text:
    STATE of Oregon, Plaintiff-Respondent, v. Nate M. FRYER, Defendant-Appellant.
    A164371
    Court of Appeals of Oregon.
    Submitted October 5, 2018. January 9, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Matthew Blythe, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Christopher Page, Assistant Attorney General, filed the brief for respondent.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   PER CURIAM

After pleading guilty, defendant was convicted of one count of misdemeanor driving under the influence of intoxicants, ORS 813.010(4), and sentenced to two years' probation, with general and special probation conditions. He appeals the judgment of conviction, assigning error to the trial court's imposition of a special condition of probation, first appearing in the judgment, that "prohibited [him] from possessing or consuming marijuana and * * * participat[ing] in the Oregon Medical Marijuana Program [OMMP]." He contends that, under ORS 137.542(2), the court "lacked the authority to interfere with [his] ability to participate in the OMMP," and he requests resentencing. The state concedes that the court erred and further agrees that resentencing is the correct disposition. We agree with the parties to the extent that, if defendant holds a medical marijuana registry identification card, the special condition as imposed is inconsistent with ORS 137.542(2). However, the record does not establish whether defendant is, indeed, a medical marijuana cardholder. Because defendant did not have the opportunity to address that question before the judgment was entered, we reverse and remand for the court to determine whether ORS 137.542(2) applies in this case and, if so, to modify the special condition to conform with the statute. State v. Kilgore , 295 Or. App. 602, --- P.3d ---- (2019).

Remanded for resentencing; otherwise affirmed.

      In that circumstance, preservation is not required. State v. Lewis , 236 Or. App. 49, 52, 234 P.3d 152, rev. den. , 349 Or. 172, 243 P.3d 70 (2010).

      ORS 137.542(2) provides:
      "Notwithstanding ORS 137.540, the conditions of supervision of a person who holds a registry identification card and is sentenced to probation related to the use of usable marijuana, medical cannabinoid products, cannabinoid concentrates or cannabinoid extracts must be imposed in the same manner as the conditions of supervision of a person sentenced to probation related to prescription drugs."

      Defendant also argues that we should reverse and remand for resentencing on the additional ground that the court abused its discretion under ORS 137.030(2) in imposing the disputed condition outside of defendant's presence. Given our disposition, we need not address that question.

      After defendant filed his opening brief, and we decided State v. Bowden , 292 Or. App. 815, 425 P.3d 475 (2018), the state filed a motion in the trial court to amend the judgment so that the challenged special condition would read, "Defendant shall not use or possess marijuana except in compliance with the Oregon Medical Marijuana Act." The trial court denied the state's motion based on State v. Liechti , 202 Or. App. 649, 123 P.3d 350 (2005), rev. den. , 340 Or. 673, 136 P.3d 743 (2006) (declining to vacate special probation condition requiring the defendant to turn in his medical marijuana card where doing so would not substantially affect the defendant's rights, given an uncontested general probation condition that the defendant "violate no law," including federal law). The trial court's denial of the state's motion is not before us; however, we note that Liechti was decided before the enactment of ORS 137.542(2) and our interpretation of that statute in Bowden .

      Defendant argues that the record here affirmatively establishes that he holds a medical marijuana registry identification card; however, the only "evidence" that defendant identifies in that regard is his attorney's representation that defendant had taken "prescription medication" at the time of the offense. That statement is ambiguous at best, and, in any event, assertions of counsel are not evidence. State v. Green , 140 Or. App. 308, 317 n. 11, 915 P.2d 460 (1996).


source: Caselaw Access Project

author: PER CURIAM

license: Public Domain

text:
    T. L. A., Petitioner-Respondent, v. Nelson L. VIERRA, Jr., Respondent-Appellant.
    A166251
    Court of Appeals of Oregon.
    Submitted November 2, 2018. January 3, 2019
    Daemie M. Kim, Kevin T. Lafky, and Lafky & Lafky filed the opening brief for appellant. Leslie D. Howell and Kevin T. Lafky filed the reply brief for appellant.
    T. L. A. filed the brief for respondent pro se.
    Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.
   PER CURIAM

This is an appeal of a judgment granting a stalking protective order (SPO) in a dispute between neighbors. In his sole assignment of error, respondent challenges the entry of the SPO on the basis that there was insufficient evidence as a matter of law to prove each element required to obtain an SPO.

Respondent argues that he preserved the alleged error in his closing argument. Petitioner, appearing pro se , does not contest preservation. We have an independent obligation, however, to determine whether an issue was preserved in the trial court. Harrison v. Hall , 211 Or. App. 697, 701, 156 P.3d 141, rev. den. , 343 Or. 159, 164 P.3d 1160 (2007). "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 ORAP 5.45(1) (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").

"To preserve a claim of error concerning the legal sufficiency of the state's evidence, a defendant must-even in a case tried to the court-challenge the legal sufficiency of the evidence at trial." State v. Forrester , 203 Or. App. 151, 155, 125 P.3d 47 (2005), rev. den. , 341 Or. 141, 139 P.3d 259 (2006). "In a bench trial, a defendant can preserve a challenge to the sufficiency of the evidence if the 'defendant clearly raises the issue in closing argument.' " State v. Taylor , 271 Or. App. 292, 296, 350 P.3d 525 (2015) (quoting Forrester , 203 Or. App. at 155, 125 P.3d 47 ).

Upon review of the record, we conclude that respondent's closing argument did not "clearly raise[ ] the issue" of the legal sufficiency of the evidence. Id. "There is an important distinction between (1) an argument that seeks to convince a trial court, sitting as fact finder, not to be persuaded by the evidence favoring the other party, and (2) an argument that seeks to convince the trial court that the evidence is legally insufficient to support a verdict for that other party." State v. R. W. G. , 288 Or. App. 238, 240, 404 P.3d 1131 (2017) (emphasis in original). "[T]o preserve an 'insufficiency of the evidence' claim for appeal, a party must present the trial court with the latter type of argument." Id.

In arguing that he preserved the issue of the legal sufficiency of the evidence, respondent points to a few individual statements from his closing argument that could be construed as sufficiency arguments. However, the bulk and the thrust of his closing argument was clearly directed at persuading the trial court as fact finder. To the extent that respondent intended to challenge the legal sufficiency of the evidence, his closing argument did not give petitioner or the trial court "enough information to be able to understand [that] contention and to fairly respond to it." State v. Walker , 350 Or. 540, 552, 258 P.3d 1228 (2011). Accordingly, respondent failed to preserve his only claim of error on appeal. For that reason, we do not reach the merits.

Affirmed.

      Notably, respondent's counsel, who represented both respondent and a co-respondent, expressly moved at the close of petitioner's evidence to dismiss the petition against the co-respondent for legal insufficiency (which motion was granted) but made no such motion as to respondent.


author: ORTEGA, P. J.

text:
    STATE of Oregon, Plaintiff-Respondent, v. Christopher Taylor ELLINGSEN, Defendant-Appellant.
    A161903
    Court of Appeals of Oregon.
    Submitted on remand November 20, 2018. January 30, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Rond Chananudech, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Doug M. Petrina, Assistant Attorney General, filed the brief for respondent.
    Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.
   ORTEGA, P. J.

This case is before us on remand from the Oregon Supreme Court. State v. Ellingsen , 363 Or. 744, 430 P.3d 561 (2018). Defendant was convicted of one count of first-degree theft, one count of second-degree theft, and one count of third-degree robbery, and we affirmed his convictions without written opinion. State v. Ellingsen , 288 Or. App. 384, 414 P.3d 485 (2017). Defendant filed a petition for review, challenging only the trial court's denial of his motion for judgment of acquittal on the charge of first-degree theft, and the Supreme Court remanded to us for reconsideration in light of State v. Fonte , 363 Or. 327, 422 P.3d 202 (2018). Ellingsen , 363 Or. 744, 430 P.3d 561. In reviewing this case for legal error, State v. Miller , 289 Or. App. 353, 357, 413 P.3d 999 (2017), we conclude that, given the court's holding in Fonte , the trial court erred in denying defendant's motion and, therefore, we reverse defendant's conviction for first-degree theft and remand for resentencing.

Defendant purchased several clothing items at a local Walmart. Later that day, he returned to that Walmart without those items, picked them out again, and attempted to return them with the old receipt he had obtained from purchasing the items earlier in the day. The cashier performed the return, and defendant received a cash refund of $74.56. On his way out, he was stopped by a store employee and, while he was being questioned by the employee, defendant admitted that he made a fraudulent return. He was charged with first-degree theft under ORS 164.055(1)(c), based on the theory that defendant sold the stolen property by exchanging it for money.

