State v. Thompson

                                      729

      Argued and submitted January 9, 2018, affirmed January 27, 2021


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                DARIUS LESHAWN THOMPSON,
                aka Darius Lawshawn Thompson,
                      Defendant-Appellant.
                 Multnomah County Circuit Court
                      14CR29087; A160396
                                   

     Defendant appeals a judgment of conviction for first-degree robbery, ORS
164.415, unlawful use of a weapon, ORS 166.220, and identity theft, ORS
165.800. In his first assignment of error, defendant challenges the denial of his
motion to suppress his cell phone and derivative evidence therefrom, contending
that the phone was unreasonably seized in violation of Article I, section 9, of the
Oregon Constitution. In his second assignment of error, defendant argues that
the trial court erred by denying his demurrer to the first-degree robbery count,
because the trial court’s amendment to the indictment after jeopardy attached
violated defendant’s right to grand jury presentment under Article VII, section 5,
of the Oregon Constitution. Held: Regarding the denial of defendant’s motion
to suppress, any error was harmless. As for the denial of defendant’s demurrer, defendant cannot benefit from an alleged error that he was instrumental in
bringing about.
    Affirmed.



    David F. Rees, Judge.
   Anne Fujita Munsey, 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.
   David B. Thompson, Assistant Attorney General, argued
the cause for respondent. Also on the briefs were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before DeHoog, Presiding Judge, and Egan, Chief Judge,
and Aoyagi, Judge.*
______________
   * Egan, C. J., vice Hadlock, J. pro tempore.
730                                     State v. Thompson

  AOYAGI, J.
  Affirmed.
  Egan, C. J., concurring in part, dissenting in part.
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           AOYAGI, J.
         Defendant appeals a judgment of conviction for first-degree robbery, ORS 164.415, unlawful use of a weapon,
ORS 166.220, and identity theft, ORS 165.800. He argues
that the trial court erred, first, by denying his motion to
suppress evidence and, second, by denying his demurrer to
the first-degree robbery count. We reject the first assignment of error because any error was harmless, and we reject
the second assignment of error because defendant cannot
benefit from an alleged error that he was instrumental in
bringing about.1 Accordingly, we affirm.
                                    FACTS
        The historic facts are largely undisputed. Any facts
that were disputed in the trial court proceedings are noted.
         One afternoon, the victim was driving around town
with B, when the victim decided to sell his in-dash DVD
player for extra money. B told the victim that defendant
would likely be interested in buying it. They drove to defendant’s sister’s apartment, where defendant was staying. B
went inside and returned with defendant and a woman.
         What happened next was disputed at trial. According
to the state’s witnesses, defendant agreed to buy the DVD
player and asked the victim to unhook it, then defendant
stepped aside to talk to B. Defendant soon returned, pulled
a knife, and held the knife to the victim’s throat, while B and
the woman frisked the victim and stole items from his car.
At that point, the victim, who had a gun in his pocket, fired
several shots, hitting defendant once in the leg. According
to defendant, that is not what happened. In his version of
events, defendant declined to buy the DVD player, at which
point B, who was desperate for money to buy drugs, pulled

    1
      In supplemental assignments of error, defendant challenges the trial court’s
instruction to the jury that only 10 jurors needed to agree on a guilty verdict
and the subsequent acceptance of the jury’s verdicts. We reject the supplemental
assignments of error, because the jury returned a unanimous verdict on the robbery count, and it was not polled on the other counts. See State v. Kincheloe, 

, 

 (2020) (regarding unanimous guilty verdicts returned
after erroneous unanimity instruction); State v. Dilallo, 

, 

 (2020) (regarding guilty verdicts returned after erroneous unanimity
instruction, where the jury was not polled).
732                                        State v. Thompson

