State v. Scott

• Decision Date: 05 May 2021
• Docket Number: A167219
• Citation: 311 Or.App. 175,488 P.3d 803
• Court: Oregon Court of Appeals
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Jarrod Tolman SCOTT, Defendant-Appellant.

311 Or.App. 175

488 P.3d 803

STATE of Oregon, Plaintiff-Respondent,

v.Jarrod Tolman SCOTT, Defendant-Appellant.

A167219

Court of Appeals of Oregon.

Submitted October 4, 2019.

May 5, 2021

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and John P. Evans, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Joanna Hershey, Assistant Attorney General, filed the brief for respondent.

Before Lagesen, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.

POWERS, J.

In this criminal proceeding, a jury unanimously found defendant guilty of one count of fleeing or attempting to elude a police officer, ORS 811.540, and one count of resisting arrest, ORS 162.315. On appeal, defendant claims that the trial court erred by refusing to provide the jury an instruction regarding the meaning of "intentionally" in connection with the attempting to elude a police officer charge, by imposing $604 in attorney fees, and by instructing the jury that it could return nonunanimous verdicts. Defendant's argument concerning the nonunanimous jury instruction was foreclosed by the Oregon Supreme Court and for the reasons expressed in State v. Ciraulo , we reject that argument without further discussion. 367 Or. 350, 354, 478 P.3d 502 (2020) (concluding that, although a jury instruction permitting nonunanimous verdicts was erroneous, the error was harmless beyond a reasonable doubt because all of the jury's verdicts were unanimous).¹ For the reasons described below, we conclude that the trial court did not err in refusing to provide the "intentionally" instruction, but impermissibly assessed $604 in attorney fees; therefore, we reverse that portion of the judgment, but otherwise affirm.

In his first assignment of error, defendant asserts that the trial court committed reversible error by failing to instruct the jury on the definition of "intentionally" in the context of the attempt to elude charge. The statute defining the offense provides:

"(1) A person commits the crime of fleeing or attempting to elude a police officer if:

"(a) The person is operating a motor vehicle; and

"(b) A police officer who is in uniform and prominently displaying the police officer's badge of office or operating a vehicle appropriately marked showing it to be an official police vehicle gives a visual or audible signal to bring the vehicle to a stop, including any signal by hand, voice, emergency light or siren, and ***:

"(A) The person, while still in the vehicle, knowingly flees or attempts to elude a pursuing police officer[.]"

ORS 811.540. Although the phrase "attempts to elude" is not defined by statute, we held that in that context that phrase means "to attempt to escape the notice or perception of." State v. Cave , 223 Or. App. 60, 68, 195 P.3d 446 (2008), rev. den. , 345 Or. 690, 201 P.3d 910 (2009). Defendant's argument on appeal focuses on the language of the statute and the potential difference in culpable mental states for "flees" or "attempts to elude." In short, he argues that "knowingly" is the applicable mental state for "flees" and that, because a culpable mental state is omitted from "attempt to elude," the intentional mental state that applies to all criminalized attempts applies here too. That is, under defendant's argument, to be found guilty of attempting to elude, the state had to prove that it was his "conscious objective to elude police officers."

We recently addressed and rejected the same argument in State v. Rapp , 306 Or. App. 265, 473 P.3d 1126, rev. den. , 367 Or. 291, 477 P.3d 407 (2020), which was decided after briefing in this was completed and the case was under advisement. In Rapp , the defendant was charged with attempting to elude a police officer after continuing to drive at a high rate of speed after police pulled in behind him and then the defendant " ‘blew right through an intersection’, made a turn, went through a stop sign, and then pulled into the driveway of his house." Id . at 267, 473 P.3d 1126. At trial, the defendant requested a separate jury instruction on what he defined as the offense of attempting to elude a police officer with the intentional mental state.²

Id . at 270, 473 P.3d 1126. The state argued that attempting to elude was itself the substantive crime, not an inchoate crime involving a substantial step toward a separate substantive offense. As such, the state maintained that it was not required to prove an intentional mental state for attempting to elude. Id. at 272, 473 P.3d 1126.

