State v. Logan

                                         72

Argued and submitted August 9, 2019; affirmed August 18; on appellant’s motion to
 dismiss appeal and motion to vacate judgment filed September 8, decision vacated
as moot, judgment of conviction vacated, appeal dismissed as moot October 13, 2021
                    See 

, 

 (2021)


                        STATE OF OREGON,
                         Plaintiff-Respondent,
                                   v.
                       TED EDWARD LOGAN,
                         Defendant-Appellant.
                      Curry County Circuit Court
                        17CR45539; A166946
                                      

     Defendant appeals from a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010, and raises three assignments of error
focused on whether he drove on “premises open to the public” when he was driving
on a gravel bar along the Chetco River. Because there was a sign at the entrance of
the gravel bar that put visitors on notice that the bar was closed after 10:00 p.m.,
defendant contends that there was insufficient evidence that he drove on premises
open to the public. His first assignment of error challenges the trial court’s denial
of his motion for judgment of acquittal. In his second and third assignments of
error, defendant asserts that the trial court erred in rejecting his requested special jury instruction and in issuing the state’s requested special jury instruction.
Held: Because a rational juror could find that the gravel bar constituted premises
open to the public for purposes of the DUII charge, the trial court did not err in
denying defendant’s motion for judgment of acquittal. Although there was a sign that
notified the public that the bar was closed when defendant was driving, the bar was
nonetheless accessible, and members of the public were not prevented from entering
and exiting the gravel bar. Further, the trial court did not err in issuing the state’s
requested special jury instruction and rejecting defendant’s requested instruction.
    Affirmed.


   Cynthia Lynnae Beaman, Judge.
   Rond Chananudech argued the cause for appellant. Also
on the brief was Ernest G. Lannet, Chief Defender, Criminal
Appellate Section, Office of Public Defense Services.
   Colm Moore 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 Powers, Judge, and
Kistler, Senior Judge.
   POWERS, J.
   Affirmed.
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        POWERS, J.
         In this criminal case, defendant appeals from a
judgment of conviction for driving under the influence of
intoxicants (DUII), ORS 813.010, and raises three assignments of error focused on whether he drove on “premises
open to the public.” His first assignment of error challenges
the trial court’s denial of his motion for judgment of acquittal. In his second and third assignments of error, defendant
asserts that the trial court erred in rejecting his requested
special jury instruction and in issuing the state’s requested
special jury instruction. For the reasons explained below,
we conclude that the trial court did not err and affirm.
         We begin with defendant’s first assignment of error
challenging the trial court’s denial of his motion for judgment of acquittal. In reviewing the denial of a motion for
judgment of acquittal, we view the facts in the light most
favorable to the state and evaluate whether a rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt. State v. Cunningham, 

, 

 (1994), cert den, 

 (1995).
         Just outside of Brookings, there is a large gravel
bar along the northside of the Chetco River that is around a
tenth of a mile long; it is known as the Social Security Bar.
Used for various recreational purposes, including fishing,
bonfires, camping, and other social gatherings, the Social
Security Bar is accessible by car from a paved parking lot.
The Oregon Department of State Lands owns the gravel
bar and there is only one entrance to it, which is the same
place that visitors exit. The gravel bar is open to the public,
but closed between 10:00 p.m. and 5:00 a.m., and there is
a sign at the entrance informing visitors when the bar is
closed. There is no gate or barrier preventing access to the
bar when it is closed. After the gravel bar closes at night,
law enforcement generally clear out people who are still congregating; however, people occasionally camp on the bar and
law enforcement sometimes let people stay there overnight.
        On a summer night in 2017 around 11:00 p.m., Curry
County Sheriff’s Deputy Warren saw defendant driving a
truck on the gravel bar. Although the bar was closed, there
were roughly 12-15 people still on the bar approximately
74                                              State v. Logan

