State v. M. T. F. ( 2023 )

No. 299 June 14, 2023 371
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
In the Matter of M. T. F.,
a Youth.
STATE OF OREGON,
Respondent,
v.
M. T. F.,
Appellant.
Lane County Circuit Court
20JU07068; A175638
Debra E. Velure, Judge.
Argued and submitted September 12, 2022.
Erica Hayne Friedman argued the cause and filed the
opening brief for appellant. Also on the opening brief was
Youth, Rights & Justice. Christa Obold Eshleman and
Youth, Rights & Justice filed the reply brief.
Erica L. Herb, Assistant Attorney General, argued
the cause for respondent. Also on the briefs were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
MOONEY, J.
Affirmed.
Pagán, J., concurring.
372 State v. M. T. F.
Cite as 326 Or App 371 (2023) 373
MOONEY, J.
Youth, M, appeals from a judgment adjudicating
her delinquent for assaulting a public safety officer. ORS
163.208.1 M asserts two assignments of error in her opening
brief, contending that the juvenile court erred by denying
her motion to suppress evidence, and by adjudicating her
delinquent for an act that, if committed by an adult, would
constitute assaulting a public safety officer under ORS
163.208. We conclude that the juvenile court did not err in
denying the motion to suppress or by adjudicating M delin-
quent. We affirm.
We review the denial of a motion to suppress for
legal error. State v. Oxford, 311 Or App 1, 7, 488 P3d 808
(2021). “[W]e are bound by a trial court’s factual findings,
if the record contains evidence to support them.” State v.
Serrano, 346 Or 311, 326, 210 P3d 892 (2009). If the court
did not make an express factual finding on a pertinent issue,
we presume it decided the disputed facts in a manner con-
sistent with its ultimate conclusion, as long as there is some
evidence in the record to support that conclusion. Oxford,
311 Or App at 3. We draw the facts from the record in accor-
dance with the applicable standard of review.
On December 9, 2020, members of the Eugene
Police Department responded to a report that a person was
overdosing on drugs inside a tent at a city park. Officers
Peckels and Vinje arrived at the park first, in full uniform.
Several individuals approached Peckels, led him to the tent,
and told him there was a female inside. Peckels testified
that in suspected overdose situations, police must render
the area safe before medics may enter, and, in this case, he
believed medics would soon be there. Officers Cardwell and
McCartney responded soon after.
As Peckels approached the tent, through the open
tent flap he saw M laying on her back with her arm over
her face, her teeth were chattering, and she was visibly
1
ORS 163.208, as relevant, states:
“(1) A person commits the crime of assaulting a public safety officer if the
person intentionally or knowingly causes physical injury to the other person,
knowing the other person to be a peace officer * * * and while the other person
is acting in the course of official duty.”
374 State v. M. T. F.
trembling, which he understood to be early signs of an over-
dose. A medical volunteer with Occupy Medical was with M
in the tent when Peckels arrived and left when Peckels indi-
cated that medics were on their way. Peckels put one foot in
the tent and announced “Eugene Police” before asking M
her age. He testified that M did not reply or acknowledge
him, and that when she did speak, she slurred her words.
Peckels communicated with the en route medics that M was
conscious, breathing, and speaking.
Peckels told M that medics were on their way, and
he asked her what she had taken. M responded that she had
taken heroin, although she did not know how much she had
taken. Peckels testified that he believed that M was experi-
encing a medical emergency. He stood ready to administer
Narcan if M became unresponsive. M began telling Peckels
to “go away” and leave her alone. McCartney had joined
Peckels in the tent, and they explained to M that, in order to
ensure her safety, the officers would not leave until medics
arrived. M began kicking at Peckels. Peckels, McCartney,
and Vinje physically restrained M at that point. M screamed
for the officers to let go of her and to leave her tent. The
officers repeatedly explained that they needed to stay with
M until the medics arrived. Peckels exited the tent to speak
with the medics while McCartney and Vinje stayed with M.
A sergeant outside the tent directed McCartney and Vinje to
exit the tent and M continued to yell at McCartney to leave.
McCartney responded to M saying: “I am. You’re not going
to kick me in the process, okay?” M mocked McCartney
at that point and then, after McCartney released her, M
kicked McCartney several times in the knee. Approximately
four minutes elapsed from the time the officers arrived on
scene to the time that McCartney and Vinje left M’s tent.
Eventually, M was transported to the hospital by medics.
