text:
    STATE of Oregon, Plaintiff-Respondent, v. Calvin Duane EDGAR, Defendant-Appellant.
    A162162
    Court of Appeals of Oregon.
    Argued and submitted October 10, 2017. April 24, 2019
    Kyle Krohn, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
    Andrew M. Lavin, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.
   EGAN, C. J.

Defendant appeals a judgment of conviction for delivery and possession of methamphetamine, ORS 475.890 ; ORS 475.894, assigning error to the trial court's denial of his motion to suppress statements he made after a deputy belatedly read him Miranda warnings. The state concedes that defendant's pre-Miranda statement was inadmissible but contends that the belated Miranda warnings were effective and rendered all subsequent statements admissible. Defendant argues that all of the questioning occurred during a single encounter fraught with coercion. Since the statements went to one of the central factual issues-whether defendant delivered methamphetamine-defendant argues that we must reverse his conviction for delivery of methamphetamine, ORS 475.890. We agree with defendant, and thus, we reverse and remand that conviction; otherwise, we affirm.

In reviewing the denial of a motion to suppress, we are bound by the trial court's factual findings if constitutionally sufficient evidence in the record supports them. State v. Ehly , 317 Or. 66, 74-75, 854 P.2d 421 (1993). We review the ultimate legal conclusions based on those findings for legal error. Id. at 75, 854 P.2d 421. "[I]f the trial court did not make findings on all pertinent historical facts and there is evidence from which those facts could be decided more than one way, we will presume that the trial court found facts in a manner consistent with its ultimate conclusion." State v. Stevens , 311 Or. 119, 127, 806 P.2d 92 (1991). We state the facts consistently with that standard.

While Deputy Reavis was on patrol, the Reedsport Police Department told him that an anonymous caller had reported that defendant was en route to purchase methamphetamine from two known drug dealers. Reavis saw defendant's car, and he began to follow it. Eventually, Reavis observed defendant fail to properly signal prior to making a turn, so Reavis called Deputy Pitcher to assist him in stopping defendant for that traffic violation.

Reavis and Pitcher approached defendant's car together, with Reavis on the driver side and Pitcher on the passenger side. While Reavis explained the reason for the stop and asked defendant for his license, insurance, and registration, Pitcher looked in the passenger side window. On the passenger seat, he saw a plastic "sandwich" bag sticking out of a pocket of a pair of pants in a laundry hamper. The bag contained a white substance. Pitcher looked over the top of the car and told Reavis what he saw. Reavis asked defendant what was in the bag, and defendant responded by asking "What?" Pitcher pointed at the bag. Defendant placed his hand in the pocket of the pants in the hamper, pushed the bag deeper into the pocket, and then pushed the entire pair of pants down towards the bottom of the hamper. Defendant then asked, "What bag?"

Reavis told defendant to step out of his vehicle. When defendant asked why, Reavis pointed his taser at defendant and again told him to get out of the car. Defendant said, "[O]kay, okay, don't shoot me," and Reavis told defendant "to cooperate and I won't." Defendant got out of the vehicle. Reavis told him to place his hands behind his back and then handcuffed him. Around the same time, Pitcher came around to the driver's side of the vehicle and asked defendant again what was in the bag. Defendant "told him that it was pills." At that point, Reavis gave defendant Miranda warnings and told him that he was "just being detained." Defendant said he understood the Miranda warnings.

Reavis then asked defendant again what was in the bag. Defendant said "some pills, Tramadol and some others." Pitcher asked defendant about prescriptions for the pills, and defendant said that "none of the prescriptions he gets are strong enough." To Reavis, that indicated that the pills in the bag were not prescribed to defendant. Defendant then "started pleading" with the deputies and offered to work with them. Reavis told defendant that they first needed to "deal with him and what * * * he's got going on with him." Reavis asked if there was anything else illegal in the car. Defendant said there was some "white dope in the pocket with the pills" and also that there was "white dope" in the pocket of the pants he was wearing. Reavis asked if there were any needles or knives in the car, and defendant said no. Reavis asked defendant when he had last used, and defendant said, "about two days ago." Reavis asked where defendant's pipe was, and defendant gestured to a yellow flashlight lying by the driver's seat. Defendant told Reavis that he could remove "the meth" from his pockets and the car, and that Reavis could retrieve the pipe. Ultimately, Reavis found several small bags, each containing methamphetamine, as well as a methamphetamine pipe and $ 3,360 in cash. After Reavis found those items, defendant told Reavis that, in the past two weeks, he had been both buying and selling methamphetamine.

Defendant moved to suppress all of his statements and the evidence obtained during the stop, making several arguments, including that the deputies unlawfully interrogated him in compelling circumstances before giving him Miranda warnings, thus violating his rights under Article I, section 12, of the Oregon Constitution. Defendant further argued that the "belated" Miranda warnings did not permit admission of the statements he made after those warnings were given. The state responded that the statements were admissible because the deputies' delay in giving the Miranda warnings was accidental and because the deputies did not "trade" on the information they obtained pre-Miranda . The court denied defendant's motion to suppress, noting that prior to the Miranda warnings being given, the officers were still "sorting things out." After a bench trial where the parties stipulated to the testimony from the motion to suppress hearing and police and laboratory reports identifying the substance in the plastic bags, the court found defendant guilty on both charges.

On appeal, defendant assigns error to the trial court's ruling on the motion to suppress, focusing solely on what defendant characterizes as the "belated" Miranda warnings. The state concedes that, when the deputies ordered defendant out of his vehicle at taser point and asked what was in the bag, defendant was in compelling circumstances. In other words, it is undisputed on appeal that Pitcher violated defendant's Article I, section 12, rights when he asked defendant what was in the bag before giving him Miranda warnings. The state further concedes that, because the deputies failed to give defendant Miranda warnings prior to asking about the bag, defendant's first statement that the bag contained "pills" was inadmissible. We agree and accept the state's concessions; thus, the sole disputed issue in this case is whether the trial court erred in admitting the statements defendant made after he was given belated Miranda warnings.

Article I, section 12, grants individuals a constitutional right to remain silent. State v. Vondehn , 348 Or. 462, 474, 236 P.3d 691 (2010). Individuals may, of course, choose to waive that right. Id. However, because "a custodial interrogation is inherently compelling," Article I, section 12, requires that police inform an individual subject to custodial interrogation "that he or she has a right to remain silent and to consult with counsel and that any statements that the person makes may be used against the person in a criminal prosecution." Id. If police initially fail to inform a defendant of those rights, but then later correct themselves and give the warnings, any post-Miranda statements are only admissible if the state establishes that the police "effectively and accurately informed the defendant of his or her Article I, section 12, rights." State v. Heise-Fay , 274 Or. App. 196, 211, 360 P.3d 615 (2015). When police "question first and warn later, their exhibition and exercise of authority and violation of the defendant's constitutional rights" may communicate to a defendant that he or she has no real choice to remain silent. Vondehn , 348 Or. at 481, 236 P.3d 691. In that situation, the police have effectively conveyed conflicting messages. Id. Therefore, "we cannot assume that the mere recitation" of Miranda warnings after such exercise of authority is sufficient to serve the "intended informative function." Id.

To determine whether belated Miranda warnings were effective, we consider "all relevant circumstances,"

and turn to a nonexhaustive list of factors first outlined in Missouri v. Seibert , 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004). See, e.g. , State v. Jarnagin , 351 Or. 703, 719-20, 277 P.3d 535 (2012) ; Vondehn , 348 Or. at 482, 236 P.3d 691. Those factors are:

"(1) the completeness and detail of the questions and answers in the first round of interrogation, (2) the overlapping content of the two statements [given by the suspect], (3) the timing and setting of the first and the second rounds of interrogation, (4) the continuity of police personnel, (5) the degree to which the interrogator's questions treated the second round of interrogation as continuous with the first, and (6) whether the police cautioned that the earlier unwarned statement could not be used in any subsequent prosecution."

