State v. Wampler

                                       722

Argued and submitted September 14, 2022; in Case No. 18CR60267, convictions
 on Counts 7, 15, and 24 reversed and remanded, remanded for resentencing,
otherwise affirmed, in Case No. 19CR10804, remanded for resentencing, otherwise affirmed May 3, 2023


                        STATE OF OREGON,
                         Plaintiff-Respondent,
                                   v.
                       HOMER R. WAMPLER,
                         Defendant-Appellant.
                     Lincoln County Circuit Court
                       18CR60267, 19CR10804;
                      A172453 (Control), A172454
                                   

     Defendant was convicted of a variety of offenses related to supplying methamphetamine to a 15-year-old girl in exchange for sexual acts. He appeals from
two judgments of conviction and in his first three assignments of error challenges
(1) the denial of his motion to suppress evidence after he was stopped in his car
by an officer without reasonable suspicion, (2) the denial of his motion to suppress
evidence obtained in violation of his Miranda rights, and (3) the acceptance of
nonunanimous verdicts for one count each of luring a minor, ORS 167.057; rape
in the third degree, ORS 163.355; and tampering with a witness, ORS 162.285.
Held: The Court of Appeals concluded that, in light of the totality of the circumstances, it was objectively reasonable for the officer to suspect that defendant
was trespassing. The court also determined that the stop was not unlawfully
extended because the officer developed reasonable suspicion of unlawful sexual activity and unlawful drug activity. The court rejected defendant’s second
assignment of error because the record indicated that, assuming there was a
Miranda violation, any error was harmless. Finally, the court accepted the state’s
concession that the acceptance of nonunanimous jury verdicts on three counts
was error.
   In Case No. 18CR60267, convictions on Counts 7, 15, and 24 reversed
and remanded; remanded for resentencing; otherwise affirmed. In Case No.
19CR10804, remanded for resentencing; otherwise affirmed.



    Sheryl Bachart, Judge.
   Mary M. Reese, 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.
   Rolf Moan, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Cite as 

 (2023)                       723

  Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
  KAMINS, J.
   In Case No. 18CR60267, convictions on Counts 7, 15,
and 24 reversed and remanded; remanded for resentencing;
otherwise affirmed. In Case No. 19CR10804, remanded for
resentencing; otherwise affirmed.
724                                                         State v. Wampler

           KAMINS, J.
          Defendant was convicted of a variety of offenses
related to supplying methamphetamine to his son’s 15-year-old girlfriend in exchange for sexual acts. He was charged in
two separate cases that were consolidated for a jury trial. He
now appeals from the judgment in each of those cases, raising eight assignments of error as well as several pro se supplemental assignments of error. We write to address defendant’s first, second, and third assignments of error. Those
assignments challenge (1) the denial of defendant’s motion
to suppress evidence after he was stopped in his van by an
officer, (2) the denial of his motion to suppress evidence that
he asserts was obtained in violation of his Miranda rights,
and (3) the court’s acceptance of nonunanimous verdicts on
Count 7, luring a minor, ORS 167.057; Count 15, rape in the
third degree, ORS 163.355; and Count 24, tampering with
a witness, ORS 162.285. We reverse and remand the convictions on Counts 7, 15, and 24 in Case No. 18CR60267,
remand for resentencing, and otherwise affirm. In Case
No. 19CR10804 we remand for resentencing, and otherwise
affirm.1
    1
       Defendant’s fourth, fifth, and sixth assignments of error assert that the
trial court erred when it denied his motions for judgment of acquittal on Counts
3 and 7, luring a minor, ORS 167.057, and Count 6, online sexual corruption of a
child in the first degree, ORS 163.433, which we reject because we conclude that
the evidence is sufficient
     With regard to defendant’s pro se assignments of error, his arguments concerning the constitutionality of the police encounter are addressed in this opinion; his argument challenging the effectiveness of counsel is not appropriate
for direct appeal, see, e.g., State v. Rhodes, 

, 319 n 1, 

, rev den, 

 (2021) (“Ineffective assistance of counsel claims must
be raised and resolved under the post-conviction relief procedure established by
statute in Oregon and not on direct appeal.”); we cannot assess his allegations
that the district attorney made inappropriate comments during voir dire because
he did not designate the record of that proceeding as part of the record on appeal,
Hersey v. Leon, 

