State v. Johnson

No. 643 December 6, 2023 435

This is a nonprecedential memorandum opinion

pursuant to ORAP 10.30 and may not be cited

except as provided in ORAP 10.30(1).

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

ANTHONY SCOT JOHNSON,

Defendant-Appellant.

Harney County Circuit Court

21CR15678; A177771

Robert S. Raschio, Judge.

Submitted October 3, 2023.

Ernest G. Lannet, Chief Defender, Criminal Appellate

Section, and Matthew Blythe, Deputy Public Defender, Office

of Public Defense Services, filed the briefs for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Greg Rios, Assistant Attorney

General, filed the brief for respondent.

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

Pagán, Judge.

SHORR, P. J.

Conviction on Count 1 reversed and remanded; otherwise

affirmed.

436 State v. Johnson

SHORR, P. J.

Defendant appeals from a judgment of conviction

for delivery of methamphetamine, ORS 475.890 (Count 1);

interfering with a peace officer, ORS 162.247 (Count 2);

and disorderly conduct in the second degree, ORS 166.025

(Count 3). Defendant assigns error to three trial court rul-

ings, arguing that the errors were harmful only with regard

to Count 1. In defendant’s first assignment of error, he chal-

lenges the court’s denial of his motion to suppress evidence

obtained from the door handle of his car. Defendant argues

that the court, in making its ruling, relied on the per se exi-

gency rule for automobile searches, which has since been

rejected by the Supreme Court. In defendant’s second and

third assignments of error, he challenges the trial court’s

refusal to instruct the jury on the lesser-included inchoate

crime of attempted delivery of methamphetamine and the

court’s failure to submit that possible crime to the jury for its

consideration. Defendant argues that the court erred when

it concluded that the evidence could not support a conviction

for the inchoate crime of attempted delivery. He requests

that we reverse and remand for a new trial on Count 1, with

instructions for the court to suppress the evidence found

in the handle of his car door. The state concedes that the

court erred in all three rulings, and agrees that we should

reverse, but argues that we should remand for further pro-

ceedings on the motion to suppress so that the court can

consider other arguments it never reached. For the following

reasons, we accept the state’s concessions, reverse on Count

1, remand for further proceedings, including on the motion

to suppress, and otherwise affirm.

The facts on appeal are undisputed. Officers

responded to a 9-1-1 dispatch that described a man with a

gun going door to door in an apartment complex, arguing

with residents. When officers arrived at the apartment com-

plex, they saw defendant’s car idling in the street and defen-

dant walking away from the apartment complex with a gun

in his hand. As officers arrested defendant, he stated that

his friend, Josh, was being held at gunpoint in the apartment

complex and that he was there to rescue Josh. Defendant’s

phone showed that Josh texted defendant, stating that he

Nonprecedential Memo Op: 329 Or App 435 (2023) 437

was being held at gunpoint. Some officers turned their

attention away from defendant to address that new infor-

mation. Defendant then asked one of the remaining officers

to turn off his idling car. When the officer approached the

car to turn it off, he saw, in plain view, a digital scale, plastic

baggies, and what the officer believed to be methamphet-

amine residue. The officer turned defendant’s car off and

reapproached defendant. The officer asked defendant some

questions, then returned to the car to conduct a more thor-

ough search, which revealed .71 grams of methamphetamine

in the door handle of defendant’s car. Officers also found .29

grams of methamphetamine on defendant’s person.

Defendant first assigns error to the trial court’s

denial of his motion to suppress evidence that the officer

found in his car. We review a trial court’s ruling on a motion

to suppress for errors of law. State v. Goodall, 219 Or App

325, 330, 183 P3d 199 (2008). The trial court denied defen-

dant’s motion to suppress the methamphetamine found in

the door handle of defendant’s car because it concluded that

the search fell within the per se exigency rule for automobile

searches. The trial court ruled on that motion three months

before the Supreme Court decided State v. McCarthy, which

abrogated the per se exigency rule for automobile searches.

369 Or 129, 177, 501 P3d 478 (2021) (overruling State v.

Brown, 301 Or 268, 721 P2d 1357 (1986)). When reviewing

a trial court ruling, we apply the law in effect at the time of

appeal. Ossanna v. Nike, Inc., 290 Or App 16, 33, 415 P3d 55

(2018), aff’d, 365 Or 196, 445 P3d 281 (2019). Accordingly,

under McCarthy, “to justify a warrantless seizure or search

of a vehicle based on exigent circumstances, the state must

prove that exigent circumstances actually existed at the

time of the seizure or the search.” 369 Or at 177. Because

the trial court applied the now-incorrect legal standard in

its ruling on defendant’s motion to suppress, we agree with

defendant that the trial court erred and accordingly accept

the state’s concession of error.

Defendant next assigns error to both the trial

court’s failure to instruct the jury on the inchoate crime of

attempted delivery of methamphetamine and its failure to

submit that possible crime to the jury for its consideration.

438 State v. Johnson

The state concedes that the trial court erred. In light of the

Supreme Court’s decision in State v. Hubbell, 371 Or 340,

537 P3d 503 (2023), we accept the state’s concession on the

second and third assignments of error.

We must consider whether the trial court’s errors

were harmless. State v. Davis, 336 Or 19, 27, 77 P3d 1111

(2003). An error is harmless if there is “little likelihood that

the particular error affected the verdict.” Id. at 32. Here, we

cannot conclude that the error in failing to suppress evidence

of the methamphetamine in defendant’s car was harmless.

The jury ultimately considered evidence that defendant pos-

sessed some methamphetamine that would have otherwise

been excluded. Because the state’s theory of the case rested

on defendant’s intent to transfer methamphetamine for the

release of his friend, the jury likely considered the amount

of methamphetamine recovered from the defendant to be

probative of that theory. Because that error was harmful

and, as discussed below, we are remanding the case for fur-

ther proceedings, we do not need to address harmlessness

as to the second and third assignments of error.

The only remaining issue is the disposition. Where,

as here, the trial court has not made findings or ruled on

all of the state’s arguments against suppression, we have

declined to summarily decide the issue on appeal. State v.

Alatorre, 305 Or App 71, 73, 469 P3d 216 (2020). Therefore,

we remand for further proceedings. We also decline to limit

the scope of argument on remand. We have previously noted

that the law contemplates “that each party may seek to

present new arguments on remand, and otherwise advise

that the trial court is in the best position to determine the

appropriate scope of the proceedings on remand.” State v.

Davis, 288 Or App 451, 453, 406 P3d 218 (2017).

Conviction on Count 1 reversed and remanded;

otherwise affirmed.