Vondehn , 348 Or. at 479, 236 P.3d 691. We also consider whether a defendant was subject to "additional coercion"-that is, coercion in addition to being in the inherently compelling circumstance of a custodial interrogation. See id. at 486, 236 P.3d 691. In essence, we focus "on the objective message that the police actually convey by the techniques that they use and the warnings that they give." Id. at 483, 236 P.3d 691.

We analyze the above factors keeping in mind "the context" of the two Supreme Court cases from which they originated: Siebert and Oregon v. Elstad , 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). Jarnagin , 351 Or. at 719-22, 277 P.3d 535. In Seibert , officers used a "technique" wherein they would interrogate a defendant with no advice of rights, and then follow that interrogation up by giving Miranda warnings and prompting the defendant to repeat what he or she had just admitted. Jarnagin , 351 Or. at 721, 277 P.3d 535. In Siebert , the plurality was concerned that defendants had no "real choice about giving an admissible statement because the unwarned and warned interrogations blended into one continuum." Jarnagin , 351 Or. at 721, 277 P.3d 535 (internal brackets and quotation marks omitted). At the same time, in Siebert , the court reaffirmed its earlier reasoning that belated warnings were effective in Elstad , because the warned questioning there "presented a markedly different experience from the unwarned questioning." Jarnagin , 351 Or. at 721-22, 277 P.3d 535 (internal quotation marks and brackets omitted). Indeed, in Elstad , officers did not use a "question first, warn later" technique. Rather, after eliciting an un-Mirandized confession at the defendant's house, the officers brought the defendant to the sheriff's headquarters, waited for an hour, Mirandized the defendant, and only then began to ask him more questions. Elstad , 470 U.S. at 301, 105 S.Ct. 1285. Thus, Vondehn and Elstad present bookends for when belated Miranda warnings will and will not suffice: on the one end, the unwarned and warned interrogations "blend[ ] into one continuum," and at the other, they present "markedly different experience[s]." Jarnagin , 351 Or. at 721-22, 277 P.3d 535.

As Seibert is "at one end of the range of the factual circumstances" and " Elstad is at the other," we find it helpful to briefly examine other cases in which Oregon courts have applied the multi-factor test to determine the admissibility of post-Miranda statements. Vondehn , 348 Or. at 481, 236 P.3d 691. In Vondehn , the Supreme Court ultimately concluded that the belated Miranda warnings "accurately and effectively communicated that [the] defendant had, from that time forth, a right to remain silent." 348 Or. at 486, 236 P.3d 691. In that case, the defendant was a passenger in a car which police officers stopped to investigate a traffic violation and possible driving under the influence of intoxicants. The police arrested the defendant on a warrant, handcuffed him, and placed him in the back seat of a patrol car. Before giving the defendant Miranda warnings, an officer asked the defendant if he was the owner of a backpack found in the car and whether the backpack contained marijuana. The defendant said yes to both questions and consented to a search of the backpack. At that point, the officer left for about five minutes and consulted with another officer before he returned, Mirandized the defendant, and continued to ask more questions. Four factors led the court to its decision that the belated warning was effective. First, the sets of questions were markedly different: the first set was "routine in nature and consumed less than a minute in time" whereas the second set was "more detailed and probing." Id. at 485, 236 P.3d 691. Second, there was a five-minute break after the short, less than one-minute-long initial set of questions. Id. at 485-86, 236 P.3d 691. Third, though officers did not caution the defendant that his earlier statement could not be used against him, neither did they indicate that the defendant had given them any incriminating information. Id. at 486, 236 P.3d 691. Finally, though the defendant was under arrest and handcuffed when questioned, he was not subjected to any additional coercion. Id.

We reached the opposite conclusion in Heise-Fay , 274 Or. App. at 212, 360 P.3d 615. There, several officers went to the defendant's house seeking a suspect and intending to investigate a possible drug operation and the presence of children at the residence. One officer, Calvert, spoke with the defendant at her front door and asked her about the suspect. Shortly thereafter, another officer, Myers, spoke to the defendant, confronting her with the fact that the suspect was spotted hiding behind a woodshed on the property. Myers then asked the defendant about a marijuana grow on her property. After the defendant failed to produce paperwork authorizing all of the plants that Myers had seen, another officer, Snyder, presented the defendant with a form that contained Miranda warnings, and yet another officer, Johnson, gave the defendant oral warnings. Shortly thereafter, the defendant confessed to Myers that she had sold marijuana illegally. Three factors led us to conclude that Heise-Fay was a case where the two phases of questioning blended into a continuum. Id. at 212, 360 P.3d 615. First, the questions and answers in the first set of questions were detailed and probing. Second, the same officer conducted nearly all of the questioning, and though there were several breaks in contact, the two rounds of questioning "occurred during a continuous and fluid police operation." Id. Finally, there was no evidence that officers cautioned the defendant that her earlier unwarned statements could not be used against her. Id. Additionally, it was "notable" that a different officer gave the Miranda warnings than the one who had done the earlier questioning. Id.

Jarnagin and State v. Bielskies , 241 Or. App. 17, 249 P.3d 144, rev. den. , 350 Or. 530, 257 P.3d 1020 (2011), are also instructive. In Jarnagin , the Supreme Court found belated warnings effective based primarily on three factors. 351 Or. at 723, 277 P.3d 535. First, two to three hours separated the two sets of questions-a "substantial" break in time. Id. Second, the central figure conducting the second set of questions was "someone new," and those questions involved a different type of examination. Id. Finally, the defendant had volunteered that he understood the rights that he was informed of, stating that "I can, at any time, decide that I would like a lawyer or not answer any further questions." Id. at 723-24, 277 P.3d 535. Similarly, in Bielskies , we relied primarily on four factors to conclude that belated warnings were effective. 241 Or. App. at 25, 249 P.3d 144. First, the two rounds of questioning were different because they focused on different subjects. Id. Second, there was a break between the two sets of questions that was at least as long as it took to identify pills seized from defendant and begin moving him from the police precinct to the jail. Id. Third, an officer cautioned the defendant that his unwarned statements could not be used against him. Id. Finally, there was no evidence that the defendant was subjected to "additional coercion." Id.

Here, defendant concedes that the first Seibert factor-that is, the completeness and detail of the questions and answers in the first round of interrogation-weighs in favor of the belated warnings being effective, but he argues that the remaining factors weigh in favor of suppression. Furthermore, defendant argues that the deputies subjected him to "significant coercion" both before and after the Miranda warnings. Specifically, defendant points to the facts that Reavis had threatened to taser him if he did not cooperate, placed him in handcuffs, and told him that he was being "detained."

The state responds that we should first analyze this case keeping in mind that here, "the danger of rendering Miranda warnings a nullity is at its 'lowest ebb,' " because the deputies in this case did not deliberately use the "question first" technique like the police in Siebert . The state argues that this case is different because here, the deputies "momentarily forgot, during a rapid sequence of events, to provide defendant with a Miranda warning before asking defendant what was in the bag[ ]" and that they "quickly remedied" their mistake. Moreover, the state argues that (1) the police did not use un-Mirandized statements during the post-Miranda questioning; (2) the two sets of questions did not significantly overlap; (3) defendant expressly stated that he understood the Miranda warnings; (4) the Miranda warnings served as a "break" between the questions; and (5) the police did not coerce defendant during the questioning.

Therefore, the state concludes that the belated Miranda warnings were effective and the trial court did not err in denying defendant's motion to suppress his post-Miranda statements. As explained below, we disagree with the state and conclude that this case was one in which the two phases of questioning blended into the type of "continuum" we have prohibited since adopting the Seibert analysis.

The parties are correct regarding the first Siebert factor, in that the first "round of interrogation" was very short. Indeed, it included only one question: "What is in the bag?" The second "round" was significantly broader and lasted much longer. However, after considering all of the remaining factors and relevant circumstances, we conclude that the warned questioning here did not present "a markedly different experience" from the unwarned questioning. Thus, this case falls on the Seibert side of the spectrum.

