanding] * * * a great mother * * * and a person of respectability and honesty"-all of which precede defendant's statement that "it happened, you can believe it." The general tenor of those comments is one of opinion-defendant's opinion that Ferguson is a credible person. The fact that The Columbian article on which defendant commented indicated that the trial boiled down to a credibility contest between Ferguson and plaintiff contributes further to the impression that defendant's statements were expressing her personal opinion about Ferguson's character, rather than any objective knowledge about the events that led to the trial.

As for the second inquiry, defendant's statement employs hyperbolic rhetoric and punctuation: "[Ferguson] would never ever make this up" and "....BEWARE....!!!" She calls defendant a "creep." In the context of that other hyperbole and name-calling, defendant's references to plaintiff as "a liar" and "sexual predator" also give the impression of hyperbole, when taken in context.

Finally, like the first statement, the statement communicates defendant's strong personal belief about Ferguson's character and credibility, and the opinion that she has formed of plaintiff as a result of her opinion of Ferguson. That statement of opinion and belief is not one that is susceptible of being proved true or false. Neumann , 358 Or. at 719, 369 P.3d 1117. Thus, the trial court correctly concluded that defendant's second statement is not actionable under Neumann .

D. Defendant's Third Statement

The final statement at issue in this case was another post on Ferguson's Facebook page. After the jury acquitted plaintiff, Ferguson posted: "OJ got off too...but we all know he did it." Defendant responded to that post, commenting:

"Yes, and we all know this guy did it too. Justice at its worst...so sorry they couldn't get it right....[it's] a tragedy, for the community...hugs girl....we all stand with you, for you, and against him."

Like the first two statements, this statement, when viewed as whole in context, is yet another statement expressing defendant's belief in her friend. The general tenor of the statement is one of sympathy and support for a friend, and does not, in context, give the impression that defendant is making objective assertions of fact. The statement again employs hyperbole, stating what "we all know," describing the trial as "[j]ustice at its worst" and "a tragedy, for the community," further negating any impression that defendant was asserting objective facts. Finally, when viewed as a whole in context, defendant's statements communicate her personally held beliefs about defendant, based on her friendship with Ferguson, and, for that reason, are not susceptible of being proved true or false.

IV. CONCLUSION

In sum, when each of the three challenged statements is considered as a whole, within its respective context, each, like the review in Neumann , gives the impression of a strongly held opinion or viewpoint and, as such, would not allow a reasonable factfinder to find that any of the statements communicated an assertion of objective fact. Thus, under Neumann , as we understand it, the trial court correctly concluded that each of the challenged statements is protected by the First Amendment and, therefore, is not actionable. The court was correct to grant defendant's special motion to strike under ORS 31.150 and to dismiss the case.

Affirmed.

      Those statements are as follows:
      "1. '[Plaintiff] inferred [sic ] City Administrator Chuck Spies was involved in missing city money. Her false inference [sic ] nearly cost the city $20,000 for an investigation and a law suite [sic ] against the City.'
      "2. '[Plaintiff] cost the City money by calling the City Attorney without the authorization to do so.'
      "3. '[Plaintiff] was then fined by the State of Oregon for not following the rules for her publication "The Voice." '
      "4. '[Plaintiff] has recklessly charged city staff with unsupported allegations, and thus placed the city at risk of ruining people's careers and reputations with no foundation, all of which necessitated $1,927.00 of unbudgeted expenditures for legal fees.'
      "5. '[Plaintiff] incorrectly asserts that she formed "Save-Our-Schools Lowell" to raise money for our schools.'
      "6. 'Save-Our-Schools Lowell does not exist.'
      "7. '[Plaintiff] made a personal recording of a city council executive session meeting in violation of state law.' "
      Bryant , 286 Or. App. at 694, 400 P.3d 980.


author: ARMSTRONG, P. J.

text:
    STATE of Oregon, Plaintiff-Appellant, v. Wayne Mack HARROP, Defendant-Respondent.
    A164452
    Court of Appeals of Oregon.
    Argued and submitted August 29, 2018. March 20, 2019
    Jennifer S. Lloyd, Assistant Attorney General, argued the cause for appellant. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Brett J. Allin, Deputy Public Defender, argued the cause for respondent. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Sercombe, Senior Judge.
   ARMSTRONG, P. J.