out a knife and attempted to rob the victim. Not wanting to
be part of the robbery, defendant turned and was leaving
when the victim fired a bullet that was intended for B but
hit defendant instead.
          Events after the shooting were not disputed. The
victim drove away, and defendant returned to his sister’s
apartment. Later that night, defendant sought medical
treatment at a hospital. Because defendant had a gunshot
wound, the hospital contacted the police. When Officer
Robertson arrived, he immediately recognized defendant
from prior encounters, which caused him to realize that
defendant had not given his real name to the hospital.
Instead, defendant had used someone else’s identification
to check in. Robertson asked defendant about the shooting,
but defendant was evasive. Robertson seized defendant’s cell
phone at the hospital. He believed that it would contain evidence related to the shooting, as well as evidence of defendant’s real identity as relevant to the crime of identity theft
(i.e., using someone else’s identification at the hospital), and
he was concerned that defendant would otherwise destroy
the phone or its data.
         The police investigated the shooting fairly extensively. Robertson testified that, during the five days after
the shooting, he and at least one other officer gathered information, drove to Salem multiple times, talked to witnesses,
canvassed the area for surveillance video, called the apartment management, obtained information from the Oregon
State Police and from the victim, and arranged towing of the
victim’s car for a forensic examination. Robertson described
the investigation as relatively complex with a lot of moving
parts and a lot of information to verify. On the fifth day
after the shooting, Robertson obtained a search warrant for
defendant’s phone.
         Six days after the shooting, defendant was arrested
and interviewed at some length by Robertson. The details of
that interview are mostly irrelevant on appeal. What is relevant is that, at one point during the interview, Robertson
mentioned defendant’s cell phone, noting that it showed five
calls from B, including one on the night of the shooting right
around the time that defendant was going to the hospital,
Cite as 

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which was inconsistent with defendant’s prior claim that he
had never talked to B on the phone before. After noting that
inconsistency, Robertson continued with the interview.
         Defendant was indicted on numerous charges. Before
trial, he moved to suppress the cell phone and all derivative
evidence. The state responded that the seizure was justified by exigent circumstances, arguing that Robertson had
probable cause to believe that the cell phone contained evidence of both identity theft and a shooting-related crime.
Defendant rejoined that Robertson lacked probable cause
for any crime. In the alternative, defendant argued that,
even if the initial seizure was lawful, it was unreasonable to
hold the cell phone for five days before obtaining a warrant.
         The trial court denied defendant’s motion to suppress. The court concluded that exigent circumstances
existed and that Robertson had probable cause at least as
to the crime of identity theft. (As to whether Robertson
had probable cause that defendant’s cell phone would contain evidence of a shooting-related crime, the trial court
described that as a “closer call” and never clearly decided
the issue.) The court rejected defendant’s argument about
the five-day delay in obtaining a warrant, because it found
that the police were working on “an active, ongoing investigation” during that time.
         Later in the same hearing, after defendant argued
the 32nd of 50 motions in limine, defendant noted for the
record that, if the trial court had granted his motion to suppress, some statements from his police interview would not
have come in. That was the first time that defendant had
identified police interview statements as derivative of the
cell phone evidence. The court noted defendant’s position for
the record.
          The case proceeded to a jury trial. On the afternoon
of the first day of trial, defendant demurred to Count 2 of the
indictment, first-degree robbery, based on the wording of the
charge. The trial court denied the demurrer. The trial continued. The jury found defendant guilty of first-degree robbery, unlawful use of a weapon, identity theft, and two other
counts that merged with the foregoing counts. Defendant
appeals the resulting judgment of conviction.
734                                          State v. Thompson

                  MOTION TO SUPPRESS
         In his first assignment of error, defendant contends
that the trial court erred in denying his motion to suppress
his cell phone and all derivative evidence. He argues that
Robertson’s seizure of the phone was an unreasonable warrantless seizure under Article I, section 9. Alternatively,
he argues that, even if the initial seizure was justified, the
police could not hold the phone for five days without a warrant. Finally, he argues that, “[b]ecause police used information from the cell phone in their interrogation of defendant, they exploited the unlawful seizure.”
         We review the denial of a motion to suppress for
legal error. State v. Ehly, 

, 

 (1993).
We are bound by the trial court’s factual findings if there is
constitutionally sufficient evidence in the record to support
them. 

