author: DeVORE, J.

text:
    STATE of Oregon, Plaintiff-Respondent, v. David Benjamin HUNT, Defendant-Appellant.
    A165048
    Court of Appeals of Oregon.
    Argued and submitted March 26, 2019. May 22, 2019
    Anne Fujita Munsey, 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.
    Susan G. Howe, 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 James, Judge.
   DeVORE, J.

Defendant appeals a judgment of conviction for possession and delivery of methamphetamine, ORS 475.894 and ORS 475.890(2). He assigns error to the denial of his motion for a mistrial. Defendant argues that his ability to have a fair trial was prejudiced by an officer's testimony that defendant "did not want to waive his rights,"

because the jury likely inferred that he chose not to speak with police because he was guilty. He argues that a curative jury instruction to disregard the testimony failed to cure the error. We agree, reverse, and remand.

The relevant facts are undisputed. Drug enforcement officers were investigating individuals suspected of drug dealing. Seeing a vehicle associated with the suspects, they followed it, saw traffic infractions, and initiated a traffic stop. Defendant sat in the front passenger seat. A detective asked several questions of defendant, and he answered. A drug-sniffing dog alerted officers to the odor of drugs, prompting a vehicle search. Police asked that defendant and his companions get out of the vehicle, and they hand-cuffed defendant and advised him of his rights. The search revealed 221.08 grams of methamphetamine in the rear compartment of the vehicle, as well as drug paraphernalia in various other locations. Defendant was placed under arrest and charged with four felony offenses.

At defendant's trial, the state examined Sergeant Geist, one of the officers who spoke to defendant at the scene of the traffic stop. The problematic testimony occurred in this exchange:

"[PROSECUTOR]: Okay. After you assisted in the search, what did you do?
"[SERGEANT]: I then interviewed the driver.
"[PROSECUTOR]: Did you interview the passenger?
"[SERGEANT]: I did, yes.
"[PROSECUTOR]: Okay. And who did you identify the passenger as?
"[SERGEANT]: [Defendant].
"[PROSECUTOR]: What happened with the interview with [defendant]?
"[SERGEANT]: There really wasn't an interview. I advised him of his constitutional rights. He indicated he wanted to talk to me, but did not want to waive his rights."

Defendant objected, and the trial court immediately took a short recess to meet with counsel. Defendant moved for a mistrial, arguing that he was prejudiced by the comment regarding the exercise of his constitutional right. The state disagreed that the comment warranted a mistrial, emphasizing that it had no intention of using the comment against defendant and noting that the court could address any potential harm with a curative jury instruction. The court denied defendant's motion. The court recognized that "it's very clear if you try to use an individual's exercising of his rights to remain silent against him, that it's a mistrial[,]" but the court found that the testimony "was vague as to whether or not he had invoked." The court gave defendant the option of a curative instruction, and defendant accepted. Defendant asked that the court "simply say an objection's been sustained. His last answer should be disregarded without saying what his answer was." The court reminded the state to "avoid any further inquiry" into defendant's conversation with the police leading up to the invocation of his rights. When the jury returned, the court instructed:

"THE COURT: Okay. Ladies and gentlemen, I've sustained an objection. The jury is instructed to disregard the last question and the last answer that the witness provided, not consider it any way in their deliberations."

The trial continued, and the jury convicted defendant of possession and delivery of methamphetamine.

Defendant appeals, assigning error to the trial court's denial of his motion for a mistrial. He contends that the jury was likely to infer that he exercised his right to remain silent because he was guilty-especially because he stopped speaking with police once they discovered drugs. Defendant claims that the jury instruction was insufficient to cure that prejudice.

The state argues that defendant failed to preserve his assignment of error because he "invited the error" by requesting the curative instruction and failing to object to it. In response, defendant contends that he preserved the issue by moving for a mistrial, notwithstanding his attempt to mitigate the damage of the testimony with a curative instruction, once the court had denied his mistrial motion.

As to the merits, the state contends that the improper testimony did not deny defendant a fair trial, because the jury was unlikely to have inferred much from the testimony. The state argued that the officer's statement was an isolated statement that the state did not exploit and that the statement was unclear about what particular rights defendant had invoked. Finally, the state argues that the curative instruction was an effective remedy.

At the outset, we must determine whether defendant preserved the asserted error. We previously addressed the very question of whether a "defendant's failure to object to the sufficiency of the curative instruction nullified his mistrial motion for the purposes of [an] appeal," concluding that it did not. State v. Veatch , 223 Or. App. 444, 454-55, 196 P.3d 45 (2008). We have held that, "if the court chooses to give a curative instruction rather than declare a mistrial, any error in denying a preserved mistrial motion remains preserved regardless of whether the defendant objected to the sufficiency of the instruction." Id. at 455, 196 P.3d 45. Consistent with that principle, we conclude that defendant's claim of error was preserved.

We turn to the merits of defendant's appeal. We review the denial of a motion for a mistrial for abuse of discretion, reversing only if the defendant was denied a fair trial. Id. (citation omitted). For a trial to be fair, the verdict must be "based on the evidence" rather than "factors external to the proof at trial." State v. Osorno , 264 Or. App. 742, 748, 333 P.3d 1163 (2014) (citation omitted). A prosecutor's or a witness's reference to the defendant having exercised a constitutional right-like the right to remain silent or to obtain counsel-may prejudice the defendant's ability to have a fair trial if it raises the impermissible inference that the defendant did so because he or she was guilty. Veatch , 223 Or. App. at 455-56, 196 P.3d 45. When such prejudicial inferences are likely, "[t]here is no doubt that it is usually reversible error" to admit the testimony. State v. Smallwood , 277 Or. 503, 505-06, 561 P.2d 600, cert. den. , 434 U.S. 849, 98 S.Ct. 160, 54 L.Ed.2d 118 (1977).

Whether a defendant has been prejudiced by a reference to an invocation of his rights depends on the circumstances in which the reference was made and the likelihood that the jury will draw an inference of guilt. Veatch , 223 Or. App. at 456-57, 196 P.3d 45. Where the context makes the inference unlikely, the trial court does not abuse its discretion by denying a motion for a mistrial. Id. at 456, 196 P.3d 45. A reference may not be prejudicial if it is incidental to some other point that diverts the jury's focus, id. , or it is ambiguous and isolated without any elaboration, State v. Beisser , 258 Or. App. 326, 341, 308 P.3d 1121 (2013). However, declaration of a mistrial may be necessary when a discernable reference is made and nothing directs the jury's attention away from the adverse inference that it raises. Veatch , 223 Or. App. at 457, 196 P.3d 45.

The Supreme Court has determined that an adverse inference of guilt is unlikely when the testimony involves an isolated and indirect reference that is merely incidental to some other focal point of discussion. In State v. Larson , 325 Or. 15, 17, 933 P.2d 958 (1997), the defendant questioned a police officer on the stand about statements made by witnesses whom the officer had interviewed. The prosecutor raised multiple objections on hearsay grounds, all of which the trial court sustained. Id. at 17-21, 933 P.2d 958. On one occasion, the prosecutor suggested that the defendant call those witnesses to testify directly. Id. at 19, 933 P.2d 958. At a later time, the prosecutor complained that the defendant was "trying to get in objectionable material by testifying to it himself" through his questioning, and then, exasperated, told the court that the defendant could "always get up and testify himself if he wants to establish [an] alibi." Id. at 20, 933 P.2d 958. The defendant moved for a mistrial based on the improper reference to his decision to not testify, but the trial court denied his motion. Id. at 21, 933 P.2d 958.

On appeal, the Oregon Supreme Court concluded that the context for the prosecutor's improper comment was not one in which the jury would likely infer that the defendant refused to testify because he was guilty. Id. at 24, 933 P.2d 958. The court highlighted that the prosecutor made only a single reference to the defendant's ability to testify, which the prosecutor directed at the judge and not the jury, and it was made "apparently in frustration" in the course of objecting to the defendant's repeated attempts to introduce inadmissible hearsay. Id. at 24-25, 933 P.2d 958. Accordingly, the trial court's decision to deny the defendant's motion for a mistrial was within its discretion. Id. at 25, 933 P.2d 958.

In State v. Farrar , 309 Or. 132, 165-67, 786 P.2d 161, cert. den. , 498 U.S. 879, 111 S.Ct. 212, 112 L.Ed.2d 171 (1990), the court reached a similar result involving a peripheral, indirect reference to the defendant's silence. The state attacked the credibility of an alibi witness in its closing argument by noting that the defendant had never mentioned having an alibi witness beforehand. Id. at 164-65, 786 P.2d 161. The defendant moved for a mistrial, arguing that the state "essentially rubbed the 5th Amendment in the defendant's face in front of the jury." Id. at 165, 786 P.2d 161. The trial court denied the motion. Id. at 166, 786 P.2d 161.

The Supreme Court affirmed, noting that "[t]he focus of the prosecutor's argument, both immediately before and after the objectionable comments, was to attack the witness's credibility[.]" Id. at 167, 786 P.2d 161. When the state alluded to the defendant's silence, it did so to make an entirely separate point altogether. The court concluded that the reference was "not likely to prejudice the defendant's right to a fair trial, given the context in which the statement was made." Id. (internal quotation marks omitted).

A single ambiguous reference may not, without elaboration, necessarily raise an inference of guilt. In Beisser , the investigating officer testified that she had called the defendant on the afternoon of March 9, but he had "refused to meet [her] that day." 258 Or. App. at 333, 308 P.3d 1121. The defendant moved for a mistrial on the ground that the testimony was a "comment on [his] silence." Id. The trial court disagreed with that interpretation and denied the motion. Id. On appeal, we concluded that the context did not demand a mistrial, underscoring the isolated nature of the comment and the fact that neither the officer nor the state elaborated on it. Id. at 341, 308 P.3d 1121. We held that the court acted within its discretion. Id.

Conversely, we have determined that an adverse inference of guilt is likely when the testimony is not merely incidental and when nothing directs the jury's focus away from it. In Veatch , the defendant faced charges for DUII. 223 Or. App. at 446, 196 P.3d 45. At trial, under examination by the state, an officer testified that the defendant had asked "to call his lawyer before making [the] decision" on whether to take a breathalyzer test. Id. at 448, 196 P.3d 45. The defendant then moved for a mistrial, which was denied. On appeal, we determined that the officer's statement "likely gave rise to an adverse inference of guilt." Id. at 460, 196 P.3d 45. We explained that a jury would likely infer that the defendant asked for an attorney because he was concerned about failing the potentially incriminating breathalyzer test and would see the invocation as a "tacit admission of guilt." Id. We observed that the officer's "statement was not incidental to some other point that the jury was more likely to be focusing on" and, therefore, "nothing in the context diverted the jury's attention away from that inference." Id. We determined that the court erred in denying the defendant's motion for a mistrial. Id. at 462, 196 P.3d 45.

