State v. Nebeker

No. 513 June 10, 2026 357

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

JACOB MATTHEW NEBEKER,

Defendant-Appellant.

Washington County Circuit Court

21CR04061; A180547

Erik M. Buchér, Judge.

Argued and submitted April 10, 2025.

Andy Simrin argued the cause for appellant. Also on the

brief was Andy Simrin PC.

Robert A. Koch, Assistant Attorney General, argued

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

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce,

Judge.

EGAN, J.

Reversed and remanded.

358 State v. Nebeker

EGAN, J.

In this criminal case, defendant appeals a judg-

ment of conviction for murder in the second degree, ORS

163.115(1)(a), entered after a conditional guilty plea reserv-

ing the right to appeal adverse pretrial motions. . Defendant

asserts three assignments of error: (1) the trial court erred

by denying his motion to suppress statements that he made

to an officer, arguing that any waiver of Miranda rights was

involuntary due to intoxication; (2) the trial court erred by

denying his motion to exclude statements that an unavail-

able witness made to a responding officer because the state-

ments were testimonial and, therefore, inadmissible at trial

under the Confrontation Clause of the Sixth Amendment to

the United States Constitution; and (3) the trial court erred

by denying his motion to exclude the state’s proposed rebut-

tal evidence of defendant’s prior substance use, to be used

to show substance-use tolerance in the event that defendant

argued an intoxication defense to the mens rea element

required for a murder conviction.

On the second assignment of error, because we con-

clude that parts of the unavailable witness’s statements

were testimonial and, therefore, inadmissible under the

federal Confrontation Clause, we reverse and remand. On

the first assignment of error, defendant does not contest the

trial court’s ruling that circumstances were not compelling

such that Miranda rights did not attach and no waiver was

required. Consequently, the trial court did not err in deny-

ing his motion to suppress on Miranda grounds. However,

following State v. Miller, 375 Or 173, 190, ___ P3d ____

(2026) (Miller II), the question of whether statements to law

enforcement were made voluntarily is a distinct issue that

was not litigated and requires further factfinding, which

may be addressed on remand. Given our reversal on the sec-

ond assignment, we do not resolve defendant’s third assign-

ment of error. We note that his arguments on appeal focus on

relevance under OEC 401 and OEC 403 balancing, whereas

his arguments before the trial court focused on whether the

topic of the state’s evidence required scientific expert testi-

mony under OEC 702. As evidenced by his shift of focus on

appeal, it is possible that the record may develop differently

Cite as 350 Or App 357 (2026) 359

on remand; therefore, we decline to reach defendant’s third

assignment of error.

I. BACKGROUND

When reviewing a trial court’s denial of a motion to

suppress, we are bound by the trial court’s findings of fact,

so long as there is constitutionally sufficient evidence in the

record to support those findings, including implicit findings

that are consistent with the court’s ultimate conclusion.

State v. Ehly, 317 Or 66, 75, 854 P2d 421 (1993). We review

the trial court’s conclusion for legal error. Id. We state the

facts accordingly.

Just before one o’clock in the morning on November

22, 2021, defendant’s cousin, Slaven, witnessed defendant

kill his mother’s husband, G. Immediately after having wit-

nessed the killing, Slaven called her husband, overcome by

what she had seen. Her husband could hardly understand

what Slaven was saying to him, describing her as “hyster-

ical.” Finally, he understood her to say that she had wit-

nessed defendant kill G. He told Slaven to call 9-1-1, which

she attempted to do while keeping her husband on the line.

When the call went through to 9-1-1, the call with her hus-

band dropped.