, 

 (2021) (appellant’s failure to
designate the relevant portion of the record as part of the record on appeal renders that assignment of error unreviewable); with regard to his assertion that
the trial court made inappropriate comments as to his guilt, after reviewing the
record we do not find any of the statements to be improper; as to the trial court’s
denial of defendant’s request for a new attorney, we conclude that the court did
not abuse its discretion, see State v. Daley, 

, 

,
rev den, 

 (2022) (“We review a request for substitute appointed counsel
for abuse of discretion.”); and finally, we reject defendant’s contention that he was
unlawfully placed in restraints in view of the jury because there is no evidence
in the record demonstrating that the restraints were visible to the jury, and the
Cite as 

 (2023)                                               725

          At approximately 8:55 p.m. while driving along
Highway 101 as the sun was setting and it was getting dark,
Deputy Parsons saw a minivan parked approximately 200
meters—i.e., over 650 feet—away from the public highway
on a narrow gravel road, beyond a large gravel pullout. The
van was backed up to a logging gate with its engine and
lights off. The van was parked in such a way that it blocked
access to the gate. Parsons knew that the road was private
timber property, although he could not recall if there were
signs announcing that it was private property. Parsons also
knew that logging roads—and particularly near gates on
logging roads—are places where conduct such as trespassing, illegal camping, littering, and narcotics use, frequently
occurs.
         Parsons initially drove past the pull out, but he
turned around, and about five minutes later, he approached
the van. There were no other public roads or otherwise accessible areas that connected to the part of the logging road
where the vehicle was parked. When Parsons approached
the van he saw defendant, a middle-aged man, in the vehicle
with a teenage girl, S. Parsons initiated that stop because
he believed that defendant’s presence on a privately owned
logging road amounted to criminal trespass. ORS 164.245.
         Upon approaching the van, Parsons attempted to
speak with defendant, who was in the driver’s seat of the
van, through the closed driver side door. Because Parsons
had difficulty understanding what defendant was saying through the closed door and window, Parsons asked if
he could open the door to the van, and defendant agreed.
After he opened the van’s door, a “bubbler”—which Parsons
described as looking “just like a makeshift drug smoking
device”—became visible to Parsons, as it was hanging from
the left side of defendant’s steering wheel. Parsons proceeded to ask for defendant’s and S’s names and dates of
birth, about the nature of their relationship, and the reason for their presence at that location. As a result of those

record supports the trial court’s finding that defendant posed a risk of dangerous or disruptive behavior, see State v. Wall, 

, 

(2012), rev den, 

 (2013) (“A trial judge has the discretion to order the
shackling of a defendant if there is evidence of an immediate and serious risk of
dangerous or disruptive behavior.” (Internal quotation marks omitted.)).
726                                        State v. Wampler

questions, Parsons discovered that S was 15, alone with the
38-year-old father of her boyfriend, and that their explanation for being parked on the logging road blocking access to
the gate was that they were turning around. That explanation did not make sense to Parsons in light of the fact that
there was a large gravel pullout immediately adjacent to
Highway 101, and the car had its engine and lights off and
had been there for several minutes.
        Parsons continued investigating, asking questions
related to his suspicion that their presence on the logging
road was, in fact, for the purpose of unlawful drug use and
unlawful sexual activity. Early on in that investigation, having observed the “makeshift drug smoking device,” Parsons
requested that an officer with a drug-detection dog come to
the scene in order to do a “dog sniff around the vehicle.”
         Parsons ultimately asked for and received consent to search the vehicle before other officers arrived on
the scene. When defendant exited the vehicle, Parsons conducted a patdown and found a vibrator and a “cut straw,”
which later tested positive for methamphetamine. Over the
course of his search of the car, Parsons found defendant’s
phone and removed the makeshift drug smoking device.
After that encounter and additional police investigation, the
state alleged that defendant had engaged in an unlawful
sexual relationship with S, which involved supplying S with
methamphetamine in exchange for sex. Defendant was convicted of a variety of offenses stemming from that conduct.
         In his first assignment of error, defendant contends
that the trial court erred in denying his motion to suppress
evidence obtained as a result of Parsons’s encounter with
defendant, because Parsons did not have reasonable suspicion to support the initial stop and, in the alternative, that
Parsons unlawfully extended the stop. We review a trial
court’s denial of a motion to suppress for legal error, and
we are bound by the trial court’s factual findings if there is
constitutionally sufficient evidence in the record to support
them. State v. Maciel-Figueroa, 

