281
Argued and submitted September 19, reversed and remanded October 30, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
JAMES ALLEN VANDRUFF,
aka James A. Vandruff,
Defendant-Appellant.
Multnomah County Circuit Court
050951965; A167300
453 P3d 625
Defendant challenges the trial court’s denial of two pretrial motions that
defendant made before he entered a conditional guilty plea for three misdemeanor crimes. First, defendant argues that the trial court erred by ruling that
a copy of a prior judgment of conviction for DUII was admissible. Second, defendant argues that the trial court erred in denying defendant’s motion to suppress
evidence of his refusal to perform a breath test because the record is not sufficient
to prove that the police officer’s request for defendant’s cooperation could reasonably be understood as a request for physical cooperation rather than consent to
a search. The state concedes that the evidence of the breath test was not admissible in this case. Held: The Court of Appeals accepts the state’s concession that
the evidence of defendant’s refusal to perform a breath test was not admissible.
Accordingly, the trial court erred in ruling it admissible, and the case must be
remanded. Given that disposition, and given procedural idiosyncrasies in this
case, the Court of Appeals declined to reach the first assignment of error.
Reversed and remanded.
Christopher A. Ramras, Judge.
Kyle Krohn, Deputy Public Defender, argued the cause
for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Timothy A. Sylwester, Assistant Attorney General,
argued the cause for respondent. Also on the briefs were Ellen
F. Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Hadlock, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
HADLOCK, P. J.
Reversed and remanded.
282 State v. Vandruff
HADLOCK, P. J.
Defendant entered a conditional guilty plea to misdemeanor driving under the influence of intoxicants (DUII),
reckless driving, and failure to appear. On appeal, defendant assigns error to two of the trial court’s rulings. First,
defendant challenges the court’s ruling that a copy of a Clark
County, Washington, judgment of conviction for DUII was
admissible. The state makes several arguments in opposition. Second, defendant challenges the denial of his motion
to suppress his refusal to perform a breath test. The state
concedes that point. For the reasons set out below, we accept
the state’s concession that the trial court erred when it
denied defendant’s motion to suppress his refusal to perform
a breath test, we decline to address the trial court’s ruling
regarding admissibility of the Clark County document, and
we reverse and remand for further proceedings.
After defendant was charged with the crimes listed
above, he filed a discovery request for various records,
including “[a] record of all prior criminal convictions which
the State intends to introduce.” Defendant also filed a written motion to suppress evidence discovered during a stop,
including evidence of his refusal to take a breath test.
At a hearing on the morning of the date set for
trial, defense counsel alerted the court that he had “several motions” for the court to address pretrial, including the
suppression motion. Defense counsel also said that he had
a motion “relating to a prior conviction,” explaining that
the prosecutor “has what appears to be a certified copy of
a judgment of conviction from Clark County, Washington.”
Counsel asserted that the document was “not an original
certified,” but was “a copy of a certified judgment,” which he
argued was not self-authenticating under OEC 902. Defense
counsel suggested that he thought the state might seek to
introduce evidence of the Clark County conviction in association with prosecuting the reckless driving charge.
In response, the prosecutor did not assert whether
or how the state would seek to use the Clark County judgment at trial. Rather, the prosecutor said that he was “not
entirely sure how [his] office received that document” and
indicated that he could not represent whether it was “an
Cite as 300 Or App 281 (2019) 283
original copy or a faxed over copy.” Further discussion about
the authenticity and authentication of the judgment document followed, and the court ultimately ruled that the copy
of the Clark County judgment would be “admissible as a certified public record, under Rule 902.”1 The court also denied
defendant’s motion to suppress evidence found as a result of
the stop, including defendant’s refusal to perform a breath
test.
Defendant decided to enter a conditional guilty
plea that would allow him to challenge the trial court’s pretrial rulings. In court, defense counsel asserted that defendant would enter a plea “without prejudice to [his] right to
appeal” the court’s rulings on defendant’s “motion to suppress a stop, and motion to suppress … any evidence of
field sobriety tests, and a motion to suppress any evidence of
a breath test refusal.” Defendant ultimately entered a conditional plea agreement in which he “reserve[d] the right
to review of all pretrial motions, including in particular
Defendant’s motions to suppress and to exclude evidence
from trial in this matter.” The agreement noted that defendant’s “motions to suppress and exclude evidence of a traffic
stop, field sobriety tests, breath tests, and other evidence
were all denied in part or in their entirety.” A separate plea
1
The trial court and parties were referring to OEC 902(1), which provides
that “[e]xtrinsic evidence of authenticity” is not required with respect to certain
documents, including:
“(a) A document bearing a seal purporting to be that of the United
States, or of any state, district, commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific
Islands, or of a political subdivision, department, officer, or agency thereof,
and a signature purporting to be an attestation or execution.