On appeal, defendant argues that the trial court erred in denying his motion for judgment of acquittal because there was insufficient evidence to prove that, under ORS 164.055(1)(c), he committed "theft by receiving" by "selling" stolen property, a felony under the statute. According to defendant, he could not have committed theft by receiving because the "act of returning property for a refund does not constitute 'selling' [of] that property." He contends that he was therefore entitled to acquittal as to his conviction for first-degree theft by receiving committed by "selling."

In Fonte , the defendant was convicted of first-degree theft under ORS 164.055(1)(c), i.e. , "theft by receiving" committed by "selling," when he "took an item from a store's sales floor, approached a store employee at a cash register, and, giving the impression that he had previously purchased the item, 'returned' it for cash." 363 Or. at 329, 422 P.3d 202. In that case, the Supreme Court examined the text of ORS 164.055 (1)(c), together with its context and the legislative history, to conclude that

"the legislature did not intend theft by receiving committed by selling to include a theft, *** that is both committed by an initial thief and committed by fraudulently returning property to its owner in accordance with the owner's return policy rather than by selling that property to a third party in the market for stolen goods. *** [B]ecause defendant was the initial thief and because he returned the property to its owner, rather than selling it to a third party in the market for stolen goods, that crime is not punishable as a felony under ORS 16[4].055(1)(c)."

Id. at 348, 422 P.3d 202.

The Supreme Court's decision in Fonte rests on facts that are like those here-defendant was the initial thief who fraudulently returned items for a cash refund-and thus we conclude that the trial court erred in denying defendant's motion for judgment of acquittal; we therefore reverse defendant's conviction and remand for resentencing. See State v. Meyer , 295 Or. App. 632, 435 P.3d 829 (2019) (on remand from the Supreme Court in light of Fonte , reversing defendant's first-degree theft by receiving conviction for attempting to exchange stolen items).

Conviction for first-degree theft reversed; remanded for resentencing; otherwise affirmed.


author: LAGESEN, P. J.

text:
    STATE of Oregon, Plaintiff-Respondent, v. Dustin Douglas MEYER, Defendant-Appellant.
    A160912
    Court of Appeals of Oregon.
    Submitted on remand November 21, 2018. January 9, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Rond Chananudech, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Doug M. Petrina, Assistant Attorney General, filed the brief for respondent.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   LAGESEN, P. J.

The Supreme Court has remanded this case to us, in which defendant challenges the denial of his motion for judgment of acquittal on the charge of attempted first-degree theft, for reconsideration in light of its recent decision in State v. Fonte , 363 Or. 327, 422 P.3d 202 (2018). State v. Meyer , 363 Or. 744, 430 P.3d 561 (2018) ( Meyer II ). For the reasons that follow, on review for legal error, State v. Miller , 289 Or. App. 353, 357, 413 P.3d 999 (2017), we conclude that, under Fonte , the trial court erred when it denied defendant's motion. We therefore reverse.

Except as otherwise noted, the pertinent facts are not disputed. On the afternoon of December 12, 2014, FedEx delivered 17 boxes to the North Face store in northwest Portland. One box containing three garments-a girl's jacket and two infant jackets-went missing. About an hour after the box disappeared, defendant came into the store with the three jackets and attempted to exchange them. The store manager contacted police, who arrested defendant.

Defendant was charged with one count of second-degree theft (Count 1) and one count of attempted first-degree theft (Count 2). Count 1 was predicated on the state's theory that defendant was the person who had taken the jackets in the first place. Count 2 was predicated on the theory that defendant attempted to commit first-degree theft by receiving by "selling" when he attempted to exchange the stolen jackets.

Defendant elected to be tried by a jury. At trial, defendant moved for a judgment of acquittal on Count 2 on the ground that there was insufficient evidence that defendant had attempted to dispose of the jackets by "selling" them within the meaning of ORS 164.055(1)(c). In particular, defendant argued that returning the jackets to the store, even had he succeeded, would not constitute the "selling" of the jackets for purposes of ORS 164.055(1)(c). The trial court denied the motion, reasoning that "exchanging something for store credit instead of cash is selling under ORS 164.055(1)." The jury acquitted defendant on Count 1, but convicted on Count 2.

Defendant appealed, assigning error to the trial court's denial of his motion for judgment of acquittal. He reiterated his argument that returning or exchanging an item does not constitute "selling" under ORS 164.055(1)(c). Consistent with our decisions in several cases presenting the same legal issue, including State v. Fonte , 285 Or. App. 653, 402 P.3d 784 (2017), itself, we affirmed without opinion. State v. Meyer , 287 Or. App. 887, 403 P.3d 812 (2017) ( Meyer I ). Following its decision in Fonte , the Supreme Court allowed review of our decision in Meyer I , vacated it, and remanded the case to us for reconsideration in light of Fonte . Meyer II , 363 Or. 744, 430 P.3d 561.

In view of Fonte , we now conclude that the trial court erred when it denied defendant's motion for judgment of acquittal. At issue in Fonte was whether the defendant had committed theft by receiving by "selling" for purposes of ORS 164.055(1)(c) when, on two separate occasions, he took a pair of jeans from a store's sales floor and exchanged the jeans for cash after leading the cashier to believe that he had previously purchased the jeans from the store. Fonte , 363 Or. at 329, 422 P.3d 202. After considering arguments echoing those presented by defendant and the state in this case, the Supreme Court concluded that the conduct did not constitute theft by receiving by selling. The court comprehensively reviewed the text, context, and legislative history of the theft statutes, and then explained that it "discern[ed] a legislative intent to make that elevated crime [of theft by receiving by selling] applicable to fences-dealers in the market for stolen goods." Id . at 347, 422 P.3d 202. Thus, the court determined:

"[T]he legislature did not intend theft by receiving committed by selling to include a theft, such as that committed in this case, that is both committed by an initial thief and committed by fraudulently returning property to its owner in accordance with the owner's return policy rather than selling that property to a third party in the market for stolen goods. *** [B]ecause defendant was the initial thief and because he returned the property to its owner, rather than selling it to a third party in the market for stolen goods, that crime is not punishable as a felony under ORS 165.055(1)(c)."

Id . at 348, 422 P.3d 202.

The Supreme Court's decision in Fonte appears to rest in part on the fact that the defendant in that case was the initial thief, something that is not the case here; the jury acquitted defendant on Count 1, the charge predicated on the state's theory that defendant was the initial thief. However, as we understand Fonte , it rests equally on the proposition that the return of property to its owner does not constitute disposing of the property by "selling" within the meaning of ORS 164.055(1)(c). In particular, given the court's emphasis on the apparent legislative intent to target fences who sell stolen goods to third parties, we understand the Supreme Court to have construed the term "selling" in ORS 164.055(1)(c) to exclude the act of returning stolen property to its owner-the conduct attempted by defendant in this case. For that reason, defendant is entitled to entry of a judgment of acquittal on Count 2.

Reversed.

      On appeal, defendant argues that there is insufficient evidence to support a finding that he was the person attempting to exchange the jackets. Defendant did not raise that issue below in any clear way. In fact, as the state points out, in his opening statement to the jury, defendant acknowledged that he had gone into the store to exchange the jackets.

      ORS 164.015(5) explains that one way a person can commit theft is "theft by receiving as provided in ORS 164.095." Pertinent to this case, under ORS 164.095, "[a] person commits theft by receiving if the person *** disposes of property of another knowing or having good reason to know that the property was the subject of theft." ORS 164.095(1). Where the method of disposing of the property is by selling, theft by receiving constitutes first-degree theft: "A person commits the crime of theft in the first degree if, by means other than extortion, the person commits theft as defined in ORS 164.015 and *** [t]he theft is theft by receiving committed by *** selling." ORS 164.055(1)(c).


text:
    Aaron CERVANTES, Petitioner-Appellant, v. DEPARTMENT OF HUMAN SERVICES, Child Welfare, Respondent-Respondent.
    A167092
    Court of Appeals of Oregon.
    Submitted December 7, 2018. January 16, 2019
    Peter Druckenmiller filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Inge D. Wells, Assistant Attorney General, filed the brief for respondent.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   LAGESEN, P. J.

This proceeding arises under ORS 183.484, which provides for judicial review of final agency orders "other than contested cases" in an appropriate circuit court. ORS 183.484(1). In the final order at issue, the Department of Human Services (DHS) found that there was reasonable cause to believe that petitioner, who was employed at DHS's Stabilization and Crisis Unit (SACU), was responsible for neglect and lack of supervision and protection with respect to two minors in the SACU. On DHS's motion for summary judgment, the circuit court upheld that order, concluding that there were no genuine issues of material fact as to whether the order was supported by substantial evidence and that DHS correctly applied the applicable law.

