State v. Gayman
| Decision Date | 09 June 2021 |
| Docket Number | A171373 |
| Court | Oregon Court of Appeals |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Jennifer Grace GAYMAN, Defendant-Appellant. |
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and John Evans, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Weston Koyama, Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and Powers, Judge.
Defendant appeals a judgment of conviction for fleeing or attempting to elude a police officer, ORS 811.540 (1)(b)(A). On appeal, defendant asserts (among other things) that the trial court plainly erred when it failed to enter a judgment of acquittal sua sponte . She argues that she was not operating a "motor vehicle," which is an essential element of fleeing or attempting to elude a police officer. We conclude that defendant was not operating a "motor vehicle" for purposes of ORS 811.540(1)(b)(A) and that the trial court plainly erred in failing to grant acquittal sua sponte , and we exercise our discretion to reverse the judgment of conviction. As a result, we do not reach defendant's other assignments of error.1
When evaluating defendant's argument that she was entitled to a judgment of acquittal, we view the facts in the light most favorable to the state. State v. Litscher , 285 Or. App. 508, 510, 397 P.3d 511, rev. den. , 362 Or. 94, 405 P.3d 154 (2017). Accordingly, we summarize the pertinent facts consistent with that standard.
Defendant was initially stopped by officers from the Brookings Police Department for traffic violations committed while operating her motor assisted scooter. The officers explained that they had stopped her for not wearing a helmet and for operating her motor assisted scooter on the sidewalk and crosswalk, and cited her for those offenses.2 Defendant protested the stop and explained that she was riding a "mobility scooter" that she used because of her disability. She distinguished her scooter from other motor vehicles by asserting that her scooter did not operate above 23 miles per an hour and that it only had three wheels. The officers did not contest the fact that defendant's scooter was operated for mobility purposes, and even acknowledged that it was electric- and not gas-powered, but, they maintained their position that she was violating Oregon law.
While the officers were drafting the citation, defendant complained that she was cold, that the stop violated her disability rights, and that it was taking too long. Since one officer was being trained, the record reflects in-depth discussions between the officers and some with defendant that illustrate that the consensus between the parties was that defendant was operating a motor assisted scooter not a motor vehicle and that the officers were acting based on the section of the vehicle code governing motor assisted scooters. After handing defendant the citation, one of the officers informed her that she was not free to drive her scooter home without a helmet and that, if she proceeded to do so, she would go to jail. Defendant proceeded to drive her scooter home without a helmet, and the officers followed her with their lights and sirens on in a "low speed pursuit" for two to three minutes. Once defendant arrived at her home, the officers arrested her and charged her with fleeing or attempting to elude a police officer, ORS 811.540.3
During a jury trial, the state presented body camera footage showing the initial interaction, the "low speed pursuit," and defendant's arrest. The state argued that the scooter was a motor vehicle because it fit the definition of a vehicle that is "self-propelled or designed for self-propulsion" within the meaning of ORS 801.360. Defendant did not contest that she was operating a motor vehicle but, after the state rested its case, she moved for a judgment of acquittal asserting that there was no evidence that she fled from the officers. The court denied the motion, and defendant ultimately was found guilty by a nonunanimous verdict.
On appeal, defendant argues that the trial court plainly erred when it failed to enter a judgment of acquittal sua sponte because the scooter she was operating was not a "motor vehicle" for purposes of the Oregon Vehicle Code. She explains that, if her mobility scooter constituted a motorized wheelchair, then she was either a pedestrian or, if operating in a bicycle lane, was "operating merely as a ‘vehicle.’ " Either way, defendant argues, she was not operating a "motor vehicle" and, because her charge required proof that she was operating a motor vehicle, the trial court plainly erred when it entered a conviction. She requests that we review for plain error under ORAP 5.45(1) and exercise our discretion to correct the error.
The state maintains that the trial court did not plainly err. According to the state, a motorized wheelchair meets the definition of a "motor vehicle" in ORS 801.360 and "thus plausibly qualifies as a ‘motor vehicle’ for purposes of ORS 811.540," which precludes plain error review.
Generally, a trial judge must grant a motion for judgment of acquittal if the evidence presented by the state is insufficient to allow a rational trier of fact to conclude that the defendant committed each element of the crime charged. State v. Davis , 194 Or. App. 382, 390, 95 P.3d 230 (2004), adh'd to as modified on recons. , 197 Or. App. 1, 104 P.3d 602 (2005). Because defendant did not preserve her argument below, she faces the additional obstacle of establishing that the trial court committed an error that is plain. Litscher, 285 Or. App. at 514, 397 P.3d 511. Whether defendant's motor assisted scooter qualifies as a "motor vehicle" for the purposes of ORS 811.540 is a legal question that we review for legal error. An error is plain if it (1) is a legal error; (2) is obvious and not reasonably in dispute; and (3) appears on the record, meaning that we do not have to choose between competing inferences to find it. State v. Brown , 310 Or. 347, 355, 800 P.2d 259 (1990).
Considering those standards together, to establish that the trial court plainly erred by not sua sponte acquitting defendant of fleeing or attempting to elude a police officer, she must demonstrate that it is "obvious and not reasonably in dispute" that no reasonable trier of fact could find that she was operating a "motor vehicle." We conclude that defendant established that the trial court plainly erred.
A "vehicle," in turn, is defined as "any device in, upon or by which any person or property is or may be transported or drawn upon a public highway and includes vehicles that are propelled or powered by any means." ORS 801.590. The vehicle code does not define "motorized wheelchair" but the dictionary defines "wheelchair" as a "chair mounted on wheels and usually propelled by the occupant by means of hand rims attached to the large side wheels." Webster's Third New Int'l Dictionary 930 (unabridged ed. 2002). A "motor vehicle" for the purposes of the vehicle code is "a vehicle that is self-propelled or designed for self-propulsion." ORS 801.360. Significant to our analysis is the choice the legislature made in defining a "motor assisted scooter" as including scooters "equipped with a power source," but otherwise specifically defining it as a "vehicle" and not a "motor vehicle." Compare, e.g. , ORS 801.193 - 801.194 (); ORS 801.295 (); and ORS 801.341 () with ORS 801.258 (); ORS 801.345 (); and ORS 801.259 ().
The vehicle code also contains provisions that specifically apply to motor assisted scooters. ORS 814.510 provides:
(Emphasis added.) A "public way" is included within the definition of "highway" under the vehicle code. ORS 801.305. The provisions in the motor assisted scooter portion of the vehicle code explicitly regulate "motor assisted scooters" differently from "motor vehicles." See, e.g. , ORS 814.512 (); ORS 814.518 (...
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