The state appeals an order granting defendant's motion to suppress evidence. It contends that the trial court erred in concluding that the arresting police officer lacked probable cause to believe that defendant had impeded traffic in violation of ORS 811.130 when the officer stopped defendant. The court's conclusion on that point formed the basis of its decision to grant defendant's suppression motion. We conclude that the facts as the officer perceived them did give rise to a reasonable belief by the officer that defendant had violated ORS 811.130. Hence, we reverse and remand.

On review of an order on a suppression motion, we review the order for legal error "and are bound by the trial court's factual findings if there is constitutionally sufficient evidence in the record to support them." State v. Carson , 287 Or. App. 631, 634, 404 P.3d 1017 (2017).

Officer Bartholomew of the Hillsboro Police Department was driving with his supervisor as part of Bartholomew's field training. Bartholomew turned onto Golden Road in Hillsboro, which he described as a "two-way, regular residential road" with "[o]ne lane for each direction." The road has a curb along the edge of the westbound lane of travel, and cars regularly park on the curb side of the road. The road is wide enough that, even when cars are parked along the curb side of the road, there is enough remaining road to accommodate two lanes of travel. There is no curb along the eastbound lane of travel, and private yards extend up to the paved portion of the road. Some of the yards have small dirt patches where drivers can pull off the road to park.

As soon as he turned onto Golden Road into the eastbound lane of travel, Bartholomew saw a line of two or three cars stopped behind defendant's car in the eastbound lane. The cars behind defendant's car proceeded to drive around defendant's car by driving into the oncoming lane of travel to continue down the road. The cars waited behind defendant's car for less than a minute before proceeding around it.

After the other cars had gone around defendant's car, Bartholomew could see that defendant's car was stopped in Bartholomew's lane of travel with its brake lights engaged. At that point, Bartholomew believed that defendant was unlawfully impeding traffic, and Bartholomew initiated a traffic stop. Defendant responded by pulling into a driveway on the eastbound side of the road. During the course of the stop, defendant did not offer any explanation for having stopped his car in the road. Bartholomew observed signs of alcohol-induced impairment, which led him to conduct an investigation and, ultimately, to arrest defendant for driving under the influence of intoxicants.

Before trial, defendant moved to suppress all the evidence obtained from the stop on the ground that Bartholomew had lacked probable cause to believe that defendant had committed a traffic violation when Bartholomew stopped defendant. At the hearing on the motion, the trial court stated that it was a close call whether the facts gave rise to probable cause to believe that defendant had impeded traffic. However, because there was ample room for other cars to go around defendant, the court concluded that defendant had not impeded traffic and that Bartholomew therefore lacked probable cause to stop defendant. In sum, the court was not persuaded that defendant's act of stopping his car on the side of Golden Road that lacked a curb made it objectively reasonable to believe that defendant had impeded traffic in violation of ORS 811.130. The court therefore granted defendant's suppression motion.

On appeal, the state renews its argument that Bartholomew had probable cause to believe that defendant had impeded traffic when Bartholomew stopped defendant. "Probable cause exists if, at the time of the stop, the officer subjectively believes that [an] infraction [has] occurred and if that belief is objectively reasonable under the circumstances." State v. Isley , 182 Or. App. 186, 190, 48 P.3d 179 (2002). Neither party contends that Bartholomew lacked a subjective belief that defendant had committed a traffic infraction; the sole issue is whether Bartholomew's belief was objectively reasonable.

For an officer's belief to be objectively reasonable "the facts, as the officer perceives them , must actually constitute an infraction." State v. Tiffin , 202 Or. App. 199, 203, 121 P.3d 9 (2005) (emphasis added). The officer's belief is objectively reasonable even if it turns out that the officer was mistaken about the facts forming the basis for the stop and that no infraction had occurred. Id.

