State v. Logan

• Decision Date: 18 August 2021
• Docket Number: A166946
• Citation: 496 P.3d 1,314 Or.App. 72
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Ted Edward LOGAN, Defendant-Appellant.
• Court: Oregon Court of Appeals

314 Or.App. 72

496 P.3d 1

STATE of Oregon, Plaintiff-Respondent,

v.Ted Edward LOGAN, Defendant-Appellant.

A166946

Court of Appeals of Oregon.

Argued and submitted August 9, 2019.

August 18, 2021

Rond Chananudech argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Colm Moore, Portland, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Lagesen, Presiding Judge, and Powers, Judge, and Kistler, Senior Judge.

POWERS, J.

In this criminal case, defendant appeals from a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010, and raises three assignments of error focused on whether he drove on "premises open to the public." His first assignment of error challenges the trial court's denial of his motion for judgment of acquittal. In his second and third assignments of error, defendant asserts that the trial court erred in rejecting his requested special jury instruction and in issuing the state's requested special jury instruction. For the reasons explained below, we conclude that the trial court did not err and affirm.

We begin with defendant's first assignment of error challenging the trial court's denial of his motion for judgment of acquittal. In reviewing the denial of a motion for judgment of acquittal, we view the facts in the light most favorable to the state and evaluate whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Cunningham , 320 Or. 47, 63, 880 P.2d 431 (1994), cert. den. , 514 U.S. 1005, 115 S.Ct. 1317, 131 L.Ed.2d 198 (1995).

Just outside of Brookings, there is a large gravel bar along the northside of the Chetco River that is around a tenth of a mile long; it is known as the Social Security Bar. Used for various recreational purposes, including fishing, bonfires, camping, and other social gatherings, the Social Security Bar is accessible by car from a paved parking lot. The Oregon Department of State Lands owns the gravel bar and there is only one entrance to it, which is the same place that visitors exit. The gravel bar is open to the public, but closed between 10:00 p.m. and 5:00 a.m., and there is a sign at the entrance informing visitors when the bar is closed. There is no gate or barrier preventing access to the bar when it is closed. After the gravel bar closes at night, law enforcement generally clear out people who are still congregating; however, people occasionally camp on the bar and law enforcement sometimes let people stay there overnight.

On a summer night in 2017 around 11:00 p.m., Curry County Sheriff's Deputy Warren saw defendant driving a truck on the gravel bar. Although the bar was closed, there were roughly 12-15 people still on the bar approximately 100 yards from defendant. Warren asked defendant for his license and noticed that defendant had slurred speech, red eyes, and a strong odor of alcohol coming from his breath. Defendant said that he was visiting friends on the bar and was headed home. Warren conducted field sobriety tests, during which defendant exhibited signs of intoxication; defendant also admitted to drinking six to eight cans of beer that night. Eventually, Warren arrested defendant for DUII, and a breath test later revealed a .16 percent blood alcohol content.

The state charged defendant by district attorney information with driving a vehicle "upon premises open to the public" while under the influence of intoxicants. ORS 813.010. The Oregon Vehicle Code defines "premises open to the public" to include "any premises open to the general public for the use of motor vehicles, whether the premises are publicly or privately owned and whether or not a fee is charged for the use of the premises." ORS 801.400. Ultimately, the determination of whether property is open to the public is a question of fact for the factfinder. State v. Scott , 61 Or. App. 205, 208, 655 P.2d 1094 (1982).

At trial, the parties disputed whether the gravel bar constituted premises open to the public as defined by ORS 801.400. See State v. Romanov , 210 Or. App. 198, 205, 149 P.3d 1224 (2006), rev. den. , 342 Or. 633, 157 P.3d 788 (2007) (explaining that "the offense of DUII is not applicable on premises not open to the public for the use of motor vehicles" (emphases omitted)). After the state rested, defendant moved for a judgment of acquittal, arguing that the Social Security Bar, where Warren saw defendant driving, was not a "premises open to the public" because the bar was closed. That is, because the sign at the entrance of the bar put visitors on notice that the bar was closed after 10:00 p.m., defendant contended that there was insufficient evidence for a rational juror to find that he drove on a premises open to the public. The court denied the motion.

On appeal, defendant renews his argument, asserting that the trial court erred in denying his motion because all members of the public are prohibited from using the bar at the time that defendant drove on the bar. In defendant's view, because the bar was closed to the public during the time that defendant was driving, it could not qualify as a premises open to the public for purposes of DUII. The state asserts that "[e]vidence that premises are accessible to the public and actually used by the public is sufficient to allow a factfinder to find that the premises is open to the public." In the state's view, a rational factfinder could conclude that, "after the posted closing time, the public had access to the gravel bar and were actually allowed to use it." We conclude that the trial court correctly denied defendant's motion.

In resolving the dispute, we begin by noting that the Supreme Court has explained that the primary purpose of the statutory phrase "premises open to the public" is to "enlarge the zone of statutory protection of the public for Class A traffic offenses from public highways to non-highway locations that are open to the general public for use of motor vehicles." State v. Mulder , 290 Or. 899, 903, 629 P.2d 816 (1981) (interpreting the statutory predecessor to ORS 801.400 (internal quotation marks omitted)). That phrase also served to "extend the protection of the statute to all parking lots which share similar characteristics of public access and exposure to danger from such improper driving of motor vehicles." Id. at 904, 629 P.2d 816. When evaluating the question whether premises are open to the public, we have emphasized that the "focus of the inquiry is * * * the actual use of the premises and its accessibility to the general public." Scott , 61 Or. App. at 208, 655 P.2d 1094 (emphasis omitted).

Our discussion in State v. Sterling , 196 Or. App. 626, 630-31, 103 P.3d 1162 (2004), is instructive. In Sterling , we considered whether a driveway qualified as premises open to the public:

"The driveway ran past [the defendant's brother's] house and terminated in a dead end in front of another house. At its other end, the driveway connected to a private road winding through a condominium complex, which [the] road itself ultimately connected to a public road."

196 Or. App. at 628, 103 P.3d 1162. After reviewing various cases, we distilled the following guidance:

"[T]he cases construing the term ‘premises open to the public’ teach that the phrase should be defined so as to achieve its primary purpose, which is to protect members of the public from serious driving offenses; that signs discouraging the public from entering do not necessarily close premises to the public; that the absence of a physical barrier, although not itself sufficient to prove openness to the public, is strong evidence to that effect; and that the key evidentiary fact the state has to prove is that members of the public, including those with a legitimate business purpose, such as garbage collectors, meter readers and paper carriers, are allowed on the premises."

Id. at 630-31, 103 P.3d 1162 (internal quotation marks and citation omitted). Thus, in Sterling we concluded that the evidence presented at trial was sufficient for a rational juror to find that the premises were open to the public. Id. at 631, 103 P.3d 1162. We reasoned that, notwithstanding a "tenants only" sign posted in the condominium complex, there were no "physical barriers such as a fence or a wall limiting access."...