State v. Scott

                                       175

  Submitted October 4, 2019; portion of judgment requiring defendant to pay
  attorney fees reversed, otherwise affirmed May 5; petition for review denied
                        September 16, 2021 (

)


                        STATE OF OREGON,
                         Plaintiff-Respondent,
                                   v.
                    JARROD TOLMAN SCOTT,
                        Defendant-Appellant.
                   Tillamook County Circuit Court
                        16CR33746; A167219
                                   

     Defendant appeals from a judgment of conviction for fleeing or attempting
to elude a police officer and another crime. Defendant argues that the trial court
erred by refusing to provide the jury an instruction defining “intentionally” with
respect to the attempting to elude charge and by imposing $604 in attorney fees.
Held: Because the applicable mental state for fleeing or attempting to elude a
police officer is “knowing,” defendant was not entitled to a jury instruction defining an alternative and inapplicable mental state. Therefore, the court did not
err by refusing to issue defendant’s requested instruction. With respect to the
imposition of attorney fees, the trial court erred by considering money posted as
security by defendant’s mother as a financial resource of defendant, and, therefore, did not make the required factual finding of defendant’s ability to pay attorney fees.
    Portion of judgment requiring defendant to pay attorney fees reversed; otherwise affirmed.



    Jonathan R. Hill, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and John P. Evans, Deputy Public Defender, Office
of Public Defense Services, filed the briefs for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Joanna Hershey, Assistant Attorney
General, filed the brief for respondent.
  Before Lagesen, Presiding Judge, and Egan, Chief Judge,
and Powers, Judge.
    POWERS, J.
   Portion of judgment requiring defendant to pay attorney
fees reversed; otherwise affirmed.
176                                                             State v. Scott

         POWERS, J.
         In this criminal proceeding, a jury unanimously
found defendant guilty of one count of fleeing or attempting to elude a police officer, ORS 811.540, and one count of
resisting arrest, ORS 162.315. On appeal, defendant claims
that the trial court erred by refusing to provide the jury
an instruction regarding the meaning of “intentionally”
in connection with the attempting to elude a police officer
charge, by imposing $604 in attorney fees, and by instructing the jury that it could return nonunanimous verdicts.
Defendant’s argument concerning the nonunanimous jury
instruction was foreclosed by the Oregon Supreme Court and
for the reasons expressed in State v. Ciraulo, we reject that
argument without further discussion. 

, 

 (2020) (concluding that, although a jury instruction
permitting nonunanimous verdicts was erroneous, the error
was harmless beyond a reasonable doubt because all of the
jury’s verdicts were unanimous).1 For the reasons described
below, we conclude that the trial court did not err in refusing to provide the “intentionally” instruction, but impermissibly assessed $604 in attorney fees; therefore, we reverse
that portion of the judgment, but otherwise affirm.
         In his first assignment of error, defendant asserts
that the trial court committed reversible error by failing to
instruct the jury on the definition of “intentionally” in the
context of the attempt to elude charge. The statute defining
the offense provides:
       “(1) A person commits the crime of fleeing or attempting to elude a police officer if:
        “(a) The person is operating a motor vehicle; and
       “(b) A police officer who is in uniform and prominently
    displaying the police officer’s badge of office or operating a
    vehicle appropriately marked showing it to be an official
    police vehicle gives a visual or audible signal to bring the

    1
      Although not raised by the circumstances presented in this case, it is worth
observing out of a sense of completeness that certain nonunanimous verdicts are
permitted—indeed, a trial court must so instruct the jury—under Oregon law.
See State v. Ross, 

, 

 (2021) (concluding that a trial
court is required “to instruct the jury that Oregon law requires a unanimous
guilty verdict for all charges and permits a not-guilty verdict by a vote of 11-to-1
or 10-to-2”).
Cite as 

 (2021)                                                  177

    vehicle to a stop, including any signal by hand, voice, emergency light or siren, and …:
        “(A) The person, while still in the vehicle, knowingly
    flees or attempts to elude a pursuing police officer[.]”
ORS 811.540. Although the phrase “attempts to elude” is not
defined by statute, we held that in that context that phrase
means “to attempt to escape the notice or perception of.” State
v. Cave, 

, 

 (2008), rev den, 

 (2009). Defendant’s argument on appeal focuses on
the language of the statute and the potential difference in
culpable mental states for “flees” or “attempts to elude.” In
short, he argues that “knowingly” is the applicable mental
state for “flees” and that, because a culpable mental state
is omitted from “attempt to elude,” the intentional mental
state that applies to all criminalized attempts applies here
too. That is, under defendant’s argument, to be found guilty
of attempting to elude, the state had to prove that it was his
“conscious objective to elude police officers.”
         We recently addressed and rejected the same argument in State v. Rapp, 