          Article I, section 9, guarantees citizens “the right
… to be secure in their persons, houses, papers, and
effects, against unreasonable search, or seizure.” A warrantless seizure is per se unreasonable unless it falls within
an established exception to the warrant requirement. State
v. Lambert, 

, 

, modified
on other grounds on recons, 

, 

(2014). It is the state’s burden to prove that a warrant exception applies. State v. Baker, 

, 

(2011). One exception to the warrant requirement is exigent
circumstances, which includes circumstances that require
“police to act swiftly … to forestall … the destruction of
evidence.” State v. Snow, 

, 

 (2004).
To prove that exception applies, the state must make an
individualized showing of exigent circumstances and show
that probable cause existed to believe that the item seized
was evidence of a crime. State v. Parras, 

, 

 (1991).
        The state argues that, even if the trial court erred
in denying defendant’s motion to suppress, it was harmless.
We address that issue first, because it is dispositive.
         “Harmless error” is a “shorthand reference to a
legal standard” under Article VII (Amended), section 3, of
Cite as 

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the Oregon Constitution. State v. Davis, 

, 

 (2003). That standard reduces to “a single inquiry:
Is there little likelihood that the particular error affected
the verdict?” 

. If so, we must affirm, notwithstanding the error. 

 Our focus “is on the possible influence of
the error on the verdict rendered, not whether this court,
sitting as a factfinder, would regard the evidence of guilt
as substantial and compelling.” 

 Significantly, it is the
defendant’s burden to show that the erroneous admission
of evidence prejudiced his substantial rights, i.e., was not
harmless. State v. Nguyen, 

, 

 (2018) (“Defendant has the burden to demonstrate that
the error affected a substantial right.”); State v. Torres, 

, 

 (2006) (“The burden is on a
defendant who appeals his conviction to show that a court’s
error affected a substantial right.”).
         Here, the cell phone itself was not admitted into
evidence at trial, and, on appeal, defendant does not contend that any data from the cell phone was admitted into
evidence and was helpful to the prosecution or damaging
to his defense. To the contrary, defendant’s harmlessness
argument turns entirely on the admission of certain statements from his police interview. Defendant argues that the
denial of his motion to suppress was not harmless because
it resulted in the jury hearing certain incriminating statements from his police interview that should have been suppressed. The state responds that the admission of those
statements was harmless given the other evidence.
        We agree with the state that, even if the trial court
erred in denying suppression of certain statements made
by defendant during his police interview, any error was
harmless. Because the harmlessness issue is dispositive, we
assume without deciding both (1) that defendant’s motion to
suppress encompassed statements made in his police interview, a preservation issue that we need not resolve given
our disposition, and (2) that the trial court erred in denying
suppression.
        The harmlessness analysis begins with “determin[ing] the particular evidentiary issue that is subject to
harmless error analysis.” State v. Maiden, 

,
736                                                     State v. Thompson

 (2008), rev den, 

 (2009). Here, we look
to defendant’s opening brief to determine which evidence he
is claiming was derivative of the cell phone evidence, was
wrongly not suppressed, and may have influenced the verdict.2 See Federal National Mortgage Association v. Goodrich,

, 

 (2015) (“We will not consider
a ground for reversal that is raised on appeal for the first
time in a reply brief.”); see also ORAP 5.45(1) (limiting our
consideration to errors “assigned as error in the opening
brief”).
         Defendant first contends that the trial court erred
in not suppressing a statement that he made during his
police interview—after the point in the interview at which
Robertson referred to his cell phone—in which defendant
admitted to being present at the robbery and being there
to protect B. But any error in not suppressing that particular statement had little likelihood of affecting the verdict.
Earlier in the interview, before Robertson mentioned defendant’s phone, defendant had already changed his story from
claiming that he was shot randomly while walking down the
street to the version of events that he later put forward at
trial. He also had already told Robertson that “[B] just wanted
me there for like protection or something.” The statement at
issue therefore was duplicative of other, unchallenged evidence. State v. McAnulty, 

, 

(2014), cert den, 

 (2015) (the erroneous admission
of duplicative evidence is typically harmless). Moreover, it
had little importance to the state’s case, given defendant’s
own version of events, as well as the physical evidence. See
Nguyen, 

 (identifying “the importance
of the erroneously admitted evidence to a party’s theory of
the case” as being relevant to the harmlessness analysis).
The physical evidence included the knife used in the crime
(with the victim’s blood on it), the victim’s identification, and
the victim’s social security card, all of which were found at
    2
      We note that, typically, the defendant will identify in the trial court the
specific evidence that he is seeking to suppress, which in turn will be the evidence addressed in the opening brief on appeal. The posture of this case is more
complicated, for reasons that go to a potential preservation issue that we do not
discuss because, even assuming without deciding that defendant adequately preserved his claim of error as to the specific evidence that he now claims was derivative, we reject his arguments on other grounds.
Cite as 

