State v. Sutton

No. 837            September 24, 2025                 603

   This is a nonprecedential memorandum opinion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.
              AUSTIN BRYAN SUTTON,
                 Defendant-Appellant.
            Washington County Circuit Court
                 22CR21757; A182181

  Brandon M. Thompson, Judge.
  Argued and submitted August 22, 2025.
   Zachary Lovett Mazer, Deputy Public Defender, argued
the cause for appellant. Also on the brief was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Oregon
Public Defense Commission.
   Jennifer Lloyd, Assistant Attorney General, argued
the cause for respondent. On the brief were Dan Rayfield,
Attorney General, Benjamin Gutman, Solicitor General,
and Michael A. Casper, Assistant Attorney General.
   Before Tookey, Presiding Judge, Kamins, Judge, and
Jacquot, Judge.
  TOOKEY, P. J.
  Remanded for resentencing; otherwise affirmed.
604                                                          State v. Sutton

          TOOKEY, P. J.
          After an argument, defendant shot and killed his
roommate in the backyard of their house. A jury found
defendant guilty of first-degree manslaughter with a firearm (Count 1) and unlawful use of a weapon (UUW) with
a firearm (Count 2). The trial court sentenced defendant
to 120 months in prison on Count 1 and to a consecutive
term of 60 months in prison on Count 2. On appeal, defendant raises 14 assignments of error. As explained below, we
remand for resentencing but otherwise affirm.
          Denial of Motion to Suppress. In his first assignment
of error, defendant argues that the trial court erred when it
denied his motion to suppress statements he made to the
police. The trial court determined that there was a public
safety exception to the requirement to provide Miranda
warnings under the state constitution as well as the federal constitution. The court indicated that all of defendant’s
answers to Officer Boliek’s questions were admissible
under that exception. The court further determined that
defendant’s later statements to Officer Hoerauf were not
confessions or admissions, that Officer Hoerauf’s Miranda
warnings were effective, and that defendant’s post-Miranda
warning statements to Officer Hoerauf were voluntary. The
trial court therefore denied the motion to suppress.
          On appeal, defendant argues that we should not
recognize a public safety exception to the warnings required
by Article I, section 12, of the Oregon Constitution, and,
if we do, then Officer Boliek’s interrogation of defendant
exceeded the scope of the exception under both Article I,
section 12, and under the Fifth Amendment to the United
States Constitution.1 Defendant also argues that the trial
court erred in admitting defendant’s statements to Officer
Hoerauf. Reviewing for legal error, State v. Ehly, 

, 

 (1993), we affirm.
        In State v. Forshee, 

, 

 (2019), rev den, 

; 

 (2021), and in
    1
      Article I, section 12, provides in part that “[n]o person shall … be compelled in any prosecution to testify against himself.”
    The Fifth Amendment provides in part that “[n]o person … shall be compelled in any criminal case to be a witness against himself[.]”
Nonprecedential Memo Op: 

 (2025)                             605

State v. Jones, 

, 

, rev den,

 (2019), we did not decide whether a public safety
exception exists to the warnings required by Article I, section 12, because any error in admitting the defendants’
pre-Miranda statements was harmless. We conclude that a
similar analysis applies here to defendant’s statements to
Officer Boliek, which were cumulative of statements defendant had already made to a 9-1-1 operator, to Officer Garza,
and later to Officer Hoerauf. For that reason, the admission
of defendant’s statements to Officer Boliek had little likelihood of affecting the verdict. See State v. Davis, 

, 

 (2003) (an error is harmless if there is “little
likelihood that the particular error affected the verdict”).2
         Although we need not decide whether a public
safety exception exists to the warnings required under the
state constitution, because admission of defendant’s statements to Officer Boliek had little likelihood of affecting the
verdict, that does not resolve defendant’s challenge under
the Fifth Amendment. “[V]iolations of federal constitutional
rights must be analyzed under the federal harmless error
test” and a “federal constitutional error is harmless, such
that the conviction will be upheld, if the reviewing court
may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” State
v. Cook, 