, 

, rev den,

 (2020), which was decided after briefing in this
was completed and the case was under advisement. In Rapp,
the defendant was charged with attempting to elude a police
officer after continuing to drive at a high rate of speed after
police pulled in behind him and then the defendant “ ‘blew
right through an intersection,’ made a turn, went through a
stop sign, and then pulled into the driveway of his house.”
Id. at 267. At trial, the defendant requested a separate jury
instruction on what he defined as the offense of attempting
to elude a police officer with the intentional mental state.2

    2
     The defendant requested the following instruction:
       “A person attempts to elude a police officer when he intentionally engages
   in conduct that constitutes a substantial step toward the commission of that
   crime.
       “…
       “In this case, to establish the crime of attempting to elude a police officer,
   the state must prove beyond a reasonable doubt the following elements:
       “…
       “(4) [Defendant], while still in the vehicle, intentionally attempted to
   elude a pursuing police officer.”
Rapp, 

.
178                                                              State v. Scott

. The state argued that attempting to elude was
itself the substantive crime, not an inchoate crime involving
a substantial step toward a separate substantive offense. As
such, the state maintained that it was not required to prove
an intentional mental state for attempting to elude. 

.
          We concluded that the plain text of ORS 811.540(1)
defines the single crime of “fleeing or attempting to elude
a police officer.” 

. The statute specifies the mental state of knowing, and neither the text nor context of the
statute suggests that the legislature meant to borrow the
intentional mental state from the attempted crime statute
for application to the “attempts to elude” portion of the statute.3 

 In rejecting the defendant’s argument, we held that
the culpable mental state that applies to attempts to elude
is exactly the one the statute prescribes: “knowingly.”
         In this case, defendant’s argument, to the extent
it is any different from that in Rapp, must similarly fail
because it too requires application of the intentional mental state from ORS 161.405 to the attempt to elude charge
under ORS 811.540. Even viewing the evidence in the light
most favorable to defendant, as the party requesting the
intentional instruction, it was not legal error to refuse to
give such instruction. See State v. Payne, 

,
     3
       Another way to view the distinction between what is criminalized in the
context of ORS 811.540(1) and the criminal attempt statute, ORS 161.405, is to
consider what precisely is being prohibited. In this case, like in Rapp, defendant
asks us to read ORS 811.540(1) as prohibiting a result, viz., eluding police. Attempt
then, read in that context, would carry the legal meaning of ORS 161.405, which
requires a person “intentionally engage in conduct which constitutes a substantial step toward commission of the crime.” But as we noted, ORS 811.540(1) is
not susceptible to that kind of parsing because what the legislature prohibited
is the act of trying to get away, not the result of actually getting away. See Rapp,

 (equating the criminal conduct of attempting to elude with
the act of running and hiding from police). Indeed, the legislature did not create
a framework in which the offense of actually eluding police and attempting to
elude are separately punishable. That is, whether a defendant, still in the vehicle, knowingly flees or attempts to elude a police officer, the crime is classified
as a Class C felony in either instance. ORS 811.540(3)(a). The difference in punishment between attempting to elude and any other inchoate crime under the
criminal attempt statute lends additional force to the conclusion that the general
framework of attempts and, thus, the requisite mental state, intentionally, does
not apply to the conduct proscribed in the fleeing or attempting to elude statute.
Compare ORS 811.540(3) with ORS 161.405(2) (attempt, as criminalized under
ORS 161.405 is classified as one class less serious than the completed crime).
Cite as 

 (2021)                                       179

 (2020) (stating that appellate review of refusal
to give a requested jury instruction is reviewed for errors of
law, not abuse of discretion). Because ORS 811.540(1)(b)(A)
criminalizes knowing attempts to elude a pursuing police
officer, defendant was not entitled to an instruction for the
intentional mental state with respect to that charge.
         Defendant’s second assignment of error challenges
the trial court’s imposition of $604 in court-appointed attorney fees, which he maintains was not based on a specific
finding on the record that he was able to pay the fee. The
trial court determined that the $3,000 security deposit
defendant’s mother posted was a financial resource of defendant and therefore that he had ability to pay.
         During the sentencing hearing, defendant testified that he hoped to be able to find a job so that he could
pay his mother back the money she had borrowed to pay
for the security deposit. Sentencing was concluded a month
later, and the trial court believed defendant was unable to
pay attorney fees until the court clerk reminded the court
about the security deposit. The following exchange occurred
between the court and the court clerk:
      “The Court: Sir, we are not being negative, but I don’t
   think you have the ability on this record to pay court
   appointed attorney’s fees.
       “Court Clerk: He has $3,000 posted.
      “The Court: Oh the—okay. So based on that, sir, I
   would need to order court appointed attorney’s fees in the
   amount of $604. And a fine of $100. The remainder would
   be sent back to the person posting it. And 15 percent would
   not be waived.” 4
         After this exchange, the record is devoid of any further discussion of attorney fees, and defendant did not object
when the court announced the fees. Defendant concedes
that this assignment of error is unpreserved, but requests
that we review it as one of plain error.
        An unpreserved error is reviewable as plain error
when (1) the error is one of law; (2) the legal point is obvious,
   4
     Almost immediately after this exchange, the court determined that it
would not impose the $100 fine.
180                                                  State v. Scott

meaning it is not reasonably in dispute; and (3) to “reach the
error, we need not go outside the record or choose between
competing inferences to find it.” State v. Nickerson, 

, 

 (2015). If, based on those predicates, we conclude the error is plain, we must then determine whether to exercise our discretion to correct it. 