Our more recent decision in Osorno is particularly illustrative. In that case, the defendant faced charges for DUII and other offenses arising from a related car accident.

264 Or. App. at 744, 333 P.3d 1163. At trial, during examination of an officer, the state asked, "Did [the defendant] say when she stopped drinking?" Id. at 745, 333 P.3d 1163. The officer answered, "She told me, 'Don't want to say anything incriminating.' " Id . The defendant objected, and a conference in chambers directly followed wherein the defendant moved for a mistrial. Id. The court denied that motion. Id. at 746-47, 333 P.3d 1163. On appeal, we concluded that there was "no doubt" that the officer's statement "gave rise to an adverse inference of defendant's guilt." Id. at 751, 333 P.3d 1163. We determined that, "because intoxication is not a crime, defendant's answer to the question 'when did you stop drinking?' would be incriminating only if defendant was driving at the time of the collision." Id. We noted that, as in Veatch , nothing in the record indicated that the jury's attention was directed away from the adverse inference of guilt based on the invocation. Id . Accordingly, we reversed the trial court's decision. Id. at 753, 333 P.3d 1163.

Based on those precedents, we conclude that the sergeant's testimony here-that defendant "indicated he wanted to talk to [the sergeant] but did not want to waive his rights"-gave rise to an adverse inference of guilt. Defendant's statement suggested that he had information pertinent to the crime but that he could not share it without incriminating himself. The jury would likely infer that he was concerned about divulging something implicating him in the large amount of methamphetamine police had just discovered. The inference is strong given that defendant was cooperative and communicative with police until the point at which they discovered the drugs. In such a circumstance, a jury would likely see defendant's invocation as a "tacit admission of guilt." Veatch , 223 Or. App. at 460, 196 P.3d 45.

The reference was prejudicial because, as in Osorno and in Veatch , nothing directed the jury's attention away from it. The prosecutor's line of questioning focused on defendant's interview with police or, more precisely, the lack of an interview. The prosecutor elicited the testimony by asking questions specifically regarding defendant's interview. The sergeant's answer was directly responsive to those questions; it was not incidental to some other focal point that would otherwise divert the jury's attention. Considering that no interview with defendant had ever occurred, it is not apparent what other answer the prosecutor could have hoped to evoke. The testimony was not a passing reference made by way of voicing an objection to the judge, as in Larsen , or attacking the credibility of some other witness, as in Farrar . Defendant talking to police was front and center stage.

We disagree with the state that the sergeant's testimony was too ambiguous for the jury to recognize that it referred to defendant invoking his right against self-incrimination. The jury would have understood the statement in the context of the surrounding testimony. They knew that the sergeant had advised defendant of his constitutional rights. It is widely known that the constitutional rights of which police must advise suspects during custodial interrogations are those guaranteed under Miranda , which enshrines the right against self-incrimination. See Miranda v. Arizona , 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966). Defendant's response, "that he wanted to talk " but would not, further indicates that he was exercising his right to abstain from talking, that is, to remain silent. (Emphasis added.) We are confident that the jury would see that as an invocation of the right against self-incrimination.

That said, the risk that the jury may draw an adverse inference of guilt will not always necessitate a mistrial. In some instances, "the prejudicial effect may be cured by an appropriate jury instruction."

Veatch , 223 Or. App. at 458, 196 P.3d 45 (citation omitted). "The dispositive question on this issue" is "whether the purportedly curative instruction was sufficient to unring the bell." State v. White , 303 Or. 333, 342, 736 P.2d 552 (1987).

"Jurors are assumed to have followed their instructions, absent an overwhelming probability that they would be unable to do so," but, "if it is likely that the jury drew an adverse inference, it cannot be assumed that the jury will follow a curative instruction that merely told the jury to disregard the improper statement." Osorno , 264 Or. App. at 749-50, 333 P.3d 1163 (citations, brackets, and internal quotation marks omitted). The court "must do something more than blandly instruct the jury to forget that it has just seen a white bear." White , 303 Or. at 343, 736 P.2d 552 (citing Lakeside v. Oregon , 435 U.S. 333, 345, 98 S. Ct. 1091, 55 L.Ed.2d 319 (1978) (Stevens, J., dissenting) ("Even if jurors try faithfully to obey their instructions, the connection between silence and guilt is often too direct and too natural to be resisted. *** [T]elling them to ignore the defendant's silence is like telling them not to think of a white bear.")). Instructing the jury to consider the testimony "irrelevant" to their deliberations is not enough. Id. at 344, 98 S. Ct. 1091. Rather, the instruction must achieve the difficult-perhaps impossible-task of negating the inference that the defendant invoked his or her rights because of his or her consciousness of guilt. Osorno , 264 Or. App. at 753, 333 P.3d 1163. Practically speaking, and "as our case law makes clear, curative instructions in this particular context are often inadequate." Id. at 752, 333 P.3d 1163.

We have rejected jury instructions similar to those at hand. In Veatch , after the officer referred to the defendant's request to speak with his lawyer before submitting to a breathalyzer test, the trial court instructed the jury that

"a person has a right to call their lawyer and you're not supposed to make any inferences from that, since they have a right to do it.
"And so the State's not even supposed to bring it up. They brought it up. The seven of us are going to totally ignore it, though they couldn't."

223 Or. App. at 449, 196 P.3d 45. On appeal, we determined that the curative instruction was insufficient. Id. at 461, 196 P.3d 45. Although it was "less 'bland' than the one given in White ," and although the court provided it immediately after the challenged statement, it still did "not negate the inference that the person chose to exercise the right because he was conscious of his guilt." Id. at 461, 196 P.3d 45. It failed to "unring the bell." Id.

Similarly, in Osorno , the curative instruction was ineffective. An officer testified that the defendant had refused to say when she had stopped drinking because she did not want to say anything incriminating. Osorno , 264 Or. App. at 745, 333 P.3d 1163. The trial court met with counsel in chambers and then provided the following instruction:

"[THE COURT]: Ladies and gentlemen, I would instruct you to disregard the last statement that was made, that it is not information that you can consider in deciding this case. Okay? So if you wrote anything down, cross it off your notes and you must disregard it."

Id. at 745, 333 P.3d 1163. On appeal, we concluded that the curative instruction failed to address the prejudicial effect of the officer's testimony. Id. at 752, 333 P.3d 1163. We noted that it was "even less tailored to cure the prejudice than the instructions that were considered too 'bland' in both Veatch and White ." Id. , 333 P.3d 1163. The jury "was effectively asked to forget that it had just seen a white bear," and "no part of the instruction negated the inference that defendant made the statement because she was conscious of her guilt." Id . at 752-53, 333 P.3d 1163 (citation, internal quotation marks, and brackets omitted). Again, the curative instruction was insufficient.

For the same reason, we conclude that the curative instruction in this case was insufficient to address the prejudicial effect of the sergeant's testimony. As in Osorno , the trial court made commendable efforts to undo the damage-immediately convening counsel, accepting their input on possible instructions, and then promptly instructing the jury to "disregard the last question and the last answer that the witness provided," and "not consider it any way in their deliberations." As is often the case, however, the harm was done, and the instruction was inadequate to undo it. The instruction was nearly identical to the one we deemed unsatisfactory in Osorno , and it was "less tailored" than that which we considered "too bland" in Veatch . The instruction did nothing to negate the inference that defendant chose to exercise his right to refuse to speak with police out of consciousness of guilt. Id . In short, the trial court erred in denying defendant's motion for a mistrial.

Reversed and remanded.

      The federal and state constitutions guarantee criminal suspects the right against compelled self-incrimination. U.S. Const, Amend V ("No person *** shall be compelled in any criminal case to be a witness against himself[.]"); Or. Const., Art. I, § 12 ("No person shall *** be compelled in any criminal prosecution to testify against himself."). Those provisions prohibit the prosecution from drawing the jury's attention to the defendant's exercise of this right. Griffin v. California , 380 U.S. 609, 615, 85 S. Ct. 1229, 14 L.Ed.2d 106, reh'g den. , 381 U.S. 957, 85 S.Ct. 1797, 14 L.Ed.2d 730 (1965) (concluding thus and holding that the standard applies to states through the Fourteenth Amendment to the United States Constitution); State v. Larson , 325 Or. 15, 22, 933 P.2d 958 (1997) (discussing the state constitutional standard).

      We find Beisser distinguishable. In that case, the circumstances involved a telephone call requesting that the defendant meet police. The challenged testimony made no direct reference to the defendant's rights. The testimony merely referred to the defendant's willingness to "meet." The mention of a particular day might have meant that timing was the issue more than assertion of his constitutional rights or a consciousness of guilt. Here, in contrast, defendant opted for silence in a more coercive environment of police custody after the discovery of incriminating evidence.

      In White , 303 Or. at 337-38, 736 P.2d 552, the trial court instructed:
      "Ladies and gentlemen, before we recessed, [the prosecutor] had made some comment in his opening statement about [the defendant] having been called to testify in the [co-defendant's] matter and not having testified, chosen not to do so.
      "I have ruled that that matter is not relevant in this case. You will not be hearing any evidence about that, and that there are any number of reasons why that may have occurred would have nothing to do with any that is probative of the evidence in this case. So in no way are you to take that into account or in any way to discuss or consider what [the prosecutor] has said in regard to that. It's not evidence in this case. It's not to be taken by you as any evidence of the case or have any place in this case."


source: Caselaw Access Project

author: PER CURIAM

license: Public Domain

text:
    STATE of Oregon, Plaintiff-Respondent, v. Eugenia Y. STARODUBOV, Defendant-Appellant.
    A165615
    Court of Appeals of Oregon.
    Submitted March 26, 2019. May 1, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Morgen E. Daniels, 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 Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   PER CURIAM

Appealing a judgment of conviction for unlawful possession of heroin, ORS 475.854, defendant assigns error to the trial court's (1) failure to supply a concurrence instruction to the jury and (2) imposition of $887 in court-appointed attorney fees in the absence of evidence that defendant had the statutorily required ability, or potential ability, to pay those fees. Neither assignment of error is preserved. We reject the first assignment of error on the ground that the trial court's error, if any, is not plain. As to the second assignment of error, the state concedes-correctly-that on this record, the trial court's imposition of attorney fees constituted plain error under our case law. For reasons similar to those stated in State v. Harris , 293 Or. App. 110, 111, 426 P.3d 252 (2018), we exercise our discretion to correct that error.