, 

 (2017). If the trial court did not make express findings
of fact on a pertinent issue and there is evidence from which
those facts could be decided more than one way, we presume
Cite as 

 (2023)                                              727

that the court found the facts in a manner consistent with
its ultimate conclusion. State v. Sjogren, 

, 

 (2015).
          Under Article I, section 9, of the Oregon Constitution,
we must determine if the stop was justified by “reasonable
suspicion of criminal activity.” State v. Rodgers/Kirkeby,

, 

 (2010). “Reasonable suspicion has a subjective and an objective component: an officer has reasonable suspicion when the officer subjectively
believes that the person has committed a crime and that
belief is objectively reasonable in light of the totality of the
circumstances.” State v. Moore, 

, 

 (2014). To be objectively reasonable, an officer’s suspicion must be based on specific and articulable facts. State v.
Musser, 

, 

 (2012), aff’d, 

, 

 (2014). Reasonable suspicion does not
require that the articulable facts as observed by the officer
conclusively indicate illegal activity but, rather, only that
the facts support the reasonable inference that the person
has committed a crime. Sjogren, 

. We have
explained that “[o]verall, reasonable suspicion is a relatively
low barrier,” and the reasonable suspicion standard includes
“a proper regard for the experience that police officers bring
with them when they encounter criminal suspects.” State v.
Roberts, 

, 

 (2020), rev den,

 (2021) (citations and internal quotation marks
omitted).
          The trial court concluded that defendant was stopped
when Parsons parked and approached defendant’s van,
and that the stop was lawful, because Parsons had reasonable suspicion of criminal trespass.2 “A person commits
the crime of criminal trespass in the second degree if the
person enters or remains unlawfully … in or upon premises.” ORS 164.245(1). As relevant to this case, the phrase
 “[e]nter or remain unlawfully” is defined by ORS 164.205(3)(a)
as “[t]o enter or remain in or upon premises when the premises, at the time of such entry or remaining, are not open to

    2
      The parties do not take issue with the trial court’s conclusion that defendant was stopped when Parsons approached the van, and so we assume without
deciding that that conclusion was correct.
728                                         State v. Wampler

the public and when the entrant is not otherwise licensed
or privileged to do so[.]” ORS 164.205(4) provides that
“ ‘[o]pen to the public’ means premises which by their physical nature, function, custom, usage, notice or lack thereof or
other circumstances at the time would cause a reasonable
person to believe that no permission to enter or remain is
required.” “[P]roperty is open to the public—and not subject
to criminal trespass—when some characteristic of the property objectively would cause a reasonable person to believe
that he or she is free to enter or remain on the property
without permission, even if the owner intends the property
to be private and requires permission to be there.” Moore,

.
          The question before us is whether it was objectively
reasonable for Parsons to suspect that defendant was trespassing, given “the totality of the circumstances existing at
the time and place.” ORS 131.605(6). To answer that question, we must determine whether the circumstances were
such that a reasonable person in defendant’s position would
have thought they needed permission to remain in that location. See ORS 164.205(4) (“[o]pen to the public” means that
something about the premises “would cause a reasonable
person to believe that no permission to enter or remain is
required”); see also Moore, 

 (criminal trespass requires that “the physical nature, function, custom,
or usage of property—or notice or lack of notice connected
to the property—would cause a reasonable person to believe
that … permission to enter or remain on the property is
required”).
         We conclude that, in light of the totality of the circumstances, it was objectively reasonable for Parsons to suspect that defendant was trespassing. It was nearly 9:00 p.m.,
the road was narrow and unpaved, and there was a closed
gate to which defendant’s van was blocking access. The gate
and defendant’s van were about 650 feet from the highway,
and the part of the road where defendant’s van was parked
did not connect to any public areas or roads (other than the
highway). Cf. Moore, 

