No. 643 December 6, 2023 435
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
ANTHONY SCOT JOHNSON,
Defendant-Appellant.
Harney County Circuit Court
21CR15678; A177771
Robert S. Raschio, Judge.
Submitted October 3, 2023.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Matthew Blythe, Deputy Public Defender, Office
of Public Defense Services, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Greg Rios, Assistant Attorney
General, filed the brief for respondent.
Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
SHORR, P. J.
Conviction on Count 1 reversed and remanded; otherwise
affirmed.
436 State v. Johnson
SHORR, P. J.
Defendant appeals from a judgment of conviction
for delivery of methamphetamine, ORS 475.890 (Count 1);
interfering with a peace officer, ORS 162.247 (Count 2);
and disorderly conduct in the second degree, ORS 166.025
(Count 3). Defendant assigns error to three trial court rulings, arguing that the errors were harmful only with regard
to Count 1. In defendant’s first assignment of error, he challenges the court’s denial of his motion to suppress evidence
obtained from the door handle of his car. Defendant argues
that the court, in making its ruling, relied on the per se exigency rule for automobile searches, which has since been
rejected by the Supreme Court. In defendant’s second and
third assignments of error, he challenges the trial court’s
refusal to instruct the jury on the lesser-included inchoate
crime of attempted delivery of methamphetamine and the
court’s failure to submit that possible crime to the jury for its
consideration. Defendant argues that the court erred when
it concluded that the evidence could not support a conviction
for the inchoate crime of attempted delivery. He requests
that we reverse and remand for a new trial on Count 1, with
instructions for the court to suppress the evidence found
in the handle of his car door. The state concedes that the
court erred in all three rulings, and agrees that we should
reverse, but argues that we should remand for further proceedings on the motion to suppress so that the court can
consider other arguments it never reached. For the following
reasons, we accept the state’s concessions, reverse on Count
1, remand for further proceedings, including on the motion
to suppress, and otherwise affirm.
The facts on appeal are undisputed. Officers
responded to a 9-1-1 dispatch that described a man with a
gun going door to door in an apartment complex, arguing
with residents. When officers arrived at the apartment complex, they saw defendant’s car idling in the street and defendant walking away from the apartment complex with a gun
in his hand. As officers arrested defendant, he stated that
his friend, Josh, was being held at gunpoint in the apartment
complex and that he was there to rescue Josh. Defendant’s
phone showed that Josh texted defendant, stating that he
Nonprecedential Memo Op: 329 Or App 435 (2023) 437
was being held at gunpoint. Some officers turned their
attention away from defendant to address that new information. Defendant then asked one of the remaining officers
to turn off his idling car. When the officer approached the
car to turn it off, he saw, in plain view, a digital scale, plastic
baggies, and what the officer believed to be methamphetamine residue. The officer turned defendant’s car off and
reapproached defendant. The officer asked defendant some
questions, then returned to the car to conduct a more thorough search, which revealed .71 grams of methamphetamine
in the door handle of defendant’s car. Officers also found .29
grams of methamphetamine on defendant’s person.
Defendant first assigns error to the trial court’s
denial of his motion to suppress evidence that the officer
found in his car. We review a trial court’s ruling on a motion
to suppress for errors of law. State v. Goodall, 219 Or App
325, 330,
183 P3d 199 (2008). The trial court denied defendant’s motion to suppress the methamphetamine found in
the door handle of defendant’s car because it concluded that
the search fell within the per se exigency rule for automobile
searches. The trial court ruled on that motion three months
before the Supreme Court decided State v. McCarthy, which
abrogated the per se exigency rule for automobile searches.
369 Or 129, 177,
501 P3d 478 (2021) (overruling State v.
Brown,
301 Or 268,
721 P2d 1357 (1986)). When reviewing
a trial court ruling, we apply the law in effect at the time of
appeal. Ossanna v. Nike, Inc.,
290 Or App 16, 33,
415 P3d 55
(2018), aff’d,
365 Or 196,
445 P3d 281 (2019). Accordingly,
under McCarthy, “to justify a warrantless seizure or search
of a vehicle based on exigent circumstances, the state must
prove that exigent circumstances actually existed at the
time of the seizure or the search.”
369 Or at 177. Because
the trial court applied the now-incorrect legal standard in
its ruling on defendant’s motion to suppress, we agree with
defendant that the trial court erred and accordingly accept
the state’s concession of error.
Defendant next assigns error to both the trial
court’s failure to instruct the jury on the inchoate crime of
attempted delivery of methamphetamine and its failure to
submit that possible crime to the jury for its consideration.
438 State v. Johnson
The state concedes that the trial court erred. In light of the
Supreme Court’s decision in State v. Hubbell, 371 Or 340,
537 P3d 503 (2023), we accept the state’s concession on the
second and third assignments of error.
We must consider whether the trial court’s errors
were harmless. State v. Davis, 336 Or 19, 27,
77 P3d 1111
(2003). An error is harmless if there is “little likelihood that
the particular error affected the verdict.”
Id. at 32. Here, we
cannot conclude that the error in failing to suppress evidence
of the methamphetamine in defendant’s car was harmless.
The jury ultimately considered evidence that defendant possessed some methamphetamine that would have otherwise
been excluded. Because the state’s theory of the case rested
on defendant’s intent to transfer methamphetamine for the
release of his friend, the jury likely considered the amount
of methamphetamine recovered from the defendant to be
probative of that theory. Because that error was harmful
and, as discussed below, we are remanding the case for further proceedings, we do not need to address harmlessness
as to the second and third assignments of error.
The only remaining issue is the disposition. Where,
as here, the trial court has not made findings or ruled on
all of the state’s arguments against suppression, we have
declined to summarily decide the issue on appeal. State v.
Alatorre, 305 Or App 71, 73,
469 P3d 216 (2020). Therefore,
we remand for further proceedings. We also decline to limit
the scope of argument on remand. We have previously noted
that the law contemplates “that each party may seek to
present new arguments on remand, and otherwise advise
that the trial court is in the best position to determine the
appropriate scope of the proceedings on remand.” State v.
Davis,
288 Or App 451, 453,
406 P3d 218 (2017).
Conviction on Count 1 reversed and remanded;
otherwise affirmed.