First, the setting of the first and second rounds of investigation were exactly the same, and there was no break in time between the two. When Pitcher first asked defendant what was in the bag, defendant was being handcuffed outside of his car. Immediately following defendant's answer of "pills," Reavis Mirandized defendant, asked him if he understood his rights, and then asked precisely the same question. Defendant remained in handcuffs next to his car, having just been threatened at taser point if he did not cooperate consistently with the officers' requests. No break in time occurred at all aside from the time that it took for Reavis to give the Miranda warnings. Although the state argues that the warnings provided a "break," precedent suggests that a break shorter than a few minutes is likely insufficient. We have never suggested that the warnings alone constitute a sufficient break. A break serves to give defendants "an objective indication that the situation ha[s] changed and [is] governed by new rules." Vondehn , 348 Or. at 485, 236 P.3d 691. That break is necessary to dispel what the officers' inherent authority and violation of the defendant's rights may have communicated to the defendant: that he has no real choice to remain silent. See Vondehn , 348 Or. at 481, 236 P.3d 691. Here, merely giving the Miranda warnings was insufficient to objectively indicate to defendant that anything had changed, or that defendant no longer needed to cooperate with the deputies' requests. Moreover, the deputies treated the situation as a continuation of the earlier interrogation. The earlier interrogation ended with defendant's admission that, at a minimum, he knew what was inside the bag. The second round of questions continued to probe defendant to tell the officers what, exactly, it was.

Second, the same deputies conducted both rounds of questioning, and there is no evidence that either cautioned defendant that his earlier unwarned statement could not be used against him. While it is not always necessary to caution defendants about their earlier unwarned statements, id. at 486, 236 P.3d 691, in this case, the deputies' failure to do so undercut the warnings that they actually gave. When Reavis gave the Miranda warnings, a rapid sequence of events had just occurred. Reavis pulled defendant over for a pretextual traffic violation, then almost immediately ordered defendant out of his vehicle and threatened him with a taser if he did not cooperate. Defendant initially refused to answer the deputies' questions about what was in the bag, but he eventually gave a one-word answer. Although Reavis then told defendant that he could refuse to answer questions, objectively, his earlier behavior had indicated that defendant could not refuse to cooperate with the deputies' requests. From the pretext stop to the persistent questioning about what was in the bag in defendant's car, Reavis and Pitcher conducted a "continuous and fluid" police operation. Heise-Fay , 274 Or. App. at 212, 360 P.3d 615. Their pre-Miranda behavior gave an objective indication that defendant would not be permitted to remain silent. Had the deputies explicitly corrected themselves and explained to defendant the inadmissibility of his earlier statement, perhaps the Miranda warnings would have been effective. Given the fact that the same officers conducted both sets of questions as well as the persistency of their line of questioning before and after the Miranda warnings, however, the lack of such a cautionary statement undercut the belated warnings.

Third, while putting defendant in handcuffs may not have added the coercion (to already "compelling circumstances") necessary to render any warning given ineffective, see Bielskies , 241 Or. App. at 25, 249 P.3d 144, the fact that Reavis had, just moments earlier, ordered defendant to cooperate at taser point was "additional coercion." The deputies may have "momentarily" forgotten to provide defendant with Miranda warnings during the "rapid sequence of events." However, our analysis does not take into account what the deputies subjectively believed or thought. Vondehn , 348 Or. at 483, 236 P.3d 691. At the moment Reavis asked defendant the unwarned question, he was still subject to the coercive effect of being ordered out of his vehicle at taser point.

The warnings the deputies gave to defendant did not remedy their mistake. Instead of taking a break or altering the coercive atmosphere in some way to communicate to defendant that the situation had changed, the deputies quickly Mirandized defendant and immediately continued their line of questioning. Because there was no change in circumstances-in the form of a new, less coercive setting or in the form of a few minutes free from additional questioning-we conclude that this case falls on the Seibert end of the spectrum. Because the deputies questioned defendant without giving him Miranda warnings first, they were required to present defendant with an opportunity to make a genuine and informed choice of whether to subsequently waive his Article I, section 12, rights. Jarnagin , 351 Or. at 722, 277 P.3d 535. Particularly in light of the facts that there was no break in time, that defendant remained in the coercive circumstance of being ordered out of his vehicle at taser point, and that the same deputies continued to ask defendant questions along the same line of their unwarned inquiry, we conclude that the belated warnings Reavis gave did not provide defendant with such an opportunity. Thus, the belated warnings were not effective at informing defendant of his Article I, section 12, rights, and therefore, the trial court erred in denying defendant's motion to suppress his pre- and post-Miranda statements. That error was not harmless for defendant's conviction for delivery of methamphetamine. We accordingly reverse that conviction, but otherwise affirm.

Conviction for delivery of methamphetamine reversed and remanded; remanded for resentencing; otherwise affirmed.

      On appeal, defendant challenges only the trial court's denial of his motion to suppress his post-Miranda statements. As to defendant's pre-Miranda statement, the trial court did not explicitly rule that it was inadmissible, but at the hearing on defendant's motion to suppress, the state conceded that defendant was in compelling circumstances when he made that unwarned statement. Defendant's brief appears to request reversal of both convictions-on possession and delivery-but he does not argue that the court erred in admitting physical evidence. The state argues that any error in admitting defendant's post-Miranda statements was harmless on the possession count. We agree with the state, and thus affirm defendant's conviction for possession of methamphetamine.

      Article I, section 12, provides, in relevant part, that, "No person shall * * * be compelled in any criminal prosecution to testify against himself."


source: Caselaw Access Project

author: POWERS, J.

license: Public Domain

text:
    STATE of Oregon, Plaintiff-Respondent, v. Albert Newell WILLIAMS, aka Albert Lnewell Williams, Jr., Defendant-Appellant.
    A161673
    Court of Appeals of Oregon.
    Argued and submitted November 21, 2017. May 1, 2019
    Anna Belais, Deputy Public Defender, argued the cause for appellant. Also on the brief 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. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.

      Egan, C. J., vice Garrett, J. pro tempore.

   POWERS, J.

Defendant appeals from a judgment of conviction for possession of methamphetamine, ORS 475.894(1), asserting that the trial court erred by denying his motion to suppress. Defendant argues that, after the officer who stopped him developed reasonable suspicion that he had committed the crime of driving while under the influence of intoxicants (DUII), the officer unlawfully extended the stop by asking him whether he had alcohol or drugs in the car and by requesting consent to search his vehicle. As explained below, because there was a reasonable, circumstance-specific relationship between the officer's questions and the purpose of the stop, the trial court did not err in denying defendant's motion to suppress.

We review the denial of a motion to suppress for legal error, and we are bound by the trial court's findings of fact so long as they are supported by constitutionally sufficient evidence in the record. State v. Maciel-Figueroa , 361 Or. 163, 165-66, 389 P.3d 1121 (2017). Where the trial court did not make express findings and there is evidence in the record from which a fact could have been decided in more than one way, we will presume that the court decided the facts in a manner consistent with its ultimate conclusion. Id. at 166, 389 P.3d 1121 ; see also Ball v. Gladden , 250 Or. 485, 487, 443 P.2d 621 (1968). We describe the facts consistently with that standard.

Port of Portland Police Officer McKay stopped defendant after observing multiple traffic violations and, upon contact, noticed that he had a sweaty, "beet red" face, and very watery eyes. Based on defendant's appearance, that he had a "hard time answering simple questions," and "just seemed kind of like he wasn't sure what was going on," McKay believed that defendant was under the influence of "some type of intoxicant." McKay asked defendant if he had been drinking that day or taking any medications, and defendant replied that he had just woken up from napping in his car and that he works long hours. McKay then asked defendant if he had any alcohol or controlled substances with him or in the car, and defendant replied that he was "not sure." McKay then asked if defendant minded if he checked.

Defendant "paused for a second, looked down, and said 'I'm not sure. I don't know what I have.' " McKay followed up by asking if defendant minded if he took a "quick look," and, without verbally responding, defendant picked up a jacket from the passenger seat and said, "I don't think I have anything." Under the jacket, McKay saw a clear glass pipe with white residue. McKay told defendant that "it looked like a meth pipe," to which defendant nodded affirmatively.