100 yards from defendant. Warren asked defendant for his
license and noticed that defendant had slurred speech, red
eyes, and a strong odor of alcohol coming from his breath.
Defendant said that he was visiting friends on the bar and
was headed home. Warren conducted field sobriety tests,
during which defendant exhibited signs of intoxication;
defendant also admitted to drinking six to eight cans of
beer that night. Eventually, Warren arrested defendant for
DUII, and a breath test later revealed a .16 percent blood
alcohol content.
         The state charged defendant by district attorney
information with driving a vehicle “upon premises open to
the public” while under the influence of intoxicants. ORS
813.010. The Oregon Vehicle Code defines “premises open
to the public” to include “any premises open to the general
public for the use of motor vehicles, whether the premises are publicly or privately owned and whether or not a
fee is charged for the use of the premises.” ORS 801.400.
Ultimately, the determination of whether property is open
to the public is a question of fact for the factfinder. State v.
Scott, 

, 

 (1982).
         At trial, the parties disputed whether the gravel
bar constituted premises open to the public as defined by
ORS 801.400. See State v. Romanov, 

,

 (2006), rev den, 

 (2007) (explaining that “the offense of DUII is not applicable on premises
not open to the public for the use of motor vehicles” (emphases omitted)). After the state rested, defendant moved for
a judgment of acquittal, arguing that the Social Security
Bar, where Warren saw defendant driving, was not a “premises open to the public” because the bar was closed. That is,
because the sign at the entrance of the bar put visitors on
notice that the bar was closed after 10:00 p.m., defendant
contended that there was insufficient evidence for a rational
juror to find that he drove on a premises open to the public.
The court denied the motion.
         On appeal, defendant renews his argument, asserting that the trial court erred in denying his motion because
all members of the public are prohibited from using the bar
at the time that defendant drove on the bar. In defendant’s
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view, because the bar was closed to the public during the
time that defendant was driving, it could not qualify as a
premises open to the public for purposes of DUII. The state
asserts that “[e]vidence that premises are accessible to the
public and actually used by the public is sufficient to allow
a factfinder to find that the premises is open to the public.”
In the state’s view, a rational factfinder could conclude that,
“after the posted closing time, the public had access to the
gravel bar and were actually allowed to use it.” We conclude
that the trial court correctly denied defendant’s motion.
          In resolving the dispute, we begin by noting that
the Supreme Court has explained that the primary purpose of the statutory phrase “premises open to the public”
is to “enlarge the zone of statutory protection of the public for Class A traffic offenses from public highways to nonhighway locations that are open to the general public for use
of motor vehicles.” State v. Mulder, 

, 

 (1981) (interpreting the statutory predecessor to ORS
801.400 (internal quotation marks omitted)). That phrase
also served to “extend the protection of the statute to all
parking lots which share similar characteristics of public
access and exposure to danger from such improper driving
of motor vehicles.” 

. When evaluating the question
whether premises are open to the public, we have emphasized that the “focus of the inquiry is … the actual use
of the premises and its accessibility to the general public.”
Scott, 

 (emphasis omitted).
         Our discussion in State v. Sterling, 

, 

 (2004), is instructive. In Sterling, we
considered whether a driveway qualified as premises open
to the public:
   “The driveway ran past [the defendant’s brother’s] house
   and terminated in a dead end in front of another house.
   At its other end, the driveway connected to a private road
   winding through a condominium complex, which [the] road
   itself ultimately connected to a public road.”

. After reviewing various cases, we distilled the following guidance:
   “[T]he cases construing the term ‘premises open to the public’ teach that the phrase should be defined so as to achieve
76                                                  State v. Logan

     its primary purpose, which is to protect members of the
     public from serious driving offenses; that signs discouraging the public from entering do not necessarily close premises to the public; that the absence of a physical barrier,
     although not itself sufficient to prove openness to the public, is strong evidence to that effect; and that the key evidentiary fact the state has to prove is that members of the
     public, including those with a legitimate business purpose,
     such as garbage collectors, meter readers and paper carriers, are allowed on the premises.”

 (internal quotation marks and citation omitted). Thus, in Sterling we concluded that the evidence presented at trial was sufficient for a rational juror to find that
the premises were open to the public. 

. We reasoned that, notwithstanding a “tenants only” sign posted in
the condominium complex, there were no “physical barriers
such as a fence or a wall limiting access.” 