Petitioner seeks judicial review, assigning error, among other things, to the circuit court's grant of summary judgment. He contends that the circuit court's ruling was based on a misunderstanding of the summary judgment procedures in judicial review proceedings under ORS 183.484 and that, under a correct understanding of the process, the circuit court's grant of summary judgment was in error. DHS, in response, concedes the error. We are not bound to accept that concession and must decide whether to accept it. State v. Bea , 318 Or. 220, 224, 864 P.2d 854 (1993) ("We need not accept [a] concession concerning a legal conclusion."). For the reasons that follow, we do.

Like the order at issue in this case-which has substantial ramifications for petitioner's reputation and employment prospects-many agency orders issued outside of the contested case context often impose significant burdens on the liberty and property interests of Oregonians. Given those consequences, it would not be unreasonable for a person subject to such an order to look to Oregon statutes for the procedures governing judicial review of such orders and hope to come away with an understanding of the process and a confidence that the process was designed to ensure fair, efficient, and economical means of securing judicial scrutiny of agency action.

That effort would be frustrating for most people. As it stands, the applicable procedure can't be found in the statutes or administrative rules in any clear way. Instead, they exist in the volumes of the Oregon Reports, the product of judicial decisions that attempt either (1) to define the role of the circuit court on judicial review under ORS 183.484 of an order other than a contested case or (2) to assess how the Oregon Rules of Civil Procedure come into play when a circuit court is reviewing the decision of an executive branch agency, rather than acting as a decision-maker itself in the first instance. To aid the bench, bar, and public, we'll attempt to lay out that procedure as clearly and succinctly as we can. For now, here's what the cases say.

First, in a proceeding under ORS 183.484 for review of an order other than contested case, review is not limited to the record on which the agency based its decision. Instead, " ORS 183.484 affords the parties the opportunity to develop a record like the one that parties are entitled to develop at an earlier stage in a contested case proceeding." Norden v. Water Resources Dept. , 329 Or. 641, 649, 996 P.2d 958 (2000). Once that record has been developed, the circuit court then reviews to determine "whether the evidence would permit a reasonable person to make the determination that the agency made in a particular case." Id . Thus, even though the record created before the circuit court may bear little resemblance to that on which the agency relied to make a challenged decision, under Norden , the circuit court must treat the agency as having had the later-created record before it at the time of its decision.

Second, even though the parties are entitled to make a record in the circuit court, summary judgment under ORCP 47 is not necessarily off the table in a case involving a substantial evidence challenge. For example, a court may resolve the case on summary judgment where the parties, in effect, agree or concede that the court may conduct its substantial evidence review on the evidentiary record developed on summary judgment. Coquille School District 8 v. Castillo , 212 Or. App. 596, 602, 159 P.3d 338 (2007) ; see Bridgeview Vineyards, Inc. v. State Land Board , 258 Or. App. 351, 367, 309 P.3d 1103 (2013) (" Coquille School District illustrates that parties can essentially concede that the record is sufficiently developed for the circuit court to conduct its judicial review of an order under ORS 183.484.").

However, we explained in Bridgeview Vineyards, Inc. that, in the absence of such an agreement or concession, summary judgment is not permissible if the party opposing summary judgment demonstrates that there are factual disputes going to the merits of the challenged agency decision. 258 Or. App. at 366-69, 309 P.3d 1103 (concluding that factual disputes going to the merits of challenged permitting decision meant circuit court should have held full evidentiary hearing, rather than resolving matter on summary judgment record). We reached that conclusion even though, under Norden , a circuit court's role on substantial evidence review under ORS 183.484(5)(c) is limited to assessing whether the record as a whole would permit a reasonable person to reach the result that the agency reached in the challenged order, and does not allow for the court to find the facts de novo . We reasoned that merits-related factual disputes "warrant[ ] further exploration at trial," entitling the party opposing summary judgment to the full evidentiary hearing contemplated by Norden , even if the summary judgment record might be sufficient to establish that substantial evidence supported the agency's decision. Bridgeview Vineyards, Inc. , 258 Or. App. at 369, 309 P.3d 1103.

As DHS notes in its concession, our decision in Bridgeview Vineyards, Inc. requires us to reverse and remand in this case. Although the circuit court may have been correct in concluding that the summary judgment record was sufficient to establish that the challenged order was supported by substantial evidence, petitioner opposed summary judgment and did not concede that the record was adequately developed for the court to conduct substantial evidence review. Further, petitioner's evidentiary submissions demonstrate that there are disputes of fact going to the merits of DHS's determination that there was reasonable cause to believe that petitioner was responsible for (1) neglect and (2) lack of supervision and protection with respect to the two minors. Were a reasonable factfinder to credit petitioner's version of events, the factfinder would not have to be persuaded that the requisite reasonable cause was present. Under Bridgeview Vineyards, Inc. , this means that petitioner was entitled to develop the record further at an evidentiary hearing. The circuit court, therefore, erred in resolving the matter on summary judgment, and DHS is correct to concede the point before us.

Reversed and remanded.

      ORS 183.484(1) provides that jurisdiction to review an agency order other than a contested case is "conferred upon the Circuit Court for Marion County and upon the circuit court in which the petitioner resides or has a principal business office."

      Should the legislature decide to take up the issue, the Uniform Law Commission's 2010 Revised Model State Administrative Procedure Act would provide a starting place for discussion. We note that Oregon's current act derives from the 1961 Model State Administrative Procedure Act. See Younger v. City of Portland , 305 Or. 346, 351-52, 752 P.2d 262 (1988) (discussing history of Oregon Administrative Procedures Act). Section 507(b)-a new provision in the 2010 model act-establishes the content of the record for an agency order that did not result from a contested case:
      "[T]he record for review consists of the unprivileged materials that agency decision makers directly or indirectly considered, or which were submitted for consideration by any person, in connection with the action under review, including information that is adverse to the agency's position. If the agency action was ministerial or was taken on the basis of a minimal or no administrative record, the court may receive evidence relating to the agency's basis for taking the action."
      Uniform Law Commission's Revised Model State Administrative Procedure Act (2010), § 507(b). Section 507(c) allows for expansion of the record to, among other things, "prevent manifest injustice." Section 508(e), in turn, contemplates that states will identify circumstances in which it is appropriate for a reviewing court to find the facts de novo and provides that, in such instances, "to the extent that the facts are subject to a trial de novo by the reviewing court, the action was unwarranted by the facts."

      If a petitioner challenges an agency's interpretation and application of the law or exercise of discretion, the court also reviews for legal error, and to determine whether an agency's exercise of discretion comports with the law. ORS 183.484(5)(a), (b).


text:
    In the MATTER OF the Suspension of the Driving Privileges of Thomas D. EASTON.
    Thomas D. Easton, Petitioner, v. Driver and Motor Vehicle Services Division (DMV), a Division of the Department of Transportation, Respondent.
    A167537
    Court of Appeals of Oregon.
    Submitted December 7, 2018. January 24, 2019
    Thomas Easton filed the briefs for petitioner pro se.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Judy C. Lucas, Assistant Attorney General, filed the brief for respondent.
    Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.
   PER CURIAM

Petitioner seeks judicial review of a final order of the Driver and Motor Vehicle Services Division, which relates to the suspension of petitioner's driving privileges pursuant to ORS 809.419(3). Petitioner raises three assignments of error. We reject all three assignments without written discussion. We write only to make clear the record on which our decision is based.

In his reply brief, petitioner argues that-given certain assertions made in the agency's answering brief-we should consider in our review a letter and Driver Medical Report from Dr. Gilchrist, dated March 28, 2018, which petitioner attached to his reply brief. By order of the appellate commissioner, we previously denied petitioner's request to supplement the record with Dr. Gilchrist's letter and report, because those items were submitted to the agency after the administrative record closed. To the extent that petitioner is making the same request again, on the basis that the agency has "opened the door" with certain statements in its answering brief, we deny that request. The letter is not part of the agency record or the record on judicial review, and we therefore cannot consider it in reaching our decision. The order of the agency is affirmed.

Affirmed.