Slaven then told the 9-1-1 operator that she had wit-

nessed defendant kill G after having heard crashing sounds

coming from a bedroom in the house. She also told the opera-

tor that defendant had asked her to help him throw G’s body

into the river. The operator dispatched law enforcement and

medical personnel to the address Slaven provided. The 9-1-1

operator kept Slaven on the line for several minutes until

law enforcement arrived. The 9-1-1 operator asked questions

standard to the dispatcher’s role in emergency response,

such as where in the house G was, if defendant was still in

the house, whether Slaven needed medical attention, and

whether there was a weapon involved. Throughout the call,

Slaven was hiding behind a tree on a golf course abutting

the backyard of the home; she was crying and at times unin-

telligible. At one point during the call, Slaven said that she

saw defendant emerge from the house, and she dropped her

voice to a whisper, saying, “I have to be quiet * * * I have to

360 State v. Nebeker

be quiet, please.” She did not speak again until she said that

“[defendant] just went back inside.” When law enforcement

arrived, they first went to the house to provide medical care

for G and to contact defendant.

Among the first to arrive was Corporal Mitchell

with the Washington County Sheriff’s Department and two

deputies. They were met at the door by defendant, who said,

“he came at me” and “he’s in the bathroom,” stepping to the

side and extending an arm to invite Mitchell and the oth-

ers inside. Mitchell and the deputies found G unconscious

on the bathroom floor, wedged between the toilet and the

bathtub. The deputies began performing medical first aid.

Mitchell asked defendant to step outside and talk, to which

defendant agreed.

Mitchell and defendant walked to the driveway and

stood in front of the garage, where Mitchell read defendant

the Miranda warnings from a prepared card. When Mitchell

asked if defendant understood his rights, defendant replied,

“Uh-huh.” Mitchell asked him to provide a yes or no and

defendant responded, “Yes.” Mitchell then asked defendant

what happened. Defendant, as he had when he answered

the door, said, “he came at me.” Defendant also described

sexual advances that G had made toward defendant and

added, “I pushed him back.”

While they spoke, Mitchell noticed several signs

that defendant was intoxicated, including that defendant

had dilated pupils, walked and moved slowly, and slurred

his words, and that defendant was cycling rapidly between

emotions—speaking excitedly, crying, and falling into a

flat affect, sometimes within the span of a minute. Mitchell

believed that, despite his intoxication, defendant understood

his rights and was cognizant that he was being questioned,

testifying that defendant mostly responded coherently to

the questions that were being asked.

After about twenty minutes, when asked how G came

to be bleeding on the bathroom floor, defendant responded

that he felt like he was being “pushed into a corner” and

invoked his right to an attorney. At that point, Mitchell

ceased questioning. Later, without further questioning,

Cite as 350 Or App 357 (2026) 361

defendant made spontaneous inculpatory statements, both

while sitting in a squad car, while being handcuffed, and,

later, at the hospital where he had been transported for a

blood draw.

Deputy Kringhelde, who was the first law enforce-

ment officer to contact Slaven, arrived at the scene a few

minutes after Mitchell and the other deputies. When she

arrived, Mitchell and defendant were already talking in the

driveway, but Kringhelde testified that she did not see them

there. As Kringhelde approached the house, Deputy Zogg

asked her to join him in the back of the house to talk to

Slaven. At first, the deputies were unable to locate Slaven,

who remained on the line with the 9-1-1 operator. The oper-

ator encouraged Slaven to present herself to the deputies.

Slaven emerged from the trees, visibly shaken, with her

hand over her mouth, and crying. Kringhelde asked Slaven

if she needed medical attention. Slaven said that she did

not. Kringhelde then asked Slaven a general question, such

as, “what happened or what’s going on?”

Without further questions from Kringhelde, Slaven

responded with a thorough account of what had occurred

leading up to and during the incident. Slaven told Kringhelde

that Slaven and defendant had been drinking and had gone

out to get food. Slaven claimed that, while in the car, defen-

dant told Slaven that he was going to pretend to have sex

with G and then kill him. Slaven also told Kringhelde that,

when they returned to the house, she had seen defendant

and G going in and out of the bathroom, as though they were

going to have a sexual encounter. She said that defendant

had come out to the kitchen to ask for gloves because he

“didn’t want to touch” G. Slaven told Kringhelde that she

then heard crashing sounds coming from “the room where

the old man sleeps,” referring to G, and that G had twice

yelled for help. She said that, when she went to see what was

going on, she saw defendant holding a plastic bag over G’s

head and pulling on a rope or cord.