As noted, Bartholomew stopped defendant based on his belief that defendant had impeded traffic in violation of ORS 811.130. ORS 811.130 prohibits driving in a manner that impedes the "normal and reasonable movement of traffic." We earlier addressed probable cause under that statute in Tiffin . There, officers saw the defendant driving between 28 and 30 miles per hour on a road on which the speed limit was 40 miles per hour. 202 Or. App. at 201, 121 P.3d 9. There was no ice on the roads, and it was not raining or snowing. The officers followed the defendant for approximately one mile. In that time, there were several turnouts that the defendant could have used to allow the officers to pass him, and there was also a brief passing lane that the officers could have used to pass the defendant. Nonetheless, the officers stopped the defendant for impeding traffic. Id. We concluded that the officers had lacked probable cause to believe that the defendant had impeded traffic because the officers had chosen to slow down to investigate the defendant and, therefore, the officers had not been impeded by the defendant's driving. Id. at 205, 121 P.3d 9. In reaching that conclusion, we relied on the facts that the defendant's speed was not significantly below the speed limit, there were no other cars on the road that were impeded by the defendant's driving, and the officers were slowed for only a short distance before they had an opportunity to pass the defendant. Id. at 206, 121 P.3d 9.

In contrast, we recently upheld in Carson a stop under ORS 811.130 for impeding traffic. There, the defendant was completely stopped in the right lane of a two-lane, one-way road. 287 Or. App. at 632, 404 P.3d 1017. A police officer stopped his patrol car behind the defendant's car, waited for approximately five seconds, and then honked his horn. When the defendant still did not move, the officer initiated a traffic stop. Id . The defendant argued in support of his suppression motion that the officer had not had probable cause to believe that the defendant had impeded traffic because the officer could have passed the defendant's car simply by moving to the other lane. Id. at 635, 404 P.3d 1017. We concluded that the officer had probable cause to believe that the defendant had impeded traffic because the "defendant's car was completely stopped and blocked an entire lane of travel," which "altered the normal movement of traffic." Id. at 637, 404 P.3d 1017. We stated, "The 'normal and reasonable' movement of traffic here would be that vehicles in each lane could proceed in their respective lanes of travel and not have to switch lanes due to a car blocking traffic in one of them." Id. The defendant had effectively turned the two-lane road into a one-lane road.

Carson controls our decision here. Like the defendant in Carson , defendant completely stopped his vehicle in what Bartholomew perceived to be a lane of travel. Bartholomew viewed the road as having two lanes of travel-with parking permitted only on the curb side of the road-and that the normal movement of traffic on the road was that the two lanes allowed for one lane of travel in each direction. The other cars that Bartholomew saw stopped behind defendant added to that belief because the drivers of those cars also treated the road as having one lane of travel in each direction. Defendant's actions altered that normal movement by removing a lane of travel and restricting cars to a single, shared lane of travel for both directions of travel. Even if, as defendant argues, Bartholomew was incorrect as to the facts and defendant actually was stopped in a parking lane, Bartholomew's belief that defendant was blocking a lane of travel was objectively reasonable under the circumstances. See Tiffin , 202 Or. App. at 203, 121 P.3d 9 ("[A]n officer's belief may be objectively reasonable even if it turns out to be [factually] incorrect.").

Because Bartholomew's belief that defendant had impeded traffic in violation of ORS 811.130 was objectively reasonable, Bartholomew had probable cause to believe when he initiated the traffic stop that defendant had committed a traffic infraction. Therefore, the trial court erred by granting defendant's suppression motion.

Reversed and remanded.

      ORS 811.130 provides, as relevant:
      "(1) A person commits the offense of impeding traffic if the person drives a motor vehicle or a combination of motor vehicles in a manner that impedes or blocks the normal and reasonable movement of traffic."


text:
    STATE of Oregon, Plaintiff-Respondent, v. Clifton John OLSON, Defendant-Appellant.
    A163925
    Court of Appeals of Oregon.
    Argued and submitted September 18, 2018. March 20, 2019
    Erik Blumenthal, 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.
    Jamie Contreras, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Sharia Mayfield, Assistant Attorney General.
    Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.
   AOYAGI, J.

Defendant was convicted of multiple crimes, including three counts of felony fourth-degree assault (Counts 3, 4, and 7), after a series of incidents involving his girlfriend, J. The three assault convictions were elevated to felonies on the basis that defendant knew that J was pregnant at the time of the assaults. On appeal, defendant challenges the assault convictions, raising two assignments of error. We reject defendant's second assignment of error without written discussion. In his first assignment of error, defendant argues that the trial court erred in denying his motion for judgment of acquittal, because the evidence was speculative as to whether J was actually pregnant at the time of each assault. For the reasons that follow, we agree. We therefore reverse defendant's felony convictions on Counts 3, 4, and 7; remand for entry of misdemeanor convictions on those counts; and otherwise affirm.

