State v. Jackson

No. 687             December 28, 2023                  797

   This is a nonprecedential memorandum opinion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.
             MICHAEL DAVID JACKSON,
                  Defendant-Appellant.
             Deschutes County Circuit Court
                  18CR24467; A170564

  Beth M. Bagley, Judge.
  Argued and submitted November 13, 2023.
   Kali Montague, Chief Deputy Public Defender, argued
the cause for appellant. Also on the supplemental and reply
briefs was Ernest G. Lannet, Chief Defender, Criminal
Appellate Section, Office of Public Defense Services. On
the opening brief were Ernest G. Lannet, Chief Defender,
Criminal Appellate Section, and Mark Kimbrell, Deputy
Public Defender, Office of Public Defense Services.
   Michael A. Casper, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Hadlock, Judge pro tempore.
  AOYAGI, P. J.
   Conviction on Count 1 reversed and remanded; remanded
for resentencing; otherwise affirmed.
798                                         State v. Jackson

        AOYAGI, P. J.
         Defendant was convicted of resisting arrest, ORS
162.315 (Count 1), and improper use of emergency communications system, ORS 165.570 (Count 2), in connection with a
police encounter in the ATM vestibule of a bank. On appeal,
he raises two assignments of error. First, he challenges the
trial court’s denial of his motion to suppress evidence that
he contends was obtained as the result of an unlawful seizure. Second, he argues that the trial court plainly erred in
failing to instruct the jury on the minimum required culpable mental state for the “substantial risk of physical injury”
element of resisting arrest. For the following reasons, we
reverse defendant’s conviction for resisting arrest, but we
affirm the denial of his motion to suppress.
         Motion to suppress. We review the denial of a motion
to suppress for legal error. State v. Ramirez, 

, 

 (2020). Our review is based on “the
record made before the trial court when it issued the order,
not the trial record as it may have developed at some later
point.” State v. Pitt, 

, 

 (2012).
The trial court’s factual findings are binding on appeal if
the record contains constitutionally sufficient evidence to
support them. State v. Maciel-Figueroa, 

,

 (2017). Where the court did not make explicit
findings, we will presume implicit findings consistent with
the ultimate ruling. 

.
         Around midnight, a police officer observed defendant and another man, R, inside the ATM vestibule of a
bank. They were conversing, had a number of items spread
out on the counter, and did not appear to be using the ATM.
The officer drove around the block, parked, then approached
the building and stood out of sight beside the vestibule door
for two to five minutes. It sounded like the men “were playing
music and just kind of carrying on with each other,” which
reassured the officer that there was no robbery or hold-up
occurring but caused him to suspect criminal trespassing. When R noticed him and exclaimed, the officer moved
to the glass door, knocked, and identified himself. While
standing at the door, holding it open, the officer asked for
the men’s identification. Defendant was reluctant to provide
Nonprecedential Memo Op: 

 (2023)             799

identification and eventually called 9-1-1 to report that he
was being harassed by a police officer (the basis for Count 2).
At that point, the officer told defendant that he was arresting him for improper use of emergency communications system. Defendant tensed his arms and resisted handcuffing
(the basis for Count 1).
        Defendant was charged by information. At trial, he
moved to suppress evidence on the basis that it was obtained
as the result of an unlawful seizure. The trial court denied
the motion, ruling that, to the extent that defendant was
stopped, the officer had reasonable suspicion of criminal
trespassing.
         “Analytically, police-citizen encounters typically
fall into one of three categories that correlate the degree of
intrusiveness on a citizen’s liberty with the degree of justification required for the intrusion.” State v. Fair, 

, 

 (2013). The categories are mere conversations, stops, and arrests. State v. Ashbaugh, 

, 308-
09, 

 (2010). A mere conversation is a “non-coercive encounter” that does not involve “any” restraint on the
person’s liberty or freedom of movement, State v. Arreola-Botello, 

, 

 (2019) (internal quotation marks omitted), whereas a “stop” is a temporary
detention for investigatory purposes that imposes a “temporary restraint on a person’s liberty” and, as relevant here,
requires reasonable suspicion of a crime, Ashbaugh, 