At that point, McKay read defendant his Miranda rights and then asked him if there were additional drugs in the car. Defendant replied that "there may be." McKay then asked defendant to exit the vehicle and placed him under arrest and in handcuffs. McKay searched defendant's car and found two toiletry cases that contained methamphetamine and associated paraphernalia on the floor behind the passenger seat. Defendant was cited for the traffic infractions and transported to jail for possession of methamphetamine.

Before trial, defendant filed a motion to suppress, arguing that McKay unlawfully extended the duration of the traffic stop when he asked defendant for consent to search his vehicle without reasonable suspicion, in violation of Article I, section 9, of the Oregon Constitution. The state responded that McKay had reasonable suspicion that defendant was driving under the influence of intoxicants, and, accordingly, the request to search defendant's car was constitutionally permissable.

After testimony from McKay and defendant, as well as the parties' arguments, the court found McKay credible and denied the suppression motion. Subsequently, defendant was convicted of possession of methamphetamine in a bench trial.

Article I, section 9, establishes the right of the people to be free from unreasonable searches or seizures. A stop is a "temporary restraint of a person's liberty for the purpose of criminal investigation" and is a type of seizure. State v. Rodgers/Kirkeby , 347 Or. 610, 621, 227 P.3d 695 (2010). Law enforcement officers have the authority to perform traffic stops based on reasonable suspicion of criminal activity or probable cause for noncriminal traffic infractions. Id. at 621-23, 227 P.3d 695. That authority to detain a motorist, however, dissipates "when the investigation reasonably related to that traffic infraction, the identification of persons, and the issuance of a citation (if any) is completed or reasonably should be completed." Id. at 623, 227 P.3d 695. Any additional questioning or further conduct by law enforcement beyond that conduct that is reasonably related to the traffic violation "must be justified on some basis other than the traffic violation." Id. (emphasis omitted).

If an officer's questions or "request for consent was 'reasonably related' to the purpose of the detention, then the request did not extend the stop in violation of Article I, section 9." State v. Pichardo , 360 Or. 754, 759, 388 P.3d 320 (2017) (citations omitted). As the Supreme Court has explained, "a question may be reasonably related to a stop even though the question is not supported by reasonable suspicion." Id. In that instance, the state must be able to show a " 'reasonable, circumstance-specific' relationship between the questions and the purpose of the stop." Id . (citing State v. Jimenez , 357 Or. 417, 429, 353 P.3d 1227 (2015) ).

On appeal, defendant concedes that McKay lawfully stopped defendant to investigate traffic violations and further acknowledges that McKay subsequently developed reasonable suspicion that defendant was driving under the influence of intoxicants. Accordingly, the narrow issue before us is whether McKay's questions involving possession of alcohol or drugs and McKay's request for consent to search defendant and his car were reasonably related to the DUII investigation.

Defendant remonstrates that McKay unlawfully extended the stop by asking him whether he possessed alcohol or drugs and requesting consent to search the vehicle because the questions were not related to either the traffic violations or the DUII investigation and were not supported by an objectively reasonable suspicion that defendant possessed a controlled substance. Defendant further contends that, because defendant's seizure became unlawful the moment that McKay inquired about possession of alcohol or drugs without justification, all evidence obtained as a result of that illegality must be suppressed. The state responds that McKay's questions involving possession and request for consent to search defendant's vehicle were reasonably related to the DUII investigation because the questions sought to uncover evidence of that crime. We agree with the state's argument.

Defendant challenges three questions that McKay asked, and we address each one in turn. First, defendant challenges McKay's question of whether defendant had any alcohol or controlled substances with him or in the car. We conclude that this question had a "reasonable, circumstance-specific" relationship to the investigation of the DUII. Although possession of alcohol or controlled substances is not an element that the state has to prove in a DUII case, possession of alcohol or a controlled substance certainly can be relevant evidence to prove that a driver has committed the crime of DUII. For instance, in the context of searches incident to DUII arrests, "we routinely have upheld searches of closed containers in cars incident to arrest for DUII where the containers are the type that reasonably could conceal evidence of alcohol * * * or drugs." State v. Washington , 265 Or. App. 532, 538, 335 P.3d 877 (2014) ; see also State v. Burgholzer , 185 Or. App. 254, 261, 59 P.3d 582 (2002) (concluding that the officer's search of a cigarette package in a search incident to arrest for driving under the influence of a controlled substance was permissible, because a "cigarette package was a place where evidence of that crime could have been concealed"); State v. Crampton , 176 Or. App. 62, 74, 31 P.3d 430 (2001) (holding that an officer could permissibly search a locked toolbox and "long cases" found in the car during search incident to arrest for driving under the influence of drugs and unlawful possession of firearms, because "the containers were the types of containers in which weapons or drugs were likely to be found"). The reasonable relationship test "is not a demanding one." Pichardo , 360 Or. at 762, 388 P.3d 320. Accordingly, we readily conclude that McKay's question to defendant about whether he had any alcohol or drugs in his vehicle is reasonably related to the DUII investigation because it is an inquiry aimed at uncovering evidence of the crime of DUII.

Next, we examine McKay's requests for consent together because they are qualitatively the same question, and we similarly conclude that they were reasonably related to the DUII investigation. When McKay asked defendant whether he had any alcohol or controlled substances in the car, defendant replied that he was "not sure." In response, McKay asked defendant if he would mind if McKay "checked." Defendant paused and then said, "I'm not sure. I don't know what I have." McKay then asked again if defendant would mind if he took a "quick look." McKay's requests for consent to search for alcohol or drugs directly followed his question of whether defendant had any alcohol or drugs in the vehicle and both were similarly directed at uncovering evidence of the crime of DUII. Accordingly, for the same reasons explained above, asking defendant for consent to search the vehicle for alcohol or drugs was reasonably related to the DUII investigation, and did not unlawfully extend the stop.

Defendant's reliance on State v. Miller , 267 Or. App. 382, 340 P.3d 740 (2014), for the proposition that an officer may not inquire about the possession of alcohol or drugs when investigating a DUII is misplaced. In Miller , after the defendant was stopped for a traffic violation, the officer developed reasonable suspicion that the defendant was driving under the influence of a controlled substance. Id. at 383-84, 340 P.3d 740. The officer also believed that the defendant possessed controlled substances in the vehicle. Id. at 385, 340 P.3d 740. The officer questioned the defendant about his use of drugs, and eventually called for another officer to bring a drug-detection dog to the scene. Id. at 386, 340 P.3d 740. The dog alerted to drugs in the vehicle. Id. The trial court denied the defendant's motion to suppress, and the defendant subsequently was convicted of multiple counts of unlawful delivery of heroin. Id. at 387, 340 P.3d 740.

On appeal, we concluded that the officer was justified in commencing an investigation into the defendant's "recent use of a controlled substance." Id. at 390, 340 P.3d 740 (emphasis omitted). The officers, however, did not have reasonable suspicion that the defendant presently was in possession of drugs, which was necessary to justify the deployment of the dog. Id. at 398, 340 P.3d 740. Accordingly, we concluded that the deployment of the dog unlawfully prolonged the stop. Id. at 400, 340 P.3d 740.

In this case, defendant relies on Miller to support his argument that an inquiry about the presence of alcohol or drugs during a DUII investigation is not reasonably related to that investigation. Defendant's argument relies on isolated statements in Miller in which we stated that "the act of deploying the dog cannot be supported as 'reasonably related' to [the officer's] suspicion of DUII," and that "[a] drug-detection dog detects the presence of drugs, not whether a person is intoxicated." Id. at 392, 340 P.3d 740. When those statements are read in the context in which they were made, however, it becomes evident that those statements are not part of the holding of that case. The discrete legal question presented in Miller was whether the officer, under the circumstances of that case, had reasonable suspicion that there were drugs present in the vehicle to justify the deployment of the drug-detection dog. We explained that an officer's belief that a suspect was under the influence of a controlled substance was insufficient on its own to provide an objectively reasonable basis to conclude that a person presently possessed drugs. Id . at 393-95, 340 P.3d 740. As we explicitly stated, that is "a distinct question from whether present intoxication can support an objectively reasonable suspicion that a suspect previously possessed drugs, i.e. , immediately before consuming them. The reasonableness of that inference, however, is not at issue here." Id. at 394 n. 8, 340 P.3d 740. Indeed, in Miller , we clarified that, "The state does not separately argue that the dog sniff was justified as part of an investigation that was reasonably related to the crime of DUII. Accordingly, we express no opinion on that point." Id. at 393 n. 7, 340 P.3d 740 (citation omitted). Thus, we disagree with defendant's argument that Miller stands for the proposition that an officer's questions about the present possession of alcohol or drugs during an investigation for driving under the influence of intoxicants cannot be reasonably related to a DUII investigation. In short, because the presence of alcohol or a controlled substance in a vehicle is relevant evidence of the crime of driving under the influence of intoxicants, McKay's questions regarding defendant's possession of alcohol and controlled substances were reasonably related to the DUII investigation. Accordingly, the trial court did not err in denying defendant's motion to suppress and, consequently, we affirm.