The state filed a petition alleging that M was within
the juvenile court’s jurisdiction for acts that, if committed
by an adult, would constitute assaulting a public safety
officer under ORS 163.208, a Class C felony. The petition
alleged that M unlawfully and knowingly caused physical
injury to McCartney, who M knew to be a public safety offi-
cer, while McCartney was acting in her official duty. Prior
to trial, M filed a motion to suppress all evidence obtained
Cite as 326 Or App 371 (2023) 375
from the officers’ presence in her tent, which the trial court
denied after a hearing. At trial, at the close of evidence, M
requested a jury instruction that assigned a mental state to
the result element of “physical injury,” but the juvenile court
ruled that the “knowing” mental state did not apply to phys-
ical injury and instead required “that the person act[ ] with
an awareness that her conduct was assaultive.” The juvenile
court then found that the state had proved the allegations of
the petition beyond a reasonable doubt and concluded that
M was within its jurisdiction.
In her first assignment of error, M asserts that the
juvenile court erred by denying her motion to suppress “all
evidence” resulting from the warrantless entry into her tent.
She had argued to the juvenile court that no exception to the
warrant requirement applied and, therefore, the evidence
was obtained in violation of her Article I, section 9, rights.2
The juvenile court denied the motion to suppress. We under-
stand the juvenile court to have found that the emergency
aid exception applied to any argument about whether the
officers needed a warrant to enter the tent, and that the
court determined that the officers’ intent was consistent
with aiding M, as opposed to searching the tent for evidence
of a crime. On appeal, both parties focus their arguments
almost entirely on the emergency aid exception.
According to the Supreme Court,
“an emergency aid exception to the Article I, section 9 war-
rant requirement is justified when police officers have an
objectively reasonable belief, based on articulable facts,
that a warrantless entry is necessary to either render
immediate aid to persons, or to assist persons who have
suffered, or who are imminently threatened with suffering,
serious physical injury or harm.”
State v. Baker, 350 Or 641, 649, 260 P3d 476 (2011) (foot-
notes omitted).
It is the state’s burden to prove each element of the
emergency aid exception and, additionally, to prove that the
2
Article I, section 9, of the Oregon Constitution provides, in relevant part:
“No law shall violate the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable search, or seizure * * *.”
376 State v. M. T. F.
particular emergency did not dissipate and, thus, render
the exception inapplicable at any point. State v. Garcia, 276
Or App 838, 850, 370 P3d 512 (2016). M argues first that
the state failed to prove that the officers had an objectively
reasonable belief that warrantless entry into her tent was
necessary to render immediate aid. She contends that offi-
cers actually entered her tent to determine whether there
was an emergency, not to administer aid, because at the
time they entered the tent a medical volunteer was present,
and Peckels had reported that M was conscious and speak-
ing. M further argues that the state failed to prove that the
emergency aid exception applied to McCartney’s entry, even
if McCartney believed M was experiencing a medical emer-
gency, because it failed to prove why McCartney’s presence,
in particular, was necessary to aid M in her emergency.
Second, M argues that the officers’ belief was not objectively
reasonable, because nothing in the record supports a finding
that M was in a condition that the officers could assist with
by entering the tent.
The emergency aid exception to the warrant
requirement applied here, and we reject M’s arguments to
the contrary. There is sufficient evidence in the record to
support the conclusion that the officers subjectively believed
that their entry into M’s tent was necessary to render imme-
diate aid to her and, further, that their belief was objectively
reasonable. As we have described, the officers arrived at the
scene within minutes of each other in response to a 9-1-1
call expressing concern that someone may have overdosed.
They were taken directly to M’s tent where they observed
M exhibiting early signs of a drug overdose. Moreover, the
presence of a medical volunteer did not render the officers’
intervention unnecessary. That the officers took charge of
the scene when they arrived is simply evidence that the
emergency response process was underway. M’s need for
emergent care was transitioned from a medical volunteer to
medical professionals through the assistance of law enforce-
ment officers. The officers stood ready to administer Narcan
if that became necessary before the medics arrived. The
record supports a conclusion that the officers had an objec-
tively reasonable belief that their entry into the tent was
necessary to render M immediate aid.