Portion of the judgment requiring defendant to pay attorney fees reversed; otherwise affirmed.


text:
    ALDERMAN v. CITY OF PORTLAND, BY AND THROUGH its BUREAU OF FIRE AND POLICE DISABILITY AND RETIREMENT FUND
    A166876
    Court of Appeals of Oregon.
    May 8, 2019
    Affirmed without opinion.


text:
    CORNELL, Daniel R. v. KELLY
    A165812
    Court of Appeals of Oregon.
    May 8, 2019
    Affirmed without opinion.


text:
    GARCIA-AVINA, Norberto v. AMSBERRY
    A165320
    Court of Appeals of Oregon.
    May 8, 2019
    Affirmed without opinion.


text:
    HOUSTON v. TEACHER STANDARDS AND PRACTICES COMMISSION
    A164249
    Court of Appeals of Oregon.
    May 8, 2019
    Affirmed without opinion.


text:
    In the MATTER OF I. H., a Person Alleged to have Mental Illness.
    State v. I. H.
    A167507
    Court of Appeals of Oregon.
    May 8, 2019
    Affirmed without opinion.


text:
    In the MATTER OF J. L., a Person Alleged to have Mental Illness.
    State v. J. L.
    A167618
    Court of Appeals of Oregon.
    May 8, 2019
    Affirmed without opinion.


text:
    In the MATTER OF K. L. S., a Child.
    Department of Human Services and K L. S. et al. v. M. L. W. et al.
    In the Matter of E. B. S., a Child.
    Department of Human Services and E. B. S. et al. v. M. L. W. et al.
    A169285, (A169287), (A169286), (A169288)
    Court of Appeals of Oregon.
    May 8, 2019
    Affirmed without opinion.


text:
    In the MATTER OF M. B., Jr., a Child.
    Department of Human Services v. M. B.
    A169386
    Court of Appeals of Oregon.
    May 8, 2019
    Affirmed without opinion.


text:
    In the MATTER OF P. R., a Person Alleged to have Mental Illness.
    State v. P. R.
    A167475
    Court of Appeals of Oregon.
    May 8, 2019
    Affirmed without opinion.


text:
    In the MATTER OF P. V., aka P. M. V., a Person Alleged to have Mental Illness.
    State v. P. V., aka P. M. V.
    A168027
    Court of Appeals of Oregon.
    May 8, 2019
    Affirmed without opinion.


text:
    In the MATTER OF R. B., a Child.
    Department of Human Services v. S. O.
    A169151
    Court of Appeals of Oregon.
    May 8, 2019
    Affirmed without opinion.


text:
    In the MATTER OF S. R. L., a Child.
    Department of Human Services v. S. N. T.
    In the Matter of N. L. C. T., a Child.
    Department of Human Services v. S. N. T.
    A169434 (A169435)
    Court of Appeals of Oregon.
    May 8, 2019
    Affirmed without opinion.


text:
    In the MATTER OF S. S., a Child.
    Department of Human Services v. A. A.
    A169355
    Court of Appeals of Oregon.
    May 8, 2019
    Affirmed without opinion.


text:
    In the MATTER OF the MARRIAGE OF ZURAIKAT and ELIAS
    A166820
    Court of Appeals of Oregon.
    May 8, 2019
    Affirmed without opinion.


text:
    PORTILLO-VENTURA, Jose v. KELLY
    A165194
    Court of Appeals of Oregon.
    May 8, 2019
    Affirmed without opinion.


text:
    COOS COUNTY v. ROSSI
    A168760
    Court of Appeals of Oregon.
    May 15, 2019
    Affirmed without opinion.


text:
    U. S. BANK NATIONAL ASSOCIATION v. DUNN et al.
    A167615
    Court of Appeals of Oregon.
    May 8, 2019
    Affirmed without opinion.


text:
    WONSER, Jacob J. v. KELLY
    A165435
    Court of Appeals of Oregon.
    May 8, 2019
    Affirmed without opinion.


text:
    SANTIBANEZ v. STATE EX REL. JOHNSON
    A168164
    Court of Appeals of Oregon.
    May 8, 2019
    Affirmed without opinion.


text:
    LANDWATCH LANE COUNTY v. LANE COUNTY et al.
    A170207
    Court of Appeals of Oregon.
    May 15, 2019
    Affirmed without opinion.


text:
    LINCOLN COUNTY v. VOYLES, Shaunda Lorraine
    A166608
    Court of Appeals of Oregon.
    May 15, 2019
    Affirmed without opinion.


text:
    MCNICHOLS v. CITY OF CANBY et al.
    A170242
    Court of Appeals of Oregon.
    May 15, 2019
    Affirmed without opinion.


text:
    STATE v. BANNISTER, Emitt Monroe
    A165400 (A165401)
    Court of Appeals of Oregon.
    May 15, 2019
    Affirmed without opinion.


text:
    STATE v. BERKEY, Arlen Earl, Jr., aka Berkey, Arlen
    A166523
    Court of Appeals of Oregon.
    May 15, 2019
    Affirmed without opinion.


text:
    STATE v. BOX, James Douglas
    A166218
    Court of Appeals of Oregon.
    May 15, 2019
    Affirmed without opinion.


text:
    STATE v. CLARK, Michael Robert
    A165140
    Court of Appeals of Oregon.
    May 15, 2019
    Affirmed without opinion.


text:
    STATE v. DAFFERN, Scott David
    A165867
    Court of Appeals of Oregon.
    May 15, 2019
    Affirmed without opinion.


text:
    STATE v. DERUITER-SECHNST, Elijah Joel
    A166955
    Court of Appeals of Oregon.
    May 15, 2019
    Affirmed without opinion.


text:
    STATE v. EASTMAN, Michael Allen
    A165825
    Court of Appeals of Oregon.
    May 15, 2019
    Affirmed without opinion.


text:
    STATE v. ESPINOZA-CERVANTES, Felipe
    A165782
    Court of Appeals of Oregon.
    May 15, 2019
    Affirmed without opinion.


text:
    STATE v. FISCHER, Debbie Auburn
    A165913
    Court of Appeals of Oregon.
    May 15, 2019
    Affirmed without opinion.


text:
    STATE v. HANSON, Necia Marie
    A165213
    Court of Appeals of Oregon.
    May 15, 2019
    Affirmed without opinion.


text:
    STATE v. KLINGLER, Melissa Rae
    A165141
    Court of Appeals of Oregon.
    May 15, 2019
    Affirmed without opinion.


text:
    STATE v. MATTHEW, Javonni Deshawn
    A164944
    Court of Appeals of Oregon.
    May 15, 2019
    Affirmed without opinion.


text:
    STATE v. MCBRIDE, Ashley Nicole
    A166311
    Court of Appeals of Oregon.
    May 15, 2019
    Affirmed without opinion.


text:
    STATE v. NESBITT, Jared Lee
    A167608
    Court of Appeals of Oregon.
    May 15, 2019
    Affirmed without opinion.


text:
    STATE v. SMITH, Adam Bradley
    A166559
    Court of Appeals of Oregon.
    May 15, 2019
    Affirmed without opinion.


text:
    STATE v. SMITH, Jasper Wayne
    A165418
    Court of Appeals of Oregon.
    May 15, 2019
    Affirmed without opinion.


text:
    STATE v. ST. JOHN, Stephanie Lorraine
    A166066 A166067
    Court of Appeals of Oregon.
    May 15, 2019
    Affirmed without opinion.


text:
    STATE v. THOMPSON, Greggory Lee, aka Thompson, Gregory Lee
    A166060
    Court of Appeals of Oregon.
    May 15, 2019
    Affirmed without opinion.


text:
    STATE v. WEEKS, Michael Adam, aka Weeks, Michael Adams
    A165681, (A165682), (A165683), (A165840), (A165841)
    Court of Appeals of Oregon.
    May 15, 2019
    Affirmed without opinion.


author: HARRIS, Judge: POHLMAN, Judge (dissenting):

text:
    STATE of Utah, Appellee, v. Brett Thomas SMITH, Appellant.
    No. 20180101-CA
    Court of Appeals of Utah.
    Filed May 2, 2019
    Opinion
   HARRIS, Judge:

¶1 Brett Thomas Smith fell asleep in his car in a McDonald's parking lot in the wee hours of the morning, and refused to leave the premises even after he was asked to do so. Police soon arrived, and in the process of waking him up detected alcohol on his breath. Smith was later charged with driving under the influence (DUI), and moved to suppress all evidence discovered that night on the ground that he was unreasonably seized in violation of the United States Constitution. The district court denied that motion, determining that the seizure was justified by the community caretaking doctrine. Smith appeals that decision, and we affirm.

BACKGROUND

¶2 In the wee hours of a cold December morning in 2016, several employees of a McDonald's restaurant in West Valley City, Utah noticed that a man-who was later identified as Smith-appeared to be asleep in his car, which was parked in the restaurant's parking lot with the motor running. The restaurant's shift manager (Manager) went out to the parking lot and attempted to wake Smith and tell him that he needed to leave, but Smith did not respond to verbal entreaties. Manager then knocked on the car's window and was finally able to rouse Smith and asked him to leave the premises. Smith then pulled out of the parking spot, drove around the building, and re-parked in the same parking lot. Manager then informed his co-manager that Smith had not left the premises as requested, and one of them notified the police.

¶3 Police officers responded to the scene after receiving a dispatch call that a welfare check was needed at McDonald's. Specifically, the dispatch call notes mentioned that there was a "male, slumped over the wheel, [who] appeared to be sleeping," and the first officer (First Officer) to arrive on the scene later testified that the dispatch call he received informed him that "an individual ... was driving their car around the parking lot multiple times, and then had fallen asleep at the wheel in a parking stall." When First Officer arrived, he immediately located the vehicle in question, and noticed that "the vehicle was on and running." Based on all of the information he had, First Officer made the decision to park behind Smith's vehicle in such a way that would have made it difficult for Smith to exit the parking stall, and waited for other officers before making contact. As he waited, First Officer observed that Smith was "hunched over the center console," and that he was "not awake." In addition, First Officer shined a spotlight on Smith's car to ascertain whether Smith was its only occupant. When the next officer (Second Officer) arrived on scene, he observed a parked car with its motor running in which a male occupant was slumped over the wheel, apparently asleep. Second Officer parked his patrol car alongside Smith's vehicle. Either First Officer or Second Officer was accompanied by a third officer; in total, three police officers were on scene.

