State v. M. T. F.

371

Argued and submitted September 12, 2022, affirmed June 14, 2023

In the Matter of M. T. F.,

a Youth.

STATE OF OREGON,

Respondent,

v.

M. T. F.,

Appellant.

Lane County Circuit Court

20JU07068; A175638

532 P3d 913

Youth, M, appeals from a judgment adjudicating her delinquent for assault-

ing a public safety officer, ORS 163.208. M argues that the juvenile court erred by

(1) denying her motion to suppress evidence, and (2) adjudicating her delinquent.

She raises an additional argument in her reply brief, challenging the juvenile

court’s ruling, in light of the recent decision in State v. Owen, 369 Or 288, 505

P3d 953 (2022), that the state did not have to prove any mental state for the result

element of “physical injury.” Held: The juvenile court did not err by denying M’s

motion to suppress or by adjudicating her delinquent. The juvenile court did err,

in light of State v. Owen, by failing to require that the state prove any mental

state with respect to the physical injury element of the crime. However, that error

was harmless.

Affirmed.

Debra E. Velure, Judge.

Erica Hayne Friedman argued the cause and filed the

opening brief for appellant. Also on the opening brief was

Youth, Rights & Justice. Christa Obold Eshleman and

Youth, Rights & Justice filed the reply brief.

Erica L. Herb, Assistant Attorney General, argued

the cause for respondent. Also on the briefs were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Before Shorr, Presiding Judge, and Mooney, Judge, and

Pagán, Judge.

MOONEY, J.

372 State v. M. T. F.

Affirmed.

Pagán, J., concurring.

Cite as 326 Or App 371 (2023) 373

MOONEY, J.

Youth, M, appeals from a judgment adjudicating

her delinquent for assaulting a public safety officer. ORS

163.208.1 M asserts two assignments of error in her opening

brief, contending that the juvenile court erred by denying

her motion to suppress evidence, and by adjudicating her

delinquent for an act that, if committed by an adult, would

constitute assaulting a public safety officer under ORS

163.208. We conclude that the juvenile court did not err in

denying the motion to suppress or by adjudicating M delin-

quent. We affirm.

We review the denial of a motion to suppress for

legal error. State v. Oxford, 311 Or App 1, 7, 488 P3d 808

(2021). “[W]e are bound by a trial court’s factual findings,

if the record contains evidence to support them.” State v.

Serrano, 346 Or 311, 326, 210 P3d 892 (2009). If the court

did not make an express factual finding on a pertinent issue,

we presume it decided the disputed facts in a manner con-

sistent with its ultimate conclusion, as long as there is some

evidence in the record to support that conclusion. Oxford,

311 Or App at 3. We draw the facts from the record in accor-

dance with the applicable standard of review.

On December 9, 2020, members of the Eugene

Police Department responded to a report that a person was

overdosing on drugs inside a tent at a city park. Officers

Peckels and Vinje arrived at the park first, in full uniform.

Several individuals approached Peckels, led him to the tent,

and told him there was a female inside. Peckels testified

that in suspected overdose situations, police must render

the area safe before medics may enter, and, in this case, he

believed medics would soon be there. Officers Cardwell and

McCartney responded soon after.

As Peckels approached the tent, through the open

tent flap he saw M laying on her back with her arm over

her face, her teeth were chattering, and she was visibly

1

ORS 163.208, as relevant, states:

“(1) A person commits the crime of assaulting a public safety officer if the

person intentionally or knowingly causes physical injury to the other person,

knowing the other person to be a peace officer * * * and while the other person

is acting in the course of official duty.”

374 State v. M. T. F.

trembling, which he understood to be early signs of an over-

dose. A medical volunteer with Occupy Medical was with M

in the tent when Peckels arrived and left when Peckels indi-

cated that medics were on their way. Peckels put one foot in

the tent and announced “Eugene Police” before asking M

her age. He testified that M did not reply or acknowledge

him, and that when she did speak, she slurred her words.

Peckels communicated with the en route medics that M was

conscious, breathing, and speaking.

Peckels told M that medics were on their way, and

he asked her what she had taken. M responded that she had

taken heroin, although she did not know how much she had

taken. Peckels testified that he believed that M was experi-

encing a medical emergency. He stood ready to administer

Narcan if M became unresponsive. M began telling Peckels

to “go away” and leave her alone. McCartney had joined

Peckels in the tent, and they explained to M that, in order to

ensure her safety, the officers would not leave until medics

arrived. M began kicking at Peckels. Peckels, McCartney,

and Vinje physically restrained M at that point. M screamed

for the officers to let go of her and to leave her tent. The

officers repeatedly explained that they needed to stay with

M until the medics arrived. Peckels exited the tent to speak

with the medics while McCartney and Vinje stayed with M.