Cite as 326 Or App 371 (2023) 377
M argues, alternatively, that even if the offi-
cers’ initial entry into the tent was justified, they unlaw-
fully remained after any emergency had dissipated. The
record does not support that argument. The video footage
confirmed that the officers were in the tent for about four
minutes. In that time, they entered her tent, observed M’s
physical condition, and, to the extent they could, interacted
with M. After the medics arrived, M was transported to the
hospital. The emergency did not dissipate. The warrantless
entry was justified during the entire four-minute period.3
In her second assignment of error, M asserts that
the juvenile court erred in adjudicating her delinquent for
acts that, if committed by an adult, would constitute assault-
ing a public safety officer under ORS 163.208. The parties’
arguments on this assignment of error have evolved during
the course of this appeal as a result of the Supreme Court’s
decision in State v. Owen, 369 Or 288, 505 P3d 953 (2022).
In her opening brief, filed before the decision in Owen, M’s
argument focused on the sufficiency of the evidence to dis-
prove her claim of self-defense.
By the time the state filed its response brief, the
Supreme Court had decided Owen. The state acknowledged
that M had preserved in the juvenile court an argument
that the court was required to find that M acted with at
least criminal negligence with respect to whether her con-
duct would cause physical injury. In view of that, the state,
in addition to responding to M’s argument that the evidence
was insufficient to disprove self-defense, acknowledged that
the evidence had to be sufficient to support a finding “that
[M] was at least criminally negligent as to the fact that her
actions could cause McCartney to suffer physical injury—
a requirement that the Oregon Supreme Court recently
addressed in State v. Owen * * *, which overruled, in part,
State v. Barnes, 329 Or 327, 986 P2d 1160 (1999).” The state
further acknowledged that the juvenile court had concluded
that, under Barnes, it did not need to decide whether M
3
Because we determine that the officers were not, at any point, in M’s tent in
violation of Article I, section 9, we do not reach M’s argument that evidence of her
conduct is presumptively tainted and inadmissible under the exclusionary rule,
which requires the suppression of evidence discovered from illegal police conduct.
378 State v. M. T. F.
had a culpable mental state. Noting that defendant had not
assigned error to that determination, the state nonetheless
acknowledged that it was erroneous under Owen, and then
argued that the error was harmless because the juvenile
court’s comments on the record demonstrate that it would
nevertheless have found that M acted with the necessary
culpable mental state.
In reply to the state’s concession that the juvenile
court had plainly erred in its application of the law in light
of Owen, M argued that the proper course is to remand to
the juvenile court to apply the correct legal standard. M also
disputed the state’s contention that the error was harmless.
In sur-reply, the state argued that we should not consider M’s
contention about the court’s erroneous conclusion regarding
the culpable mental state requirement recognized in Owen,
because M had not assigned error to that determination in
the opening brief but had, instead, raised it on reply. The
state acknowledged that it had conceded the legal error in
its answering brief when it addressed the sufficiency of the
evidence to support M’s adjudication and also repeated its
argument that any error was harmless.4
We begin with whether there was sufficient evi-
dence presented by the state to disprove self-defense. When
reviewing a challenge to the sufficiency of the evidence, we
review whether, viewing the evidence in the light most favor-
able to the state, a rational trier of fact could have found the
essential elements of the crime proved beyond a reasonable
doubt. State v. Hall, 327 Or 568, 570, 966 P2d 208 (1998).
When self-defense is raised as an affirmative defense, the
state must disprove its applicability beyond a reasonable
doubt. State v. Boyce, 120 Or App 299, 305-06, 852 P2d
4Typically, when a material change in the law occurs after the opening brief
is filed, an appellant who wishes to raise a new assignment of error or a distinct
new argument should move to file an amended opening brief or a supplemental
brief, which, among other things, ensures that the respondent will have a full
opportunity to respond to both the request and any new briefing that is allowed.
See Kragt v. Board of Parole, 325 Or App 688, ___ P3d ___ (2023). However, as we
explain more below, in the particular and unique circumstances of this case, we
deem it appropriate to make an exception to the well-established rule that “an
issue raised for the first time in an appellant’s reply brief generally will not be
considered on appeal.” State v. Murga, 291 Or App 462, 468, 422 P3d 417 (2018);
see also ORAP 1.20(5) (“For good cause, the court on its own motion or on motion
of any party may waive any rule.”).
Cite as 326 Or App 371 (2023) 379
276 (1993). The use of physical force on another person is
justified when it is reasonably necessary to defend against
“the use or imminent use of unlawful physical force.” ORS
161.209. In her second assignment of error, M asserts that
the state failed to prove that she lacked a reasonable belief
that her use of force against McCartney was necessary to
defend herself from what she reasonably believed was the
infliction of unlawful force on her person. We do not agree.