, 

 (2006) (internal quotation marks omitted).
         The United States Supreme Court has recognized
a public safety exception to the Miranda requirement under
the federal constitution when there is a “need for answers
to questions in a situation posing a threat to the public
safety.” New York v. Quarles, 

, 

, 

 (1984). Defendant argues that several of Officer Boliek’s questions exceeded the scope of that
exception. Considering the “hectic” circumstances when
    2
      We conclude that the only statements made exclusively to Officer Boliek
were inconsequential and also had little likelihood of affecting the verdict. In
arguing that the admission of defendant’s statements to Officer Boliek was not
harmless, defendant argues that, during closing arguments, the state emphasized that defendant repeatedly lied to the police. However, even without his
statements to Officer Boliek, the state could have made the same kind of argument based on defendant’s statements to the 9-1-1 operator, to Officer Garza, and
to Officer Hoerauf.
606                                            State v. Sutton

Officer Boliek first entered the backyard as part of a team
of officers responding to a report of a shooting, we conclude
that Officer Boliek’s questions all fell squarely within the
public safety exception to the Miranda requirement under
the Fifth Amendment. Because defendant’s statements to
Officer Boliek were admissible under the federal public
safety exception, we need not address whether they were
harmless under the federal harmless error test.
          Defendant separately challenges whether the trial
court should have suppressed defendant’s statements to Officer
Hoerauf after defendant was Mirandized. Turning to those
statements, “[i]f the state establishes that the police accurately and effectively, although belatedly, gave the suspect the
information necessary to a valid waiver of the right against
self-incrimination, then, under the Oregon Constitution, a
suspect’s subsequent voluntary statements will be admissible.” State v. Vondehn, 

, 

 (2010).
         Here, Officer Hoerauf provided Miranda warnings and defendant indicated twice that he understood his
rights. There was a difference in the questioning before and
after Officer Hoerauf administered the Miranda warnings
because the prior questions were focused on public safety,
but the questions asked after Miranda warnings had been
provided sought more details from defendant about what
happened. There was an intervening break between the
two sets of questions because defendant was escorted from
the backyard to the front of the house, and he was sitting
handcuffed on the curb when questioned by Officer Hoerauf.
Although Officer Hoerauf did not caution defendant that his
earlier statements made before Miranda warnings could
not be used against him, “neither did he point out to defendant … that defendant had already made incriminating
disclosures.” 

. We acknowledge that defendant
was in compelling circumstances, but Officer Hoerauf did
not subject defendant to additional coercion; instead, his
tone was conversational and cordial. After considering the
Vondehn factors, and the totality of the circumstances, we
agree with the trial court that the belated Miranda warnings were effective, and that defendant knowingly, intelligently, and voluntarily waived his rights. We also conclude
Nonprecedential Memo Op: 

 (2025)            607

that defendant’s statements to Officer Hoerauf were not a
product of any earlier Miranda violation. State v. Jarnagin,

, 

 (2012). Thus, the trial court
did not err in denying the motion to suppress defendant’s
statements to Officer Boliek or to Officer Hoerauf.
          Failure to Timely Disclose a Witness’s New
Information. In his second assignment of error, defendant
argues that the trial court erred when it permitted a witness,
Stark, to testify that defendant had complained at a party
about three months before the shooting that the victim had
made sexual advances toward defendant’s fiancée. In his
initial interview with police, Stark recalled that defendant
had complained about the victim drinking beer and eating
food that did not belong to him. Stark indicated that he did
not have any further information. However, about one week
before trial, when being subpoenaed to testify, Stark also
disclosed that defendant had complained about the victim
making a pass at defendant’s fiancée.
         Defendant moved to exclude Stark’s testimony and
argued that the state committed a discovery violation by
failing to disclose the additional information. The trial court
ruled that the new information, even if it could be used to
impeach Stark, was not exculpatory and the trial court
allowed defendant a brief recess for defense counsel to talk
to Stark. In his trial testimony, Stark described how defendant had gone on a “rant” about the victim and defendant
complained that the victim made “advancements sexually
toward [defendant’s fiancée].”
         District attorneys must disclose exculpatory or
impeachment evidence within their possession or control, and they are required to do so “without delay.” ORS
135.815(1)(g), (2)(a)(B). To remedy a discovery violation, a
trial court may “grant a continuance, or refuse to permit
the witness to testify, or refuse to receive in evidence the
material not disclosed, or enter such other order as it considers appropriate.” ORS 135.865. Although we review whether
the state violated the discovery statutes or the Fourteenth
Amendment for errors of law, we review a trial court’s remedy for an abuse of discretion. State v. Pilon, 