A sergeant outside the tent directed McCartney and Vinje to

exit the tent and M continued to yell at McCartney to leave.

McCartney responded to M saying: “I am. You’re not going

to kick me in the process, okay?” M mocked McCartney

at that point and then, after McCartney released her, M

kicked McCartney several times in the knee. Approximately

four minutes elapsed from the time the officers arrived on

scene to the time that McCartney and Vinje left M’s tent.

Eventually, M was transported to the hospital by medics.

The state filed a petition alleging that M was within

the juvenile court’s jurisdiction for acts that, if committed

by an adult, would constitute assaulting a public safety

officer under ORS 163.208, a Class C felony. The petition

alleged that M unlawfully and knowingly caused physical

injury to McCartney, who M knew to be a public safety offi-

cer, while McCartney was acting in her official duty. Prior

to trial, M filed a motion to suppress all evidence obtained

Cite as 326 Or App 371 (2023) 375

from the officers’ presence in her tent, which the trial court

denied after a hearing. At trial, at the close of evidence, M

requested a jury instruction that assigned a mental state to

the result element of “physical injury,” but the juvenile court

ruled that the “knowing” mental state did not apply to phys-

ical injury and instead required “that the person act[ ] with

an awareness that her conduct was assaultive.” The juvenile

court then found that the state had proved the allegations of

the petition beyond a reasonable doubt and concluded that

M was within its jurisdiction.

In her first assignment of error, M asserts that the

juvenile court erred by denying her motion to suppress “all

evidence” resulting from the warrantless entry into her tent.

She had argued to the juvenile court that no exception to the

warrant requirement applied and, therefore, the evidence

was obtained in violation of her Article I, section 9, rights.2

The juvenile court denied the motion to suppress. We under-

stand the juvenile court to have found that the emergency

aid exception applied to any argument about whether the

officers needed a warrant to enter the tent, and that the

court determined that the officers’ intent was consistent

with aiding M, as opposed to searching the tent for evidence

of a crime. On appeal, both parties focus their arguments

almost entirely on the emergency aid exception.

According to the Supreme Court,

“an emergency aid exception to the Article I, section 9 war-

rant requirement is justified when police officers have an

objectively reasonable belief, based on articulable facts,

that a warrantless entry is necessary to either render

immediate aid to persons, or to assist persons who have

suffered, or who are imminently threatened with suffering,

serious physical injury or harm.”

State v. Baker, 350 Or 641, 649, 260 P3d 476 (2011) (foot-

notes omitted).

It is the state’s burden to prove each element of the

emergency aid exception and, additionally, to prove that the

2

Article I, section 9, of the Oregon Constitution provides, in relevant part:

“No law shall violate the right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable search, or seizure * * *.”

376 State v. M. T. F.

particular emergency did not dissipate and, thus, render

the exception inapplicable at any point. State v. Garcia, 276

Or App 838, 850, 370 P3d 512 (2016). M argues first that

the state failed to prove that the officers had an objectively

reasonable belief that warrantless entry into her tent was

necessary to render immediate aid. She contends that offi-

cers actually entered her tent to determine whether there

was an emergency, not to administer aid, because at the

time they entered the tent a medical volunteer was present,

and Peckels had reported that M was conscious and speak-

ing. M further argues that the state failed to prove that the

emergency aid exception applied to McCartney’s entry, even

if McCartney believed M was experiencing a medical emer-

gency, because it failed to prove why McCartney’s presence,

in particular, was necessary to aid M in her emergency.

Second, M argues that the officers’ belief was not objectively

reasonable, because nothing in the record supports a finding

that M was in a condition that the officers could assist with

by entering the tent.

The emergency aid exception to the warrant

requirement applied here, and we reject M’s arguments to

the contrary. There is sufficient evidence in the record to

support the conclusion that the officers subjectively believed

that their entry into M’s tent was necessary to render imme-

diate aid to her and, further, that their belief was objectively

reasonable. As we have described, the officers arrived at the

scene within minutes of each other in response to a 9-1-1

call expressing concern that someone may have overdosed.

They were taken directly to M’s tent where they observed

M exhibiting early signs of a drug overdose. Moreover, the

presence of a medical volunteer did not render the officers’

intervention unnecessary. That the officers took charge of

the scene when they arrived is simply evidence that the

emergency response process was underway. M’s need for

emergent care was transitioned from a medical volunteer to

medical professionals through the assistance of law enforce-

ment officers. The officers stood ready to administer Narcan

if that became necessary before the medics arrived. The

record supports a conclusion that the officers had an objec-

tively reasonable belief that their entry into the tent was

necessary to render M immediate aid.

