State v. Harmon

466                 October 29, 2025               No. 933

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                  STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
                EVAN ALLEN HARMON,
                  Defendant-Appellant.
             Tillamook County Circuit Court
                  24CR18038; A184865

  Mari Garric Trevino, Judge.
  Argued and submitted October 6, 2025.
   Morgen E. Daniels, Deputy Public Defender, argued the
cause and filed the brief for appellant. On the brief were
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kasey Anne Hooker, Deputy Public Defender,
Office of Public Defense Commission.
   E. Nani Apo, Assistant Attorney General, argued the
cause and filed the brief for respondent. With her on the
brief were Dan Rayfield, Attorney General, and Benjamin
Gutman, Solicitor General.
   Before Tookey, Presiding Judge, Lagesen, Judge, and
Jacquot, Judge.
  LAGESEN, C. J.
  Remanded for resentencing; otherwise affirmed.
Cite as 

 (2025)                                 467

         LAGESEN, C. J.
          Defendant appeals a judgment of conviction, entered
after a conditional guilty plea, for one count of driving under
the influence of intoxicants, ORS 813.010. In his first assignment of error, defendant contends that the trial court erred
in denying his motion to suppress evidence that derived from
a traffic stop for failure to drive within a lane, ORS 811.370.
In his second assignment of error, defendant contends that
the trial court erred by “ordering defendant to pay per diem
fees in the written judgment without announcing that condition at sentencing.” As we explain, we remand for resentencing because the court erroneously ordered defendant to
pay per diem fees without announcing that requirement at
sentencing but otherwise affirm.
          Motion to Suppress. Defendant argues that the trial
court erred when it determined that the officer who stopped
him had probable cause to believe that defendant had failed to
stay within a lane in violation of ORS 811.370(1). State v. Husk,

, 739, 

 (2017), rev den, 

(2018) (“Under Article I, section 9, of the Oregon Constitution,
before a police officer may stop a citizen for a traffic violation,
the officer must have probable cause to believe that a violation occurred.”). An officer has probable cause to believe that
a traffic violation occurred if the officer subjectively believes
that a violation occurred, and the officer’s belief is objectively
reasonable in view of the facts as the officer perceived them
at the time. Id. at 739. Defendant contends that, although the
truck that he was driving did not stay within a traffic lane,
the truck’s deviation from the traffic lane was “momentary
and minor” and therefore not a violation of ORS 811.370(1)(a).
See State v. Little, 

, 

 (2023)
(concluding that “a momentary and minor deviation over a
lane line is not a violation of ORS 811.370”).
         Reviewing for legal error and accepting the trial
court’s explicit and implicit findings of fact that are supported
by the record, Husk, 288 Or App at 739 (setting forth our standard of review), we conclude that the trial court did not err.
       As relevant here, when operating a vehicle on “a
roadway that is divided into two or more clearly marked
468                                          State v. Harmon

lanes for traffic,” a driver “commits the offense of failure to
drive within a lane” if the driver does not “[o]perate the vehicle as nearly as practicable entirely within a single lane.”
ORS 811.370(1)(a). As we have construed it, the statute
allows both for (1) lane deviations when the circumstances
make it impracticable for a driver to maintain their lane,
and (2) “momentary and minor lane deviation[s],” in the
absence of circumstances “making compliance impracticable.” Little, 

; State v. McBroom, 

, 

 (2002) (explaining that the defendant violated ORS 811.370(1)(a) when he drove outside of his
lane and there was “nothing in th[e] record … to suggest
that defendant failed to stay within his lane because he was
responding to an apparent hazard or because he had some
other valid reason for leaving his lane”). In this case, defendant does not dispute that he strayed from his lane, and he
does not contend that the circumstances made it impracticable for him to maintain his lane. Instead, he asserts that
his lane deviation, as observed by the officer who stopped
him, was “momentary and minor” under Little, such that
the officer who stopped him lacked probable cause to believe
that defendant had violated ORS 811.370.
         We disagree. We need not definitively resolve what
it means to be a “momentary and minor lane deviation”
under Little and we acknowledge, as did the trial court,
that defendant’s lane deviation was temporally short.
Defendant’s departure from his lane as described by the officer and illustrated by photographs entered into evidence,
although quick in time, cannot plausibly be characterized
as “minor.” The officer testified that he first observed defendant’s truck approaching when the truck was nearly 200
feet away from where the officer was parked in the shoulder. At the time, defendant’s truck was rounding a slight
curve, and more than half of defendant’s truck was driving
over the fog line. As one of the photos entered into evidence
indicates, defendant’s conduct reasonably could be described
as driving mostly in the shoulder, and mostly outside of the
designated lane. When the truck reached the officer’s location, defendant’s truck was, in the officer’s words, “more
in its lane of travel” but still over the fog line. Considering
those circumstances—the degree to which defendant’s truck
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 (2025)                              469

was over the fog line and the distance that defendant covered while his truck was not “entirely” within its lane—
defendant’s lane deviation was not in any sense minor.
Compare Little, 

 (deviation from traffic
lane “minor” when one tire on the defendant’s car crossed
a fog line by approximately six inches), with State v. Koteen,

, ___ P3d ___ (2025) (deviation from
traffic lane not “minor” where, among other facts, approximately “half” of defendant’s car was in a bicycle lane and it
was “occupying much of, if not most of, that bicycle lane”).
On those facts, the trial court was correct to conclude that
the officer’s observations of defendant gave him probable
cause to believe defendant violated ORS 811.370(1). See
Husk, 288 Or App at 739 (describing when an officer has
probable cause to believe a traffic violation has occurred).
         Per Diem Fees. Defendant argues that the trial
court erred when it ordered defendant to pay “any required
per diem fees” in the judgment of conviction without having
announced that condition at defendant’s sentencing hearing.
State v. Priester, 

, 

, rev den,

 (2023) (“A criminal defendant has the right to
have their sentence announced in open court. A trial court
commits reversible error if it does not do so, and the result is
usually a resentencing.”). The state concedes that the trial
court so erred and asserts that we should remand for resentencing. We agree with and accept that concession, and we
remand for resentencing. See State v. Barr, 

, 

, rev den, 

 (2024) (error to
impose per diem fees in judgment where trial court did not
“address per diem fees at the sentencing hearing”).
        Remanded for resentencing; otherwise affirmed.