      We note that our review is necessarily limited to the record and the agency order before us and does not address any other avenues for petitioner to try to regain his driving privileges.


text:
    Amber Jade REETZ, Plaintiff-Appellant, v. Gressa Ann JOHANSON, Defendant-Respondent.
    A165389
    Court of Appeals of Oregon.
    Submitted January 4, 2019. February 21, 2019
    Michael H. Bloom and Michael H. Bloom, P.C., filed the brief for appellant.
    Thomas M. Christ and Drew L. Eyman filed the brief for respondent.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   PER CURIAM

Affirmed. Durette v. Virgil , 272 Or. App. 545, 356 P.3d 639, rev. den. , 358 Or. 527, 366 P.3d 1168 (2015) ; Thoens v. Safeco Ins. Co. of Oregon , 272 Or. App. 512, 356 P.3d 91 (2015).


text:
    In the MATTER OF S. W., a Person Alleged to Have Mental Illness.
    State of Oregon, Respondent, v. S. W., Appellant.
    A168464
    Court of Appeals of Oregon.
    Submitted January 4, 2019. February 21, 2019
    Jospeh R. DeBin and Multnomah Defenders, Inc., filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jona J. Maukonen, Assistant Attorney General, filed the brief for respondent.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   PER CURIAM

Appellant appeals an order committing him for a period not to exceed 180 days, ORS 426.130(1)(a)(C), and an order prohibiting the purchase or possession of firearms, ORS 426.130(1)(a)(D). Appellant argues that the trial court plainly erred when it failed to fully advise him of his rights in accordance with the requirements of ORS 426.100(1). Specifically, appellant contends that the trial court failed to advise him that the possible results of the proceeding included voluntary treatment or conditional release. See ORS 426.130(1) and (2) (setting out possible results of proceeding). The state has conceded that, under State v. M. M. , 288 Or. App. 111, 405 P.3d 192 (2017), and State v. M. T ., 244 Or. App. 299, 258 P.3d 1288 (2011), the trial court plainly erred and the orders should be reversed. For the reasons stated in M. M. , 288 Or. App. at 116, 405 P.3d 192, we exercise our discretion to correct the error and, accordingly, reverse the orders. See State v. R. C. S. , 291 Or. App. 489, 490, 415 P.3d 1164 (2018) (reversing both commitment judgment and order prohibiting the appellant from purchasing and possessing firearms).

Reversed.


text:
    In the MATTER OF K. S. D. M., a Person Alleged to Have Mental Illness.
    State of Oregon, Respondent, v. K. S. D. M., Appellant.
    A168853
    Court of Appeals of Oregon.
    Submitted January 4, 2019. February 21, 2019
    Jospeh R. DeBin and Multnomah Defenders, Inc., filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Leigh A. Salmon, Assistant Attorney General, filed the brief for respondent.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   PER CURIAM

The trial court committed appellant to the custody of the Mental Health and Developmental Disability Services Division for a period not to exceed 180 days after determining that she was unable to provide for her basic needs because of a mental disorder. See ORS 426.005 (1)(f)(B). On appeal, she argues that the record does not contain legally sufficient evidence to support an involuntary commitment on that basis. The state concedes that the record is legally insufficient in that regard and that the judgment of commitment should be reversed. We agree, accept the state's concession, and reverse the commitment judgment.

Reversed.


text:
    STATE of Oregon, Plaintiff-Respondent, v. Oscar Paul Osuna LOPEZ, aka Oscar Paul Osuna-Lopez, Defendant-Appellant.
    A165222
    Court of Appeals of Oregon.
    Submitted January 17, 2019. February 27, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Laura A. Frikert, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, filed the brief for respondent.
    Before Powers, Presiding Judge, and Egan, Chief Judge, and DeVore, Judge.
   PER CURIAM

Affirmed. State v. Miller , 291 Or. App. 599, 422 P.3d 327, rev. den. , 363 Or. 727, 429 P.3d 388 (2018).


text:
    STATE of Oregon, Plaintiff-Respondent, v. Terry Eugene IVERSEN, Defendant-Appellant.
    A164628
    Court of Appeals of Oregon.
    Submitted January 17, 2019. February 27, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Mary M. Reese, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rolf C. Moan, Assistant Attorney General, filed the brief for respondent.
    Before Powers, Presiding Judge, and Egan, Chief Judge, and DeVore, Judge.
   PER CURIAM

Affirmed. State v. Althouse , 359 Or. 668, 375 P.3d 475 (2016).


text:
    In the MATTER OF S. S. T., a Youth.
    State of Oregon, Respondent, v. S. S. T., Appellant.
    A166003
    Court of Appeals of Oregon.
    Submitted January 18, 2019. February 21, 2019
    Adrian T. Smith filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jeff J. Payne, Assistant Attorney General, filed the brief for respondent.
    Before Lagesen, Presiding Judge, and James, Judge, and Landau, Senior Judge.
   PER CURIAM

This is an appeal from a judgment finding youth within the delinquency jurisdiction of the juvenile court for conduct that, if committed by an adult, would constitute first-degree disorderly conduct, ORS 166.023. Youth challenges (1) the sufficiency of the evidence supporting the finding that youth's conduct violated ORS 166.023 and (2) the juvenile court's imposition of a probation condition delegating to the juvenile department the authority to require youth to serve detention without any further involvement by the court and without a court hearing. We reject youth's challenge to the sufficiency of the evidence without further discussion. As to youth's second assignment of error, the state correctly concedes that, under our decision in State v. B. H. C. , 288 Or. App. 120, 404 P.3d 1110 (2017), the court erred in imposing the challenged condition. We therefore reverse and remand with directions to the juvenile court to strike the following condition of probation from the delinquency judgment:

"The youth be confined in a juvenile detention facility for a period of 10 days, to be served in no more than 5 day increments, which days are suspended and are to be used at the direction of a juvenile probation officer as a sanction in response to probation violations."

Reversed and remanded with instructions to strike the specified condition of probation; otherwise affirmed.


text:
    TINDALL-MARTIN, Jayson A. v. AMSBERRY
    A164668
    Court of Appeals of Oregon.
    January 30, 2019
    Affirmed without opinion.


text:
    STATE v. HABIB, Aaron
    A165212
    Court of Appeals of Oregon.
    January 30, 2019
    Affirmed without opinion.


text:
    STATE v. HATFIELD, Jon Louie, Jr.
    A165159
    Court of Appeals of Oregon.
    January 30, 2019
    Affirmed without opinion.


text:
    STATE v. JOHNSON, Ruth Elizabeth
    A165021
    Court of Appeals of Oregon.
    January 30, 2019
    Affirmed without opinion.


text:
    STATE v. STRASSER, Ronald Kenneth
    A165146
    Court of Appeals of Oregon.
    January 30, 2019
    Affirmed without opinion.


text:
    STATE v. STULL, Barry Joe, aka Stully, Barry Joe
    A164155
    Court of Appeals of Oregon.
    January 30, 2019
    Affirmed without opinion.


text:
    In the MATTER OF B. M. W., a Child.
    Department of Human Services v. J. W. et al.
    In the Matter of L. M. W., a Child.
    Department of Human Services v. J. W. et al.
    A168407 A168409
    Court of Appeals of Oregon.
    January 30, 2019
    Affirmed without opinion.


text:
    In the MATTER OF J. J., a Person Alleged to Have Mental Illness.
    State v. J. J.
    A166831
    Court of Appeals of Oregon.
    January 30, 2019
    Affirmed without opinion.


text:
    In the MATTER OF M. H., aka M. R. H., a Child.
    Department of Human Services v. C. M. H.
    A167950 A168080
    Court of Appeals of Oregon.
    January 30, 2019
    Affirmed without opinion.


text:
    STATE v. GUTIERREZ, David Estrada
    A164492
    Court of Appeals of Oregon.
    January 30, 2019
    Affirmed without opinion.


text:
    In the MATTER OF R. J., a Youth.
    State of Oregon, Respondent, v. R. J., Appellant.
    A165480
    Court of Appeals of Oregon.
    Submitted January 31, 2019. February 27, 2019
    Christa Obold Eshleman filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jonathan N. Schildt, Assistant Attorney General, filed the brief for respondent.
    Before Powers, Presiding Judge, and Hadlock, Judge, and Brewer, Senior Judge.
   PER CURIAM

Affirmed. State v. P. T. , 295 Or. App. 205, 433 P.3d 778 (2018).


text:
    Robin BALL, a resident of the state of Washington; the National Rifle Association, Alan Gottlieb and Julianne Hoy Versnel, Respondents, v. Kim WYMAN, Washington State Secretary of State in her official capacity, Respondent. and Safe Schools Safe Communities, Appellant.
    No. 96191-3
    Supreme Court of Washington.
    DATED at Olympia, Washington, August 24, 2018.
    ORDER
   ¶1 On August 17, 2018, "RESPONDENT-INTERVENOR SAFE SCHOOLS SAFE COMMUNITIES' NOTICE OF APPEAL TO THE WASHINGTON SUPREME COURT" was filed and an accelerated briefing schedule was established. Having reviewed the briefing and other documents filed in the matter, the Court has unanimously determined that the following order be entered;

¶2 Now, therefore, it is hereby

¶3 ORDERED:

¶4 Appellant's campaign gathered over 378,000 signatures on petitions in support of placing Initiative 1639, an initiative to the people (hereinafter "I-1639") for presentation to voters on the November 6, 2018 statewide ballot. When Secretary of State Kim Wyman reviewed the petitions in support of I-1639 for her certification, she identified potential problems with them. First, the proposed measure printed on the back of the signed petitions was in a very small font. Second, the proposed measure on the back of the petitions was missing the underlining and strike-out formatting that was present in the proposed measure language submitted to the secretary that delineates between existing and new statutory language. But the statute governing certification of initiatives gives the secretary very limited authority to refuse to certify an initiative petition to the ballot: (1) for failure to substantially follow certain form requirements not applicable here, (2) for "clear[ ]" failure to collect sufficient signatures, or (3) for failure to file the initiative petition on time. RCW 29A.72.170. Accordingly, the secretary exercised her discretion to certify the I-1639 petition for presentation to the voters.

