State v. Reed, 095252FE; A145172.

CourtCourt of Appeals of Oregon
Citation256 Or.App. 61,299 P.3d 574
Docket Number095252FE; A145172.
PartiesSTATE of Oregon, Plaintiff–Respondent, v. Johnathan Ernest REED, Defendant–Appellant.
Decision Date03 April 2013

OPINION TEXT STARTS HERE

Susan F. Drake, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Jamie K. Contreras, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.

Before ARMSTRONG, Presiding Judge, and HASELTON, Chief Judge, and DUNCAN, Judge.

DUNCAN, J.

In this criminal case, defendant appeals from a judgment convicting him of one count of unauthorized use of a vehicle, ORS 164.135, four counts of felony fleeing or attempting to elude a police officer, ORS 811.540, and one count of reckless driving, ORS 811.140. Defendant assigns error to the trial court's entry of separate convictions on the four counts of attempting to elude a police officer, arguing, as he did before the trial court, that those counts should have merged because the antimerger statute, ORS 161.067, does not apply. We conclude that ORS 161.067(3) does apply because defendant committed multiple violations of ORS 811.540 and the violations were separated by sufficient pauses.1 Accordingly, we affirm.

After leading police officers on a series of chases, defendant was charged with, inter alia, four counts of attempting to elude. Each count alleged that defendant had attempted to elude a different police officer. The issue on appeal is whether the guilty verdicts on those four counts should merge. As explained below, in order to support multiple convictions for attempting to elude, (1) the defendant must have completed each attempt to elude—that is, he must have stopped running or hiding—before beginning the next attempt to elude, and (2) each attempt to elude must have been separated from the others by a pause in the defendant's criminal conduct sufficient to afford him an opportunity to renounce his criminal intent. ORS 161.067(3); see256 Or.App. at 68–70, 299 P.3d at 577–79.

Whether a defendant stopped running or hiding from the police at a particular point in time is a question of historical fact. Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968) (“What actually transpired is a question of fact for the trial court or jury.”). We are bound by the findings of the trier of fact, provided that the findings are supported by constitutionally sufficient evidence. Id.; see State v. Watkins, 236 Or.App. 339, 345, 236 P.3d 770,rev. den.,349 Or. 480, 246 P.3d 745 (2010) (appellate court is “bound by the trial court's findings of fact if there is constitutionally sufficient evidence in the record to support those findings” (internal quotation marks omitted)). If the trier of fact does not make express findings and there is evidence from which the facts could be decided in more than one way, we presume that the facts were decided in a manner consistent with the trier of fact's ultimate conclusion. Ball, 250 Or. at 487, 443 P.2d 621. Thus, in this case, we must determine whether there was constitutionally sufficient evidence to support the trial court's implicit findings that defendant had stopped running and hiding between each of the charged attempts to elude. If there was, then the trial court correctly concluded, as a matter of law, that defendant had completed each of the charged attempts to elude before beginning the next one; that is, he had committed repeated violations of the attempt to elude statute, as opposed to a continuing violation of the statute.

If the trial court correctly concluded that defendant had completed each attempt to elude before beginning the next one, then the question becomes whether the attempts to elude were separated by sufficient pauses. The duration of a pause and what a defendant did during a pause are also questions of historical fact. See, e.g., State v. Aitken, 255 Or.App. 17, 22–23, 296 P.3d 587 (2013) (concluding that the timing of the defendant's two stabbings of the victim and the events that occurred between the two incidents were matters of historical fact). Whether the pause was sufficient to afford the defendant an opportunity to renounce his criminal intent is a question of law, which we review for errors of law. ORS 138.220; State v. McConville, 243 Or.App. 275, 277, 283, 259 P.3d 947 (2011).

Because we must determine whether there was sufficient evidence to support both (1) the trial court's implicit findings that defendant had stopped running and hiding between each of the charged attempts to elude and (2) its legal conclusion that there was a sufficient pause between each of the attempts to elude to afford him the opportunity to renounce his criminal intent, we recount the facts in some detail. At the outset, we note that defendant was charged with attempting to elude (1) Officer Rydell, (2) Officer Moffitt, (3) Officer Whiteman, and (4) Officer Hull.

Shortly after 2:00 a.m. on December 28, 2009, Medford police officer Rydell, who was in an unmarked patrol car with another officer, Arnold, observed a black Honda Prelude, driven by defendant, weaving over the center and fog lines on S. Central Avenue in Medford. She followed the vehicle. Defendant pulled into a gas station. Rydell also pulled into the gas station and waited for defendant to leave. When he did, she followed him and, shortly thereafter, at 2:14 a.m., activated the lights on her car. Defendant continued driving, very slowly—10 to 15 miles per hour—and then began to weave dramatically, so that he left one lane entirely before returning to it. Rydell then “chirped” her siren to make sure that defendant was aware of her presence. Defendant sped up to approximately 20 to 25 miles per hour and Rydell turned her siren on all the way. Defendant sped up more and turned right at a red light without stopping. When Rydell turned right as well, defendant had accelerated so fast that she could see only “dirt and debris and dust flying.” She thought that she saw defendant turn right at an intersection ahead. At that point, in accordance with Medford Police Department policy, Rydell terminated her pursuit of defendant. She turned off her siren and overhead lights and drove at the speed limit toward the place where she thought he had turned.