 Further, there
was testimony that service vehicles used the private road
through the condominium complex and the jury could infer
that those vehicles also used the driveway.
        Applying those same principles here, and giving the
state the benefit of all reasonable inferences, we conclude
that a rational juror could find that the Social Security
Bar constituted premises open to the public for purposes of
the DUII charge. The bar is publicly owned by the State
of Oregon and, like the property in Sterling, had no physical barriers preventing entry. Although there was a sign
announcing that the bar was not “open” for visitors between
10:00 p.m. and 5:00 a.m., that does not conclusively answer
the question whether the premises are accessible by the
public. See Scott, 

 (“Although defendant
presented evidence that the intention of the condominium
owners was to restrict public access, the evidence was that
the actual use of the streets did include the general public
and that access to the premises was not effectively or systemically restricted.”). Here, although the bar was closed,
it was accessible, and members of the public were not prevented from entering and exiting the gravel bar.
         Moreover, there is evidence in the record that members of the public were often on the premises after 10:00 p.m.
or when the bar was not “open” to visitors. When defendant
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was arrested, there were roughly 12-15 people still on the
bar. Further, when officers would clear gatherers from the
bar, it would often be after 10:00 p.m., and there was evidence that law enforcement would occasionally let campers
stay overnight on the bar. Thus, although the bar was closed
for visitors at times, there was evidence of actual use and
accessibility by the public during those times. Accordingly,
because a rational juror could find that the gravel bar constitutes premises open to the public, the court did not err in
denying defendant’s motion for judgment of acquittal.
          Defendant’s final two assignments of error relate to
the trial court’s decision to use the state’s requested special jury instruction over defendant’s proffered special jury
instruction. We review the trial court’s ruling for legal error
and, in assessing whether there was reversible error, we
look to other instructions given and the parties’ contentions
at trial. State v. Bistrika, 

, 

, rev den, 

 (2014), cert den, 

 (2015)
(internal quotation marks and citation omitted). As we have
previously explained, “[i]nstructional error exists where the
instructions give the jury an incomplete and thus inaccurate legal rule to apply to the facts, or where the instructions insert an irrelevant issue into the jury’s deliberations
concerning a material issue[.]” Id. at 728 (internal quotation
marks and citation omitted).
         The parties offered different special jury instructions regarding what it means to drive on premises open
to the public, and the court gave the state’s instruction and
declined to give defendant’s instruction.1 On appeal, defendant contends that the state’s instruction did not adequately
inform the jury that it was the state’s burden to prove that
the premises were open to the public “at the time that defendant drove his car.” (Emphasis omitted.) We disagree. The
state’s instruction explained that the term “premises open
    1
      The state’s instruction was an excerpt from our opinion in Sterling, 

. We take this opportunity to note, again, that there is risk inherent in “using wording from opinions as jury instructions and, in particular, [in]
crafting a jury instruction from statements in a case intended to describe why
particular evidence was sufficient.” State v. Morales, 

, 285 n 4, 

 (2020) (citing Rogers v. Meridian Park Hospital, 

, 

 (1989)).
78                                            State v. Logan

to the public” includes “any premises which at the time of
the allegation charged herein, was open to the general public for the use of motor vehicles.” Thus, the instruction that
the court gave adequately informed the jury that the state
had to prove that the premises were open to the public when
defendant drove his car.
         Finally, defendant also assigns error to the court’s
refusal to deliver his instruction, but his argument is the
same as his argument against the state’s instruction, viz.,
that his instruction properly defined “premises open to
the public” and the state’s proposed instruction did not.
Having concluded that the state’s instruction adequately
covered that concept, we reject defendant’s contention that
the trial court erred by using the state’s instruction instead
of his. See State v. Ashkins, 

, 

(2015) (explaining that a trial court is not required to give
a requested instruction if another instruction adequately
addresses the issue); see also State v. Tucker, 

, 

 (1993) (“It is not error for a trial court
to refuse to give a requested instruction if the instruction
given by the court, although not in the form requested, adequately covers the subject of the requested instruction.”).
        Affirmed.