When Peckels entered M’s tent, he announced him-
self as an officer. The officers who were present were in full
uniform. M appeared to become more coherent over the
course of the four-minute interaction, as she began to make
direct eye contact with the officers and to verbally respond to
them. Right before McCartney released M so that she could
exit the tent, McCartney specifically warned M not to kick
her, which M verbally acknowledged, albeit by mocking her,
and as soon as McCartney released M, M kicked her several
times. There was no objectively reasonable basis for M to
believe that she needed to use force to defend herself against
the use of physical force by McCartney. To the contrary, the
officers were leaving M’s tent. They told her they were leav-
ing, and they left. That McCartney warned M not to kick her
as McCartney prepared to leave the tent does not change the
fact that she was leaving with the other officers. There was
no reasonable basis for M to believe that McCartney would
use unlawful force against her. A rational factfinder could,
on this record, have concluded that, in addition to meeting
its burden of proving the elements of the charged crime, the
state also met its burden to disprove M’s defense, all beyond
a reasonable doubt.
We turn to the Owen issues. Although M did not
squarely raise them in the opening brief, we consider them
because, as the state forthrightly acknowledged in its
answering brief, the issues are preserved and, in view of
Owen, the court erred insofar as it concluded that a culpable
mental state did not apply. The situation is somewhat akin
to that in State v. Brown, 310 Or 347, 800 P2d 259 (1990),
in which the Supreme Court considered—and corrected—
an error that was both unpreserved and unassigned, when
the state brought the error to the court’s attention. 310 Or
at 355. The main difference between this case and Brown is
380 State v. M. T. F.
that here the assigned error was preserved in the juvenile
court.5
As noted, the parties’ arguments frame two Owen
issues. The first is whether the evidence is legally suffi-
cient to permit a finding that M was criminally negligent
with respect to whether her conduct would cause physical
injury. Our review of the record confirms that it is. The sec-
ond issue, given the state’s concession, is whether the court’s
legal error in concluding that a culpable mental state did
not apply requires reversal. We examine the impact, if any,
that the error may have had by focusing “on whether the
error was harmless, that is, whether there is little likelihood
that it affected the verdict.” State v. Stone, 324 Or App 688,
693-94, 527 P3d 800 (2023). Here, we agree with the state
that the error was harmless beyond a reasonable doubt. In
an extensive conversation between the court and counsel,
the juvenile court stated that it would not apply a “know-
ing” standard to the “physical injury” element, but that it
would instead apply this standard: The state must prove
“that the person act[ed] with an awareness that her con-
duct was assaultive.” Had the juvenile court considered the
state’s evidence on the physical injury element by applying a
criminally negligent mental state standard, it would likely
have reached the same result. The court would have viewed
the evidence to determine whether the state proved that M
had “fail[ed] to be aware of a substantial and unjustifiable
risk * * * of such nature and degree that the failure to be
aware of it constitutes a gross deviation from the standard
of care that a reasonable person would observe in the situ-
ation.” ORS 161.085(10). “Given that the [court] found that
[M] acted with an awareness that [her] conduct was assaul-
tive in nature and that [her] assaultive conduct * * * was
committed with sufficient force to cause physical injury[,]
* * * there is little likelihood that it would have concluded
that [M] was not at least negligent with respect to the risk
that” physical injury could result. State v. Tellez-Suarez, 322
5
As both parties acknowledge, and as the record reflects, the issue of what
mental state, if any, is required for the physical injury element was thoroughly
briefed and argued in the juvenile court. M argued that State v. Barnes, 329 Or
327, 986 P2d 1160 (1999), should be overruled, and Owen has since done just that.
There is no preservation issue.
Cite as 326 Or App 371 (2023) 381
Or App 337, 339, 519 P3d 561 (2022) (so holding in similar
factual context).
In making its findings, the juvenile court relied
heavily on the body camera footage from the officers and
described the moment before M kicked the officer in the
video as “revealing” as to M’s mental state. There is little
likelihood that the juvenile court would have concluded that
M was not at least negligent with respect to the risk of injury
given its conclusion that M knowingly engaged in assaultive
conduct. The error, therefore, does not require reversal.
Affirmed.
PAGÁN, J., concurring.