Affirmed.

      The state does not argue that the questions were justified on an independent basis, namely, that McKay had reasonable suspicion that defendant possessed a controlled substance.

      In State v. Rondeau , 295 Or. App. 769, 777, 436 P.3d 49 (2019), which was decided after briefing and argument in this case, we noted the "irreconcilable" contradiction between footnote 7 in Miller and some statements in the text of that opinion. We did not need to resolve that inconsistency in Rondeau , and take the opportunity to do so here. The contradictory statements in the text of Miller must be read in light of the footnote, and therefore, are dicta . Accordingly, we conclude that Miller did not express an opinion on whether "the dog sniff was justified as part of an investigation that was reasonably related to the crime of DUII." See Miller , 267 Or. App. at 393 n. 7, 340 P.3d 740.


author: PER CURIAM

text:
    STATE of Oregon, Plaintiff-Respondent, v. Karlee Ranae ANDREW, Defendant-Appellant.
    A166841
    Court of Appeals of Oregon.
    Submitted November 2, 2018. April 24, 2019
    Jason E. Thompson and Ferder Casebeer French & Thompson, LLP, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael A. Casper, Assistant Attorney General, filed the brief for respondent.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   PER CURIAM

Defendant appeals a judgment of conviction for second-degree theft, raising two assignments of error. In her first assignment, defendant contends that the trial court erred by excluding evidence that defendant had accused the victim, her employer, of sexual improprieties and that defendant had discussed filing a lawsuit against the victim several days before the victim accused defendant of theft. Defendant contends that that evidence was relevant to the victim's bias toward defendant and that she was entitled to present it to impeach the victim's testimony. The state concedes that, under the circumstances of this case, the trial court erred. For the reasons explained below, we agree, accept the state's concession, reverse, and remand defendant's conviction. Because the trial court's error requires reversal, we do not reach defendant's second assignment of error.

Under OEC 609-1(1), "[t]he credibility of a witness may be attacked by evidence that the witness engaged in conduct or made statements showing bias or interest." Here, the state filed a pretrial motion in limine "to exclude any evidence of sexual advances or similar workplace indiscretions" by the victim. Defendant argued that the court should allow her to introduce "evidence of the alleged victim's sexual advances and other personal misconduct" directed toward defendant. After a hearing, the court granted the state's motion. Because the court prevented defendant from introducing any evidence of the victim's bias and motive for fabricating theft claims against defendant, the court erred as a matter of law. State v. Hubbard , 297 Or. 789, 800, 688 P.2d 1311 (1984) ("[W]here the questioning is curtailed before bias or interest is shown, the decision is an error of law.").

We turn to whether the error in excluding the bias evidence was prejudicial. "An erroneous decision to exclude evidence relevant to bias 'is reversible if it denies the jury an adequate opportunity to assess the credibility of a witness whose credibility is important to the outcome of the trial.' " State v. Lulay , 290 Or. App. 282, 293-94, 414 P.3d 903 (2018) (quoting Hubbard , 297 Or. at 800, 688 P.2d 1311 ).

Here, the credibility of the victim was important to the outcome of the trial. In particular, the state relied on the victim's testimony to explain the context and import of videotapes and receipts showing defendant, who was a barista at the victim's coffee stand, engaging in the alleged theft by giving away drinks and stamp cards. The victim's testimony was that defendant's conduct in the videotapes violated employment policies and had no innocent explanation.

Given the central role of the victim's testimony in the state's case, we cannot conclude that the trial court's error in excluding the bias evidence had little likelihood of affecting the verdict. Hence, we conclude that the error was prejudicial.

Reversed and remanded.


author: DeVORE, J.

text:
    STATE of Oregon, Plaintiff-Respondent, v. Alan Trent WALKER, Defendant-Appellant.
    A166564
    Court of Appeals of Oregon.
    Submitted December 7, 2018. April 17, 2019
    Alan Trent Walker filed the brief pro se.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Greg Rios, Assistant Attorney General, filed the brief for respondent.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   DeVORE, J.

Defendant is a farmer who, like other Oregonians, is willing to examine the authority for issuing him a traffic ticket. The question is whether, when ticketed, defendant had been operating a "farm tractor" that was drawing a "farm trailer" or, instead, defendant had been driving a pickup truck pulling a trailer without lights in violation of ORS 816.330. Defendant appeals from a judgment that convicted him of that violation, arguing that his pickup and trailer should qualify as a "farm tractor" and "farm trailer," which require no such lights. We affirm.

Our standard of review is the same for appeals from judgments involving violations as for those involving misdemeanors or felonies. ORS 138.057(1)(a). On a question of sufficiency of the evidence, we review the facts "in the light most favorable to the state to determine whether any rational trier of fact could have found that the essential elements of the violation had been proved by a preponderance of the evidence." State v. Chen , 266 Or. App. 683, 684, 338 P.3d 795 (2014) (citation omitted). On a question of law, we review for legal error. See State v. Rosling , 288 Or. App. 357, 360, 406 P.3d 184 (2017), rev. den. , 362 Or. 389, 411 P.3d 387 (2018) (interpretation of statute).

On a September evening in 2017, defendant drove a 1994 Chevrolet C2500 pickup truck on Highway 101, pulling a single-axle flatbed trailer without lights. A state trooper stopped him, explaining that the trailer needed lights and citing him for a violation of ORS 816.330. At trial, the trooper testified that the trailer was a flatbed utility trailer that appeared to be fashioned from the frame of a travel trailer with the addition of boards for a bed. Defendant argued that his trailer was exempt from the lighting requirement because it was a farm trailer. He testified that he used the trailer on his farm to haul things like irrigation supplies, livestock feed, and chicken coops. Defendant explained that he was moving irrigation equipment and structural material to a new location on the evening in question. The trial court convicted defendant of the violation and imposed a fine of $ 80.

Defendant appeals, renewing his argument that the trailer was a "farm trailer" and exempt from the lighting requirements of ORS 816.330. ORS 816.340(3)(c) ; ORS 801.270. In relevant part, ORS 816.330(1) provides that a "person commits the offense of operation without required lighting equipment if the person *** [d]rives or moves on any highway any vehicle that is not equipped with lighting equipment that is required[.]" In particular, ORS 816.320(2) requires trailers to be equipped with two taillights, registration plate lights, brake lights, turn signals, and two rear reflectors. However, ORS 816.330(2) exempts vehicles listed in ORS 816.340, which lists as exempt: "[f]arm tractors, implements of husbandry and farm trailers." ORS 816.340(3)(c). Those terms are defined in turn.

Under ORS 801.270, a "farm trailer" is a vehicle that

"(1) Is without motive power;
"(2) Is a vehicle other than an implement of husbandry;
"(3) Is designed to carry property; and
"(4) Is drawn by a farm tractor. "

(Emphases added.) Under ORS 801.265, a "farm tractor" is "a motor vehicle designed and used primarily in agricultural operations for drawing or operating other farm machines, equipment and implements of husbandry." (Emphasis added.)

