State v. Edwards

196                  January 2, 2025                 No. 2

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                   STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
                ROSS McCALL EDWARDS,
                   Defendant-Appellant.
              Tillamook County Circuit Court
                   19CR74025; A177970

  Jonathan R. Hill, Judge.
  Submitted February 26, 2024.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Neil F. Byl, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Peenesh Shah, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
  ORTEGA, P. J.
  Reversed.
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 (2025)                             197

        ORTEGA, P. J.
         Defendant appeals a judgment of conviction for one
count of escape in the third degree, ORS 162.145. He assigns
error to the trial court’s denial of his motion for judgment
of acquittal (MJOA), arguing that the officer lacked probable cause to legally arrest him as necessary to support an
escape conviction under ORS 162.145(2). We conclude that
the state did not offer sufficient evidence to demonstrate that
the officer had probable cause to arrest defendant and, thus,
the trial court erred in denying his motion. Accordingly, we
reverse.
         We review a trial court’s denial of an MJOA to
determine whether, viewing the evidence in the light most
favorable to the state and accepting reasonable inferences
and credibility determinations, a rational factfinder could
have found the elements of the crime beyond a reasonable
doubt. State v. Cunningham, 

, 

(1994), cert den, 

 (1995). The underlying facts
forming the basis of the escape charge are as follows.
         Dispatch informed Deputy Berger that a named
complainant had called to report a disturbance with a
weapon and provided the first name of the suspect and his
physical description. Upon arriving at the scene, Berger
observed defendant, who fit the report’s description of the
suspect. Berger left his truck, approached on foot, and asked
defendant if his name was the name on the report. Defendant
responded, “Am I being detained?” Berger answered that
he was and asked for identification. In response, defendant
yelled a profanity and fled, and did not stop when Berger
yelled for him to stop because he was under arrest. Berger
subsequently pursued defendant on foot and ultimately put
him in custody.
         A person commits escape in the third-degree when
“the person escapes from custody.” ORS 162.145(1). It is a
defense to a prosecution under ORS 162.145 if “the person
escaping or attempting to escape was in custody pursuant
to an illegal arrest.” ORS 162.145(2). As relevant here, custody is “the imposition of actual or constructive restraint by
a peace officer pursuant to an arrest ….” ORS 162.135(4)
198                                                      State v. Edwards

(2018), amended by Or Laws 2019, ch 213, § 39. To be valid,
a warrantless arrest must be supported by probable cause.
ORS 133.310(1) (2016), amended by Or Laws 2021, ch 326,
§ 3. Defendant moved for a judgment of acquittal, arguing
that Berger lacked probable cause to arrest him for menacing at the time he fled.
         To have probable cause to support a legal arrest, an
officer must have “a substantial objective basis for believing
that more likely than not an offense has been committed and
a person to be arrested has committed it.” ORS 131.005(11).
This court evaluates whether, under the totality of the circumstances, the officer subjectively believed that a crime
has been committed and that belief was objectively reasonable. State v. Vasquez-Villagomez, 

, 

 (2009). As relevant here, a person commits the crime
of menacing when, by word or conduct, they “intentionally
attempt[ ] to place another person in fear of imminent serious physical injury.” ORS 163.190 (1971), amended by Or
Laws 2021, ch 581, § 2.
        Here, under the totality of the circumstances and
viewing the evidence in the light most favorable to the state,
the state did not demonstrate that Berger had probable
cause to arrest defendant for menacing.1 Berger approached
and detained defendant because he matched the physical
description provided by dispatch for a “disturbance with a
weapon.” Arrests based only on descriptions that fit large
segments of the population, like the one here—the complainant described the suspect as being medium build, with
red hair, wearing a white t-shirt and jeans—may not be
supported by probable cause. See Vasquez-Villagomez, 

. Here, at the point that he told defendant he was
detained, Berger had not yet confirmed that defendant’s first
name matched the name from the report, nor did Berger
observe that defendant had a weapon.
     1
       The state raises for the first time on appeal the argument that the facts
were sufficient to establish probable cause to arrest defendant for interfering
with a peace officer, ORS 162.247(1)(b) (2005), amended by Or Laws 2021, ch 254,
§ 1, relying on defendant yelling a profanity and running away after Berger told
him he was being detained and asked for identification. Had this theory of probable cause been raised below, perhaps we would have a different record before us.
On this record, the state did not establish probable cause for either crime.
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          The state argues that defendant’s question to Berger
during their initial contact (“Am I being detained?”) elevated
the likelihood that defendant committed the crime being
investigated and contributed to establishing probable cause.
We disagree. A person’s assertion of their constitutionally
protected rights cannot be considered in the probable cause
inquiry. State v. Medinger, 

, 

(2010) (citing State v. Gressel, 

, 

(1976)); see also State v. Brown, 

, 

 (1992). Thus, defendant’s question of whether or not
he was being detained does not affect the probable cause
analysis.
          The state further argues that, taken together with
defendant’s question to the officer, defendant’s flight was sufficient to establish probable cause that defendant had committed the crime of menacing. We are not persuaded. While
we have held that “evidence of flight is relevant as circumstantial evidence of guilty knowledge, which is some evidence
of guilt,” e.g., State v. Minchue, 

, 

 (2001), the fact that defendant fled does not support a
reasonable inference by Berger at the time of the arrest that
defendant believed that he was guilty of the crime of menacing because defendant’s flight does not provide any information about the nature of the reported disturbance. Further,
Berger’s questioning of defendant did not elevate the likelihood that defendant committed the crime of menacing such
that Berger could establish probable cause because Berger
had asked only about defendant’s name and not whether he
was involved in the reported disturbance with a weapon.
         In the alternative, and for the first time on appeal,
the state argues that Berger had probable cause to arrest
for interfering with a peace officer under ORS 162.247(1)(b)
(2005), amended by Or Laws 2021, ch 254, § 1.2 In his
    2
      At the time of the events at issue in November 2019, ORS 162.247(1)(b)
provided:
        “A person commits the crime of interfering with a peace officer or parole
   and probation officer if the person, knowing that another person is a peace
   officer or a parole and probation officer as defined in ORS 181A.355:
       “…
       “(b) Refuses to obey a lawful order by the peace officer or parole and probation officer.”
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testimony, Berger did not expressly identify the crime for
which he was arresting defendant. Because of this, the state
argues that there is a reasonable inference that Berger
viewed the flight itself as a crime, giving rise to probable
cause to arrest. We disagree. Berger’s testimony does not
support a reasonable inference that Berger was arresting
defendant for any reason other than as the suspect for the
reported disturbance.
         We conclude that the state failed to adduce sufficient evidence to prove that Berger had probable cause to
arrest defendant. Therefore, defendant was in custody pursuant to an illegal arrest, ORS 162.145(2), and the state
failed to meet its burden of disproving that defense beyond a
reasonable doubt. ORS 161.055(1) (“When a ‘defense,’ other
than an ‘affirmative defense’ as defined in subsection (2) of
this section, is raised at a trial, the state has the burden
of disproving the defense beyond a reasonable doubt.”).
Accordingly, the trial court erred in denying the MJOA.
        Reversed.