¶5 On July 27, 2018, two groups of plaintiffs timely brought similar preelection challenges in Thurston County Superior Court to the secretary's certification of the I-1639 petition. Both groups of plaintiffs requested that the court review the petition for sufficient signatures under RCW 29A.72.240, a provision that authorizes judicial review of the number of signatures submitted in support of an initiative, and sought declaratory and injunctive relief. Both challenges are based on the contention that the print on the back of the I-1639 petitions is not a true, accurate, and readable copy of the proposed measure presented to the secretary and was thus not the "full" text of the proposed measure. WASH. CONST. art. II, § 37 ; RCW 29A.72.100. The superior court consolidated the cases, heard argument on August 17, 2018, and at the conclusion of the hearing, granted mandamus relief prohibiting the secretary from certifying I-1639 for the November election. The court found that the text on the back of the petitions was not readable and did not strictly comply with the statutory and constitutional requirements identified by the plaintiffs. The campaign supporting the petition directly appealed to this court pursuant to RCW 29A.72.240. We accept direct review and reverse the superior court.

¶6 This action was not properly brought under RCW 29A.72.240. The purpose of this statute is narrow; it does not allow for preelection judicial review of the form, process, substance, or constitutionality of an initiative petition. The plain language of RCW 29A.72.240 limits the court to examining whether the petitions "contain the requisite number of signatures of legal voters." See State ex rel. Donohue v. Coe , 49 Wash.2d 410, 415, 302 P.2d 202 (1956) (interpreting predecessor statute). Thus, the mandamus relief available under this statute is limited to enforcing the number-of-signature requirements and is not available where, as here, there is no actual challenge to the counting of signatures.

¶7 Respondents also contend that the court may exercise its inherent mandamus power to protect the integrity of the initiative process and the mandates of the constitution. Mandamus relief is available to compel a public officer to perform a nondiscretionary duty required by law. City of Tacoma v. O'Brien , 85 Wash.2d 266, 268, 534 P.2d 114 (1975). It may also be used to prohibit a public officer from performing an act. Id. But to justify the court's extraordinary use of mandamus power it must be based on a state official's nondiscretionary duty. In re Pers. Restraint of Dyer , 143 Wash.2d 384, 398, 20 P.3d 907 (2001). "The act of mandamus compels performance of a duty, but cannot lie to control discretion." Id. (citing Benedict v . Bd. of Police Pension Fund Comm'rs , 35 Wash.2d 465, 475, 214 P.2d 171 (1950) ). Here, there is no legislative mandate that the secretary must decline to certify and present to voters an initiative based on failure to comply with the requirement that "a readable, full, true, and correct copy" of the initiative appear on the back of every petition, or on legibility or formatting concerns. RCW 29A.72.100. As the secretary readily admits, and as the superior court found, her duty in certifying or declining to certify the petitions is limited by RCW 29A.72.170. Because the secretary has no mandatory duty to not certify an initiative petition based on the readability, correctness, or formatting of the proposed measure printed on the back of the petitions, mandamus cannot lie in this case.

¶8 The superior court judgment entering mandamus relief is reversed.

For the Court

/s/ Fairhurst, C.J.

CHIEF JUSTICE


author: Korsmo, J.

text:
    STATE of Washington, Respondent, v. Bogar RIVERA-ZAMORA, Appellant.
    No. 35184-0-III
    Court of Appeals of Washington, Division 3.
    FILED MARCH 7, 2019
    Eric J. Nielsen, David Bruce Koch, Nielsen Broman & Koch PLLC, 1908 E Madison St., Seattle, WA, 98122-2842, for Appellant.
    Douglas J. Shae, Attorney at Law, James Andrew Hershey, Attorney at Law, Po Box 2596, Wenatchee, WA, 98807-2596, for Respondent.
    OPINION PUBLISHED IN PART
   Korsmo, J.

¶1 Bogar Rivera-Zamora appeals his convictions for delivery of a controlled substance (methamphetamine) and possession of a controlled substance with intent to deliver, arguing that the "to convict" instruction was deficient, and the trial court erred in refusing an entrapment instruction. We affirm.

FACTS

¶2 On December 18, 2015, an undercover detective, posing as a prospective drug buyer, attempted to make contact with a suspected dealer in a downtown Chelan apartment building. After knocking on the door of the apartment, a nearby apartment door opened and Mr. Rivera-Zamora exited, asking the detective what he was doing. The detective spoke to Mr. Rivera-Zamora briefly and explained that he was looking to buy cocaine. Mr. Rivera-Zamora responded that he did not have cocaine but could help him get some "crystal." The detective agreed and the two made arrangements for the purchase of methamphetamine. As arranged, Mr. Rivera-Zamora took the detective's money and returned with a small bag, set it down and motioned for the detective to come and take it. The bag later tested positive for methamphetamine.

¶3 The detective returned February 2, 2016, and again was able to purchase methamphetamine from Mr. Rivera-Zamora. Nine days later, after an unsuccessful attempt to buy more methamphetamine, officers executed a search warrant for Mr. Rivera-Zamora's apartment. During the search, deputies found a total of $1,765 in Mr. Rivera-Zamora's pockets, and two digital scales in the apartment. He told officers where to find a bag of methamphetamine inside a plastic glove in a cereal box. The plastic glove weighed 11.7 grams and tested positive for methamphetamine.

¶4 Mr. Rivera-Zamora was arrested and spoke with two detectives. He admitted that he used methamphetamine and "sold to a few people" to sustain his personal use. Mr. Rivera-Zamora was subsequently charged with two counts of delivery of a controlled substance, possession of a controlled substance with intent to deliver, and maintaining a drug property. Three of the charges included allegations that the offenses occurred within 1,000 feet of school grounds and/or a school bus stop.

¶5 At trial, Mr. Rivera-Zamora requested an entrapment instruction on the first delivery charge, arguing that his testimony detailing the detective's badgering behavior was sufficient to persuade a reasonable jury of the existence of the defense. In denying the instruction, the trial court explained that the proposed instruction was an incorrect statement of the law and inaccurate. The court also determined that the testimony was insufficient under the case law to support the instruction.

¶6 The jury convicted as charged and found the enhancements had been established. Mr. Rivera-Zamora received a prison-based drug offender sentencing alternative (32 months in prison followed by 32 months' community custody).

¶7 Mr. Rivera-Zamora timely appealed to this court. A panel considered the appeal without hearing argument.

ANALYSIS

¶8 This opinion addresses two issues. First, we consider Mr. Rivera-Zamora's challenge to the sentence on the charge of possession with intent to deliver. We then turn to the claim that the trial court erred in denying his proposed entrapment instruction.

Possession with Intent Sentence

¶9 Mr. Rivera-Zamora first argues that the omission of the identity of the controlled substance in the elements instruction for the charge of possession with intent to deliver requires resentencing for the imposition of a lesser felony. We conclude that despite the omission of the word "methamphetamine" in the "to convict" instruction, he has not established manifest constitutional error.

¶10 The omission of an element from a "to convict" instruction is an error of constitutional magnitude that may be raised for the first time on appeal. State v. Mills , 154 Wash.2d 1, 6, 109 P.3d 415 (2005). We review alleged instructional error de novo. State v. Brooks , 142 Wash. App. 842, 848, 176 P.3d 549 (2008).

¶11 A "to convict" instruction must contain all the elements of the crime "because it serves as a 'yardstick' by which the jury measures the evidence to determine guilt or innocence." State v. Smith , 131 Wash.2d 258, 263, 930 P.2d 917 (1997). "[A] reviewing court may not rely on other instructions to supply the element missing from the 'to convict' instruction." State v. DeRyke , 149 Wash.2d 906, 910, 73 P.3d 1000 (2003). Where the identity of a controlled substance increases the statutory maximum sentence, the identity of the substance is an essential element. State v. Goodman , 150 Wash.2d 774, 785, 83 P.3d 410 (2004). Omission of an essential element is subject to harmless error analysis. State v. Brown , 147 Wash.2d 330, 332, 58 P.3d 889 (2002). A jury instruction that omits an essential element is harmless if it appears beyond a reasonable doubt the error did not contribute to the verdict. Id. at 341, 58 P.3d 889. The omitted element must be supported by "uncontroverted evidence," and the reviewing court must be able to " 'conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error.' " Id. (quoting Neder v. United States , 527 U.S. 1, 19, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) ).