Among the prudential factors we weigh when considering
whether to correct a plain error are:
   “the competing interests of the parties; the nature of the
   case; the gravity of the error; the ends of justice in the particular case; how the error came to the court’s attention;
   and whether the policies behind the general rule requiring preservation of error have been served in the case in
   another way[.]”
Ailes v. Portland Meadows, Inc., 

, 382 n 6, 

 (1991).
        The Supreme Court’s recent decision in State v.
Morales, 

, 

 (2020), is dispositive on
whether the claimed error in this case is plain. See State v.
Jury, 

, 

 (2002), rev den, 

 (2003) (explaining that we determine error based on
the law as it existed at the time of the appellate decision,
not at the time of the disputed ruling, and acknowledging the “ostensibly incongruous results” by that approach).
In Morales, which was also decided while this appeal was
pending, the court explained that the longstanding presumption that any funds deposited as bail or security by a
third party were presumed to belong to the defendant was
wrong because it did not give full effect to a 1979 amendment enacted by the legislature. 367 Or at 231. Absent
that presumption, the court concluded that, when a nonspouse third party posts security for the benefit of a defendant, the security funds cannot be considered when determining a defendant’s ability to pay attorney fees unless the
record demonstrates that the deposit carried a donative intent
or was actually of the defendant’s own money. Id. at 234.
        In this case, the record demonstrates that defendant’s mother posted the security deposit, that she herself
was on disability insurance and had been required to borrow the money to deposit for security, and that defendant
Cite as 

 (2021)                             181

hoped to find a job to “be able to pay my mother back the
money she borrowed for me so that I could pay for my bail.”
Accordingly, we cannot conclude that defendant’s mother
made the deposit with donative intent or deposited money
that she was holding for defendant. Applying Morales, we
conclude that the trial court plainly erred when it considered the security deposit as part of defendant’s ability to pay
attorney fees.
         Turning to the prudential considerations informing
our exercise of discretion to correct the error, we conclude
that these factors weigh in favor of correcting the error.
First, we find the erroneous imposition of attorney fees to
be sufficiently grave. In this case, defendant’s sole source of
income was social security disability, and the record does
not establish any history of employment to conclude that he
would be able to work. These facts are analogous to those
where we concluded imposition of $510 in attorney fees to
be sufficiently grave where the record contained no evidence
that the defendant has another source of income or that the
defendant has, or will, have the capacity to pay the fees.
See State v. Hunt, 

, 

 (2015);
see also State v. Housego, 

, 

(2016) (concluding that $360 in erroneous attorney fees was
sufficiently grave to exercise discretion to correct the plain
error when the record demonstrated that at the time of sentencing, the defendant “was living in his car, his girlfriend
was pregnant, and his prospects for employment were completely unknown” given his prior convictions). The state’s
argument in this case focuses solely on the availability of
funds from the security deposit as sufficient evidence to
establish ability to pay and does not contend that there were
any other means to support an ability-to-pay determination,
such as employment history that would allow an inference
of his ability to work while on probation. See Housego, 

.
        Moreover, even if defendant had objected to assessing attorney fees based on the security deposit made by his
mother, at that point we had been applying the presumption that funds deposited by third parties for bail belonged
to a defendant. See Morales, 

. Thus, even if
defendant had objected, the trial court likely would have
182                                             State v. Scott

concluded under then-existing law that the funds belonged
to him, and therefore were correctly considered as part of
his ability to pay attorney fees. It is only because of the
subsequent clarification in Morales that we now know the
presumption was eradicated by the legislature in 1979 and
that to use third-party deposits as evidence of ability to
pay attorney fees that the state must demonstrate donative
intent or that the funds were a defendant’s in the first place.

.
         Finally, we repeatedly have exercised our discretion to correct the erroneous imposition of attorney fees in a
plain-error posture. See, e.g., State v. Johnson, 

, 

 (2017) (exercising discretion to reverse
$322 in attorney fees); State v. Brockway, 

,

 (2017) (exercising discretion to reverse $200 in
attorney fees); State v. Ramirez-Hernandez, 

,

 (2014) (exercising discretion to reverse $400
in attorney fees); and State v. Coverstone, 

, 

 (2014) (weighing the prudential factors
and exercising discretion to reverse erroneous imposition of
$8,000 in attorney fees).
         In short, considering defendant’s circumstances—
including the source of his income, lack of evidence of
employment history, and the amount of fees imposed, balanced against the policy considerations that normally
require preservation—we conclude that it is appropriate to
exercise our discretion to correct the erroneous imposition of
attorney fees.
        Portion of judgment requiring defendant to pay
attorney fees reversed; otherwise affirmed.