¶4 All three officers exited their vehicles, and approached Smith's vehicle. As they did so, they were wearing their typical police gear, but they never activated the emergency lights on their police vehicles, and there is no indication in the record that any of the officers ever unholstered any weapon. The officers knocked on Smith's car window multiple times in an attempt to wake him. When Smith eventually awoke, the officers asked him to open his door, and he complied.

¶5 Once the door was opened, the officers "smell[ed] the odor of alcohol on [Smith's] breath." Second Officer asked Smith to step out and perform field sobriety tests, and Smith complied. The results of the tests indicated that Smith was likely intoxicated. Second Officer also learned, upon checking Smith's driver license in a database, that Smith's license had been revoked. The officers arrested Smith and read him his Miranda rights, after which Smith admitted that he had consumed enough alcohol to make him believe that he was over the legal limit. The officers took Smith to the West Valley City police station where they administered a breathalyzer test, which indicated that Smith's blood-alcohol content was .135, well over the legal limit. Smith was later charged with driving under the influence of alcohol with prior convictions, a third-degree felony; operating a vehicle as an alcohol restricted driver, a class B misdemeanor; and driving on a suspended or revoked license, a class B misdemeanor.

¶6 Smith filed a motion to suppress his statements as well as the results of the field sobriety and breathalyzer tests, alleging that the evidence was obtained by virtue of an illegal seizure. Smith asserted that the facts did not justify the seizure, arguing that the officers did not have probable cause or reasonable suspicion to believe a crime had been committed. After an evidentiary hearing, the district court denied Smith's motion, ruling that, although the officers had indeed seized Smith, the seizure was justified under the community caretaking doctrine.

¶7 Following the court's denial of his motion to suppress, Smith entered a conditional guilty plea to the felony DUI charge, and the State agreed to dismiss the remaining counts. As part of his conditional plea, Smith retained his right to appeal the denial of his motion to suppress, which right Smith now exercises by challenging that decision on appeal.

ISSUE AND STANDARD OF REVIEW

¶8 "We review a [district] court's decision to grant or deny a motion to suppress for an alleged Fourth Amendment violation as a mixed question of law and fact." State v. Fuller , 2014 UT 29, ¶ 17, 332 P.3d 937. Under this standard, "[w]hile the court's factual findings are reviewed for clear error, its legal conclusions are reviewed for correctness, including its application of law to the facts of the case." Id.

ANALYSIS

¶9 The Fourth Amendment to the United States Constitution "does not prohibit all police seizures." State v. Anderson , 2015 UT 90, ¶ 25, 362 P.3d 1232. Instead, it prohibits only "unreasonable" seizures. See U.S. Const. amend. IV (stating that citizens have a right "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures"). In this case, the parties do not contest the fact that the officers seized Smith in the McDonald's parking lot. The question presented in this case, then, is whether that seizure was reasonable. Smith argues that his seizure was unreasonable and therefore unconstitutional, and that the evidence discovered pursuant to that seizure must be excluded. See Mapp v. Ohio , 367 U.S. 643, 660, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (determining that evidence obtained in violation of the Fourth Amendment would be excluded from a defendant's criminal trial). The State, by contrast, asserts that the officers' seizure of Smith was reasonable, and justified by the community caretaking doctrine. We agree with the State.

¶10 "The reasonableness of a seizure under the Fourth Amendment is determined by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate government interests." Anderson , 2015 UT 90, ¶ 25, 362 P.3d 1232 (quotation simplified). "Greater intrusions upon an individual's freedom of movement require a concomitant greater showing of a legitimate government interest to justify the intrusion, while a lesser intrusion may be justified by a lesser showing of a government interest." Id. For these reasons, "a highly intrusive arrest requires probable cause, while a less intrusive Terry stop requires a less stringent reasonable suspicion standard." Id. (referring to Terry v. Ohio , 392 U.S. 1, 21, 24-27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ).

¶11 In one attempt to strike the appropriate balance, the United States Supreme Court has articulated the community caretaking doctrine. See Cady v. Dombrowski , 413 U.S. 433, 447-48, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973) ; see also Anderson , 2015 UT 90, ¶ 26, 362 P.3d 1232 (stating that "[t]his balancing between an individual's interest in being free from police intrusions and the State's legitimate interest in the public welfare ... animates the community caretaking doctrine"). In Cady , the Court held that police officers' warrantless search of the trunk of a parked car did not violate the Fourth Amendment because the officers reasonably believed that the trunk contained a loaded gun that could endanger the public if it fell into the wrong hands. 413 U.S. at 447-48, 93 S.Ct. 2523. The Court stated that officers "frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." Id. at 441, 93 S.Ct. 2523.

¶12 Our supreme court-like many other state courts-has applied the community caretaking doctrine to "justify the seizure of a vehicle to ensure the safety of the occupants." Anderson , 2015 UT 90, ¶¶ 17, 30, 362 P.3d 1232 (citing other state courts that recognize the doctrine, and holding "that the community caretaking doctrine justified the seizure" of a vehicle to determine "whether any occupants of the vehicle required aid"). In Anderson , the court articulated a two-part test to be applied in determining whether the community caretaking doctrine reasonably justifies a seizure. First, "courts must ... evaluate the degree to which an officer intrudes upon a citizen's freedom of movement and privacy." Id. ¶ 26. In evaluating this first factor, "courts should look to both the degree of overt authority and force displayed in effecting the seizure, and the length of the seizure." Id. (quotation simplified). Second, "courts must determine whether the degree of the public interest and the exigency of the situation justified the seizure for community caretaking purposes." Id. (quotation simplified). In evaluating this second factor, courts should evaluate the seriousness of the "perceived emergency," along with "the likelihood that the motorist may need aid." Id. After evaluating these factors, "[i]f the level of the State's interest in investigating whether a motorist needs aid justifies the degree to which an officer interferes with the motorist's freedoms in order to perform this investigation, the seizure is not 'unreasonable' under the Fourth Amendment." Id.

¶13 In Anderson , two law enforcement officers on patrol on a cold late-December evening noticed a car pulled over on the side of a rural highway with its hazard lights flashing. Id. ¶ 3. "Because of the hazard lights, the cold weather, and the late hour, the deputies decided to stop and check on the welfare of any occupants of the vehicle." Id. To this end, they turned their flashing lights on and pulled up behind the parked car, then exited their vehicle and approached the parked car on foot. Id. ¶¶ 3-4. When the officers made contact with the occupant of the vehicle, they noticed that his eyes appeared bloodshot and that he was unable to tell them which direction he was going. Id. ¶ 4. Eventually, the officers obtained a warrant authorizing them to arrest the occupant and search his vehicle, and upon executing that search the officers found marijuana and drug paraphernalia. Id. ¶ 5. After being charged with drug crimes, the occupant moved to suppress the evidence discovered in his vehicle, alleging the initial actions of the officers constituted an unreasonable seizure, but the district court denied the motion, ruling that the stop was justified by the community caretaking doctrine. Id. ¶ 6. Our supreme court affirmed, concluding that both parts of the test weighed in favor of application of the doctrine. Id. ¶ 30. First, the court determined that the seizure was only minimally invasive, because the occupant "was parked, rather than traveling down the highway, when he was seized," thereby "lessening" the officers' interference with his freedom of movement, and because the officers' "show of authority ... was minimal." Id. ¶ 27. Second, the court determined that, "[b]ecause it was late December" and "dark and very cold," "a reasonable officer would have cause to be concerned about the welfare of a motorist in [the occupant's] situation." Id. ¶ 28.

¶14 When we apply Anderson 's two-part test to the facts of this case, we conclude that the seizure of Smith in the McDonald's parking lot was justified by the community caretaking doctrine. First, the officers in this case were motivated by the same purposes as the officers in Anderson -checking on the welfare of an occupant of a parked car on a cold night-and the officers carried out the welfare check in a similar and minimally invasive manner. Although the officers positioned their vehicle in such a way that Smith could not easily drive away, Smith was already parked and asleep in the driver's seat, and was not intending to go anywhere anytime soon. See id. ¶ 27 (stating that the occupant "was parked ... when he was seized, lessening ... the deputies' interference with his right to go about his business"). In addition, the officers here-unlike those in Anderson -did not activate their emergency lights, and-similar to those in Anderson -did not draw their weapons. Finally, the initial seizure was brief, lasting only long enough for the officers to make sure that Smith did not pose a threat to himself or others. Compare id. (finding a seizure minimally invasive, given the purpose of the welfare check, because the occupant was parked, the officers' weapons were not drawn, and the seizure was only long enough for the officer to approach and ask whether the occupant needed aid), with United States v. King , 990 F.2d 1552, 1562-63 (10th Cir. 1993) (finding a seizure overly invasive and unreasonable where the actions taken by the officers-approaching the occupant of the vehicle with guns drawn and ordering the individual to put his hands on the steering wheel or be shot-were disproportionate and unnecessary to accomplish the purpose of the welfare check).

¶15 Second, the nature of the "public interest and the exigency of the situation" is similar to Anderson . 2015 UT 90, ¶ 26, 362 P.3d 1232 (quotation simplified). In both cases, officers were motivated by a concern for the safety of an occupant of a parked vehicle in the late hours of a cold December night, and in this case the officers were also motivated by a concern for the safety of members of the community. Indeed, Cady instructs us that the community caretaking doctrine may be motivated not just by a concern for the individual involved, but also for members of the community who might be in danger. See 413 U.S. at 447-48, 93 S.Ct. 2523 (applying the community caretaking doctrine where police officers conducted a warrantless search of the trunk of a parked car because they reasonably believed that the trunk contained a loaded gun that could endanger the public if it fell into the wrong hands). Here, the officers testified that they were concerned that the driver might have been "unconscious or not breathing," or that, because the car was running, the driver might "hit[ ] the gas" and go "backwards," thereby endangering others. Moreover, in this case, the officers were not acting of their own accord; they were responding to a 911 call from a concerned citizen. Officers in situations like this are entitled to rely on information received from citizens that is passed to them through a dispatch call. See State v. Roybal , 2010 UT 34, ¶¶ 14-16, 232 P.3d 1016.

¶16 Smith argues that some of the additional facts that the officers learned-including the fact that Smith was asleep at the wheel of a running car, and had earlier been seen driving around the parking lot before re-parking-became known to them only after they had already seized Smith, and therefore cannot be used to justify the seizure. This contention, however, is not supported by the record. One of the officers specifically testified that "dispatch had received a call from McDonald's employees that an individual ... was driving their car around the parking lot multiple times, and then had fallen asleep at the wheel in a parking stall." And First Officer testified that he observed that the car was running before parking behind Smith.