 (location of vehicle
would not support reasonable belief that defendant was trespassing where vehicle was parked on the shoulder of and
“immediately adjacent” to a paved, public road).
Cite as 

 (2023)                             729

          Our decision in Sjogren is instructive. In that case,
the defendant, who was not a tribal member or employee, was
in a parked vehicle on a large, tribally owned gravel pull-out
area, edged by forest where people would sometimes shoot
guns and dump trash, and there was a “No Trespassing”
sign high in a tree in the forest area, visible from the pull
out. Sjogren, 

. We observed that nothing
in the record indicated that the pull-out area “was different
from other road shoulders or pull outs that are open to the
public.” 

. Accordingly, we concluded that, given the
characteristics of the pull out where the vehicle was parked,
“a reasonable person would have believed that the area was
open to the public, and that no permission was required to
enter or remain there.” 

         By contrast, the totality of the circumstances here
conveyed that the narrow gravel road was not open to the
public and required permission to remain. First, defendant’s
vehicle was well beyond the large gravel pull out immediately adjacent to Highway 101. Cf. 

 (explaining that
members of the public would generally understand that a
pull-out area on the side of a road is intended for vehicles
to stop and park). Additionally, that part of the road was
unpaved, much narrower, ended at the gate, and did not connect to any public areas or roads apart from the highway.
Finally, defendant was parked in front of the gate in a way
that blocked access to it. All of those circumstances combined would have communicated to a reasonable person that
the location was not open to the public and that permission
was required to remain there.
         Defendant contends that a person cannot commit
criminal trespass unless signs announce that the land is
private property. Defendant is correct that signs or fencing
can signal that permission is required to enter or remain on
premises. See ORS 164.270(1) (for criminal trespass in the
second degree, a landowner “may close the privately owned
premises … to motor-propelled vehicles by posting signs
on or near the boundaries of the closed premises at the normal points of entry”). Defendant goes one step further, however, to assert that the presence of signs is not merely part
of the inquiry as to whether a property is open to the public,
but rather a requirement. In support, defendant points to
730                                         State v. Wampler

case law outlining the rules surrounding government conduct and an individual’s protected privacy interest under
Article I, section 9. See, e.g., State v. Dixson/Digby, 

, 

 (1988) (holding that “[a] person
who wishes to preserve a constitutionally protected privacy
interest in land outside the curtilage must manifest an
intention to exclude the public by erecting barriers to entry,
such as fences, or by posting signs”).
         We reject that assertion. Cases addressing governmental infringement on the constitutional right to privacy
consider a specific question: “whether the government’s
conduct would significantly impair an individual’s interest
in freedom from scrutiny, i.e., his privacy.” State v. Carle,

, 

 (2014), rev den, 

 (2015) (internal quotation marks omitted). That is a
different legal question than the one before us now. Here,
we must determine whether Parsons had reasonable suspicion that defendant committed criminal trespass, which,
in turn, requires an examination of whether a reasonable
person in defendant’s position would have believed that they
needed permission to enter or remain. Reasonable suspicion
is determined based on a “totality of the circumstances.”
Moore, 

. Those circumstances “need not
conclusively indicate illegal activity, but, rather, need only
support the reasonable inference” that defendant was trespassing. State v. Schmitz, 

, 176-77, 

 (2019) (internal quotation marks omitted).
          Specific to criminal trespass, we must look to the
“physical nature, function, custom, or usage of [the] property” in addition to “notice or lack of notice connected to the
property.” Moore, 

. The presence of signs
indicating that property is closed to the public is a factor
to be considered in the analysis, but it is not alone determinative. To conclude otherwise would be contrary to ORS
164.205(4)’s requirement to consider a variety of factors in
determining whether a reasonable person would feel free to
enter or remain on a particular property without permission, as well as the rule that reasonable suspicion itself is
assessed based on the totality of the circumstances. See, e.g.,
Moore, 

 (an officer has reasonable suspicion if the subjective belief that the person has committed a
Cite as 