. Reasonable suspicion is a lesser standard than
probable cause. State v. Middleton, 

, 

 (2020). The officer must subjectively suspect that
the defendant has committed a crime, that suspicion must
be based on specific and articulable facts, and that suspicion
must be objectively reasonable under the circumstances.
Id.; State v. Walker, 

, 

,
rev den, 

 (2016).
         Having reviewed the record, we agree with the
trial court that, assuming that defendant was stopped, the
officer had reasonable suspicion of criminal trespass under
the totality of the circumstances. Cf. State v. Wampler, 

, 

, rev den, 

 (2023)
(holding that an officer had reasonable suspicion of criminal
800                                                         State v. Jackson

trespassing where he observed the defendant in a parked
van in a private driveway at night for several minutes). It
is important to note that an officer may have reasonable
suspicion even if the defendant is not actually committing
a crime. State v. Sjogren, 

, 

(2015) (“Reasonable suspicion does not require that the articulable facts as observed by the officer conclusively indicate
illegal activity but, rather, only that those facts support the
reasonable inference that a person has committed a crime.”
(Internal quotation marks omitted; emphases in original.)).
The court did not err in denying defendant’s motion to
suppress.1
          Jury instruction. Defendant next contends that the
trial court plainly erred in failing to instruct the jury that,
to find him guilty of resisting arrest, it was necessary to find
that his mental state was at least criminally negligent with
respect to the “substantial risk of physical injury” element
of the offense. See ORS 162.315(1) (“A person commits the
crime of resisting arrest if the person intentionally resists
a person known by the person to be a peace officer or parole
and probation officer in making an arrest.”); ORS 162.315(2)
(c) (“ ‘Resists’ means the use or threatened use of violence,
physical force or any other means that creates a substantial risk of physical injury to any person ….”). Defendant
did not request such an instruction, so he seeks plain-error
review.
         “Generally, an issue not preserved in the trial court
will not be considered on appeal.” State v. Wyatt, 

, 

 (2000). However, we have discretion to correct

     1
       In light of the foregoing analysis, we deny defendant’s request under ORS
19.420(3) for a new trial on both charges based on the state’s loss of the bank surveillance video after trial. See ORS 19.420(3) (allowing for remand for a new trial
based on the loss of “the exhibits or other matter necessary to the prosecution of
the appeal”). In State v. Jackson, 

, 

 (2022), the Supreme
Court reviewed an order of the Appellate Commissioner regarding the lost video
in this case and its significance to the issues on appeal. As relevant here, the
Supreme Court noted that, if this court were to “assume rather than decide that
defendant was seized” and affirm on “some other legal basis”—such as the existence of reasonable suspicion—then the lost video would be “unnecessary” to our
resolution of the appeal. 

. That is so because, in the circumstances of
this case, the video is potentially relevant only to whether defendant was seized,
not to whether the officer had reasonable suspicion. See 

 The video has therefore proved to be unnecessary to the prosecution of the appeal.
Nonprecedential Memo Op: 

 (2023)            801

a “plain” error. ORAP 5.45(1). An error is “plain” when it is
an error of law, the legal point is obvious and not reasonably
in dispute, and the error is apparent on the record without
our having to choose among competing inferences. State v.
Vanornum, 

, 

 (2013). It is a matter of discretion whether we will correct a plain error. State
v. Gornick, 

, 

 (2006).
          The state concedes that, under current law, the
trial court plainly erred by not instructing the jury on the
mental state required for the “substantial risk of physical
injury” element of resisting arrest. The state further concedes that, on this record, the error was not harmless and
that we should exercise our discretion to correct it. We agree
on each point. See State v. Tow, 

, 

 (2022) (reversing a conviction for resisting arrest in
similar circumstances). Accordingly, we reverse the conviction for resisting arrest and remand for further proceedings
on that count.
       Conviction on Count 1 reversed and remanded;
remanded for resentencing; otherwise affirmed.