The entire backyard conversation lasted about

five minutes, Slaven speaking through tears and labored

breath. The interaction ended when Slaven lost composure

entirely and had to take a knee to settle. Kringhelde then

362 State v. Nebeker

invited Slaven, who was underdressed and not wearing

shoes, to move to a warmer location. Later, law enforcement

read Slaven the Miranda warnings and interviewed her for

a more thorough statement of events.

While this case was pending in the trial court, but

before defendant filed the pretrial motions described below,

Slaven died.

Defendant moved to suppress evidence of the state-

ments he made to Mitchell, arguing that his waiver of

Miranda rights could not have been knowing, intelligent,

and voluntary due to his level of intoxication. He also moved

to exclude the statements Slaven made to Kringhelde in

the backyard, arguing that the statements—though fall-

ing under the excited utterance exception to the rule that

hearsay statements are inadmissible—were testimonial

in nature and, therefore, inadmissible under the federal

Confrontation Clause because Slaven was not available

for cross-examination at trial, given her recent passing.1

Finally, defendant moved to exclude the state’s proposed

rebuttal evidence related to defendant’s past drug use, to be

admitted if defendant argued that he was too intoxicated to

develop the mens rea required for a second-degree murder

conviction. The trial court denied all three motions.

Defendant entered a conditional guilty plea, reserv-

ing his right to appeal those denials. He now appeals. We

begin our analysis with the second assignment of error

before turning to the first.

II. ANALYSIS

A. Sixth Amendment

As stated above, Slaven was unavailable as a wit-

ness at trial because of her death. In his second assign-

ment of error, defendant argues that the trial court erred

by denying his motion to suppress the statements Slaven

made to Kringhelde in the backyard of the home; without

denying that the statements were excited utterances, he

argues that the statements were testimonial and, therefore,

1

Defendant also moved to suppress evidence of the calls Slaven made to her

husband and to 9-1-1. The trial court denied those motions, and those rulings are

not challenged on appeal.

Cite as 350 Or App 357 (2026) 363

inadmissible under the Confrontation Clause of the Sixth

Amendment to the United States Constitution.

We review for legal error whether statements made

by an unavailable declarant are testimonial for purposes of

confrontation rights under the Sixth Amendment. State v.

Rytting, 324 Or App 828, 831, 527 P3d 777, rev den, 371 Or

477 (2023).

The Confrontation Clause of the Sixth Amendment,

applicable to the states via the Fourteenth Amendment,

provides a criminal defendant with a right “to be confronted

with witnesses against him.” Michigan v. Bryant, 562 US

344, 352, 131 S Ct 1143, 179 L Ed 2d 93 (2011). Under the

Confrontation Clause, when a hearsay declarant is unavail-

able to testify at trial, only nontestimonial statements are

admissible; testimonial statements are inadmissible under

such circumstances, unless the defendant has had prior

opportunity to cross-examine the unavailable witness.

Crawford v. Washington, 541 US 36, 53-54, 124 S Ct 1354,

158 L Ed 2d 177 (2004). The fact that a statement qualifies

as an excited utterance—and consequently is admissible as

a matter of state law governing hearsay—does not exempt

it from Confrontation Clause protection. State v. Camarena,

344 Or 28, 34, 41, 176 P3d 380 (2008).

Statements are nontestimonial “when made in the

course of police interrogation under circumstances objec-

tively indicating that the primary purpose of the interroga-

tion is to enable police assistance to meet an ongoing emer-

gency.” Davis v. Washington, 547 US 813, 822, 126 S Ct 2266,

165 L Ed 2d 224 (2006). Statements are testimonial “when

the circumstances objectively indicate that there is no such

ongoing emergency, and that the primary purpose of the

interrogation is to establish or prove past events potentially

relevant to later criminal prosecution.” Id.