Cite as 326 Or App 371 (2023) 377

M argues, alternatively, that even if the offi-

cers’ initial entry into the tent was justified, they unlaw-

fully remained after any emergency had dissipated. The

record does not support that argument. The video footage

confirmed that the officers were in the tent for about four

minutes. In that time, they entered her tent, observed M’s

physical condition, and, to the extent they could, interacted

with M. After the medics arrived, M was transported to the

hospital. The emergency did not dissipate. The warrantless

entry was justified during the entire four-minute period.3

In her second assignment of error, M asserts that

the juvenile court erred in adjudicating her delinquent for

acts that, if committed by an adult, would constitute assault-

ing a public safety officer under ORS 163.208. The parties’

arguments on this assignment of error have evolved during

the course of this appeal as a result of the Supreme Court’s

decision in State v. Owen, 369 Or 288, 505 P3d 953 (2022).

In her opening brief, filed before the decision in Owen, M’s

argument focused on the sufficiency of the evidence to dis-

prove her claim of self-defense.

By the time the state filed its response brief, the

Supreme Court had decided Owen. The state acknowledged

that M had preserved in the juvenile court an argument

that the court was required to find that M acted with at

least criminal negligence with respect to whether her con-

duct would cause physical injury. In view of that, the state,

in addition to responding to M’s argument that the evidence

was insufficient to disprove self-defense, acknowledged that

the evidence had to be sufficient to support a finding “that

[M] was at least criminally negligent as to the fact that her

actions could cause McCartney to suffer physical injury—

a requirement that the Oregon Supreme Court recently

addressed in State v. Owen * * *, which overruled, in part,

State v. Barnes, 329 Or 327, 986 P2d 1160 (1999).” The state

further acknowledged that the juvenile court had concluded

that, under Barnes, it did not need to decide whether M

3

Because we determine that the officers were not, at any point, in M’s tent in

violation of Article I, section 9, we do not reach M’s argument that evidence of her

conduct is presumptively tainted and inadmissible under the exclusionary rule,

which requires the suppression of evidence discovered from illegal police conduct.

378 State v. M. T. F.

had a culpable mental state. Noting that defendant had not

assigned error to that determination, the state nonetheless

acknowledged that it was erroneous under Owen, and then

argued that the error was harmless because the juvenile

court’s comments on the record demonstrate that it would

nevertheless have found that M acted with the necessary

culpable mental state.

In reply to the state’s concession that the juvenile

court had plainly erred in its application of the law in light

of Owen, M argued that the proper course is to remand to

the juvenile court to apply the correct legal standard. M also

disputed the state’s contention that the error was harmless.

In sur-reply, the state argued that we should not consider M’s

contention about the court’s erroneous conclusion regarding

the culpable mental state requirement recognized in Owen,

because M had not assigned error to that determination in

the opening brief but had, instead, raised it on reply. The

state acknowledged that it had conceded the legal error in

its answering brief when it addressed the sufficiency of the

evidence to support M’s adjudication and also repeated its

argument that any error was harmless.4

We begin with whether there was sufficient evi-

dence presented by the state to disprove self-defense. When

reviewing a challenge to the sufficiency of the evidence, we

review whether, viewing the evidence in the light most favor-

able to the state, a rational trier of fact could have found the

essential elements of the crime proved beyond a reasonable

doubt. State v. Hall, 327 Or 568, 570, 966 P2d 208 (1998).

When self-defense is raised as an affirmative defense, the

state must disprove its applicability beyond a reasonable

doubt. State v. Boyce, 120 Or App 299, 305-06, 852 P2d

4

Typically, when a material change in the law occurs after the opening brief

is filed, an appellant who wishes to raise a new assignment of error or a distinct

new argument should move to file an amended opening brief or a supplemental

brief, which, among other things, ensures that the respondent will have a full

opportunity to respond to both the request and any new briefing that is allowed.

See Kragt v. Board of Parole, 325 Or App 688, 529 P3d 1019 (2023). However, as

we explain more below, in the particular and unique circumstances of this case,

we deem it appropriate to make an exception to the well-established rule that “an

issue raised for the first time in an appellant’s reply brief generally will not be

considered on appeal.” State v. Murga, 291 Or App 462, 468, 422 P3d 417 (2018);

see also ORAP 1.20(5) (“For good cause, the court on its own motion or on motion

of any party may waive any rule.”).