, 

 (2022).
608                                             State v. Sutton

         On appeal, defendant renews his claim that the
state violated the discovery statutes and his due process
rights by failing to notify him before trial of Stark’s new
information. We are troubled by the state’s failure to disclose
it without delay. Although it was not exculpatory, it did tend
to impeach Stark’s testimony because Stark did not disclose
it when first interviewed by police. Nevertheless, the trial
court’s remedy was appropriate, and the discovery violation
was not prejudicial. The trial court granted a short recess
to allow defense counsel to talk to Stark. Defendant had an
opportunity to impeach Stark during cross-examination,
and attempted to do so, but Stark explained that he had
failed to remember it earlier. When defendant testified,
he acknowledged that he had complained to Stark about
the victim making a pass at his fiancée, so it is clear that
Stark did not fabricate the information. Defendant testified
that the incident bothered him “a little bit but not to the
point of being angry over it.” Given defendant’s testimony,
we conclude that any error in allowing Stark to testify
about the incident was harmless. See State v. Orr, 

, 

, rev den, 

 (2005)
(any error in admitting evidence of a prior crime and defendant’s response to police questioning about it was harmless
because the defendant also provided testimony about it).
         Defendant’s Unpreserved Challenges to Closing
Arguments. In his third to tenth assignments of error, defendant argues that the trial court plainly erred in permitting
the prosecutor to make improper comments during closing
arguments. In a plain-error challenge to purportedly improper
arguments to the jury, “the defendant [must] establish that it
is obvious and beyond reasonable dispute that the prosecutor’s
statements were improper.” State v. Perez, 

,

 (2025). If the defendant does so, the statements
provide grounds for reversal only if “the comments rendered
the defendant’s trial unfair, which … requires the defendant
to show that any curative instruction by the trial court would
not have been effective.” Id. at 606; see also State v. Chitwood,

, 

 (2022).
       Here, having reviewed the challenged arguments,
and considering them in context, they were not obviously
Nonprecedential Memo Op: 

 (2025)               609

improper, and they did not deprive defendant of a fair trial.
The closest one was the prosecutor’s statement that defendant’s fiancée “inexplicably wasn’t brought in to tell you
what supposedly happened.” Plaintiff contends that the
statement was similar to the improper statement in State v.
Wilson, 

, ___ P3d ___ (2025), in which
the prosecutor argued that testimony from a head trauma
expert was “shockingly absent.” However, here, considered
in context, it is not obvious that the challenged statement
would have suggested to the jury that defendant had a burden to produce evidence because the reference to defendant’s
fiancée seems to have been an attempt to explain to the jury
why the state did not call her as a witness because she had
helped defendant to hide the gun. The prosecutor argued,
      “And now [the victim is] in a coffin somewhere or an
   urn and he can’t come in here and tell you what really happened on May 6th. Right?
       “There are two people that apparently were—that were
   close by where this happened. One of them, of course, you’ve
   heard from.
      “The other one is his fiancée, who inexplicably wasn’t
   brought in to tell you what supposedly happened. It makes
   some sense, because she’s apparently somebody who is aiding and abetting and evidence tampering. Right?”
(Emphasis added.) As that context for the statement shows, the
state may have been suggesting that it might have been “inexplicable” or surprising to the jury that defendant’s fiancée did
not testify, and the state may have been further attempting
to explain why the state did not call her as a witness. Given
that context, the comment was not obviously improper, and
it was not so improper that it could not have been cured by a
jury instruction if defendant had objected. Having reviewed
defendant’s other unpreserved challenges to the prosecutor’s
statements, we reach the same conclusion: considered in context they were not so improper as to have required a mistrial.
See State v. Durant, 