 (2021)                                                 737

defendant’s sister’s apartment, where defendant had been
staying.
         Defendant next argues that the “[s]earch of the cell
phone revealed that defendant knew the middle-man, [B,]
contrary to defendant’s statements to police.” But, again,
before Robertson ever mentioned the phone, defendant had
already admitted to being present at the robbery to protect
B, from which it is reasonable to infer that they knew each
other. Before Robertson mentioned the phone, defendant
also was able to identify B and the victim from photographs
shown to him by the police, despite having previously denied
knowing B and having just told Robertson that he would
not be able to identify B in a photograph. The victim also
testified that B introduced him to defendant. See McAnulty,

 (regarding duplicative evidence). Given the
other evidence, particularly defendant’s own statements,
any error in not suppressing an additional statement that
defendant knew B was harmless.3
          Finally, in his reply brief, defendant identifies three
additional interview statements that he claims should have
been suppressed and may have influenced the verdict. ORAP
5.45(4)(a)(iii) expressly provides that, “[i]f an assignment of
error challenges an evidentiary ruling, the assignment of
error must quote or summarize the evidence that appellant
believes was erroneously admitted or excluded.” Also, “[w]e
will not consider a ground for reversal that is raised on appeal
for the first time in a reply brief.” Goodrich, 

. We therefore reject defendant’s argument as to those
statements, which cannot fairly be characterized as “merely
… a factual clarification” to the argument in his opening
brief. 308 Or App at 743 (Egan, C. J., concurring in part and
dissenting in part). In any event, even assuming that those
statements were encompassed in defendant’s motion to suppress and even if they had been raised in the opening brief,
the admission of those statements was harmless as well.

    3
      In addition to the specific statements identified in his opening brief, defendant makes a general assertion that the state “failed to prove that information
from defendant’s cell phone did not affect the flow of the interview, the questions
the police asked, and the manner that they asked them.” To the extent that statement is meant to raise additional suppression issues on appeal, it is too undeveloped for us to address it.
738                                                      State v. Thompson

Defendant’s arguments to the contrary—adopted by the dissent, 308 Or App at 744-45 (Egan, C. J., concurring in part
and dissenting in part)—depend on statements taken out of
context and unreasonable inferences.4
         Accordingly, any error in denying suppression of
the police interview statements identified by defendant was
harmless.
                                DEMURRER
         In his second assignment of error, defendant argues
that the trial court erred in denying his demurrer to Count 2,
robbery in the first degree, ORS 164.415.
          In the original indictment returned by the grand
jury, defendant was charged with committing robbery in
the first degree while “armed with a deadly weapon.” See
ORS 164.415(1)(a) (“A person commits the crime of robbery
in the first degree if the person [commits robbery in the
third degree] and the person … [i]s armed with a deadly
weapon[.]”). After realizing that a knife does not meet the
definition of a “deadly weapon,” the state obtained a new
grand jury indictment, which charged defendant with having “used or attempted to use a dangerous weapon” to commit robbery in the first degree. See ORS 164.415(1)(b) (“A
person commits the crime of robbery in the first degree if the
person [commits robbery in the third degree] and the person
… [u]ses or attempts to use a dangerous weapon[.]”).
         After the new indictment was obtained, defendant
expressed a concern that, if he was convicted, it would be
an “incredible headache” to work with the Department
of Corrections to ensure that he received credit for time
served, because the second indictment was under a different
case number. To accommodate defendant, the state offered
to proceed under the first indictment, if defendant waived
his right to grand jury presentment and let the trial court
amend the language of Count 2. Defendant agreed.
    4
      As it would not otherwise be apparent, due to the use of ellipses, we note
that the block quote in the dissenting opinion is taken from five pages of the trial
transcript, which in turn derives from eight single-spaced pages of the interview
transcript. See 308 Or App at 742 (Egan, C. J., concurring in part and dissenting
in part).
Cite as 