¶17 Next, Smith asserts that the officers in this case acted with too much force, arguing that three officers and two squad cars was too strong a showing of police authority under the circumstances. While law enforcement may well have been able to handle this situation with one officer who parked alongside (rather than behind) Smith, we are not persuaded that the officers' show of force was so excessive here as to render the community caretaking doctrine inapplicable. The officers did not initiate their flashing lights, and did not draw their weapons; instead, they approached Smith's vehicle, knocked on the window, and asked to speak with him.

¶18 Finally, Smith asserts that the nature of the emergency in this case was not as acute as that presented in Anderson . Perhaps this is true. Perhaps a vehicle on the side of a rural highway with its flashers on signals a higher-level emergency-at least for the occupant of the vehicle-than does a vehicle parked in a restaurant parking lot in the middle of the night. But we cannot say that this situation presented no emergency; indeed, the officers were justifiably concerned with Smith's well-being, as well as the safety of other restaurant patrons who may encounter Smith's vehicle.

¶19 In the end, we cannot meaningfully distinguish this case from Anderson , and we believe that Anderson compels the result in this case. Just as in Anderson , we "determine that the community caretaking doctrine justified the seizure," because the officers' "brief seizure" of Smith brought about only "minimal interference with [Smith's] freedom of movement," and because the State had a compelling "interest in determining whether any occupants of the vehicle required aid under these circumstances." See 2015 UT 90, ¶ 30, 362 P.3d 1232 ; see also In re Clayton , 113 Idaho 817, 748 P.2d 401, 402 (1988) (determining that a seizure was justified by the community caretaking doctrine where a police officer observed "a vehicle in a parking lot adjacent to a bar" at "1:30 in the morning," the vehicle's "engine was running," and an individual "was sitting in the driver's seat behind the steering wheel, with his head slumped forward").

CONCLUSION

¶20 The officers' brief seizure of Smith was not unreasonable, because both parts of the community caretaking doctrine test are satisfied here. In this case, the level of the State's interest in investigating whether Smith needed aid justified the rather minimal degree to which the officers briefly and unobtrusively interfered with Smith's freedom of movement. See Anderson , 2015 UT 90, ¶ 26, 362 P.3d 1232. Accordingly, the evidence discovered subsequent to Smith's brief seizure "was not the fruit of a violation of his Fourth Amendment rights." Id. ¶ 30.

¶21 Affirmed.

POHLMAN, Judge (dissenting):

¶22 This is a close case. I find myself in substantial agreement with the majority but ultimately conclude that the law compels a different result.

¶23 To begin, I note the areas of general agreement. Everyone agrees that Smith was seized. Thus, the officers' conduct cannot be justified as a consensual encounter. See, e.g. , Florida v. Bostick , 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). Next, everyone agrees that this case is solely about community caretaking. There is no argument that the State had sufficient individualized suspicion of criminal wrongdoing to conduct a Terry stop, see Terry v. Ohio , 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ; cf. State v. Malloy , 2019 UT App 55, ¶¶ 6 & n.2, 11-12, or a warrantless search of Smith's car under the automobile exception to the warrant requirement, see Wyoming v. Houghton , 526 U.S. 295, 300, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999).

¶24 Next, I agree with the majority that a welfare check of some kind was warranted. And I believe that the balancing test in State v. Anderson , 2015 UT 90, 362 P.3d 1232, is the relevant authority for analyzing the welfare check. I would simply weigh the interests differently and hold that the manner in which the officers performed the welfare check outstripped its justification. But before weighing the interests, I note a few important background principles.

I

¶25 The Fourth Amendment almost always requires individualized suspicion of criminal wrongdoing. Chandler v. Miller , 520 U.S. 305, 313, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997). The community caretaking doctrine is an exception to that rule and, accordingly, has always been carefully circumscribed in its application. See id. at 309, 117 S.Ct. 1295 (describing the "closely guarded category of constitutionally permissible suspicionless searches"). Start with Cady v. Dombrowski , 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), in which the United States Supreme Court first recognized the community caretaking doctrine. Id. at 441, 93 S.Ct. 2523. In Cady , the Court did not supplant traditional Fourth Amendment law; it instead acknowledged reality. See id. Officers frequently interact with the public, especially on the roads, and have, "for want of a better term, ... community caretaking functions" that are "totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." Id. Recognizing this reality, the Court in Cady held that retrieving a revolver from the trunk of a towed car following an accident is reasonable community involvement that does not require a search warrant or some level of individualized suspicion. Id. at 442-43, 447-48, 93 S.Ct. 2523. Nothing more, nothing less.

¶26 The Supreme Court has said very little about the doctrine since. See Colorado v. Bertine , 479 U.S. 367, 372, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987) ; South Dakota v. Opperman , 428 U.S. 364, 368-71, 374-75, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). That in itself, I think, supports the notion that community caretaking is not intended to be a broad, freewheeling exception to the Fourth Amendment. But the Supreme Court's treatment of related doctrines, notably the special needs exception to the warrant requirement, is also helpful in recognizing the community caretaking doctrine's limited application. Under the special needs exception, police may search or seize an individual without "individualized suspicion," but the special needs must serve interests " 'beyond the normal need for law enforcement.' " Chandler , 520 U.S. at 313, 117 S.Ct. 1295 (quoting Skinner v. Railway Labor Execs.' Ass'n , 489 U.S. 602, 619, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) ). Likewise, community caretaking requires police activity that is "totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." Cady , 413 U.S. at 441, 93 S.Ct. 2523. Thus, both the special needs exception and the community caretaking doctrine require police action distinct from day-to-day law enforcement. And as the Supreme Court has made clear in the special needs context, the police cannot use a suspicionless exception to the Fourth Amendment as pretext for ordinary criminal investigation. See City of Indianapolis v. Edmond , 531 U.S. 32, 46-48, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000).

¶27 Other courts that have grappled with factual scenarios similar to this one have also sought to guard the Fourth Amendment against gradual encroachment by the community caretaking doctrine. See generally Michael R. Dimino Sr., Police Paternalism: Community Caretaking, Assistance Searches, and Fourth Amendment Reasonableness , 66 Wash. & Lee L. Rev. 1485, 1494-1512 (2009). Some courts require an officer to "point to specific, objective, and articulable facts that would reasonably suggest to an experienced officer that a citizen is in need of assistance." Commonwealth v. Livingstone , 644 Pa. 27, 174 A.3d 609, 634 (2017) ; accord Gentles v. State , 50 So. 3d 1192, 1199 (Fla. Dist. Ct. App. 2010). Under this test, generalized concerns about welfare will not justify a suspicionless search or seizure. So in Gentles , the seizure of a driver parked, with his engine running, in a shopping mall at 4:15 a.m. was not justified because the officer had "only a generalized, rather than a specific, concern about potential danger from the running motor." 50 So. 3d at 1194-95, 1199.

¶28 Other courts require that the officers be engaged in "bona fide community caretaking activity." State v. Kurth , 813 N.W.2d 270, 278 (Iowa 2012). In Kurth , the Iowa Supreme Court held that an officer's "decision to activate his emergency lights and block in [the driver's] parked vehicle exceeded the scope of bona fide community caretaking activity." Id. The driver in that case had struck a road sign and then lawfully parked his car at a restaurant. Id. at 271-72. The officer observed that the damage to the car was minimal and that the car was still drivable. Id. at 278. Nevertheless, the officer "activated his emergency lights and blocked [the driver] in" his parking stall. Id. The court acknowledged that the officer "might have been justified in stopping" the driver immediately after the incident, but that the officer unreasonably waited to check on the driver. Id. And even if the officer wanted to check the vehicle for damage, "it was not necessary to block in the vehicle to do so. All he needed to do was to park next to him and approach him." Id. In addition, the court observed that the officer "called in the license plate" on the vehicle before making the stop. Id. at 279. Such an action, the court reasoned, was "inconsistent with a public safety purpose but [was] certainly consistent with an investigative purpose." Id.

II

¶29 In light of these background principles, I now turn to the balancing test as articulated by our supreme court in State v. Anderson , 2015 UT 90, 362 P.3d 1232. Under that test, courts "first evaluate the degree to which an officer intrudes upon a citizen's freedom of movement and privacy"-including the "degree of overt authority and force displayed" and "the length of the seizure"-and then "determine whether the degree of the public interest and the exigency of the situation justified the seizure." Id. ¶ 26 (quotation simplified).

¶30 First, the degree of overt authority displayed here was not as "minimally invasive" as the majority suggests. Supra ¶ 14. Three officers and two squad cars responded to a routine "welfare check," and the three officers completely surrounded Smith, blocking any chance of escape. First Officer parked behind Smith and shined his "spotlight directly through" Smith's vehicle so that the officers would "have the advantage over" Smith. All three officers approached Smith's vehicle together, "two on the driver's side" and "one on the passenger's side." The presence of three officers coordinating their efforts also unreasonably prolonged Smith's seizure. First Officer parked behind Smith and then waited for backup . The reason for waiting: "it was suspected" that Smith was guilty of a DUI. Thus, when First Officer arrived on the scene, he was not so worried about Smith that he immediately checked on him. Instead, he waited for backup to investigate a possible DUI. As in State v. Kurth , 813 N.W.2d 270 (Iowa 2012), such actions are "certainly consistent with an investigative purpose" but are "inconsistent with a public safety purpose." See id. at 279.

¶31 Second, the "perceived emergency" presented by Smith sleeping in his car was not, in my view, serious enough to justify the severity of the officers' intrusion upon Smith's freedom of movement and privacy. See Anderson , 2015 UT 90, ¶ 26, 362 P.3d 1232. A brief seizure immediately upon arriving at the parking lot may have been justified, but "it was not necessary to block in [Smith's] vehicle to do so." See Kurth , 813 N.W.2d at 278. The welfare check could just as easily have been accomplished by a single officer pulling up alongside Smith, knocking on the door, and asking Smith if he was all right. See United States v. Gross , 662 F.3d 393, 401 (6th Cir. 2011) (noting that in a factually similar situation, "any purported community-caretaking function ... could have been accomplished through a consensual encounter rather than an investigative stop").

¶32 The majority suggests that the officers here were not just concerned about Smith but were also "motivated by a concern for the safety of members of the community." Supra ¶ 15. That is not supported by the district court's findings, but even if it were, the officers here had only a generalized concern about the public. One of the officers testified that they generally "don't know if ... the vehicle was stolen or ... what's going to happen, so [they] placed [their] vehicles behind [Smith's] vehicle in order to stop [Smith] from hitting the gas going backwards." But there were no objective, specific facts that Smith or his car were a danger to anyone. The call notes mentioned only a "male, slumped over the wheel, [who] appeared to be sleeping." And the McDonald's manager who asked Smith to leave only said that Smith was "not allowed" to sleep in his car. Based on the objective facts, there was not a specific, articulable fear on behalf of the community.