¶12 In Clark-El , the defendant was tried on a charge of delivery of methamphetamine, a class B felony. State v. Clark-El , 196 Wash. App. 614, 618, 384 P.3d 627 (2016). The "to convict" instruction did not identify the controlled substance and the jury found Clark-El guilty of the crime of delivery of a controlled substance. Id. at 618-19, 384 P.3d 627. The trial court sentenced him for delivery of methamphetamine. Id. at 618, 384 P.3d 627.

¶13 On appeal, Division One of this court held that it was error not to identify the substance in the elements instruction, but the error was harmless as to Clark-El's conviction. Id. at 620, 384 P.3d 627. However, the error was not harmless as to the sentence because the verdict did not authorize the sentence imposed. Id. at 624, 384 P.3d 627. "The sentencing judge imposed a sentence as if the jury had found Clark-El delivered methamphetamine, a class B felony, when the only finding stated in the verdict was that Clark-El was guilty of the crime of delivery of 'a controlled substance.' " Id. Because delivery of an unspecified controlled substance is a class C felony, the court held that the sentencing court erred in imposing a sentence for a class B felony. Id.

¶14 This case is distinguishable from Clark-El . Here, the jury's verdict included the identity of the controlled substance, even if the elements instruction omitted it. Thus, the error was harmless as to Mr. Rivera-Zamora's conviction. Mr. Rivera-Zamora told officers where to locate the substance after his arrest and there was no conflicting testimony challenging the identity of the substance found in his apartment.

¶15 As to the sentence, the charging document stated the identity of the substance Mr. Rivera-Zamora allegedly possessed with intent to deliver. Additionally, although the elements instruction omitted the word "methamphetamine," the verdict form stated unequivocally that it found Mr. Rivera-Zamora guilty of unlawful possession of a controlled substance with intent to deliver-methamphetamine. Because the jury expressly found that Mr. Rivera-Zamora possessed methamphetamine with intent to deliver, the sentence was authorized. The court did not err in sentencing him for that offense.

¶16 The error in the elements instruction was harmless.

¶17 Affirmed.

¶18 A majority of the panel having determined that only the forgoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder having no precedential value shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

WE CONCUR:

Siddoway, J.

Pennell, A.C.J.

      The proposed instruction varied from the pattern instruction by failing to set forth the proper burden of proof. Clerk's Papers at 24.


author: Verellen, J.

text:
    STATE of Washington, Respondent, v. Carmen Rose LEE, Appellant.
    No. 77038-1-I
    Court of Appeals of Washington, Division 1.
    FILED: February 25, 2019
    Kevin Andrew March, Nielsen Broman Koch PLLC, Attorney at Law, 1908 E. Madison St., Seattle, WA, 98122, Counsel for Appellant
    Prosecuting Attorney Snohomish, Snohomish County Prosecuting Attorney, J Scott Halloran, Snohomish Co. Prosecuting Atty-Criminal, 3000 Rockefeller Ave. M/s 504, Everett, WA, 98201, Counsel for Respondent
    PUBLISHED OPINION
   Verellen, J.

¶ 1 When analyzing whether a passenger's voluntary consent to search her purse has been vitiated by an unlawful seizure, the starting point is the traffic stop that culminated in the search. If police validly stop a car for a traffic infraction, the driver and passengers are lawfully seized. Generally, the seizure continues and remains reasonable for the duration of the traffic stop, ending when police no longer need to control the scene and tell the passengers they are free to leave. Under article I, section 7 of the Washington Constitution, the scope and duration of a lawful traffic stop are governed by the rationale of Terry v. Ohio, depend on the totality of the circumstances, and may expand as the circumstances change.

¶ 2 Under the totality of the circumstances, the police did not exceed reasonable scope and duration limitations merely by asking a lawfully seized passenger for consent to search a purse she left inside the car and making a single mention of her prior drug conviction. Carmen Lee's voluntary consent to search her purse was not vitiated by an unlawful seizure.

¶ 3 We affirm Lee's conviction for possession of controlled substances with intent to deliver.

FACTS

¶ 4 On July 7, 2015, Michael Peterman was driving a car, and Lee was the front seat passenger. Detective Garry Tilleson initiated a traffic stop for two traffic infractions. Detective Tilleson asked Peterman for his identification, learned his license was suspended, and arrested him for first degree driving while license suspended or revoked. Peterman consented to a search of the car.

¶ 5 Detective Tilleson told Lee to step out to facilitate his search of the car. She left her purse inside the car. Detective Tilleson ran Lee's identification information to determine if she had a driver's license so she could drive the car if it was not impounded. He learned Lee had a valid driver's license and a conviction for possession of a controlled substance. Lee began to pace back and forth near the car. At some point, Detective Ross Fryberg directed Lee to sit on a nearby curb. During a conversation, Lee told Detective Tilleson the purse in the car was hers. Detective Tilleson asked Lee for permission to search her purse, telling her that he was asking "due to her prior drug conviction." He also gave Lee warnings pursuant to State v. Ferrier that she was not obligated to consent and that she could revoke consent or limit the scope of the search at any time. Lee consented to the search. When Detective Tilleson asked Lee if there was anything in her purse he should be concerned about, she said there was some heroin inside. Detectives found heroin and methamphetamine in her purse, advised Lee of her Miranda rights, and arrested her for possession of a controlled substance with intent to manufacture or deliver.

¶ 6 Lee moved to suppress the evidence obtained from the search of her purse. Lee testified she did not consent to the search and that a detective told her "he didn't care if there was a little bit of dope in my bag and he just searched the car and searched my stuff." Lee also testified she "probably" had been using heroin that day.

¶ 7 Detective Tilleson testified he did not suspect Lee of a crime when he requested her consent to search her purse. He and Detective Fryberg confirmed that Detective Tilleson first obtained Lee's consent to search the purse, gave Ferrier warnings, and then Lee disclosed there were narcotics in the purse. Neither detective recalled telling Lee she was free to leave during the stop. Dispatch time log records suggest the traffic stop commenced at 7:23 p.m. and Detective Tilleson conducted his search at 7:41 p.m.

¶ 8 The trial court denied Lee's motion to suppress the results of the search of her purse. The court found "the testimony of the [detectives] involved [was] more credible than the defendant's testimony." The court also noted the detectives inquired about Lee's identity "to determine if she was a licensed driver so that the vehicle could be released to her as an alternative to impoundment." The trial court determined that all of Lee's statements were voluntary and that none were coerced. The court concluded that Lee validly consented to a search of her purse. ¶ 9 At the bench trial on stipulated facts, the judge found Lee guilty of possession of a controlled substance with intent to deliver. Lee appeals.

ANALYSIS

¶ 10 Challenged findings entered after a suppression hearing that are supported by substantial evidence are binding; unchallenged findings are verities on appeal. Substantial evidence is enough evidence to persuade a fair-minded person of the truth of the finding. This court reviews the trial court's conclusions of law de novo.

¶ 11 Lee's challenges the sufficiency of the evidence supporting eight of the findings of fact from the suppression hearing. Her challenges are not compelling. Because the trial court heard the testimony from both Lee and the detectives, there was sufficient evidence to support the finding that the officers were more credible than Lee. Lee's challenges to other findings are narrow and either relate to theories on which we do not rely or are otherwise immaterial.

Passenger's Consent to Search Her Purse

¶ 12 Lee's core argument is that she did not validly consent to the search of her purse because the detectives unlawfully seized her. Notably, she does not challenge the voluntariness of her consent or assert any theory of coercion.

¶ 13 Both the Fourth Amendment of the United States Constitution and article I, section 7 of the Washington Constitution prohibit a warrantless search or seizure unless an exception applies. Voluntary consent is an exception to the warrant requirement. But an otherwise voluntary consent may be vitiated by an unlawful seizure. When analyzing a passenger's consent to search the purse she left in the car, we start with the traffic stop that led to the search.

¶ 14 When police conduct a traffic stop, "it is now well established that '[f]or the duration of a traffic stop ... a police officer effectively seizes everyone in the vehicle.' " If the traffic stop is valid, then seizure of the driver and passengers is also valid. A passenger's seizure "ordinarily continues, and remains reasonable, for the duration of the stop. Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave."

¶ 15 At oral argument, Lee asserted that article I, section 7 of the Washington Constitution controls. She contends the portions of Arizona v. Johnson and Rodriguez v. United States regarding Fourth Amendment analysis of unrelated questions during a traffic stop do not apply here. Accepting Lee's premise without deciding it, the key question then becomes what standard applies under article I, section 7 of the Washington Constitution to analyze the impact of an officer's question unrelated to the justification for the traffic stop. We are guided by a long line of well accepted Washington Supreme Court decisions.

