State v. Peterson

• Citation: 329 Or.App. 76
• Docket Number: A175984,A176010
• Decision Date: 08 November 2023
• Parties: STATE OF OREGON, Plaintiff-Respondent, v. ANTHONY DUANE PETERSON, Defendant-Appellant.
• Court: Court of Appeals of Oregon

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329 Or.App. 76

STATE OF OREGON, Plaintiff-Respondent,
v.
ANTHONY DUANE PETERSON, Defendant-Appellant.

Nos. A175984, A176010

Court of Appeals of Oregon

November 8, 2023

Argued and submitted December 20, 2022

Lane County Circuit Court 20CR69212, 20CR51858; Jay A. McAlpin, Judge.

Marc Brown, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

Robert M. Wilsey, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Ortega, Presiding Judge, and Powers, Judge, and Hellman, Judge.

In Case No. 20CR69212, convictions on Counts 3 and 4 reversed; remanded for resentencing; otherwise affrmed. In Case No. 20CR51858, affrmed.

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[329 Or.App. 77] HELLMAN, J.

In this consolidated criminal appeal, defendant appeals from a judgment of conviction and a probation violation judgment. He assigns error to the trial court's denial of his motion for judgment of acquittal on Counts 3 and 4 in Case No. 20CR69212, failure to perform the duties of a driver when property is damaged, ORS 811.700, arguing that the evidence was legally insufficient to support a conviction. As explained below, we conclude that the state's evidence was insufficient for a rational factfinder to determine that the collisions occurred on premises open to the public as required by ORS 811.700(3).

In doing so, we overrule the ORS 811.700 holding in State v. Probe, 200 Or.App. 708, 117 P.3d 310 (2005), as "plainly wrong" under State v. Civil, 283 Or.App. 395, 406, 388 P.3d 1185 (2017), and inconsistent with our other case law addressing ORS 811.700.^[1] As we explain below, that holding is susceptible to two interpretations, neither of which is legally correct. In addition, we imposed liability under ORS 811.700(1)(d) in a way that is contrary to the statutory language. Under a correct interpretation of the law, we reverse defendant's convictions on Counts 3 and 4 and remand for resentencing. We otherwise affirm.^[2]

We recount the facts "in the light most favorable to the state, drawing all reasonable inferences in the state's favor." State v. Cleaver, 326 Or.App. 332, 333, 532 P.3d 87 (2023). W and her mother, M, lived in a house that faced a three-way intersection, and their driveway formed the end of the bisecting roads. In December 2020, defendant stole an SUV that was parked four blocks from W and M's house. At approximately 10:30 p.m., W saw the SUV run a stop sign in front of the house and enter the driveway where it hit

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[329 Or.App. 78] M's parked sedan. The SUV then drove onto the front yard and hit a tree that fell onto the house. W found defendant in the driver's seat of the SUV. Defendant gave W a false name and left the scene on foot without providing any contact information.

Defendant was charged with, among other offenses, failure to perform the duties of a driver when property is damaged, ORS 811.700 (Counts 3 and 4). At trial, W and M testified about the damage, and the state presented evidence that the roads that formed the three-way intersection in front of the house were public roads. Defendant moved for acquittal on Counts 3 and 4, arguing that the damage to the sedan and the house did not occur on premises open to the public. The trial court denied the motion, explaining that the collisions occurred on property adjacent to a highway. The jury convicted defendant of Counts 3 and 4, as well as two other counts not at issue in this appeal.

On appeal, defendant contends that the trial court erred in denying his motion for judgment of acquittal on Counts 3 and 4 because the state failed to present evidence that the collisions occurred on premises open to the public as required by ORS 811.700(3). The state responds that the trial court correctly denied the motion because the state's evidence was sufficient for a rational trier of fact to find that the driveway was open to the public (Count 3) and that the damaged home was "adjacent to a highway" under ORS 811.700(1)(d) (Count 4).

When our "review of a ruling on a motion for a judgment of acquittal centers on the meaning of the statute defining the offense, the issue is one of statutory construction that we review for legal error." State v. McQueen, 307 Or.App. 540, 544, 478 P.3d 581 (2020) (internal quotation marks omitted). After we settle the legal issue, we "exam-in[e] the evidence in the light most favorable to the state to determine whether a rational trier of fact, accepting reasonable inferences and reasonable credibility choices, could have found the essential element of the crime beyond a reasonable doubt." State v. Hunt, 270 Or.App. 206, 209, 346 P.3d 1285 (2015) (internal quotation marks omitted).

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[329 Or.App. 79] We begin our analysis with the statute in dispute. A person commits the crime of failure to perform the duties of a driver when property is damaged when "[a] driver of a vehicle who knows or has reason to believe that the driver's vehicle was involved in a collision *** that results in damage to property" fails to perform certain enumerated duties. ORS 811.700(1). "The offense described in [ORS 811.700], failure to perform the duties of a driver when property is damaged, is a Class A misdemeanor and is applicable on any premises open to the public." ORS 811.700(3). Consistent with the text of the statute, we have held that a collision that occurred on premises open to the public is an element of ORS 811.700 on which the state bears the burden of proof. State v. Baehr, 85 Or.App. 155, 158, 735 P.2d 1275 (1987) ("The state had the burden to prove each element of the crime charged beyond a reasonable doubt. That included proving that the collision took place 'on any premises open to the public.'").

In a combined argument, defendant argues that the evidence was insufficient to prove that the collisions that damaged the sedan and the house occurred on "premises open to the public." "Premises open to the public" is defined as "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. Because the terms "premises" and "general public" are not defined in the Oregon Vehicle Code, we give those terms their "plain, natural, and ordinary meaning." PGE v. Bureau of...