Rydell searched the area for defendant for approximately 20 minutes. During that time, she was in radio contact with dispatch and with other officers, some of whom assisted with the search. Rydell located the Prelude on Vancouver Avenue near 9th Street. It was “parked right there, * * * kind of blacked out, no lights on.” Rydell shined her spotlight on the windshield, and defendant looked up at her and then backed down Vancouver Avenue away from 9th Street. As Rydell drove toward defendant, he reversed course and drove forward toward her vehicle. Rydell swerved to avoid being hit by defendant, and he drove up Vancouver Avenue and turned east onto 9th Street. Rydell alerted the other officers that defendant was heading east on 9th Street, turned around, and attempted to follow defendant, but by that time, he was gone.

Another Medford police officer, Moffitt, had heard Rydell's radio communications and was a few blocks away when Rydell found defendant on Vancouver Avenue. When Moffitt heard Rydell say that defendant was heading east on 9th Street, he did a U-turn, which left him facing south on Willamette Avenue. Defendant turned south from 9th Street onto Willamette Avenue “right in front” of Moffitt. Moffitt turned on his overhead lights and siren and followed defendant as he went through a stop sign and several red lights, weaving and driving 40 to 50 miles per hour. Eventually defendant turned onto S. Pacific Highway and, traveling south, accelerated to 70 miles per hour. Moffitt turned off his siren and overhead lights and continued to follow defendant from a distance, going 45 miles per hour. Defendant pulled into a parking lot, did a U-turn, turned back onto S. Pacific Highway, and continued driving south, toward the City of Phoenix, “extremely fast.” Moffitt notified dispatch and continued to Phoenix, driving the speed limit. In Phoenix, he learned from bystanders that defendant had driven past them and headed toward Interstate 5. Moffitt then returned to Medford. He did not testify as to what time he lost sight of defendant.

The next officer who chased defendant was Whiteman, another Medford police officer. Whiteman heard Rydell report her initial encounter with defendant and heard that Moffitt was following defendant. After Moffitt lost sight of defendant, Whiteman explained, we searched the area, we were unable to find the vehicle.” Then Whiteman parked in a parking lot in central Medford. Around 3:00 a.m., from his vantage point in the parking lot, he saw defendant, who had apparently returned from Phoenix, driving south on Crater Lake Avenue, approaching Main Street. Whiteman pulled out of the parking lot and followed defendant, who turned west onto Main Street. Eventually other police cars were following Whiteman as he followed defendant. At first, defendant was driving around 25 miles per hour and Whiteman did not attempt to initiate a stop. Then Whiteman turned on his overhead lights, and defendant accelerated to [256 Or.App. 66]35 to 40 miles per hour. After that, Whiteman turned on his siren as well.

Whiteman received permission to attempt a pursuit intervention technique (PIT) to stop defendant, but when he pulled alongside defendant his speed was 42 miles per hour, which exceeded the limit for the technique. He backed off, and defendant accelerated to approximately 60 miles per hour and cut through the middle of an “S-curve.” Whitemanterminated his pursuit, turning off his overhead lights and siren. Defendant slowed down, and Whiteman followed 200 to 300 yards behind. Even...

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  • State v. Nelson
    • United States
    • Oregon Court of Appeals
    • November 30, 2016
    ...court's ultimate ruling that a pause was sufficient to afford the defendant an opportunity renounce his criminal intent. State v. Reed , 256 Or.App. 61, 63, 299 P.3d 574, rev. den. , 353 Or. 868, 306 P.3d 640 (2013).Defendant contends that his guilty verdicts for sexual abuse must merge bec......
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    ...by the trial court's factual findings if there is constitutionally sufficient evidence in the record to support them. State v. Reed , 256 Or. App. 61, 63, 299 P.3d 574, rev. den. , 353 Or. 868, 306 P.3d 640 (2013). When multiple charges arise from the same criminal episode, "criminal conduc......
  • State v. Ortiz-Rico
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    • March 18, 2020
    ...of fact, while the question of whether the pause is "sufficient" to allow for multiple convictions is one of law. State v. Reed , 256 Or. App. 61, 63, 299 P.3d 574, rev. den. , 353 Or. 868, 306 P.3d 640 (2013)."In order for a pause to be between violations, ‘one crime must end before anothe......
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