We concluded that the plain text of ORS 811.540(1) defines the single crime of "fleeing or attempting to elude a police officer." Id. at 277, 473 P.3d 1126. The statute specifies the mental state of knowing, and neither the text nor context of the statute suggests that the legislature meant to borrow the intentional mental state from the attempted crime statute for application to the "attempts to elude" portion of the statute.³ Id. In rejecting the defendant's argument, we held that the culpable mental state that applies to attempts to elude is exactly the one the statute prescribes: "knowingly."

In this case, defendant's argument, to the extent it is any different from that in Rapp , must similarly fail because it too requires application of the intentional mental state from ORS 161.405 to the attempt to elude charge under ORS 811.540. Even viewing the evidence in the light most favorable to defendant, as the party requesting the intentional instruction, it was not legal error to refuse to give such instruction. See State v. Payne , 366 Or. 588, 603, 468 P.3d 445 (2020) (stating that appellate review of refusal to give a requested jury instruction is reviewed for errors of law, not abuse of discretion). Because ORS 811.540(1)(b)(A) criminalizes knowing attempts to elude a pursuing police officer, defendant was not entitled to an instruction for the intentional mental state with respect to that charge.

Defendant's second assignment of error challenges the trial court's imposition of $604 in court-appointed attorney fees, which he maintains was not based on a specific finding on the record that he was able to pay the fee. The trial court determined that the $3,000 security deposit defendant's mother posted was a financial resource of defendant and therefore that he had ability to pay.

During the sentencing hearing, defendant testified that he hoped to be able to find a job so that he could pay his mother back the money she had borrowed to pay for the security deposit. Sentencing was concluded a month later, and the trial court believed defendant was unable to pay attorney fees until the court clerk reminded the court about the security deposit. The following exchange occurred between the court and the court clerk:

"The Court: Sir, we are not being negative, but I don't think you have the ability on this record to pay court appointed attorney's fees.

"Court Clerk: He has $3,000 posted.

"The Court: Oh the—okay. So based on that, sir, I would need to order court appointed attorney's fees in the amount of $604. And a fine of $100. The remainder would be sent back to the person posting it. And 15 percent would not be waived."⁴

After this exchange, the record is devoid of any further discussion of attorney fees, and defendant did not object when the court announced the fees. Defendant concedes that this assignment of error is unpreserved, but requests that we review it as one of plain error.

An unpreserved error is reviewable as plain error when (1) the error is one of law; (2) the legal point is obvious, meaning it is not reasonably in dispute; and (3) to "reach the error, we need not go outside the record or choose between competing inferences to find it." State v. Nickerson , 272 Or. App. 155, 156, 354 P.3d 758 (2015). If, based on those predicates, we conclude the error is plain, we must then determine whether to exercise our discretion to correct it. Id. Among the prudential factors we weigh when considering whether to correct a plain error are,

"the competing interests of the parties; the nature of the case; the gravity of the error; the ends of justice in the particular case; how the error came to the court's attention; and whether the policies behind the general rule requiring preservation of error have been served in the case in another way[.]"

Ailes v. Portland Meadows, Inc. , 312 Or. 376, 382 n 6, 823 P.2d 956 (1991).

The Supreme Court's recent decision in State v. Morales , 367 Or. 222, 476 P.3d 954 (2020), is dispositive on whether the claimed error in this case is plain. See State v. Jury , 185 Or. App. 132, 136, 57 P.3d 970 (2002), rev. den. , 335 Or. 504, 72 P.3d 636 (2003) (explaining that we determine error based on the law as it existed at the time of the appellate decision, not at the time of the disputed ruling, and acknowledging the "ostensibly incongruous results" by that approach). In Morales , which was also decided while this appeal was pending, the court explained that the longstanding presumption that any funds deposited as bail or security by a third party were presumed to belong to the defendant was wrong because it did not give full effect to a 1979 amendment enacted by the legislature.

367 Or. at 231, 476 P.3d 954. Absent that presumption, the court concluded that, when a non-spouse third party posts security for the benefit of a defendant, the security funds cannot be considered when determining a defendant's ability to pay attorney fees unless the record demonstrates that the deposit carried a donative intent or was actually of the defendant's own money. Id. at 234, 476 P.3d 954.

In this case, the record demonstrates that defendant's mother posted the security deposit, that she herself was on disability insurance and had been required to borrow the money to deposit for security, and that defendant hoped to find a job to "be able to pay my mother back the money she borrowed for...