Defendant and the state disagree whether the trailer constituted a "farm trailer" such that it would be exempt from the light requirements. The state contends that the trailer failed to meet the fourth element of the definition of a "farm trailer," that it be "drawn by a farm tractor." Thus, the question presented is not so much about the meaning of "farm trailer" as it is about the meaning of "farm tractor." The state contends that defendant's pickup truck is not a "farm tractor." Referring to the last words in the definition of a "farm tractor," defendant argues that his pickup truck was "used primarily in agricultural operations." The state argues that a "farm tractor" must also be "designed" for drawing other farm equipment.

The disagreement is a question of statutory construction. We must determine what the legislature intended by the phrase "designed and used primarily in agricultural operations." When determining the meaning of the statute, we emphasize a statute's text and context. See State v. Gaines , 346 Or. 160, 171-73, 206 P.3d 1042 (2009) (outlining the methodology). In this case, the text is critical. In the definition of "farm tractor" at ORS 801.265, the terms are joined by the conjunction "and." That grammatical structure requires that a vehicle must be both "used" and "designed" for farm operations in order to be a "farm tractor." See State v. English , 269 Or. App. 395, 399, 343 P.3d 1286 (2015) (relying on the "grammatical structure" of the statute in dispute); Drain v. Clackamas County , 22 Or. App. 332, 338-39, 539 P.2d 673 (1975) (noting that the use of the word "and" rather than "or" indicated that both conditions were necessary to invoke the application of a statutory provision).

The statute's history is consistent with the understanding that, to be a "farm tractor," the vehicle must also be primarily designed for use in agriculture to pull farm equipment. See State v. Ziska/Garza , 355 Or. 799, 806, 334 P.3d 964 (2014) ("Analysis of the context of a statute may include prior versions of the statute[.]"). The legislature enacted the current version of the law in 1983, when it reorganized the entire motor vehicle code. See Or. Laws 1983, ch 338. At that time, the legislature made "no substantive changes" to any provisions. State v. Suppah , 358 Or. 565, 575 n. 8, 369 P.3d 1108 (2016) (citing Staff Measure Analysis, Senate Transportation and Tourism Committee, HB 2031, May 23, 1983). ORS 801.265 is but a newer iteration of its predecessor, former ORS 481.015 (1981), repealed by Or. Laws 1983, ch 338, § 978. Exhibit C, Advisory Committee on Motor Vehicle Law Revision, House Interim Committee on Transportation, HB 2031, July 15, 1982 (accompanying statement of legislative counsel Bradd Swank). The former statute defined a "farm tractor" as a "vehicle designed primarily for use in agricultural operations for drawing or operating plows, mowing machines and other farm equipment or implements of husbandry." Former ORS 481.015 (1981) (emphasis added). That definition, which is similar to the current definition, included "designed primarily" as a necessary element. Under both the current and former versions of the statute, for a vehicle to be a "farm tractor," it must be designed primarily for agricultural operations to pull farm equipment.

To understand the meaning of "farm tractor," we may employ a dictionary to help ascertain the common meaning of the words "designed" and "primarily." See State v. Murray , 340 Or. 599, 604, 136 P.3d 10 (2006) ("Absent a special definition, we ordinarily would resort to dictionary definitions, assuming that the legislature meant to use a word of common usage in its ordinary sense." (Citation omitted.)). The word "designed" is the past participle of the verb "design," used here in a passive construction. In this form, it refers to something having been created for a specific intended purpose. That is, "design" in this usage is defined as "to plan or produce with special intentional adaption to a specific end[.]" Webster's Third New Int'l Dictionary 611 (unabridged ed. 2002). And, "primarily" indicates "first of all : fundamentally, principally." Id. at 1800.

The purpose for which a "farm tractor" must be designed is "drawing or operating other farm machines, equipment and implements of husbandry. " ORS 801.265 (emphasis added). That concluding language means that it is not enough that the vehicle is capable of pulling farm machines. It must be designed and used primarily for that function, i.e. , that must be its principal, intended purpose. Incidentally, a "farm tractor," like a "farm trailer," is exempted from the requirements of lighting for ordinary vehicles designed for highway travel. See ORS 816.340(3)(c) (exempting farm tractors, implements of husbandry, and farm trailers).

Defendant was not cited for the absence of conventional lighting or signals on his pickup. Presumably, his 1994 Chevrolet C2500 pickup was fully equipped for highway travel. In response to defendant's suggestion that it was a "farm tractor," the state trooper countered, "That truck is a passenger vehicle, Your Honor." No doubt, as a pickup truck, it was capable of many uses on a farm and presumably capable of pulling some farm equipment. The pickup may well be a multipurpose motor vehicle designed to carry both passengers and cargo, and it may be equally capable of travel across farm land as high-speed travel on interstate highways. However, that does not mean it was "designed and used primarily in agricultural operations for drawing *** farm machines, equipment and implements of husbandry."

As a factual matter, there was sufficient evidence to conclude that the primary purpose and design of defendant's pickup truck was not to pull farm machinery. As a legal matter, the trial court did not err in construing and applying the statutes when determining that defendant's pickup was not a "farm tractor," and, because defendant's trailer was not "drawn by a farm tractor," the trailer was not a "farm trailer." Contrary to defendant's argument, the trailer was required to have lights. See ORS 816.320(2) (articulating those standards).

Accordingly, the trial court did not err in determining that the exemption did not apply and concluding that defendant was in violation of ORS 816.330 for pulling his trailer on the highway without required lights.

Affirmed.

      See also State v. James , 266 Or. App. 660, 667 n. 3, 338 P.3d 782 (2014) ("[W]e note that Webster's Third New Int'l Dictionary (unabridged ed. 2002) can be considered to be a 'contemporaneous' source for statutes dating back to 1961 (if not earlier).").


author: HADLOCK, P. J.

text:
    STATE of Oregon, Plaintiff-Respondent, v. Santos Eliezer XIU-CHABLE, Defendant-Appellant.
    A166095
    Court of Appeals of Oregon.
    Submitted March 1, 2019. April 24, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Sara F. Werboff, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Greg Rios, Assistant Attorney General, filed the brief for respondent.
    Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.
   HADLOCK, P. J.

While driving a car, defendant hit an unattended vehicle and departed the scene without leaving his contact information. He later pleaded guilty to failure to perform the duties of a driver when property is damaged, ORS 811.700, a crime more commonly known as "hit and run," and a judgment of conviction was entered on that charge. Defendant stipulated to liability for restitution, but contested the amount requested by the state. The court subsequently entered a supplemental judgment requiring defendant to pay $ 1,300 in restitution. On appeal, defendant does not challenge the court's order that he pay $ 500 in restitution representing the victim's insurance deductible. However, defendant contends that the court erred when it imposed an additional $ 800 in restitution because that figure was based on the court's subjective determination of the victim's losses, not on objectively verifiable damages. The state concedes the error. As explained below, we agree with the parties that the trial court erred. Accordingly, we vacate the supplemental judgment and remand.

Because the victim's insurance company "totaled" the car that defendant had damaged, the state generally sought restitution representing the victim's insurance deductible as well as transportation costs that she incurred before she purchased another car. At the start of the restitution hearing, the parties suggested they would stipulate to a certain amount in restitution that included the victim's insurance deductible and amounts she had spent on bus, train, and an hourly car-rental service. However, the state also sought restitution for several hundred dollars that the victim spent on other car-rental and rideshare services, as well as about $ 500 in lost wages. Defendant initially objected on the ground that those costs were not adequately documented.

The victim testified at the restitution hearing and described the transportation costs that she incurred during the six to seven months that passed between defendant damaging her vehicle and when she purchased a new car. She also testified that her work shifts were adjusted because she had to rely on bus service for transportation, which caused her to earn less money than she would have otherwise. On cross-examination, defendant questioned the victim about why it had taken her so long to buy another car and sought to cast doubt on her calculation of lost wages. The victim also acknowledged that she had not incurred certain expenses associated with car ownership during the period when she lacked a car.

In closing arguments, the state reiterated its request for restitution that included amounts for Lyft and ReachNow transactions, as well as an amount in lost wages; added to the amount to which the parties had said they would stipulate, the state's total request came to about $ 2,300. In response, defendant acknowledged that he was changing his position; he argued, based on the victim's testimony, that restitution should cover only two weeks of costs for alternative transportation because the victim could have purchased another car shortly after her own was "totaled" and defendant should not be responsible for costs she incurred over a much longer period. The parties then discussed whether the costs for such a two-week period had been adequately established.