¶33 The majority also says that it "cannot meaningfully distinguish this case from Anderson " and that its result is therefore "compel[led]" by Anderson . Supra ¶ 19. I disagree. While the facts of Anderson and this case share similarities, I believe their differences are important.

¶34 In Anderson , a driver was apparently stranded on the side of a rural highway, late at night, in very cold weather (7 degrees below zero), and with his hazard lights flashing. 2015 UT 90, ¶¶ 3, 28, 362 P.3d 1232. Two officers noticed and decided to stop to check on the driver. Id. ¶ 3. The officers pulled over behind the driver's vehicle and turned on their red-and-blues. Id. Once the officers approached the driver, they noticed his eyes were bloodshot and then obtained a warrant authorizing the driver's arrest and a search of the vehicle. Id. ¶¶ 4-5. Importantly, the supreme court focused only on the time between "the initial seizure up until when the deputies approached his vehicle and asked whether he required assistance." Id. ¶ 27 n.1. As the encounter continued, the officers obtained greater suspicion, justifying greater police interference. Id.

¶35 Smith was parked not on a rural highway with his hazards on but in a parking lot of an establishment open for business. And though it was late at night, that fact alone cannot prompt legitimate concern for someone's well-being. See Gentles v. State , 50 So. 3d 1192, 1199 (Fla. Dist. Ct. App. 2010) ("[T]he fact that a motorist is asleep in his car with the motor running in an empty parking lot at night does not, without more, provide a reasonable basis for seizing the motorist."). As for the weather, there is no evidence of how cold the night in question was. But Smith had his engine running and was not far from an open McDonald's. The short of it is that being stranded on the side of a rural highway in freezing temperatures, as the majority acknowledges, supra ¶ 18, is poles apart from being parked in a McDonald's parking lot with a visibly functioning car.

¶36 Moreover, the officers' response here did not grow side-by-side with their suspicion. Rather, the officers went in aggressively from the start. First Officer explained that he suspected "a possible DUI" and purposefully parked his vehicle behind Smith to block Smith's escape and "waited for other officers to arrive before [he] made contact with the driver." The officers did not, however, have any proof of a possible DUI until they approached Smith's car, smelling alcohol on Smith's breath as he opened his door. In addition, from the start, First Officer shined his spotlight into Smith's car in order to hold "the advantage over" Smith. Had one of the officers initiated a less drastic seizure, or even attempted a consensual encounter, he likely would have still discovered Smith's drinking. The officer's interference with Smith's liberty, however, would have been commensurate to growing levels of suspicion.

III

¶37 I do not suggest that a man asleep in his car in the middle of the night in a parking lot after being asked to leave raises no concern. But the issue here is whether the officers were checking on Smith's welfare or simply investigating crime. In State v. Anderson , 2015 UT 90, 362 P.3d 1232, the officers did not block the driver's exit, seek tactical advantages, or wait for backup before rendering aid to a stranded traveler on his way to Jericho. In contrast, the three officers here responded to a call from a McDonald's employee who, from all appearances, simply did not want Smith in the parking lot. And the objective facts show that the officers suspected a possible DUI for which they did not yet have individualized suspicion. The idea that the three officers were "concerned with Smith's well-being," supra ¶ 18, totally apart from the investigation of crime, while perhaps not "tax[ing] the credulity of the credulous," Maryland v. King , 569 U.S. 435, 466, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) (Scalia, J., dissenting), is still a bit too fanciful for me to accept.

¶38 The United States Supreme Court has limited the community caretaking doctrine to police functions "totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." Cady v. Dombrowski , 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). The Utah Supreme Court's decision in Anderson does not change this. Its balancing test instructs us to ask whether the manner of an individual's seizure is justified by a perceived noncriminal danger-i.e., was the seizure reasonable under all the circumstances? Anderson , 2015 UT 90, ¶ 26, 362 P.3d 1232. And, on balance, I think that the manner of Smith's seizure was unreasonable. I therefore respectfully dissent.

      The State has not argued, either before the district court or on appeal, that the officers had probable cause (or reasonable suspicion) to detain Smith on account of his refusal to leave the McDonald's parking lot after being asked to do so. Accordingly, we have no occasion to consider that issue. Cf. State v. Malloy , 2019 UT App 55, ¶ 6 n.2, 441 P.3d 756 (declining to consider whether the community caretaking doctrine applied to the facts of the case, because reasonable suspicion was present for other reasons).

      Indeed, the district court found that "[i]t was reported that [Smith] was sleeping in his car, in the middle of the night, in the middle of winter, with the car running, in the parking lot of a restaurant that was open 24 hours." Smith does not challenge that factual finding.

      See Miranda v. Arizona , 384 U.S. 436, 468-69, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      With the consent of the prosecution and the approval of the judge, a defendant may enter a conditional guilty plea, while "preserv[ing] [a] suppression issue for appeal." State v. Sery , 758 P.2d 935, 938-40 (Utah Ct. App. 1988), disagreed with on other grounds by State v. Pena , 869 P.2d 932 (Utah 1994). "A defendant who prevails on appeal [after entering a conditional plea] shall be allowed to withdraw the plea." Utah R. Crim. P. 11(j).

      The dissent finds Anderson distinguishable, largely on the basis that (a) in this case, "[t]hree officers and two squad cars" approached Smith, whereas in Anderson only two officers in one squad car were on scene; (b) in this case, the officers "completely surrounded Smith, blocking any chance of escape," whereas in Anderson the officers detained the individual by pulling up behind his car and turning on their flashing lights; (c) in this case, the officers shined a spotlight on Smith's car, while the Anderson opinion does not describe spotlights or flashlights; and (d) in this case, the first officer to arrive on scene "waited for backup." Compare infra ¶ 30, with State v. Anderson , 2015 UT 90, ¶ 3, 362 P.3d 1232. We acknowledge these differences between our case and Anderson , but we do not find them material. In both cases, the officers were motivated by the same purpose: checking on the welfare of the occupant of a parked car on a cold winter night. We cannot see any sense in a legal rule proclaiming that the use of three officers to conduct that kind of welfare check is too many, but the use of two officers is just fine. We see no meaningful distinction between an officer parking behind a parked car to cut off its escape, on the one hand, and an officer pulling up behind a parked car with lights flashing, on the other; in both cases, the officer has used his vehicle to command the individual to remain in place, and in neither case is the detained individual free to go. And we are not willing to fault officers, who are responding to a potentially dynamic situation, for taking precautions such as using a spotlight or waiting for backup. As we note later, we find Anderson materially indistinguishable from this case, and controlling here.

      Even the dissent acknowledges that, under the circumstances presented here, it was appropriate for officers to make a "brief seizure" of Smith, approach his vehicle, and knock on the window to check on him. See infra ¶ 31. Thus, the dissent's complaint is not with the seizure or the welfare check itself, but with the perceived intrusiveness of the manner in which it was carried out.

      Smith also argues that, in evaluating the facts of the case and applying legal doctrines to them, this court is prohibited from considering any fact not expressly included in the district court's specific findings of fact. While Smith correctly points out that appellate courts do not find facts and should not engage in resolving factual disputes, Smith's overall contention is incorrect. Appellate courts are to examine the entire record and are required to consider even facts that the district court did not expressly mention or include in its factual findings, so long as, in so doing, the court does not resolve factual disputes or consider disputed facts undisputed. See Carbon County v. Workforce Appeals Board , 2013 UT 41, ¶¶ 11, 13, 308 P.3d 477 (stating that governing case law does not "require[ ] a litigant to request that a judge add undisputed facts to a ruling in order to preserve those facts for appeal," and that "[l]itigants are free to use the undisputed evidence in the record to make legal arguments" on appeal even if those facts are not incorporated into the district court's factual findings, and holding that the court of appeals erred by "refus[ing] to factor into its legal conclusions" a piece of "undisputed evidence" that was not included in the lower tribunal's findings); see also Flying Diamond Oil Corp. v. Newton Sheep Co. , 776 P.2d 618, 622 (Utah 1989) ("[R]emand is not necessary if the evidence in the record is undisputed and the appellate court can fairly and properly resolve the case on the record before it."). In this case, while some of the facts we include in our factual recitation and in our legal analysis were not expressly mentioned by the district court in its findings, none of the facts upon which we rely were or are disputed by any party, and we may therefore consider them in applying the law to the facts of the case.

      Since Cady , courts and commentators have recognized three distinct types of community caretaking: (1) the emergency aid doctrine; (2) the automobile inventory doctrine; and (3) the public servant doctrine. See Mary Elisabeth Naumann, The Community Caretaker Doctrine: Yet Another Fourth Amendment Exception , 26 Am. J. Crim. L. 325, 330 (1999) [hereinafter "Naumann"]; see also State v. Coffman , 914 N.W.2d 240, 244 (Iowa 2018) (listing the three separate doctrines); Commonwealth v. Livingstone , 644 Pa. 27, 174 A.3d 609, 626-27 (2017). I use the term "community caretaking" in its broadest sense.

      Admittedly, police officers are required to wear many hats and may have both community-caretaking and criminal-investigation purposes in mind when they stop to offer assistance. See Livingstone , 174 A.3d at 628-29. But Cady itself requires that community caretaking be "totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." Cady v. Dombrowski , 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973) (emphasis added). This raises some questions about whether courts should view an officer's purposes objectively or subjectively. Notably, some commentators have suggested that courts should inquire into the officer's subjective intent. Michael R. Dimino Sr., Police Paternalism: Community Caretaking, Assistance Searches, and Fourth Amendment Reasonableness , 66 Wash. & Lee L. Rev. 1485, 1528-31 (2009) [hereinafter "Dimino"]; see also Livingstone , 174 A.3d at 645-46 (Donohue, J., concurring and dissenting). I do not intend to resolve the question here but note that inquiry into an officer's subjective intent has been rejected in similar contexts, see Brigham City v. Stuart , 547 U.S. 398, 404, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006), but that such inquiry is not definitively foreclosed in this context, see Livingstone , 174 A.3d at 646 ; Dimino, at 1518, 1528; Naumann, at 359-61. Even viewed objectively, I think the officers' actions in this case were unjustified.