¶ 16 The Fourth Amendment and article I, section 7 both recognize an investigative stop exception to the warrant requirement as set forth in Terry v. Ohio. The rationale of Terry applies by analogy to traffic stops.

¶ 17 At oral argument, Lee acknowledged the Terry standards for scope and duration of a stop apply and are the same when analyzed under either the Fourth Amendment or article 1, section 7. Lee's concession is consistent with our Supreme Court's recognition in State v. Z.U.E. that "[i]n a challenge to the validity of a Terry stop, article I, section 7 generally tracks the Fourth Amendment analysis."

¶ 18 The standards for a Terry stop, including the appropriate scope of such a stop, are well established in Washington. We analyze such stops on a case-by-case basis. "[C]ourts must review an officer's actions under the totality of the circumstances to determine if a [ Terry stop] seizure is made with the authority of law and is of reasonable scope and duration."

¶ 19 "Similar to the analysis for determining the initial validity of the stop, the proper scope of a Terry stop depends on 'the purpose of the stop, the amount of physical intrusion upon the suspect's liberty, and the length of time the suspect is detained.' "

"A lawful Terry stop is limited in scope and duration to fulfilling the investigative purpose of the stop." Once that purpose is fulfilled, the stop must end. An officer may lawfully extend the stop's scope and duration based on information obtained by officers during the traffic stop. "There is no rigid time limitation on Terry stops."

¶ 20 Washington courts also recognize that officers may conduct routine law enforcement procedures during traffic stops "as long as they do not unreasonably extend the initial valid stop." For example, officers may request a vehicle's occupants "to step out of and away from their vehicles, and to perform other limited movements." Officers may require passengers to get out of a vehicle to facilitate a search of the vehicle. Apart from general officer safety concerns, we note the presence of a passenger in a car during a search of the car would frustrate the efficiency and effectiveness of the search and would place both the passenger and the officer in an awkward position. Officers are obligated to consider reasonable alternatives to impoundment such as determining whether the driver's spouse or friends are available to move the vehicle. And while an officer in a traffic stop may not request identification from a passenger for investigatory purposes absent an independent reason to justify the request, an officer may check the passenger's identification to determine if the passenger has a valid driver's license when considering whether to allow the passenger to drive the car from the scene.

¶ 21 Because Lee was lawfully seized at the beginning of the traffic stop and remained reasonably seized when she was asked to consent to a search of the purse she left in the car, our inquiry is whether police exceeded the reasonable scope and duration of the traffic stop by asking her consent to search her purse while mentioning her prior drug conviction.

¶ 22 The totality of the circumstances here includes a valid traffic stop for a cracked windshield and an inoperative brake light, in violation of RCW 46.37.070 and RCW 46.37.410. Detectives lawfully checked Peterson's identification and lawfully arrested him once they determined he was driving with a suspended license. Peterson consented to a search of the car, and a detective lawfully requested that Lee exit while he searched the car. The detectives legitimately checked Lee's identification to determine whether she was a licensed driver and could drive the car from the scene following Peterson's arrest. And the search of the purse occurred roughly 18 minutes after the traffic stop began.

¶ 23 Lee provides no authority, and we find none, indicating that merely asking a lawfully seized person if they consent to a search of a container voluntarily left in a car somehow renders their seizure unlawful or exceeds the reasonable scope and duration of a traffic stop. The purpose of this traffic stop reasonably expanded to include the arrest of the driver and consensual search of the car. Under these changing circumstances, it was not unreasonable for the detective to ask Lee if she consented to a search of the purse she left in the car after she knew the detectives would be searching the car.

¶ 24 The mention of Lee's prior drug conviction must also be considered as part of the totality of the circumstances. Here, there was a single mention of the conviction in passing. There was no physical intrusion upon Lee. And the time required to say the words "prior drug conviction" was inconsequential.

¶ 25 The word "reasonable" implies a measure of flexibility and practicality. If the reasonable scope and duration standard could be exceeded by the single reference to a prior conviction in this case, it would prove too rigid and brittle a standard for the realities of police work. We conclude that the police did not exceed the reasonable scope or duration of the expanded traffic stop under the totality of the circumstances. Therefore, Lee fails to establish that under article I, section 7, her voluntary consent to search her purse was vitiated by police conduct. ,

¶ 26 The trial court mentioned officer safety concerns because the purse could have concealed a weapon. Although officer safety during traffic stops is always a serious concern, we do not rely on the abstract potential for a weapon in a purse. The only testimony was that Lee had not demonstrated any risk of being armed or dangerous. Any concerns that she might obtain possession of her purse when the traffic stop ended and that her purse was big enough to contain a weapon are abstract. If that is the standard, then virtually every traffic stop with a modestly sized container inside a car would justify a search of the container, no matter how benign the circumstances. The State cites no authority supporting such a sweeping view of officer safety as a rationale for a warrantless search.

¶ 27 Lee also suggests the trial court relied on the theory that police conducted an inventory search of the car. We do not read the record to reflect that the police conducted an inventory search, or that the trial court relied on an inventory search exception.

¶ 28 As discussed at oral argument, in State v. O'Day, Division Three of this court found that a passenger was illegally seized when an officer ordered her out of the car, kept her purse out of reach, asked if she had drugs or weapons, and asked if she would consent to a search. The court held the illegal investigative detention vitiated the defendant's consent. O'Day is distinguishable because of factual differences and is inapposite because it is now clear that a passenger in a traffic stop is necessarily seized when the stop begins, and ordinarily, that seizure continues and remains reasonable for the duration of the stop.

¶ 29 We conclude Lee's voluntary consent to search her purse was not vitiated by police conduct at the traffic stop. Specifically, under the totality of the circumstances, the police did not exceed the reasonable scope and duration of the traffic stop.

Spouse's Consent to Search Car Not a Manifest Constitutional Issue

¶ 30 For the first time on appeal, Lee contends that article I, section 7 of the Washington Constitution requires the consent of both the driver and passenger for a search of a car when they are spouses. Lee concedes our Supreme Court held in State v. Cantrell that the Fourth Amendment does not require all occupants of a motor vehicle to independently consent to a vehicle search. Lee contends we should analyze whether article I, section 7 provides greater protection than the Fourth Amendment. Lee argues this is a manifest constitutional error that may be raised for the first time on appeal.

¶ 31 A manifest error is one "truly of constitutional magnitude." But if the facts necessary to adjudicate the claimed error are not in the record on appeal, no actual prejudice is shown, and the error is not manifest.

¶ 32 Lee argues that the only facts necessary to apply article I, section 7 are that the spouses were the only ones using the car. But neither spouse was the registered owner, and the record contains no information about Lee or Peterman's relationship with the registered owner. Under article I, section 7, the authority over the car likely includes consideration of the spouses' relationship with the registered owner and scope of permission granted by the owner. On the existing record, Lee fails to establish a manifest error that may be raised for the first time on appeal.

Attentuation Doctrine Not at Issue

¶ 33 Lee argues that article I, section 7 does not allow application of the federal attenuation doctrine. But in its brief, the State acknowledges it does not rely on attenuation. We need not address the substance of this argument.

CONCLUSION

¶ 34 Lee was necessarily seized as a passenger in the traffic stop and remained reasonably seized for the duration of the stop. Even assuming article I, section 7 controls, the scope and duration of the traffic stop are governed by the Terry rationale. The scope and duration of the traffic stop expanded to include the arrest of the driver and the consensual search of the car.

¶ 35 Under the totality of the circumstances, the police did not exceed the reasonable scope and duration limitations by asking Lee for consent to search the purse she left inside the car and by making a single mention of Lee's prior drug conviction. Because the police did not exceed the reasonable scope and duration limitations, Lee's voluntary consent to search her purse was not vitiated by police conduct.

¶ 36 We affirm.

WE CONCUR:

Leach, J.

Dwyer, J.

      392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      Report of Proceedings (RP) (Oct. 6, 2016) at 31.

      136 Wash.2d 103, 960 P.2d 927 (1998).

      Both detectives testified that Detective Tilleson provided Ferrier warnings, and that Lee never revoked her consent or asked the officer to stop or to limit the scope of the search.

      Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 Ohio Misc. 9 (1966).

      RP (Oct. 6, 2016) at 105.

      Id. at 110.

      Clerk's Papers (CP) at 90 (finding of fact 17).

      Id. at 89.

      State v. O'Neill, 148 Wash.2d 564, 571, 62 P.3d 489 (2003).

      State v. Hill, 123 Wash.2d 641, 644, 870 P.2d 313 (1994).