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         On the morning of trial, before the jury was sworn,
the state asked the trial court to amend Count 2 of the indictment to refer to a “dangerous weapon” instead of a “deadly
weapon.” Defense counsel represented that “we don’t object
to that amendment via interlineation this morning before
jeopardy attaches.”
         Later the same day, after the jury was sworn (and
thus jeopardy attached) but outside the jury’s presence,
defendant demurred to Count 2. Defense counsel explained
that he had been “waiting” for jeopardy to attach so that
he could raise an issue. He expressed some “ambivalence”
about raising it but said that he felt obligated. Defense
counsel then said that defendant was “filing a demurrer to
Count 2.” He acknowledged that “there was an agreement
that, prior to jeopardy attaching, the State would be allowed
to amend [the original indictment] as appropriate.” But he
asserted that the parties had not agreed on “specific” language beforehand, and he pointed out that the prosecutor
had not requested the complete amendment necessary to
state the charge correctly. That is, the prosecutor had asked
the court to change “deadly weapon” to “dangerous weapon,”
but he had not asked the court to change “armed with” to
“used or attempted to use.” Defense counsel described that
omission as “fortunate” for defendant, because the indictment as amended did not conform to the statutory language.
         The state protested that defendant’s position was
contrary to the parties’ agreement. It described the incomplete amendment as being in the nature of a scrivener’s
error. The state emphasized that the second indictment
had contained the correct language and that proceeding on
the original indictment with an amendment was solely for
defendant’s benefit. The trial court agreed with the state
and denied the demurrer. It then amended the indictment
to replace “armed with” with “used or attempted to use.”
         On appeal, defendant argues that the trial court
violated his right to grand jury presentment under Article
VII, section 5, of the Oregon Constitution, because amending “armed with” to “used or attempted to use” was a matter of substance. See Or Const, Art VII (Amended), § 5(6)
(“The district attorney may file an amended indictment
740                                                     State v. Thompson

or information whenever, by ruling of the court, an indictment or information is held to be defective in form.”); State
v. Pachmayr, 

, 

 (2008) (an
indictment may be amended at trial to correct matters
of form but not substance). The state maintains that the
amendment was a matter of form. See Pachmayr, 

 (holding that trial court’s amendment of an indictment to change “deadly weapon” to “dangerous weapon”
in an assault charge—a change requested by the state to
correct a “scrivener’s error”—was one of form that did not
change the essential nature of the charge, prejudice the
defendant’s right to notice of the charges against him to protect against double jeopardy, or deprive the defendant of a
defense);5 State v. Long, 

, 

 (1994),
cert den, 

 (1995) (holding that trial court did not
err in amending an indictment to fix a typographical error
in the date of the alleged offense).
         We need not decide whether the amendment here
was one of substance or form, because, in any event, defendant’s claim of error is not a basis for reversal given his own
role in bringing about the error. See State v. Kammeyer, 

, 

, rev den, 

 (2009)
(we will not reverse based on an error that the party seeking reversal was “actively instrumental in bringing about”).
Whether the parties had expressly discussed the specific
language of the amendment before trial, it is undisputed
that the amendment’s purpose was to conform the (defective) language of the original indictment to the (correct) language of the second indictment, so that the state would have
a valid indictment but defendant could avoid the “incredible
headache” of two case numbers. Under the circumstances,
defendant could not stand silent while the court amended
the indictment, “wait” for jeopardy to attach, and then challenge the indictment based on the amendment. His statement that he did not object to the amendment—an amendment made at his request and for his benefit—reasonably

    5
      The Oregon Supreme Court recently reaffirmed Pachmayr. See State v.
Haji, 

, 

 (2020) (“Pachmayr is fully consistent with
our conclusions about what it means for an indictment to be defective in form and
when the test in [State v. Wimber, 

, 

 (1992)], should be used
to analyze whether the district attorney could amend an indictment.”).
Cite as 

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led the court and the state to understand that he would not
object to the indictment as amended.
         “The [invited error] rule applies when a party has
invited the trial court to rule in a certain way under circumstances suggesting that the party will be bound by the
ruling or at least will not later seek a reversal on the basis
of that ruling.” State v. Saunders, 

, 

 (2018), rev den, 

 (2019); see also State v.
Dallavis, 

, 

 (2018), rev den,

 (2019) (by representing that he had no objections to being tried on a defective indictment, the defendant
invited the error in proceeding to trial). Its application is
particularly appropriate when “intentional or strategic”
gamesmanship is involved. State v. Ferguson, 