      Most of the development of the community caretaking doctrine has happened in state courts. State v. Kurth , 813 N.W.2d 270, 273-74 (Iowa 2012). This is perhaps unsurprising "in light of the fact that community caretaking is generally the role of local police rather than federal officers." Id. ; see also Cady , 413 U.S. at 441, 93 S.Ct. 2523 (recognizing that "[l]ocal police officers," rather than federal officers, are likely to engage in "community caretaking functions"); Coffman , 914 N.W.2d at 260-64 (Appel, J., dissenting) (collecting both state and federal cases discussing the doctrine).

      Of course, "[t]he fact that the protection of the public might, in the abstract, have been accomplished by 'less intrusive' means does not, by itself, render" Smith's seizure unreasonable. See Cady , 413 U.S. at 447, 93 S.Ct. 2523. And there is a difference between consensual encounters, in which there is no seizure, and community caretaking, in which there is. See Livingstone , 174 A.3d at 620. But the question under Anderson 's second step is still whether the State's community-caretaking interests "justifies the degree to which an officer interferes with [an individual's] freedoms." State v. Anderson , 2015 UT 90, ¶ 26, 362 P.3d 1232 (emphasis added). In my view, the officers could have accomplished any community-caretaking purposes with much less intrusive means, and Smith's seizure was therefore unreasonable.

      The district court found that the "perceived emergency in this case was that there was a welfare check, or some concern about Smith's well-being." (Emphasis added.) There was no expressed concern about the public at large being in danger.


author: Korsmo, J.

text:
    STATE of Washington, Respondent, v. Derek W. SCHILLING, Appellant.
    No. 35719-8-III
    Court of Appeals of Washington, Division 3.
    FILED JUNE 4, 2019
    Gregory Charles Link, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, Lila Jane Silverstein, Washington Appellate Project, 1511 3rd. Ave. Ste. 610, Seattle, WA, 98101-3647, for Appellant.
    Brian Clayton O'Brien, Spokane County Prosecuting Attorney, 1100 W Mallon Ave., Spokane, WA, 99260-2043, for Respondent.
    OPINION PUBLISHED IN PART
   Korsmo, J.

¶1 Derek Schilling appeals from a conviction for attempting to elude a police vehicle, primarily arguing that the statute is unconstitutionally vague under recent United States Supreme Court precedent. We affirm the conviction, but remand to strike two financial obligations.

FACTS

¶2 This case has its genesis in a vehicle chase that began after Deputy Sheriff Spencer Rassier observed a speeding Mercury Cougar on Farr Road in Spokane Valley. He attempted to stop the vehicle, but the driver of the Cougar refused to stop and sped away.

During a U-turn, Rassier was able to see and identify the driver as Mr. Schilling. The fleeing vehicle ultimately reached speeds of 80 to 100 m.p.h. in a 35 m.p.h. zone. Officer Rassier eventually called off the pursuit when it neared a hospital because Schilling was driving "recklessly."

¶3 Shortly thereafter, a deputy sheriff, Randy Watts, observed the vehicle crash while crossing train tracks. The vehicle suffered significant front end damage. The driver was not in sight, so Watts waited for Deputy Tyler Kullman and his dog, Kahn, to arrive. Kahn tracked from the open driver's door and soon located Mr. Schilling on a ridgeline of a nearby hill.

¶4 Deputy Kullman, when asked at trial, explained how the dogs track humans:

Our dogs are trained to find human odor, especially when someone is running from us or trying to hide, they produce what we call a fear scent. They can't not produce it. Your armpits start sweating, all this stuff starts happening, your adrenaline's going, and a seasoned dog like Kahn, they pick up on that fear scent really quickly along with just the human scent they're trained from day one to track.

Report of Proceedings (RP) at 61. His testimony also explained how a person's scent, made up of the skin cells humans constantly shed, mixes with that of the newly disturbed ground to produce a unique, fresh scent for the dog. RP at 57-59.

¶5 Mr. Schilling testified that he was a passenger in the car who urged the driver, an unnamed friend, to stop driving dangerously while fleeing the police. He had to exit out the driver's door because the passenger door was damaged. He fled because he knew there was a warrant for his arrest.

¶6 The jury found Mr. Schilling guilty. After the trial court imposed a standard range sentence, he timely appealed to this court. A panel heard oral argument of the case.

ANALYSIS

¶7 This appeal presents a vagueness challenge to the eluding statute, alleges that two of the deputies provided improper opinion testimony, and contests two of the financial assessments of the judgment and sentence. We address the three claims in the stated order.

Eluding Statute

¶8 Mr. Schilling initially argues that the "driving in a reckless manner" element of the eluding statute is unconstitutionally vague in light of Johnson v. United States , 576 U.S. ----, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015). We conclude that Johnson did not change existing law for assessing vagueness claims.

¶9 The attempting to elude statute is found at RCW 46.61.024(1), which provides:

Any driver of a motor vehicle who willfully fails or refuses to immediately bring his or her vehicle to a stop and who drives his or her vehicle in a reckless manner while attempting to elude a pursuing police vehicle, after being given a visual or audible signal to bring the vehicle to a stop, shall be guilty of a class C felony. The signal given by the police officer may be by hand, voice, emergency light, or siren. The officer giving such a signal shall be in uniform and the vehicle shall be equipped with lights and sirens.

(Emphasis added.)

¶10 The "reckless manner" element was enacted in 2003; it replaced a previous prohibition on driving that demonstrated "a wanton or willful disregard for the lives or property of others" while attempting to elude. See LAWS OF 2003, ch. 101, § 1 (amending LAWS OF 1983, ch. 80, § 1). The reckless manner element was borrowed from the vehicular homicide and vehicular assault statutes. See RCW 46.61.520(1)(b) ; RCW 46.61.522(1)(a).

¶11 A statute is unconstitutionally vague if (1) it does not define the offense with sufficient definiteness so that ordinary people can understand what conduct is prohibited, or (2) it does not provide ascertainable standards of guilt to protect against arbitrary enforcement. State v. Williams , 144 Wash.2d 197, 203, 26 P.3d 890 (2001) ; City of Spokane v. Douglass , 115 Wash.2d 171, 178, 795 P.2d 693 (1990). The reviewing court presumes that a statute is constitutional, and the party challenging the statute's constitutionality bears the burden of proving the statute's invalidity beyond a reasonable doubt. City of Seattle v. Eze , 111 Wash.2d 22, 26, 759 P.2d 366 (1988). The burden is a heavy one. Douglass , 115 Wash.2d at 178, 795 P.2d 693.

¶12 Traditionally, a defendant may only bring a vagueness challenge to the statute as it was applied to his particular conduct. Id . at 182, 795 P.2d 693. This is one of two approaches to a vagueness challenge:

The rule regarding vagueness challenges is now well settled. Vagueness challenges to enactments which do not involve First Amendment rights are to be evaluated in light of the particular facts of each case. Maynard v. Cartwright , 486 U.S. 356, 361, 108 S. Ct. 1853, 1857, 100 L.Ed.2d 372 (1988) ; Hoffman Estates v. Flipside, Hoffman Estates, Inc. , 455 U.S. 489, 495 n. 7, 102 S. Ct. 1186, 1191 n. 7, 71 L.Ed.2d 362, reh'g denied , 456 U.S. 950, 102 S. Ct. 2023, 72 L.Ed.2d 476 (1982) ; United States v. Powell , 423 U.S. 87, 92-93, 96 S. Ct. 316, 46 L.Ed.2d 228 (1975) ; United States v. Mazurie , 419 U.S. 544, 550, 95 S. Ct. 710, 42 L.Ed.2d 706 (1975) ; United States v. National Dairy Prods. Corp. , 372 U.S. 29, 32-33, 36, 83 S. Ct. 594, 597-598, 9 L.Ed.2d 561 (1963). See also State v. Carver , 113 Wn.2d 591, 599, 781 P.2d 1308, 789 P.2d 306 (1989); [ State v. Worrell , 111 Wn.2d 537, 541, 761 P.2d 56 (1988) ]. Consequently, when a challenged ordinance does not involve First Amendment interests, the ordinance is not properly evaluated for facial vagueness. Rather, the ordinance must be judged as applied. Maynard , 486 U.S. at 361 [108 S.Ct. 1853]. Accordingly, the ordinance is tested for unconstitutional vagueness by inspecting the actual conduct of the party who challenges the ordinance and not by examining hypothetical situations at the periphery of the ordinance's scope.

Id . at 182-83, 795 P.2d 693.

¶13 Using the "as applied" standard, our courts long have upheld the driving in a "reckless manner" language against vagueness challenges. E.g. , State v. Jacobsen , 78 Wash.2d 491, 498, 477 P.2d 1 (1970) (negligent homicide); State v. Hill , 48 Wash. App. 344, 348, 739 P.2d 707 (1987) (vehicular assault). Schilling acknowledges this authority, but suggests that it has been superseded by Johnson .

¶14 In Johnson , the United States Supreme Court faced yet another challenge to the "residual clause" of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(b). The statute penalized certain offenders who had three or more prior "violent felony" offenses, and, in part, defined "violent felony" as a "burglary, arson, or ... conduct that presents a serious potential risk of physical injury to another ." Id . (emphasis added). In prior cases construing the ACCA, the Court had concluded that Congress intended it apply a "categorical" approach to assessing whether conduct fit the residual clause:

In Taylor v. United States , 495 U.S. 575, 600, 110 S. Ct. 2143, 109 L.Ed.2d 607 (1990), this Court held that the Armed Career Criminal Act requires courts to use a framework known as the categorical approach when deciding whether an offense "is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." Under the categorical approach, a court assesses whether a crime qualifies as a violent felony "in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion." [ Begay v. United States , 553 U.S. 137, 141, 128 S. Ct. 1581, 170 L.Ed.2d 490 (2008), abrogated by Johnson v. United States, --- U.S. ----, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015) ].

--- U.S. at ----, 135 S.Ct. at 2557, 192 L.Ed.2d at 578.

¶15 Johnson noted that its prior case law showed great difficulty in applying the categorical approach to residual clause cases. Id . at 578-81. In other words, the statutory construction tool mandated by the statute was ineffectual. The Court then subjected the categorical approach to the first of the traditional prongs of vagueness analysis-the ability to understand what type of conduct fits within the statute. Id . at 578-79. Noting that prior cases had difficulty in finding a methodology for applying the categorical approach, let alone reaching consensus as to the meaning in any particular case, the court concluded that the residual clause was vague since the necessary construction tool did not work. Id . at 581-83.