The trial court then stated that it was "going to take a completely different approach" than the parties had taken. The court first noted that the victim had "incurred some additional costs for transportation" and had "avoided some costs for transportation"; it opined that the added costs and the savings "sort of cancel each other out." However, the court stated, the victim suffered "a significant convenience cost" in not having her own vehicle, having to seek out other forms of transportation, and having to spend more time in transit than she would have if she had been driving her own car. The court opined that "six or seven months" was not an unreasonable amount of time for the victim to take to decide "what she wanted to do." Accordingly, the court stated, it would do "rough justice" by valuing the victim's inconvenience at $ 800 for the period that she lacked a car. Adding that to the $ 500 insurance deductible, the court awarded a total of $ 1,300 in restitution. When defendant objected, the court acknowledged that it was basing the restitution figure on "a subjective determination of [the victim's] economic loss."

On appeal, defendant contends that the trial court erred when it imposed $ 800 in restitution on a subjective basis. As noted, the state concedes the error. The parties disagree primarily on disposition. Defendant suggests that we should simply reverse the portion of the supplemental judgment that awards $ 800 in restitution; the state contends that we should remand for resentencing because the trial court could have objectively determined the victim's losses and should have another opportunity to do so.

Our analysis begins with the text of ORS 811.706, the restitution statute that applies when a person is convicted, as defendant was here, of violating ORS 811.700 by failing to perform the duties of a driver. That restitution statute provides that the trial court "may order the [convicted] person to pay an amount of money equal to the amount of any damages caused by the person as a result of the incident that created the duties in ORS 811.700." ORS 811.706. A trial court's authority to award restitution under that statute is narrow in scope; it "is limited to those types of damages 'that may trigger the duties to be performed' in ORS 811.700." State v. Bassett , 243 Or. App. 289, 297, 259 P.3d 953 (2011) (emphasis in original; quoting State v. Hval , 174 Or. App. 164, 178, 25 P.3d 958, rev. den. , 332 Or. 559, 34 P.3d 1177 (2001) ). Thus, the "damages" referenced by ORS 811.706 are those associated with the harm caused as a result of the "hit and run" incident. Hval , 174 Or. App. at 178, 25 P.3d 958. We have observed that such damages are "liquidated and easily measurable." Id . Thus, ORS 811.706 does not authorize an award of restitution that includes "speculative, uncertain, and open-ended amounts." Id .

Here, defendant does not challenge the trial court's award of $ 500 in restitution to cover the victim's insurance deductible. However, the trial court imposed an additional $ 800 in restitution based on its subjective determination of the victim's other losses and, in doing so, the court acknowledged that it was doing "rough justice." As the state concedes, that was error because the court essentially imposed a "speculative" amount of restitution.

The question of disposition remains. As the state observes, the record includes objective evidence of costs that the victim incurred after her car was damaged, beyond the $ 500 insurance deductible. We agree with the state that the appropriate disposition is a remand. Upon remand, the trial court will have an opportunity to determine, in the first instance, whether the state has established any additional "damages caused by [defendant] as a result of the incident that created the duties in ORS 811.700." ORS 811.706. Cf. State v. Rodriguez , 284 Or. App. 652, 654, 393 P.3d 1199 (2017) (taking that approach where trial court erred by declining to make a finding that is necessary to an award of restitution).

Supplemental judgment vacated and remanded; otherwise affirmed.

      We do not understand the court's reference to "additional" and "avoided" transportation costs to constitute a ruling on whether any of those costs-or other expenses or losses-are "damages" recoverable under ORS 811.706.


author: LAGESEN, P. J.

text:
    In the MATTER OF S.E.R., a Person Alleged to have Mental Illness.
    State of Oregon, Respondent, v. S.E.R., Appellant.
    A167940
    Court of Appeals of Oregon.
    Argued and submitted March 15, 2019. April 17, 2019
    Alexander C. Cambier argued the cause for appellant. Also on the brief was Multnomah Defenders, Inc., Portland.
    Erika Hamilton, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and Sercombe, Senior Judge.
   LAGESEN, P. J.

Appellant appeals a judgment civilly committing her to the custody of the Oregon Health Authority for up to 180 days on the ground that she has a mental disorder that makes her dangerous to herself and others. ORS 426.130 ; ORS 426.005. She contends that the evidence is insufficient to demonstrate that, because of her mental disorder, she presents the sort of danger to herself or others that permits commitment under ORS 426.130(1)(a)(C) and (2). We agree and, therefore, reverse.

The issue is whether the evidence is sufficient to permit appellant's commitment on the ground that her mental disorder, at the time of the hearing, made her "[d]angerous to self or others" within the meaning of ORS 426.005 (1)(f)(A). We review by "view[ing] the evidence, as supplemented and buttressed by permissible derivative inferences, in the light most favorable to the trial court's disposition and assess whether, when so viewed, the record was legally sufficient to permit that outcome." State v. M. A. , 276 Or. App. 624, 625, 371 P.3d 495 (2016) (quoting Dept. of Human Services v. N. P. , 257 Or. App. 633, 639, 307 P.3d 444 (2013) ). A person is "dangerous to self" for those purposes if the person's mental disorder puts her at a nonspeculative risk of serious physical harm or death in the near future, absent commitment. State v. S. R. J. , 281 Or. App. 741, 749-50, 755, 386 P.3d 99 (2016). A person is "dangerous to others" for those purposes if her mental disorder makes her highly likely to engage in future violence toward others, absent commitment. Id . at 755, 386 P.3d 99. Because the standard of proof in a civil commitment case is the clear-and-convincing-evidence standard, the evidence supporting commitment must be sufficient to permit the rational conclusion that it is highly probable that the person poses a danger to self or others. Id. at 748, 386 P.3d 99. To meet this "rigorous" standard, the evidence must supply a concrete and particularized "foundation for a prediction of future dangerousness" absent commitment. Id . at 754-55, 386 P.3d 99. In this case, the evidence does not meet that standard. It is undisputed that appellant suffers from severe bipolar disorder. However, as the mental health investigator found, there was "no evidence that she had actually placed herself or others in danger" before her hospitalization that led to the commitment proceeding. Appellant's commitment was precipitated after police and a local mental health crisis team were called to her residence after appellant started "behaving erratically" and stated that she was "going to kill Alisha." After police arrived, appellant asked them to shoot her, but there is no evidence that she behaved in a way that made it likely that they would. She was then taken to the emergency department of the hospital where she presented as paranoid, psychotic, and manic, and was given emergency medications. When she woke up, she was still manic, so she was placed on an emergency mental illness hold and admitted to the hospital.

Throughout her hospitalization, appellant continued to suffer from mania. During the first several days of her hospitalization, appellant's behavior was erratic and involved some "at times *** quite dramatic demonstrations of emotion, including tearfully rolling around on the floor bemoaning her situation, and then standing up and moving on to another topic, the former being completed." Appellant did nothing to harm herself or others during that time, and did not come close to doing so. Then, four days after she had been brought to the hospital, appellant became very upset at being kept in the hospital (which she called a "mental health fish tank"), and started slamming doors, yelling at nurses, throwing things in her room, and threatening to hang herself. She also threatened to slit the throat of a staff member, but retracted that statement. She was placed in seclusion, where she started banging her head on the floor. When staff entered the room to further restrain her, she kicked a male nurse in the genitals and continued to bang her head on whatever she could. Concerned that she had been hitting her head hard enough to cause a brain injury, medical staff arranged for a CT scan, but the scan showed no injury-appellant suffered only a minor abrasion.

At that point, the hospital decided to initiate commitment proceedings. When appellant was told that she might face commitment for up to 180 days, appellant responded that she would kill herself that night. Appellant also at one point asked nursing staff to give her enough pills so that she could kill herself, wrote letters saying "kill me, please," and was overheard telling her mother on the phone that she wanted to kill her.