In reviewing the denial of a motion for judgment of acquittal, we view the facts in the light most favorable to the state. State v. Long , 286 Or. App. 334, 335, 399 P.3d 1063 (2017). Applying that standard, the relevant facts are as follows.

Defendant and J began dating in the summer. J moved in with defendant in mid-to-late July, and they discussed wanting J to become pregnant. J became pregnant in the first half of August, as confirmed by a home pregnancy test and an ultrasound on August 18. Defendant knew about the pregnancy at that time.

On August 28, defendant woke J by deploying a taser to her leg, which caused her pain and a welt on her leg. J described the pain as eight or nine on a scale of 10.

On September 7, defendant and J got into an altercation at a neighbor's property. At one point, defendant hit J in such a way that her head bounced off his truck window frame, which caused J to have a headache and a small indentation on her head. Later, as defendant was sitting in the driver's seat, J stood on the running board, holding onto the door and talking to him. Defendant began driving. They were in a field, and J does not know how fast they were going. Defendant opened and closed the door briefly, which caused J to lose her grip and fall off the truck. J lost consciousness. When she came to, J felt sharp stomach pains. Later, as J was trying to take some things out of the truck, defendant hit her around the head multiple times with an open palm. J experienced "pains in [her] stomach" and "a really bad headache" that night.

On September 11, defendant and J got into an argument at a motel. During the argument, defendant hit J in the stomach, which caused her pain of an unspecified duration. J described the pain as seven or eight on a scale of 10. Defendant also obstructed J's breathing by covering her mouth and nose with his hand, and he elbowed J in the head. J called the police, and defendant was arrested.

Defendant was charged with numerous crimes relating to his conduct toward J. The only relevant charges for purposes of appeal are Counts 3, 4, and 7, all of which charged felony fourth-degree assault, ORS 163.160. Count 3 pertains to the incident on August 28. Count 4 pertains to the incident on September 7. Count 7 pertains to the incident on September 11. All three counts were charged as felonies pursuant to ORS 163.160(3)(d), which elevates fourth-degree assault from a Class A misdemeanor to a Class C felony when "[t]he person commits the assault knowing that the victim is pregnant."

At defendant's trial, J testified regarding the charged incidents. She also testified regarding her pregnancy, which did not go to term. According to J, she never gave birth; she testified that, at a follow-up medical appointment that occurred sometime between September 12 and October 3, no fetal heartbeat was detected.

After the close of the state's evidence, defendant moved for a judgment of acquittal on the felony assault counts. As relevant here, defendant argued that the evidence was insufficient to prove that J was pregnant when the assaults occurred, in which case the state could not establish that he knew that she was pregnant. The trial court denied the motion. The court did not explain its ruling, except to say that it was viewing the evidence in the light most favorable to the state.

Defendant was convicted on Counts 3, 4, and 7 (as well as other counts). On appeal, he assigns error to the denial of his motion for judgment of acquittal.

In reviewing the denial of a motion for judgment of acquittal, we "determine whether a rational factfinder, making reasonable inferences, could have found the essential elements of the crime proved beyond a reasonable doubt." State v. Miller (A134139) , 226 Or. App. 52, 55, 202 P.3d 921 (2009) (emphasis in original). Defendant challenges the sufficiency of the evidence as to only one element of the felony assault charges: defendant's knowledge that the victim was pregnant. As to each count, if the evidence was insufficient to prove that allegation, defendant could have been convicted of a misdemeanor but not a felony.

As noted, under ORS 163.160(3)(d), fourth-degree assault is a felony, rather than a misdemeanor, if "[t]he person commits the assault knowing that the victim is pregnant." The plain language of ORS 163.160(3)(d) thus requires two facts to exist at the time of an assault for it to be a felony: (1) that the victim "is" pregnant, and (2) that the assailant "know[s]" that. For purposes of ORS 163.160 (3)(d), it therefore was not enough for the state to prove that defendant believed that J was pregnant on each of the three dates in question. Nor was it enough for the state to prove that J could have been pregnant on those dates. The state had to prove that J was actually pregnant on each date to prove felony assault under ORS 163.160(3)(d).