Cite as 326 Or App 371 (2023) 379

276 (1993). The use of physical force on another person is

justified when it is reasonably necessary to defend against

“the use or imminent use of unlawful physical force.” ORS

161.209. In her second assignment of error, M asserts that

the state failed to prove that she lacked a reasonable belief

that her use of force against McCartney was necessary to

defend herself from what she reasonably believed was the

infliction of unlawful force on her person. We do not agree.

When Peckels entered M’s tent, he announced him-

self as an officer. The officers who were present were in full

uniform. M appeared to become more coherent over the

course of the four-minute interaction, as she began to make

direct eye contact with the officers and to verbally respond to

them. Right before McCartney released M so that she could

exit the tent, McCartney specifically warned M not to kick

her, which M verbally acknowledged, albeit by mocking her,

and as soon as McCartney released M, M kicked her several

times. There was no objectively reasonable basis for M to

believe that she needed to use force to defend herself against

the use of physical force by McCartney. To the contrary, the

officers were leaving M’s tent. They told her they were leav-

ing, and they left. That McCartney warned M not to kick her

as McCartney prepared to leave the tent does not change the

fact that she was leaving with the other officers. There was

no reasonable basis for M to believe that McCartney would

use unlawful force against her. A rational factfinder could,

on this record, have concluded that, in addition to meeting

its burden of proving the elements of the charged crime, the

state also met its burden to disprove M’s defense, all beyond

a reasonable doubt.

We turn to the Owen issues. Although M did not

squarely raise them in the opening brief, we consider them

because, as the state forthrightly acknowledged in its

answering brief, the issues are preserved and, in view of

Owen, the court erred insofar as it concluded that a culpable

mental state did not apply. The situation is somewhat akin

to that in State v. Brown, 310 Or 347, 800 P2d 259 (1990),

in which the Supreme Court considered—and corrected—

an error that was both unpreserved and unassigned, when

the state brought the error to the court’s attention. 310 Or

at 355. The main difference between this case and Brown is

380 State v. M. T. F.

that here the assigned error was preserved in the juvenile

court.5

As noted, the parties’ arguments frame two Owen

issues. The first is whether the evidence is legally suffi-

cient to permit a finding that M was criminally negligent

with respect to whether her conduct would cause physical

injury. Our review of the record confirms that it is. The sec-

ond issue, given the state’s concession, is whether the court’s

legal error in concluding that a culpable mental state did

not apply requires reversal. We examine the impact, if any,

that the error may have had by focusing “on whether the

error was harmless, that is, whether there is little likelihood

that it affected the verdict.” State v. Stone, 324 Or App 688,

693-94, 527 P3d 800 (2023). Here, we agree with the state

that the error was harmless beyond a reasonable doubt. In

an extensive conversation between the court and counsel,

the juvenile court stated that it would not apply a “know-

ing” standard to the “physical injury” element, but that it

would instead apply this standard: The state must prove

“that the person act[ed] with an awareness that her con-

duct was assaultive.” Had the juvenile court considered the

state’s evidence on the physical injury element by applying a

criminally negligent mental state standard, it would likely

have reached the same result. The court would have viewed

the evidence to determine whether the state proved that M

had “fail[ed] to be aware of a substantial and unjustifiable

risk * * * of such nature and degree that the failure to be

aware of it constitutes a gross deviation from the standard

of care that a reasonable person would observe in the situ-

ation.” ORS 161.085(10). “Given that the [court] found that

[M] acted with an awareness that [her] conduct was assaul-

tive in nature and that [her] assaultive conduct * * * was

committed with sufficient force to cause physical injury[,]

* * * there is little likelihood that it would have concluded

that [M] was not at least negligent with respect to the risk

that” physical injury could result. State v. Tellez-Suarez, 322

5

As both parties acknowledge, and as the record reflects, the issue of what

mental state, if any, is required for the physical injury element was thoroughly

briefed and argued in the juvenile court. M argued that State v. Barnes, 329 Or

327, 986 P2d 1160 (1999), should be overruled, and Owen has since done just that.

There is no preservation issue.

Cite as 326 Or App 371 (2023) 381

Or App 337, 339, 519 P3d 561 (2022) (so holding in similar

factual context).

In making its findings, the juvenile court relied

heavily on the body camera footage from the officers and

described the moment before M kicked the officer in the

video as “revealing” as to M’s mental state. There is little

likelihood that the juvenile court would have concluded that

M was not at least negligent with respect to the risk of injury

given its conclusion that M knowingly engaged in assaultive

conduct. The error, therefore, does not require reversal.

Affirmed.