, 

 (2023),
rev den, 

 (2025) (“prosecutorial statements that
were improper but curable are not an appropriate subject of
plain-error review, because, in such circumstances, the defendant was not denied a fair trial” (emphasis in original)).
610                                                        State v. Sutton

         Defendant’s Preserved Challenges to Closing
Arguments. In his eleventh and twelfth assignments of
error, defendant take issue with the prosecutor’s argument
that the jury should sit silently in the jury room for seven
minutes, “realize how long of a time that is,” and, “as you’re
doing it, imagine just outside the jury room door there’s a
man laying on the ground with a chest wound who is actively
bleeding to death.” Defendant objected to the argument and
the trial court overruled the objection.
         Generally, we review a trial court’s decision to overrule an objection to closing arguments for abuse of discretion. State v. Totland, 

, 

,
rev den, 

 (2019). However, we review whether the
prosecutor misstated the law during closing arguments for
legal error. State v. Purrier, 

, 

 (2014).
         Here, we conclude the trial court did not abuse its
discretion or err in overruling the objection. Although it is
generally improper for a prosecutor to make a “golden rule”
argument that appeals to the jurors’ emotions, see State v.
Muniz, 

, 60-61, 

, rev den, 

 (2024), here the prosecutor did not expressly encourage
the jury to decide the case on an improper basis. Instead, the
record suggests that the prosecutor was attempting to argue
to the jurors that they should not find defendant’s account of
what occurred credible because he waited a long time after
shooting his roommate—seven minutes—before he called
9-1-1. Whether or not that argument was effective,3 it was
based on the evidence. See State v. Sperou, 

,

 (2019) (explaining that prosecutors “have wide
latitude to make arguments from the evidence” (emphasis in
original)). And it was not so egregious as to have deprived
defendant of a fair trial.
        Sentencing. In his thirteenth assignment of error,
defendant argues that the trial court erred in imposing a
consecutive sentence on Count 2. A court has discretion
to impose consecutive sentences if the criminal offense
    3
      The jury ultimately acquitted defendant of second-degree murder with a
firearm and found him guilty of the lesser-included offense of first-degree manslaughter with a firearm.
Nonprecedential Memo Op: 

 (2025)            611

for which a consecutive sentence is contemplated “was not
merely an incidental violation of a separate statutory provision in the course of the commission of a more serious crime
but rather was an indication of defendant’s willingness to
commit more than one criminal offense.” ORS 137.123(5)(a);
see also State v. Soto, 

, 

 (2024)
(construing the consecutive sentencing statute).
         Here, the state concedes that a consecutive sentence on Count 2—UUW with a firearm—was not authorized because that offense was incidental to the more serious offense of first-degree manslaughter with a firearm.
Reviewing how the state charged the offenses and the jury’s
findings, we agree with that concession. Because we must
remand for resentencing, we do not need to address defendant’s fourteenth assignment of error which pertains to
whether the trial court erred in imposing the “gun minimum” sentence on Count 2 instead of Count 1. That issue
is not likely to arise on remand because the trial court is
likely to impose concurrent sentences. See State v. Parham,

, 

 (2020) (explaining that
remand for resentencing “obviates the need to address [the]
defendant’s remaining claims of sentencing errors because
the issues they concern may not arise on remand”).
        Remanded for resentencing; otherwise affirmed.