 (2023)                                               731

crime is “objectively reasonable in light of the totality of the
circumstances”).
          In the alternative, defendant contends that, even if
reasonable suspicion supported the stop, Parsons unlawfully
extended the stop with his questioning. “[A]n officer is limited to investigatory inquiries that are reasonably related to
the purpose of the traffic stop or that have an independent
constitutional justification.” State v. Arreola-Botello, 

, 

 (2019).
         The trial court determined that Parsons had reasonable suspicion of unlawful drug activity and unlawful
sexual activity, justifying further investigation. Defendant,
on the other hand, maintains that Parsons’s questions about
S’s name, age, and the nature of her relationship with defendant, as well as questions about drugs, were not justified by
the criminal trespass investigation or reasonable suspicion
of any other illegal activity.
          The trial court did not err because Parsons’s
questions were justified initially by the criminal trespass
investigation and then subsequently by reasonable suspicion of unlawful sexual activity and unlawful drug activity. Although defendant disputes that the initial questions
related to defendant’s and S’s names and dates of birth
could be related to the criminal trespass, those questions
were pertinent to that investigation because their identities
would be relevant as to whether they had permission to be
at that location.3 See State v. Watson, 

, 

 (2013) (concluding that “an officer’s determination
of a person’s identity generally is reasonably related to the
officer’s investigation of a traffic infraction”); cf. State v. Fair,

, 

 (2013) (officer inquiries in
context were reasonably necessary to determine defendant’s
identity in investigation of domestic assault).

     3
       Defendant contends that those questions could not be related to the criminal trespass investigation because Parsons testified that he never explicitly
asked defendant about the criminal trespass. However, the fact that Parsons
never specifically asked defendant about the trespass does not mean that his initial questions were not reasonably related to the criminal trespass investigation.
Additionally, Parsons testified that he asked them what they were doing at that
location because they were on private timber property, which supports the trial
court’s finding that Parsons was investigating the criminal trespass.
732                                         State v. Wampler

         The circumstances Parsons discovered based on
those initial questions—that S was 15, alone in a van with
a 38-year-old man who did not share a last name with her,
parked with the engine and lights off for around five minutes on a private logging road which did not connect to any
public areas or roads aside from the highway, approximately
200 meters—i.e., over 650 feet—away from the highway, at
nearly 9:00 p.m., as it was getting dark—gave rise to reasonable suspicion of unlawful sexual activity. In reaching
that conclusion, we note the secluded nature of the location
defendant had parked, and that defendant had parked the
furthest distance possible one could travel from the highway on the private road, suggesting that such seclusion was
desired by defendant.
         Defendant contends that, because his and S’s clothes
were not in disarray, and they were seated in the front of the
vehicle as opposed to the back, those other facts would not
give rise to reasonable suspicion of unlawful sexual activity.
However, reasonable suspicion does not require that the officer suspect that defendant has already committed a crime.
It is enough if the articulated facts give rise to a reasonable
inference that defendant was about to commit the crime. See
Maciel-Figueroa, 

 (the standard for reasonable
suspicion “requires that the articulated facts that formed
the basis for the officer’s suspicion give rise to a reasonable
inference that the defendant has committed or is about to
commit the crime that the officer suspects” (emphasis omitted)). The articulated facts met that standard.
          Parsons also developed reasonable suspicion of
drug activity. As noted, Parsons testified that individuals frequently use drugs by the gates at the end of logging
roads. Although “presence in a high drug-activity area in
itself is not adequate to give rise to reasonable suspicion,”
it nevertheless is “relevant to a determination of reasonable
suspicion of a drug-related crime.” State v. Huffman, 

, 

 (2015), rev den, 

(2016) (citations omitted). The van’s location next to a gate
at the end of a private logging road is particularly relevant
because it is a remote location where people would otherwise
not be expected. Cf. State v. Bertsch, 

, 133-
34, 

 (2012) (defendant visiting an apartment
Cite as 

 (2023)                            733

associated with drug activity did not give rise to reasonable
suspicion that defendant herself was involved in criminal
activity). Further, the presence of something that looked to
Parsons like a “makeshift drug smoking device” hanging
from the left side of defendant’s steering wheel would have
added to Parsons’s suspicion of unlawful drug activity. See
State v. Miller, 