Focusing on the emergency aid exception to the
warrant requirement in Article I, section 9, of the Oregon
Constitution, the majority opinion correctly affirms the juve-
nile court’s denial of the motion to suppress. I agree that the
emergency aid exception applied. I write separately to dispel
any suggestion that if that exception did not apply, then the
juvenile court should have granted the motion. By the very
nature of the charge against the youth, which resulted from
a decision by the youth to engage in conduct threatening
an officer’s safety, the motion to suppress could have been
denied whether or not the exception applied.
In the juvenile court and on appeal, the state
argued, as an alternative ground for denying the motion to
suppress, that the youth’s decision to assault a police offi-
cer “attenuated the taint from any unlawful police conduct.”
When ruling on the motion to suppress, the juvenile court
referred to the attenuation argument. It denied the motion
to suppress, at least in part, based on its conclusion that it
could not find that the accused crime of assaulting a police
officer was “in any way a result of a warrantless search or
search at all.”
The juvenile court’s reasoning in support of its
ruling is somewhat unclear, but the juvenile court could
be interpreted to have accepted the premise that, had the
youth demonstrated that the officers entered the tent ille-
gally, then the motion to suppress could have been granted.
382 State v. M. T. F.
But such a framing ignores an important point that we have
made repeatedly in our courts, using either the federal or
Oregon constitutions: New crimes against officers or that
threaten their safety fall within a clear exception to the
exclusionary rule. In State v. Suppah, 358 Or 565, 576, 369
P3d 1108 (2016), the Supreme Court noted that “the state
and federal courts consistently have held that a defendant’s
decision to commit a new crime in response to an unlawful
seizure ordinarily will attenuate the taint of the seizure.”
For example, “[a] decision to strike an officer in response
to an unlawful arrest or to offer a bribe does not normally
follow from the illegality, and the formation of the mental
state necessary to give rise to those criminal acts provides
further assurance that those acts are independent of the
illegality that preceded them.” Id. at 579.
In my view, had the state even conceded illegality
on the part of the officers, the facts of this case fit squarely
within the attenuation line of cases in Oregon which stand
for the specific proposition that the illegality of a stop or
entry does not render inadmissible evidence of new crimes
directed at police officers or threatening their safety. See
State v. Bistrika, 261 Or App 710, 714-16, 322 P3d 583,
rev den, 356 Or 397 (2014), cert den, 577 US 828 (2015)
(affirming denial of defendant’s motion to suppress evi-
dence of what occurred after an emergency had dissipated
because the evidence concerned conduct that threatened
officer safety); State v. Neill, 216 Or App 499, 508, 173 P3d
1262 (2007), rev den, 344 Or 671 (2008) (“That the police
may have acted unlawfully in initiating the search did not
free defendant to interfere with reasonable directions by the
police designed to reduce the risk of violence and maintain
safety once the search had commenced.”); State v. Williams,
161 Or App 111, 119, 984 P2d 312 (1999) (The exclusionary
rule protects privacy interests but that purpose would not
be served by suppressing evidence of new crimes “directed
at the arresting officers, thereby threatening their safety.”);
State v. Janicke, 103 Or App 227, 230, 796 P2d 392 (1990)
(“Assuming, without deciding, that the entry into the resi-
dence was unlawful, we have declined to extend the exclu-
sionary rule to evidence of crimes committed against police
officers during what turns out to be an illegal stop or entry.”).
Cite as 326 Or App 371 (2023) 383
As we stated so clearly in State v. Burger, 55 Or App 712,
716, 639 P2d 706 (1982):
“The issue here, however, is not whether physical evi-
dence obtained because of a warrantless entry should be
suppressed, but whether evidence of crimes committed
against police officers after they have unlawfully entered
a home should be suppressed. We decline to hold that after
an unlawful entry evidence of subsequent crimes commit-
ted against police officers must be suppressed. Such a rule
would produce intolerable results. For example, a person
who correctly believed that his home had been unlaw-
fully entered by the police could respond with unlimited
force and, under the exclusionary rule, could be effectively
immunized from criminal responsibility for any action
taken after that entry.”
See State v. Gaffney, 36 Or App 105, 108-09, 583 P2d 582(1978), rev den, 285 Or 195 (1979) (providing similar analysis
in a case involving an illegal stop). Based on that line of
cases, which survived the transition from the federal exclu-
sionary rule to adoption of our rights-based approach under
Article I, section 9, there can be no doubt that the juvenile
court correctly denied the motion to suppress whether or not
the emergency aid exception applied.
Accordingly, I respectfully concur.