“(b) A document purporting to bear the signature, in an official capacity,
of an officer or employee of any entity included in subsection (1)(a) of this
section, having no seal, if a public officer having a seal and having official
duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature
is genuine.
“…
“(d) A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed
in a public office, including data compilations in any form, certified as correct
by the custodian or other person authorized to make the certification, by certificate complying with subsection (1)(a), (b) or (c) of this section or otherwise
complying with any law or rule prescribed by the Supreme Court.”
284 State v. Vandruff
petition stated that defendant retained the “right to appeal
denial of motions to exclude and suppress.”
As noted, defendant raises two assignments of
error on appeal from the resulting judgment. We address
the second assignment first. In a supplemental brief filed
after the Supreme Court issued its decision in State v.
Banks, 364 Or 332,
434 P3d 361 (2019), defendant argues
that the trial court erred when it denied his motion to
suppress the statement he made after a police officer
asked him to provide a breath test: “No way, no way, no
way.” Defendant contends that the state did not meet its
burden to prove that the refusal was admissible under
Banks, which would have required a showing that the
request “could reasonably be understood only as a request
to provide physical cooperation and not as a request for
constitutionally-significant consent to search.”
364 Or at
343. The state concedes that, “in light of Banks and based
on the limited record that was made in this case, the …
evidence that defendant declined to submit to a breath test
is not admissible over his objection.” We agree. Because
defendant was convicted on a conditional guilty plea, the
correct remedy is to reverse and remand.
The question remains whether to address defendant’s other assignment of error, in which he challenges what
he characterizes as the trial court’s denial of his “motion in
limine to exclude the state’s evidence of his DUII conviction
in Clark County, Washington.” Defendant acknowledges
that the state provided, in discovery, a document from Clark
County “purporting to show that defendant had been convicted of DUII” and containing “an image purporting to be
the seal of Washington State.” Defendant contends, however, that “it is impossible to tell” whether the document is
a copy or an original and whether the seal it bears is a copy
or original. Defendant concludes that the document is therefore not self-authenticating under OEC 902(1).
In response, the state argues that defendant cannot properly challenge the trial court’s ruling that the Clark
County document would have been admissible, had defendant gone to trial, because defendant did not reserve the
right to challenge that particular ruling when he entered
Cite as 300 Or App 281 (2019) 285
his conditional guilty plea. Defendant rejoins that the wording of the plea documents is broad enough to reserve his
right to challenge that ruling, among others. The state also
contends that the document was self-authenticating under
OEC 902(1).
The lack of a complete record leads us to conclude
that we need not, and should not, resolve the parties’ disputes about the scope of the conditional plea agreement
or about the admissibility of the Clark County judgment.
Simply put, we cannot tell whether the record includes the
actual document about which the court ruled. Neither defendant nor the state offered the document as an exhibit at the
hearing. Although the record on appeal was supplemented
with a copy of the Clark County judgment, we cannot tell
how the form of that document compares to the form of the
document that was presented for the trial court’s consideration. Thus, we have little way of assessing the propriety
of the trial court’s ruling with respect to the document it
viewed (which we cannot see); similarly, if we were to hold
either that the court ruled correctly in deeming the document admissible or that it erred in doing so, the court would
have no way of determining, on remand, what document the
state was or was not entitled to introduce at trial. Moreover,
because we could not properly pass judgment on the merits
of the trial court’s ruling, there is no reason for us to address
the predicate question of whether that ruling falls within
the scope of the rulings that defendant reserved the right to
challenge on appeal from his conditional guilty plea.
In short, defendant has not met his responsibility,
as the appellant, “for providing an appellate record sufficient for us to determine whether the trial court erred as he
claims.” C. P. v. N. L., 274 Or App 180, 181,
359 P3d 1248
(2015). As a consequence, “we are unable to review respondent’s claim of error.”
Id. In the circumstances present
here, where the case will be remanded to the trial court for
other reasons, the appropriate result is to simply decline to
address the trial court’s ruling on the admissibility of the
Clark County judgment and leave it to the trial court to
address that issue again, in the first instance, if it arises.
Cf. ORS 19.365(5) (“If the record on appeal is not sufficient to
286 State v. Vandruff
allow the appellate court to review an assignment of error,
the court may decline to review the assignment of error[.]”).
Reversed and remanded.