, 

 (2005), rev den, 

 (2006) (the
invited error doctrine prevents parties from making “intentional or strategic” decisions to allow error into the record
and then later seek reversal based on that error). Here,
defendant is not in a position to seek reversal of the court’s
amendment ruling, given his own role in bringing about the
situation. We reject defendant’s second assignment of error.
           Affirmed.
           EGAN, C. J., concurring in part, dissenting in
part.
         At the outset, the majority holds that any violation
of defendant’s right to be free from unlawful search and seizure under Article I, section 9, of the Oregon Constitution,
was harmless. In doing so, the majority limits its considerations of defendant’s opening brief in such a way as to ignore
the import of his argument. Consequently, the majority does
not consider whether defendant’s right was violated.1 I disagree. I would, considering defendant’s argument in full,
conclude that any error from the trial court was not harmless and that defendant’s right to be free from unlawful

    1
       I do not address defendant’s contention that probable cause and exigent
circumstances did not justify immediate seizure of defendant’s cell phone in my
dissent. Instead, assuming that the initial seizure was lawful, I would conclude
that the state failed to carry its burden of showing that exigent circumstances
justified Robertson’s seizure of defendant’s cell phone for five days.
742                                                     State v. Thompson

search and seizure was violated. I concur in the majority’s
resolution of defendant’s second assignment of error and
supplemental assignments of error.
        Before turning to the analysis, I first note the evidence from defendant’s police interrogation that defendant
seeks to have excluded:
       “OFFICER ROBERTSON: … This is your phone log
    from your phone, okay? So we would download a phone
    and analyze those. There are five calls, one, two, three,
    four, five. This is [B]’s number, okay? This call happens at
    11:05 p.m. the night of the shooting, okay? You told me that
    you’ve never talked to him on the phone or anything like
    that before, so I wonder why he has your phone number in
    the first place. But then also the time frame, this happens
    right after the shooting, so he was even calling you when
    you were at the hospital. Because you got to the hospital
    about, what, like 11:30, I think?
        “…
       “OFFICER ROBERTSON:                  Okay. So you’re saying you
    didn’t want to kill him?
        “[DEFENDANT]: I don’t know.
        “…
       “OFFICER ROBERTSON: But before you told me that
    [B] had a knife and he held it to [the victim]’s neck, and now
    you’re saying that you don’t know what he had.
       “[DEFENDANT]: No, I said that (inaudible) I didn’t
    know if he had it on him or not.
        “…
       “[DEFENDANT]: I don’t want to—I don’t want this
    dude to get in trouble for shooting me (inaudible).
       “OFFICER ROBERTSON: Why would you not want
    him to get in trouble for shooting you?
       “[DEFENDANT]: Because he didn’t know any better,
    bro. He was just shooting at somebody[.]”2
    2
      The majority notes that it would also conclude that defendant did not preserve this evidence at the trial court for our review because defendant did not
specify “specific evidence that he is seeking to suppress.” 308 Or App at 736 n 2.
I disagree. I do not believe that preservation requirements are, or should be, so
narrow that a defendant is required to point to “specific” evidence. See State v.
Cite as 

 (2021)                                                  743

Defendant relies on those specific statements to argue that
defendant suffered a violation of his right to be free from
unlawful search and seizure pursuant to Article I, section 9.
          I first address whether any error was harmless.3 To
do so, however, I must address the contention that I have
with the majority in ignoring defendant’s statements that
were wrongfully admitted. The majority in its holding only
considers two statements—“defendant admitted to being
present at the robbery and being there to protect B” and that
the “[s]earch of the cell phone revealed that defendant knew
the middle man, [B,] contrary to defendants statements to
police.” 308 Or App at 737. The majority is wrong to not consider the statements in defendant’s reply brief because he
neither assigns new error, nor does he assert a new ground
for reversal. See id. (stating such). Rather, I conclude that
defendant merely makes a factual clarification to an argument that he asserted in his opening brief in compliance
with ORAP 5.45.4
         We have rejected new legal arguments that have
been first raised in a reply brief. See, e.g., Dept. of Human
Services v. C. M. H., 

, 497 n 6, 

(2019), rev allowed, 

 (2020); Federal National
Mortgage Association v. Goodrich, 

, 

 (2015) (rejecting new legal argument in light of,
what was then, a new Supreme Court case); Hayes Oyster