Defendant argues on appeal that the evidence was insufficient to establish that J was pregnant on August 28 (for Count 3), September 7 (for Count 4), or September 11 (for Count 7). In response, the state does not contest that it had to prove that J was actually pregnant on each date. Rather, the state asserts that the evidence was sufficient to do so. It posits three alternative legal theories. First, the state argues that the absence of a fetal heartbeat at J's follow-up appointment does not establish that the pregnancy had ended. Second, the state argues that, because J's pregnancy was confirmed on August 18, a factfinder could reasonably infer "that she continued being pregnant until it was known otherwise," i.e. , until termination was confirmed. Third, the state argues that "a rational factfinder could infer from the facts that a miscarriage occurred following a painful assault to the victim's abdomen" on September 11 (the third assault).

With respect to the state's first argument, the state points out that J never used the word "miscarriage" in her testimony. She never used the word "terminated" either. Nonetheless, the only reasonable inference that can be drawn from J's testimony is that her pregnancy did end and that she learned of that fact at her follow-up medical appointment in the latter half of September or early October. The prosecutor first asked J whether she "ultimately [gave] birth to a child," to which J responded "no." The prosecutor then asked J "what happened during [her] pregnancy," to which J responded, "I went back for a follow-up and there was no heartbeat." By reference to other events, J was able to identify the date of that appointment as being sometime after September 11 and before October 4. Although the prosecutor's questions were phrased somewhat indirectly, the import of J's answers is clear, and the state does not plausibly explain how that testimony allowed a reasonable inference that J was still pregnant at the time that no heartbeat was detected. We therefore reject the state's first argument.

We also reject the state's second and third arguments, which are closely related, and both of which turn on what constitutes a reasonable inference. In considering the evidence against a criminal defendant, a factfinder may draw any reasonable inferences in the state's favor, including from circumstantial evidence, and we view the evidence in that manner for purposes of reviewing the denial of a motion for judgment of acquittal. State v. Lupoli , 348 Or. 346, 366, 234 P.3d 117 (2010). Moreover, if established facts can support "multiple reasonable inferences," it is for the factfinder to decide which inference to draw.

State v. Bivins , 191 Or. App. 460, 467, 83 P.3d 379 (2004). Speculation is different than inference, however, and the line between the two "is drawn by the laws of logic." Id. (citation omitted). That the historical facts make something possible is not enough to give rise to an inference. It is when there is a "logical probability that an ultimate fact will follow a stated narrative or historical fact" that "the jury is given the opportunity to draw a conclusion because there is a reasonable probability that the conclusion flows from the proven facts." Id .

In this case, J became pregnant sometime in the first half of August, the pregnancy was confirmed on August 18, and the loss of the pregnancy was confirmed a little over three to six weeks later, at a medical appointment that took place sometime between September 12 and October 3. From those facts alone, it would be entirely speculative to say that J was or was not pregnant on August 28, September 7, or September 11. The pregnancy could have terminated at any time between August 18 and October 3, and the "laws of logic" are of no assistance in pinning down the date.

The other evidence admitted at defendant's trial also was of little assistance in pinning down the date. J testified that she had morning sickness at some point, but there was no indication when that occurred. There was no evidence that J experienced any other signs or symptoms of pregnancy-or a cessation of such signs or symptoms. J did not testify to having experienced bleeding or any other event that she perceived as a miscarriage. There was no indication as to what spurred the medical appointment at which no fetal heartbeat was detected, except that it was a "follow-up" appointment. The state offered no medical evidence regarding the likely timing of termination, symptoms of miscarriage in early pregnancy, or whether particular incidents could have or were likely to have triggered a miscarriage at that stage of pregnancy.

The state's second and third arguments confuse possibility with reasonable inference. Whether a woman is pregnant at a given time is a question of fact. If the only evidence is that someone was pregnant on a given date and was not pregnant six weeks later, it is speculation, not inference, to say that she was pregnant every day in between. Cf.