At the commitment hearing, the mental health examiner opined that he thought that appellant's suicide threats were "difficult to take serious[ly]" because she made them so "freely." However, the examiner was concerned by the "escalation to *** self-harm" that had occurred on the date that appellant had to be put into seclusion and restrained. Appellant's treating psychiatrist testified at the hearing that he thought that appellant was dangerous to herself and others because of her behavior while hospitalized. In his opinion, the most dangerous thing that appellant had done was to bang her head against a mirror.

That evidence makes clear that, at the time of the hearing, appellant was in need of further treatment for her mental disorder. But what the evidence does not permit is the conclusion that it was highly probable that, absent commitment, appellant's mental disorder put her at risk of serious physical harm either to herself or others. That is because it does not permit the inference that it is highly probable that appellant's mental disorder would make her act dangerously outside the hospital setting. As noted, there is no evidence that appellant has any history of violence or self-harm outside the hospital setting. The incidents of violence and self-harm-particularly when resisting restraint-that took place in the hospital do not permit the inference that appellant posed a risk of near-term harm to herself or others, were she not to be committed, because the state presented no evidence that would allow for the rational conclusion that appellant was at risk of behaving the same way were she not involuntarily hospitalized. See S. R. J. , 281 Or. App. at 754-55 & n. 5, 386 P.3d 99 (discussing cases where violence in reaction to restraints on liberty was insufficient to demonstrate that person was dangerous in a way that permits commitment, and noting that "there would be a certain irony to involuntarily hospitalizing a person because that person engages in threatening behavior when involuntarily hospitalized"). In particular, the state introduced no evidence from appellant's treating psychiatrist, or from any other source, indicating how appellant's conduct inside the hospital was predictive of her conduct outside of it. Such evidence was essential to form the necessary "foundation for a prediction of future dangerousness" where, as here, there is no evidence that she had actually placed herself or others in danger prior to hospitalization and where, as here, there was no evidence that the conduct while hospitalized was anything other than reactive to the conditions of the hospitalization. The state's failure to adduce it in this case means that we must reverse.

Reversed.

      Appellant also contends that the evidence is insufficient to permit commitment on the ground that her mental disorder makes her unable to meet her basic needs, ORS 426.005(1)(f)(B). Because the trial court did not commit her on that basis, we do not address that contention.


text:
    In the MATTER OF J. J. S., a Person Alleged to have Mental Illness.
    State of Oregon, Respondent, v. J. J. S., Appellant.
    A168538
    Court of Appeals of Oregon.
    Submitted April 5, 2019. May 22, 2019
    Alexander C. Cambier and Multnomah Defenders, Inc., filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Adam Holbrook, Assistant Attorney General, filed the brief for respondent.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   PER CURIAM

Appellant appeals a judgment committing him to the mental health division for up to 180 days under ORS 426.130(1)(a)(C) and an order prohibiting him from purchasing or possessing firearms under ORS 426.130(1)(b)(D). Appellant assigns error to the trial court's refusal to grant a continuance for appellant to obtain legal counsel of his choice. We review that decision for abuse of discretion. State v. Cook , 190 Or. App. 568, 569, 79 P.3d 373 (2003).

At the beginning of the commitment hearing, appellant said that he did not want to be represented by appointed counsel. He said that he had a specific attorney he wanted to retain, and he provided the name. He said that he had been unable to contact the attorney because he had been denied access to a phone. Appellant's appointed counsel also stated that he-appointed counsel-had not had an opportunity to locate the attorney. The trial court denied appellant's motion for a continuance because the person appellant named was not present at the hearing and because the court was apparently unsure whether the named person was an attorney.

ORS 426.100(2) provides, as relevant here, that a person alleged to have a mental illness has a right to counsel when the person is detained under ORS 426.070 and in a commitment hearing under ORS 426.095. ORS 426.100 (3)(a) provides that the person has a right to obtain suitable legal counsel. ORS 426.100(3)(e) provides, in part, that, when a person is being detained before a commitment hearing, the right to contact an attorney or to have an attorney appointed "may be exercised as soon as reasonably possible." ORS 426.095(2)(c) provides, in part, that, if requested, the court may, for good cause, postpone the hearing for up to five judicial days "to allow preparation for the hearing."

The state concedes that, "under these specific circumstances, the trial court abused its discretion in not granting a brief continuance to give appellant an opportunity to contact" the attorney. We agree and accept the state's concession. We therefore reverse the judgment of commitment and the firearms order. State v. R. C. S. , 291 Or. App. 489, 490, 415 P.3d 1164 (2018) (reversing both order of commitment and firearms order).

Reversed.

      It appears that the trial court did not attempt to look up the name in the Oregon State Bar member directory.


text:
    In the MATTER OF the COMPENSATION OF Karista D. PEABODY, Claimant.
    Karista D. Peabody, Petitioner, v. SAIF Corporation and Oregon Health & Science University, Respondents.
    A166583
    Court of Appeals of Oregon.
    Argued and submitted April 16, 2019. May 22, 2019
    Julene M. Quinn, Albany, argued the cause and filed the briefs for petitioner.
    Allison Lesh, Eugene, argued the cause and filed the brief for respondents.
    Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.
   PER CURIAM

Claimant seeks review of an order on reconsideration of the Workers' Compensation Board (board) awarding attorney fees of $12,500 pursuant to ORS 656.386(1) for services at hearing and on review instead of the $31,000 attorney fee award that claimant had requested. She raises three assignments of error. We reject claimant's first assignment without discussion, writing only to address the second assignment, in which she contends that the board's conclusion "that a reasonable fee for claimant's attorney's services *** is $12,500" lacks substantial evidence and reasoning. Specifically, claimant argues that the board made findings of fact, but did not explain how its findings led to its conclusion that an attorney fee award of $12,500 was reasonable. She seeks reversal of the board's order and a remand to the board with instructions to provide a sufficient explanation of the attorney fee award. In response, SAIF and Oregon Health and Science University contend that the board sufficiently explained the basis for the attorney fee award to permit meaningful appellate review. We agree with claimant that the board erred by not adequately explaining the basis for the attorney fee award.

"Orders of the board must be supported by substantial reason." Taylor v. SAIF , 295 Or. App. 199, 203, 433 P.3d 419 (2018). As we explained in Taylor ,

"an order is supported by substantial reason when it articulates the reasoning that leads from the facts found to the conclusions drawn. The substantial reason requirement exists both for purposes of meaningful judicial review and to ensure that the agency gives responsible attention to its application of the statute. In the specific context of attorney fee awards in workers' compensation cases, the Supreme Court has cautioned that, in order to permit meaningful appellate review, the board cannot simply recite certain factors and then state a conclusion; rather, it must articulate how the application of those factors supports the amount of fees awarded."

295 Or. App. at 203, 433 P.3d 419 (emphasis in original; citations and internal quotation marks omitted).

Here, the board's order states that it "consider[ed] the factors set forth in OAR 438-015-0010(4) and appl[ied] them to this record." The order also identifies the specific factors that the board considered. However, the order does not "articulate a connection between those factors" and the amount awarded as attorney fees "sufficiently to allow us to understand the board's reasoning." Taylor , 295 Or. App. at 203, 433 P.3d 419 ; see also Schoch v. Leupold & Stevens , 325 Or. 112, 119, 934 P.2d 410 (1997) ("The Board, however, did not explain how any of the rule-based factors that it considered *** weighed in its decision-making process and led to the fee that it awarded. The answer is not apparent to us from a mere recitation of those factors."). Because the board simply gave a conclusion and did not explain how the factors it considered resulted in its decision, the board's order lacks substantial reason. More information is necessary for us to review the fee award. Accordingly, we reverse and remand for reconsideration of the attorney fee award.

Reversed and remanded.

      Our disposition of claimant's second assignment of error obviates the need to address her third assignment.

      OAR 438-015-0010(4) lists eight factors that "shall be considered" in any case in which "an Administrative Law Judge or the Board is required to determine a reasonable attorney fee."


text:
    WELLS FARGO BANK v. Justine NOERRING & Darwin Long
    20190049
    Supreme Court of Utah.
    March 8, 2019
    Petition for Writ of Certiorari Denied.