Amaya, 

, 

 (2004) (“problems … may arise if the preservation onion is sliced to thinly”). Rather, I would look to the policies of preservation, which require “fairness, notice to the opposing party, and efficient judicial
administration,” Drake v. Alonso, 

, 

 (2017), and
the realities of trial in concluding that defendant preserved this evidence. See
State v. Walker, 

, 

 (2011) (“Particularly in criminal
cases, in which there is a premium on considerations of cost and speed, the realities of trial practice may be such that fairly abbreviated short-hand references
suffice to put all on notice about the nature of a party’s arguments.”).
     3
       I address whether any error is harmless first to address my contention with
the majority’s conclusion before moving on to the merits of defendant’s claim.
     4
       I agree with the majority that a party may not make a new assignment of
error in a reply brief pursuant to ORAP 5.45(1). However, when the issue is, as it
is here, whether a specific factual clarification is reviewable by us, I would look
to ORAP 5.70, which confines a reply brief to “matters raised in the respondent’s
answering brief.” Additionally, because this assignment challenges the exclusion
of evidence, I would also require defendant to “quote or summarize” the evidence
he sought to have excluded. ORAP 5.45(4)(a)(iii). The majority raises neither concern, and I would conclude that defendant met both requirements.
744                                                      State v. Thompson

Co. v. Dulcich, 

, 237 n 20, 

 (2000).
However, here, defendant makes no new legal argument
but merely clarifies the factual statements that defendant
argues were derivative of the seizure of defendant’s cell
phone. Defendant summarized his factual argument to the
trial court in his opening brief, asserting that “the statements about what was on the phone would not have been
available to the state to use when interrogating defendant,
and the interview would have flowed differently.” After that,
defendant makes his legal arguments, as relevant here, that
(1) the state unlawfully seized the phone “for five days while
they gathered additional evidence,” and (2) that the police
“exploited the unlawful seizure of defendant’s cell phone.” In
defendant’s reply brief, he merely clarified with specificity
what “statements [were] on the phone.” Defendant adds no
new assignments or legal grounds in his reply after that factual clarification, but defendant reasserts the same grounds
in reply to the state’s argument. Thus, I would conclude that
there are no new assignments or grounds for us to assess
in defendant’s reply and look to defendant’s argument in its
entirety.5
         Looking to the specific evidence that defendant
seeks to have excluded, I would find that the error was not
harmless. An error is considered harmless if, after viewing the record as a whole, we conclude that there is “little
likelihood that the error affected the jury’s verdict.” State v.
Warren, 

, 

, rev den, 

 (2018) (internal quotation marks omitted). We have previously explained that “a variety of considerations may properly inform” that inquiry. State v. Perkins, 

, 

 (2008). One such consideration is whether
the erroneously admitted evidence goes to the issue at the
heart of the case as opposed to a tangential matter. State v.
Willis, 

, 

 (2010). Defendant specified three statements that were derivative of the seizure
of his cell phone, all of which go directly to the issue at the
heart of the case—whether defendant was the person who

    5
      Although the majority does not do a full analysis of defendant’s specific
statements listed in his reply brief, I do note that the majority does conclude that
defendant’s specific statements would not affect its harmless error analysis. As I
discuss below, I disagree.
Cite as 

 (2021)                             745

robbed the victim. Defendant’s first statement that he did
not know whether he wanted to kill the victim supports an
inference that defendant, not B, was the one who attacked
the victim. Similarly, defendant’s second statement that
“[he] didn’t know if [B] had [the knife] on him or not” contradicts his prior statements that B was the one who had
the knife, supporting an inference that defendant was lying.
Finally, defendant’s third statement that he “[did not] want
[the victim] to get in trouble for shooting me … [b]ecause
he didn’t know any better” supports an inference that the
victim was acting in self-defense when he shot defendant
and, therefore, that defendant was the attacker. Not only
do the statements go to the heart of this case, but, as they
are admissions from defendant, they are particularly persuasive to a jury. See State v. Holcomb, 

, 

, rev den, 

 (2007) (recognizing
that “a criminal defendant’s own statements regarding the
crime are especially persuasive and potentially more likely
to affect the jury’s verdict than other sources of the same
information”). Looking at the record as a whole, I am unpersuaded that any error in admitting defendant’s incriminating statements was harmless.
         Finally, I would find that exigent circumstances did
not justify Robertson’s retention of defendant’s cell phone for
five days without a warrant. The Supreme Court has previously explained that “exigency should be assessed in light
of the reasonableness … in time, scope, and intensity.”
State v. Mazzola, 

, 

 (2015).
Specifically, on the issue of time, as applicable in this case,
the Supreme Court’s decision in State v. Quinn, is instructive.