¶16 Nothing in Johnson suggests that the "as applied" standard has been supplanted as the method for assessing vagueness challenges when First Amendment concerns are absent. The "as applied" standard was not discussed, let alone overruled or relegated to some constitutional backwater. It simply was not a relevant concern since the statute, as construed by the Supreme Court, precluded consideration of the facts of an individual case.

¶17 Mr. Schilling reads too much into the Johnson opinion. It does not change vagueness analysis except to perhaps add an additional approach when legislation dictates that a statute be construed in a manner that precludes "as applied" consideration. It does no more than that.

¶18 In light of Jacobsen and Hill , Mr. Schilling's vagueness argument is without merit. The "reckless manner" language does not render the eluding statute vague.

¶19 A majority of the panel having determined that only the foregoing 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:

Fearing, J.

Siddoway, J.

      The "wanton and willful" standard continues to define the crime of reckless driving. RCW 46.61.500.

      We note that the Washington Supreme Court has continued to use the "as applied" test since the Johnson opinion was issued without any apparent concern that the standard has changed. E.g. , State v. Evergreen Freedom Found. , 192 Wash.2d 782, 432 P.3d 805 (2019) ; State v. Murray , 190 Wash.2d 727, 416 P.3d 1225 (2018).


text:
    STATE of Washington, Respondent, v. Benjamin G. SMITH, Appellant.
    No. 35708-2-III
    Court of Appeals of Washington, Division 3.
    FILED JUNE 6, 2019
    Lisa Elizabeth Tabbut, Attorney at Law, Po Box 1319, Winthrop, WA, 98862-3004, for Appellant.
    Rea Lynn Culwell, Life Law, PLLC, 108 Assumption Dr., Walla Walla, WA, 99362-2609, C. Dale Slack, Columbia County Prosecuting Attorney, 215 E Clay St., Dayton, WA, 99328-1344, for Respondent.
    OPINION PUBLISHED IN PART
    Pennell, A.C.J.
    ¶1 Benjamin Smith appeals several legal financial obligations (LFOs) imposed at sentencing: a criminal filing fee, sheriff's fee, court-appointed counsel fee, domestic violence penalty assessment, and medical expenses characterized as restitution. Based on recent changes to Washington's LFO scheme, Mr. Smith is entitled to relief from the first three of the challenged LFOs. However, the domestic violence assessment was not impacted by LFO reform. In addition, although the medical expenses should not have been characterized as restitution, LFO reform also does not prohibit recovery of medical costs. We therefore grant Mr. Smith's request for LFO relief in part and remand for further proceedings.
    FACTS
    ¶2 Benjamin Smith pleaded guilty to six counts of child molestation and one count of child rape. Each count included a domestic violence allegation. Mr. Smith's offenses involved two victims, both of whom lived in Mr. Smith's household. Mr. Smith's guilty plea was supported by a post-arrest confession.
    ¶3 The court imposed an exceptional sentence, requiring Mr. Smith to serve a minimum term of 347 months of confinement before becoming eligible for release. The court also imposed both mandatory and discretionary LFOs. Those obligations included a $ 200.00 criminal filing fee, $ 100.00 sheriff's fee, $ 750.00 in fees for a court-appointed attorney, a $ 100.00 domestic violence penalty assessment, and $ 466.03 in restitution to the Columbia County Sheriff's Office. The restitution order pertained to the cost of medication Mr. Smith received while in custody pending adjudication.
    ¶4 The judgment and sentence was entered on November 1, 2017. Mr. Smith has filed a timely appeal.
    ANALYSIS
    LFOs
    ¶5 Mr. Smith raises several challenges to his LFOs. Our review of his claims is two-fold. Legal issues are reviewed de novo. State v. Ramirez , 191 Wash.2d 732, 741-42, 426 P.3d 714 (2018). But a trial court's ultimate decision of whether to impose LFOs is reviewed for abuse of discretion. Id . As explained below, several of Mr. Smith's legal arguments require amending the trial court's imposition of LFOs. We do not reverse any of the trial court's discretionary decisions.
    Criminal filing fee
    ¶6 Citing Ramirez , Mr. Smith has filed supplemental briefing requesting we strike the $ 200 criminal filing fee imposed by the trial court at sentencing. Ramirez was decided after the close of briefing in this case. The decision held that amendments to Washington's LFO scheme enacted in 2018 apply prospectively to cases on direct appellate review at the time of enactment. Ramirez , 191 Wash.2d at 747, 426 P.3d 714. Among other things, the 2018 statutory amendments prohibit imposition of a criminal filing fee on a defendant who is "indigent" at the time of sentencing as that term is defined by RCW 10.101.010(3)(a)-(c). RCW 36.18.020(2)(h).
    ¶7 The 2018 LFO amendments adopted a specific definition of indigence. Under the amendments, it is not enough that a defendant is indigent for purposes of appointment of counsel. Instead, a defendant must show one of three types of indigence: (a) receipt of a qualifying form of public assistance, (b) involuntary commitment in a public mental health facility, or (c) an annual income, after taxes, of 125 percent or less of the current federally established poverty level. See RCW 36.18.020(2)(h) (adopting indigence as defined by RCW 10.101.010(3)(a)-(c) but not including RCW 10.101.010(3)(d) ).

      Laws of 2018, ch. 269.

   ¶8 Mr. Smith meets the requisite definition of indigence based on his income. See RCW 10.101.010(3)(c). As a result, Mr. Smith's case is controlled by the changes to the LFO scheme and Ramirez . Accordingly, we grant Mr. Smith his requested relief on this issue and direct the trial court to strike the $ 200 criminal filing fee from Mr. Smith's judgment and sentence.

The sheriff's and court-appointed counsel fees

¶9 The $ 100 sheriff's fee and $ 750 court-appointed counsel fee meet the same fate as the $ 200 criminal filing fee. The sheriff's fee and the court-appointed counsel fee are both discretionary costs of prosecution imposed under RCW 10.01.160. Under the 2018 LFO amendments, such costs cannot be imposed against a defendant who is indigent, as defined in RCW 10.101.010(3)(a)-(c), at the time of sentencing. RCW 10.01.160(3). Pursuant to Ramirez , Mr. Smith is entitled to the benefit of the current law. Accordingly, the $ 100 sheriff's fee and $ 750 court-appointed counsel fee must be struck.

Domestic violence penalty assessment

¶10 The $ 100 domestic violence penalty assessment differs from the aforementioned discretionary fees. Although the domestic violence assessment is not mandatory, RCW 10.99.080(1) (penalty assessment "may"

be imposed), it is not a cost of prosecution under RCW 10.01.160. Instead, it is a penalty assessment governed by RCW 10.99.080. Unlike the statutes governing filing fees and costs, the domestic violence penalty assessment statute was not amended by the 2018 LFO legislation, and does not prohibit imposition of an assessment against indigent defendants. RCW 10.99.080. Thus, Mr. Smith's indigence does not dictate the applicability of the fee.

¶11 We turn then to whether the trial court abused its discretion in imposing the assessment. The discretionary focus of the domestic violence penalty assessment is dissimilar to that of prosecution costs under RCW 10.01.160. Instead of looking to the hardships that a financial obligation may have on a defendant, RCW 10.01.160, the domestic violence assessment focuses on hardships to the victim, which often includes members of the defendant's family. RCW 10.99.080(5).

¶12 There was no evidence here indicating that imposition of the $ 100 domestic violence penalty assessment would pose a hardship on the victims or other members of Mr. Smith's family. By the time of sentencing, Mr. Smith's family had severed ties with him. No restitution was owing to Mr. Smith's family. Thus, imposition of the $ 100 penalty assessment did not pose a hardship as contemplated by RCW 10.99.080. Accordingly, the trial court acted within its discretion in imposing the assessment.

Medical expenses characterized as restitution

¶13 "Restitution is allowed only for losses [or costs] that are 'causally connected' to the crimes charged." State v. Tobin , 161 Wash.2d 517, 524, 166 P.3d 1167 (2007) (quoting State v. Kinneman , 155 Wash.2d 272, 286, 119 P.3d 350 (2005) ). Costs are causally connected when the charged crime is the "but for" cause of the loss. Id .

¶14 Here, the $ 466.03 ordered as restitution to the sheriff's office was for the cost of medication Mr. Smith received during his time in local custody pending resolution of his plea and sentencing. The parties agree that the medical expenses incurred in this case do not constitute restitution. Instead, the expenses are medical costs that may be recovered under RCW 70.48.130(5). Because the trial court mischaracterized the medical expenses as restitution, remand is required for resentencing.

¶15 Mr. Smith claims that remand is unnecessary because trial courts hold discretionary authority not to impose medical costs based on indigence. See State v. Leonard , 184 Wash.2d 505, 358 P.3d 1167 (2015). While we agree with Mr. Smith that the trial court has discretion to waive medical costs based on indigence, we are not at liberty to mandate the court's exercise of discretion. Unlike the statutes governing filing fees and prosecution costs, the statute authorizing recoupment of medical costs was not amended by the 2018 LFO reform bill. Although a trial court "must find whether the defendant has the ability to pay" prior to ordering repayment of medical costs, Leonard , 184 Wash.2d at 507, 358 P.3d 1167, the fact that Mr. Smith meets the statutory definition of indigence under RCW 10.101.010(3)(c) does not preclude the trial court from requiring reimbursement. Instead, any imposition of medical costs depends on the trial court's individualized assessment of Mr. Smith's ability to pay, pursuant to the standard set by Supreme Court jurisprudence. Id . at 508, 358 P.3d 1167.

¶16 We therefore remand this matter for a determination of whether recovery of medical costs is appropriate in light of Mr. Smith's claimed inability to pay. In assessing the appropriateness of medical costs on remand, the trial court shall conduct an individualized inquiry into Mr. Smith's current and future ability to pay LFOs, as set forth in Ramirez and State v. Blazina , 182 Wash.2d 827, 344 P.3d 680 (2015), given the current term of incarceration. See Leonard , 184 Wash.2d at 508, 358 P.3d 1167. As part of this inquiry, the court shall inquire of the following: "(1) employment history, (2) income, (3) assets and other financial resources, (4) monthly living expenses, and (5) other debts." Ramirez , 191 Wash.2d at 744, 426 P.3d 714. The ultimate determination of whether Mr. Smith has the ability to reimburse medical costs shall be guided by the comment to GR 34. Id . Because Mr. Smith meets the GR 34 standard for indigence based on lack of income, the trial court should " 'seriously question [Mr. Smith's] ability to pay LFOs.' " Id . at 743, 426 P.3d 714 (quoting Blazina , 182 Wash.2d at 839, 344 P.3d 680 ).

¶17 A majority of the panel having determined that only the foregoing 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.

Fearing, J.