Statev. Hiner , 269 Or. App. 447, 448, 345 P.3d 478 (2015) (error to deny motion for judgment of acquittal on charge of failure to register as a sex offender, where the defendant was required to register within 10 days of moving to a new residence, and there was evidence that he left a homeless shelter on a certain date and was arrested 16 days later, but there was no evidence of his whereabouts in between).

The state's second argument seeks, in effect, to create a legal fiction, by which a woman with a confirmed pregnancy remains pregnant until, as the state puts it, something "compels" a finding of the cessation of pregnancy (such as medical confirmation of termination)-regardless of when the woman in fact ceased to be pregnant. Given the state's burden of proof, we cannot adopt such a legal fiction. Cf. State v. Rainey , 298 Or. 459, 465, 693 P.2d 635 (1985) (the state may not rely on a rebuttable presumption in a criminal case, "because a presumption places the burden of persuasion on the criminal defendant in a manner inconsistent with the presumption of innocence and proof of guilt beyond a reasonable doubt"). It was the state's burden to prove that J was pregnant at the time of each assault , and it cannot shift that burden to defendant by proving that J was pregnant at some other time and then leaving it to defendant to prove that she was not pregnant when the assaults occurred. Otherwise, the state fails to explain how a factfinder could infer on this record, beyond a reasonable doubt, that J's pregnancy terminated on the date of her follow-up appointment, as opposed to any other date in the preceding weeks.

The state's third argument-that it is reasonable to infer that J miscarried after defendant's third assault-fails for similar reasons. It is possible that J's pregnancy terminated after defendant hit her in the stomach on September 11, if she was still pregnant at that time and if defendant's conduct was sufficient to trigger a miscarriage, as the state presumes. Or. it is possible that J's pregnancy terminated after she fell off defendant's truck on September 7 (and before September 11), if she was still pregnant at that time and if what occurred was sufficient to trigger a miscarriage. Or. it is possible that J's pregnancy terminated at some other time entirely, for a reason unrelated to the assaults-especially given the early stage of the pregnancy-which termination could have occurred at any time after August 18. There is no evidence in the record that makes any one of those possibilities any more likely than another. Indeed, the state does not contend that there is. Instead, it argues that, because it is possible that J's pregnancy terminated after the third assault, it does not matter that it is also possible that J's pregnancy terminated after the second assault, or at some other time entirely-the state argues that the factfinder is allowed to choose between all "reasonable inferences." We disagree. Choosing arbitrarily between possibilities is speculation, not reasonable inference.

To be clear, we do not mean to suggest that expert medical testimony was necessarily required to establish whether J was pregnant at the time of each assault. In many situations, circumstantial evidence or a woman's own testimony may be sufficient to establish that a woman was pregnant on a particular date, was not pregnant on a particular date, or miscarried on a particular date. In this case, given the early stage of J's pregnancy and her apparent unawareness of its termination until notified by a medical professional, medical testimony may have been necessary to provide enough information for a factfinder to determine whether J

was pregnant on the dates of the assaults. Or, J's own testimony might have been sufficient to establish the necessary facts, if J had been questioned about her pregnancy more than she was.

On this very limited record, however, there was simply no way for the factfinder to apply logic to make a reasonable inference whether J was or was not pregnant on August 28, September 7, or September 11. To say that she was pregnant is only to speculate. We therefore reverse defendant's felony convictions on Counts 3, 4, and 7, and remand for entry of misdemeanor convictions on those counts.

Reversed and remanded as to Counts 3, 4, and 7; otherwise affirmed.

      The legislature enacted ORS 163.160(3)(d) in 2009 as part of House Bill (HB) 3505-A (2009). Earlier that year, someone had killed a woman who was eight months pregnant and cut the baby from her womb. It came to the legislature's attention that the unborn child, who did not survive, was "not considered a murder victim" under existing law. Staff Measure Summary, House Committee on Rules, HB 3505, June 23, 2009. As a result, HB 3505-A was introduced to "increase penalties for an attack on or killing of a pregnant person." Id . That legislative history is consistent with the plain language of ORS 163.160(3)(d) and makes clear that the statutory purpose-essentially to penalize assaults on fetuses via their mothers-is served only if the victim is actually pregnant.

      Defendant contends that the state did not make its third argument in the trial court, and we note that the state does not posit it as an alternative basis to affirm. However, because we reject it on the merits in any event, we do not address the procedural issue.