, 

 (1981), overruled on other grounds
by State v. Hall, 

, 

 (2005). In Quinn,
the court held that the exigent circumstances that justified
the warrantless search had dissipated and that, as a result,
the search violated Article I, section 9. 

. The
issue before us—delay between a seizure due to exigent
circumstances and the subsequent search pursuant to a
warrant—is different from the delay between the seizure and
the warrantless search addressed in Quinn. Nonetheless, as
the primary inquiry in assessing the validity of any seizure
under Article I, section 9, is whether it is reasonable—so
746                                          State v. Thompson

it is here. See State v. Ritz, 

, 

(2017) (“The touchstone of [Article I, section 9’s] protection
is reasonableness.”). Accordingly, I would conclude that the
operative question set forth in Quinn—whether the search
was conducted as promptly as was reasonable under the circumstances—is the same question that guides the analysis
in this case. Therefore, Quinn requires the state to show
that the police obtained a search warrant “as promptly after
the seizure as is reasonable in the circumstances.” 

. Here, the state has failed to make that showing.
         Robertson’s testimony during the suppression hearing belies any contention that the police obtained a warrant
as promptly as was reasonable under the circumstances.
When asked directly during the suppression hearing how
quickly the police could have obtained a warrant, Robertson
answered candidly that he could have obtained a warrant in
six to 10 hours:
      “[DEFENSE COUNSEL]: Okay. How long would it
   have taken to get a telephonic warrant to seize the phone?
      “[ROBERTSON]: We would have been able to fill out—
   essentially that evening.
      “[DEFENSE COUNSEL]:          How long would you say?
       “[ROBERTSON]: To draft a search warrant, have it
   reviewed and then signed off by a judge anywhere from six
   to ten hours.”
Later, Robertson explained his reasons for not immediately
applying for a search warrant:
       “[ROBERTSON]: I don’t know if I could offer this, as
   far as a warrant on a felon at that point in time, yes we
   were investigating him getting shot, we also had the I.D.
   theft on top of that. Since the hospital explained to us his
   injuries were not life threatening, the exigency of obtaining that warrant to go through the phone, I didn’t believe
   that there was one at the time. I thought there were more
   circumstances that we needed to confirm based on [defendant’s] lack of cooperation in answering questions, I knew
   that there was more than likely more to the story to sort
   it out. So, I didn’t feel there was exigency to apply for the
   search warrant like right then and there.”
Cite as 

 (2021)                                               747

         Robertson’s testimony indicates that, despite being
capable of applying for a search warrant in six to 10 hours,
he chose to delay getting a warrant because he wanted to
investigate the shooting—not because other pressing tasks
prevented him from obtaining one. Accordingly, I would conclude that the state has failed to carry its burden of showing that a warrant could not reasonably have been obtained
sooner and that, as a result, even if exigent circumstances
did justify the initial seizure of defendant’s cell phone, that
exigency evaporated during the five-day delay in obtaining
the warrant.6
        Thus, I would conclude that the trial court erred in
denying defendant’s motion to suppress evidence obtained
from the cell phone and I must, therefore, respectfully dissent from the majority opinion as to the first assignment of
error and concur as to the remaining assignments of error.




    6
      Although I would conclude here that the five-day delay was unreasonable
based on Robertson’s testimony that he could have obtained a telephonic warrant
in six to ten hours, I do not suggest that officers are required to always seek a
telephonic warrant when it is faster than traditional methods. Quinn does not
require a search to occur as quickly after a seizure as is absolutely possible; it
requires the search to occur as promptly as is reasonably possible. I would base
this decision here based on the time Robertson testified that it would have taken
him to obtain a telephonic warrant only because he did not offer testimony about
how long it would have taken him to obtain a warrant by traditional methods.