PAGÁN, J., concurring.

Focusing on the emergency aid exception to the

warrant requirement in Article I, section 9, of the Oregon

Constitution, the majority opinion correctly affirms the juve-

nile court’s denial of the motion to suppress. I agree that the

emergency aid exception applied. I write separately to dispel

any suggestion that if that exception did not apply, then the

juvenile court should have granted the motion. By the very

nature of the charge against the youth, which resulted from

a decision by the youth to engage in conduct threatening

an officer’s safety, the motion to suppress could have been

denied whether or not the exception applied.

In the juvenile court and on appeal, the state

argued, as an alternative ground for denying the motion to

suppress, that the youth’s decision to assault a police offi-

cer “attenuated the taint from any unlawful police conduct.”

When ruling on the motion to suppress, the juvenile court

referred to the attenuation argument. It denied the motion

to suppress, at least in part, based on its conclusion that it

could not find that the accused crime of assaulting a police

officer was “in any way a result of a warrantless search or

search at all.”

The juvenile court’s reasoning in support of its

ruling is somewhat unclear, but the juvenile court could

be interpreted to have accepted the premise that, had the

youth demonstrated that the officers entered the tent ille-

gally, then the motion to suppress could have been granted.

382 State v. M. T. F.

But such a framing ignores an important point that we have

made repeatedly in our courts, using either the federal or

Oregon constitutions: New crimes against officers or that

threaten their safety fall within a clear exception to the

exclusionary rule. In State v. Suppah, 358 Or 565, 576, 369

P3d 1108 (2016), the Supreme Court noted that “the state

and federal courts consistently have held that a defendant’s

decision to commit a new crime in response to an unlawful

seizure ordinarily will attenuate the taint of the seizure.”

For example, “[a] decision to strike an officer in response

to an unlawful arrest or to offer a bribe does not normally

follow from the illegality, and the formation of the mental

state necessary to give rise to those criminal acts provides

further assurance that those acts are independent of the

illegality that preceded them.” Id. at 579.

In my view, had the state even conceded illegality

on the part of the officers, the facts of this case fit squarely

within the attenuation line of cases in Oregon which stand

for the specific proposition that the illegality of a stop or

entry does not render inadmissible evidence of new crimes

directed at police officers or threatening their safety. See

State v. Bistrika, 261 Or App 710, 714-16, 322 P3d 583,

rev den, 356 Or 397 (2014), cert den, 577 US 828 (2015)

(affirming denial of defendant’s motion to suppress evi-

dence of what occurred after an emergency had dissipated

because the evidence concerned conduct that threatened

officer safety); State v. Neill, 216 Or App 499, 508, 173 P3d

1262 (2007), rev den, 344 Or 671 (2008) (“That the police

may have acted unlawfully in initiating the search did not

free defendant to interfere with reasonable directions by the

police designed to reduce the risk of violence and maintain

safety once the search had commenced.”); State v. Williams,

161 Or App 111, 119, 984 P2d 312 (1999) (The exclusionary

rule protects privacy interests but that purpose would not

be served by suppressing evidence of new crimes “directed

at the arresting officers, thereby threatening their safety.”);

State v. Janicke, 103 Or App 227, 230, 796 P2d 392 (1990)

(“Assuming, without deciding, that the entry into the resi-

dence was unlawful, we have declined to extend the exclu-

sionary rule to evidence of crimes committed against police

officers during what turns out to be an illegal stop or entry.”).

Cite as 326 Or App 371 (2023) 383

As we stated so clearly in State v. Burger, 55 Or App 712,

716, 639 P2d 706 (1982):

“The issue here, however, is not whether physical evi-

dence obtained because of a warrantless entry should be

suppressed, but whether evidence of crimes committed

against police officers after they have unlawfully entered

a home should be suppressed. We decline to hold that after

an unlawful entry evidence of subsequent crimes commit-

ted against police officers must be suppressed. Such a rule

would produce intolerable results. For example, a person

who correctly believed that his home had been unlaw-

fully entered by the police could respond with unlimited

force and, under the exclusionary rule, could be effectively

immunized from criminal responsibility for any action

taken after that entry.”

See State v. Gaffney, 36 Or App 105, 108-09, 583 P2d 582

(1978), rev den, 285 Or 195 (1979) (providing similar analysis

in a case involving an illegal stop). Based on that line of

cases, which survived the transition from the federal exclu-

sionary rule to adoption of our rights-based approach under

Article I, section 9, there can be no doubt that the juvenile

court correctly denied the motion to suppress whether or not

the emergency aid exception applied.

Accordingly, I respectfully concur.