      State v. Levy, 156 Wash.2d 709, 733, 132 P.3d 1076 (2006).

      See State v. Cardenas-Flores, 189 Wash.2d 243, 266, 401 P.3d 19 (2017) (" 'Credibility determinations are reserved for the trier of fact' and are not subject to review." (quoting State v. Camarillo, 115 Wash.2d 60, 71, 794 P.2d 850 (1990) )).

      Lee does not assign error to the trial court determinations that all of her statements were voluntary and none was coerced. CP at 91 (conclusion of law 5).

      State v. Rankin, 151 Wash.2d, 689, 695, 92 P.3d 202 (2004).

      State v. Cantrell, 124 Wash.2d 183, 187, 875 P.2d 1208 (1994).

      State v. Armenta, 134 Wash.2d 1, 17-18, 948 P.2d 1280 (1997) ; State v. Soto-Garcia, 68 Wash. App. 20, 26-27, 841 P.2d 1271 (1992) (consent "obtained through exploitation of a prior illegality may be invalid even if voluntarily given"), abrogated on other grounds, State v. Thorn, 129 Wash.2d 347, 917 P.2d 108 (1996) ).

      State v. Marcum, 149 Wash. App. 894, 910, 205 P.3d 969 (2009) (alterations in original) (internal quotation marks omitted) (quoting Arizona v. Johnson, 555 U.S. 323, 327, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) ); see Brendlin v. California, 551 U.S. 249, 255, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007).

      Marcum, 149 Wash. App. at 910, 205 P.3d 969.

      Arizona v. Johnson, 555 U.S. 323, 333, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009).

      Lee has not offered any Gunwall analysis about police officers asking questions unrelated to the justification for the traffic stop. State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808 (1986).

      555 U.S. 323, 333, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009).

      --- U.S. ----, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015).

      Although the briefing by both parties focused on whether and when Lee was seized based on conduct after the traffic stop commenced, we directed the parties to come to oral argument prepared to address specific questions and specific cases, including Johnson and Rodriguez, about the seizure of passengers at the beginning of a traffic stop and whether unrelated questions may be asked during the stop. As a result, the parties' ultimate arguments depart significantly from the briefs.

      392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Washington courts recognize the Terry stop exception under article I, section 7 of the Washington Constitution. State v. Mecham, 186 Wash.2d 128, 135, 380 P.3d 414 (2016) ; State v. Ladson, 138 Wash.2d 343, 348-50, 979 P.2d 833 (1999).

      Mecham, 186 Wash.2d at 137-38, 380 P.3d 414 ("As set forth in Terry, a traffic stop is a seizure for the purposes of constitutional analysis-it is analogous to a brief investigative detention."); State v. Snapp, 174 Wash.2d 177, 198, 275 P.3d 289 (2012) ("Terry's rationale applies to traffic infractions."); State v. Arreola, 176 Wash.2d 284, 292-93, 290 P.3d 983 (2012) ("Warrantless traffic stops are constitutional under article I, section 7 as investigative stops, but only if based upon at least a reasonable articulable suspicion of either criminal activity or a traffic infraction, and only if reasonably limited in scope.").

      183 Wash.2d 610, 617, 352 P.3d 796 (2015) (recognizing the sole distinction that a Terry stop analyzed under article I, section 7 requires a reasonable suspicion connecting a particular person to a particular crime rather than a general suspicion that someone is up to no good).

      State v. Young, 135 Wash.2d 498, 510, 957 P.2d 681 (1998) ("Washington search and seizure law stemming from Terry... is well established.").

      Mecham, 186 Wash.2d at 138, 380 P.3d 414.

      State v. Flores, 186 Wash.2d 506, 525 n.8, 379 P.3d 104 (2016).

      State v. Alexander, 5 Wash. App. 2d 154, 160, 425 P.3d 920 (2018) (quoting State v. Williams, 102 Wash.2d 733, 740, 689 P.2d 1065 (1984) ).

      State v. Acrey, 148 Wash.2d 738, 747, 64 P.3d 594 (2003).

      Id.

      Id.

      State v. Vanhollebeke, 197 Wash. App. 66, 76, 387 P.3d 1103 (2016), affirmed, 190 Wash.2d 315, 412 P.3d 1274 (2017).

      Alexander, 5 Wash. App. 2d at 162-63.

      Mecham, 186 Wash.2d at 144, 380 P.3d 414 ; see also State v. Flores, 186 Wash.2d 506, 516, 379 P.3d 104 (2016) (during a traffic stop, officers may order passengers to stay in or exit a vehicle in order control the scene of an investigation and ensure their safety as long as they can articulate an objective rationale for doing so).

      Lee's challenge to finding of fact 9 relates to whether she was seized while pacing, a theory immaterial to the ultimate legal question. Lee challenges finding of fact 12 "to the extent" it suggests usual practice permitted officers to remove her from the car. Appellant's Br. at 1. But the legal authority of officers at a traffic stop to control the scene and instruct passengers to get out of a car to facilitate a search does not depend on a finding about usual practices.

      State v. Rehn, 117 Wash.App. 142, 151, 69 P.3d 379 (2003).

      State v. Tyler, 177 Wash.2d 690, 698, 302 P.3d 165 (2013).

      State v. Larson, 93 Wash.2d 638, 642-45, 611 P.2d 771 (1980) ; State v. Rankin, 151 Wash.2d 689, 699, 92 P.3d 202 (2004) : State v. Mennegar, 114 Wash.2d 304, 309, 787 P.2d 1347 (1990).

      Lee's premise is that article I, section 7 governs and that the portions of Johnson and Rodriguez regarding unrelated questions during traffic stops have no application here. Therefore, we need not engage in any alternative Fourth Amendment analysis under those cases. But we note that there is Washington authority suggesting that a single question unrelated to the traffic stop does not measurably extend the duration of the stop or prolong the stop beyond the time reasonably required to complete the stop's mission for purposes of the Fourth Amendment. See State v. Pettit, 160 Wash. App. 716, 720, 251 P.3d 896 (2011) (asking a question unrelated to the justification for traffic stop "was brief and did not significantly extend the duration beyond that of a typical traffic stop"); State v. Shuffelen, 150 Wash. App. 244, 257, 208 P.3d 1167 (2009) ("Nor was this question violative of Ms. Shuffelen's rights simply because it was unrelated to [the officer's] justification for the initial traffic stop.").

      Lee challenges finding of fact 10 "to the extent that it suggests that [she] validly consented to the search of her purse." Appellant's Br. at 1. But detective testimony supports the specific facts in that finding. Also, our review of whether police conduct vitiated her voluntary consent does not depend on any inference of validity from finding of fact 10.

      Lee challenges findings of fact 13 and 14 regarding alleged officer safety concerns and the suggestion that officers could search her purse "merely because [it] could have concealed a weapon." Appellant's Br. at 2. But we do not rely on officer safety concerns specific to Lee and her purse.

      Lee challenges finding of fact 11 "to the extent it suggests that the officers legitimately invoked the inventory search." Appellant's Br. at 1. But neither the trial court nor we rely on an inventory search exception.

      91 Wash. App. 244, 253, 955 P.2d 860 (1998).

      Id.

      Similar to O'Day , many of the cases cited by Lee are inapposite because they are based on the outdated premise that a passenger in a traffic stop had not been seized at the commencement of the stop.

      124 Wash.2d 183, 188, 875 P.2d 1208 (1994) ("warrantless searches can be used against a nonconsenting defendant").

      State v. Scott, 110 Wash.2d 682, 688, 757 P.2d 492 (1988).

      State v. McFarland, 127 Wash.2d 322, 333, 899 P.2d 1251 (1995) ; State v. Riley, 121 Wash.2d 22, 31, 846 P.2d 1365 (1993).

      See generally State v. Morse, 156 Wash.2d 1, 8, 123 P.3d 832 (2005) ("Common authority under article I, section 7 is grounded upon the theory that when a person, by his actions, shows that he has willingly relinquished some of his privacy, he may also have impliedly agreed to allow another person to waive his constitutional right to privacy."); State v. Vanhollebeke, 190 Wash.2d 315, 329, 412 P.3d 1274 (2017) (a driver's right to privacy in another's vehicle completely "fade[s] away" at some point when the driver's use is not permissive; the existence and scope of the owner's permission is a factor to consider under article I, section 7 ).

      Lee challenges finding of fact 8 "to the extent" it suggests the husband alone could consent to a search of the car. Appellant's Br. at 1. But that issue is not a manifest error which may be raised for the first time on appeal.

      Resp't's Br. at 39 ("[T]he State concedes that if Lee was unlawfully seized prior to giving consent to search her purse, any evidence gathered thereafter should have been excluded.").