, 

, rev den,

 (2022) (presence of an uncapped syringe and
lighter, combined with the facts that defendant was parked
crookedly in a grocery store parking lot late at night, that
he denied the syringe was for treating diabetes, his sleeve
was rolled up, and that defendant was nervous and gave
shifting and contradictory statements about the syringe
amounted to reasonable suspicion of drug possession). Those
circumstances, together with the vehicle’s location over 650
feet from the public road, parked with the engine and lights
off close to 9:00 p.m., defendant’s unconvincing explanation
for their presence on the logging road, and the fact that no
other roads or public areas were visible near the vehicle,
gave rise to reasonable suspicion of unlawful drug activity.
Cf. State v. Taylor, 

, 

 (2020)
(articulated facts in that case did not “inherently raise suspicion of criminal activity whether viewed individually or
collectively”).
          Parsons’s reasonable suspicion of defendant’s unlawful sexual relationship with S and unlawful drug activity
supported further inquiries about and request for consent
to search defendant’s vehicle for evidence of those crimes.
Therefore, the trial court did not err in concluding that
Parsons lawfully extended the stop based on reasonable
suspicion of unlawful sexual activity and unlawful drug
activity.
         Defendant’s second assignment of error pertains
to the trial court’s denial of his motion to suppress statements in violation of his constitutional right against selfincrimination. We reject that assignment of error, because
the record indicates that, assuming there was a Miranda
violation, any error was harmless. See State v. Davis, 

, 

 (2003) (“Oregon’s constitutional test
for affirmance despite error consists of a single inquiry: Is
there little likelihood that the particular error affected the
734                                                    State v. Wampler

verdict?”).4 The portion of Parsons’s body camera recording
containing defendant’s statements that would be implicated
by a Miranda violation was played once at the beginning
of defendant’s jury trial and was not the focal point of the
state’s case. See State v. Carrillo, 

, 

, rev den, 

 (2020) (how the parties used
the challenged evidence at trial is a consideration in determining whether any error in admitting that evidence was
harmless); State v. Stewart, 

, 

, rev den, 

 (2015) (explaining that for harmless error analysis “we consider the importance of the erroneously admitted evidence to a party’s theory of the case”).
Moreover, most of defendant’s statements were cumulative
of other testimony in the record. See State v. Thompson, 

, 

 (2022) (where unchallenged testimony already made clear that defendant was not being
entirely truthful or forthright, statement implicated by the
trial court’s error that could support the same inference was
cumulative); State v. Bradley, 

, 

 (2012) (“Evidence is cumulative when it demonstrates
the same thing as other admitted evidence.”). Finally, the
statements that were not cumulative of other evidence did
not relate to any material fact or element in the case and,
thus, were harmless. See State v. Black, 

,

 (2019) (explaining that an error “is less likely
to be harmless where it relates to a central factual issue in
the case”). In light of this record, we conclude that any erroneous admission of defendant’s statements would have had
little likelihood of affecting the verdict.
         Defendant’s third assignment of error challenges
the trial court’s acceptance of nonunanimous verdicts, and
the state concedes the error. We agree and accept that concession. State v. Flores Ramos, 

, 

 (2020). Accordingly, we reverse and remand defendant’s
convictions on Counts 7, 15, and 24 in Case No. 18CR60267.
       Because we must remand for resentencing, we do
not address defendant’s seventh and eighth assignments
    4
      Defendant also argues that any Miranda violation would implicate the
searches of his phone conducted by the police and defendant’s later interview
with a detective. After reviewing the record, we conclude that those arguments
are unpreserved, and we do not consider them.
Cite as 

 (2023)                            735

of error challenging the proportionality of his sentences on
Counts 19 and 20. See State v. Zolotoff, 

,

 (2015) (remand for resentencing obviated the
need to address defendant’s remaining challenges to aspects
of his sentences). We also remand Case No. 19CR10804 for
resentencing, because the cases were tried and sentenced
together. See State v. Sheikh-Nur, 

, 

, rev den, 

 (2017) (where multiple cases
were tried together, error required resentencing on all
cases).
         In Case No. 18CR60267, convictions on Counts 7,
15, and 24 reversed and remanded; remanded for resentencing; otherwise affirmed. In Case No. 19CR10804, remanded
for resentencing; otherwise affirmed.