Therefore, in deciding whether a declarant’s state-

ments are admissible, courts must determine the “primary

purpose” of the interrogation in light of all the objective

circumstances—whether it was to “meet an ongoing emer-

gency” or “to establish or prove past events potentially rele-

vant to later criminal prosecution.” Id.; State v. Case, 328 Or

364 State v. Nebeker

App 485, 494, 538 P3d 902 (2023), rev den, 372 Or 107 (2024).

In Bryant, the Supreme Court clarified that courts must do

so by “objectively evaluating the statements and actions of

the parties to the encounter, in light of the circumstances in

which the interrogation occurs.” 562 US at 370. Importantly,

it is not just the officer’s questions but also the declarant’s

statements that must be assessed in Confrontation Clause

inquiries. Id. at 367-68 (“In many instances, the primary

purpose of the interrogation will be most accurately ascer-

tained by looking to the contents of both the questions and

the answers.”); Camarena, 344 Or at 38-39. Under some

circumstances, an interaction between a declarant and law

enforcement will contain a mix of admissible nontestimo-

nial statements and inadmissible testimonial statements.

Camarena, 344 Or at 40-41 (concluding that some questions

asked and statements made in a 9-1-1 call were nontestimo-

nial and therefore admissible, while others were testimonial

and inadmissible).

Factors guiding the inquiry include (1) the exis-

tence of an ongoing emergency; (2) the temporal proximity

of the statements to the emergency event; (3) whether the

questions asked and elicited statements were necessary to

resolve the ongoing emergency, rather than to learn what

had happened in the past; and, (4) the degree of formality

of the situation and interrogation. Davis, 547 US at 827;

State ex rel Juv. Dept. v. S. P., 346 Or 592, 609, 215 P3d 847

(2009). For example, structured interrogations taking place

at the police station and eliciting recorded statements about

events that occurred in the past are clearly testimonial.

Crawford, 54 US at 51-53, 65-69. Conversely, statements

made during 9-1-1 calls, while an emergency is ongoing,

are often found to be nontestimonial, so long as the elicited

information is in aid of the emergency response, which can

include a description of the circumstances of the emergency

event and the identity of the perpetrator. Davis, 547 US at

826-29; Camarena, 344 Or at 39-42.

The more difficult cases are those, such as this one,

in which a declarant has made statements to a police offi-

cer in the field during the course of an emergency response.

They are difficult because such interrogations are often

Cite as 350 Or App 357 (2026) 365

quite informal and may occur in a disorganized fashion, and

yet, “what begins as an interrogation to determine the need

for emergency assistance can evolve into testimonial state-

ments.” Bryant, 562 US at 365-66. This evolution may occur

if the declarant provides police with information that makes

clear that the emergency has ended and there is no longer

an ongoing threat to the public. Id. at 365. Police may also

determine that there is no longer a public threat if the per-

petrator is “disarmed, surrenders, is apprehended, or * * *

flees with little prospect of posing a threat to the public.” Id.

In Bryant, police officers spoke to a gunshot victim

in a parking lot for five to ten minutes, until emergency

medical services arrived. Id. at 349. Police asked, “what

had happened, who had shot him, and where the shoot-

ing occurred.” Id. The declarant provided the name of the

shooter and further described what had occurred, that he

had been shot through the back door of the shooter’s house,

after having spoken to the shooter through door, and then

fled from the shooter’s home to the parking lot. Id. The

Court determined that the statements were nontestimo-

nial because police asked the type of questions necessary to

allow them to assess the situation, the threat to their own

safety, and possible danger to the victim and the public, and

the declarant-victim provided the information necessary to

meet those needs. Id. at 375-76. Further, the Court deter-

mined that a person in the declarant’s situation—”lying in

a gas station parking lot bleeding from a mortal gunshot

wound to his abdomen”—would not have had a primary pur-

pose of aiding prosecution but, rather, of enabling police to

meet the ongoing emergency. Id. at 374-75.

In Hammon v. Indiana, a companion case decided

with Davis, police responded to a reported domestic distur-

bance. Davis, 547 US at 819. When police arrived, they found

the declarant sitting alone on the front porch. Id. Though she

appeared frightened, she told police that “nothing was the

matter.” Id. Police found the perpetrator inside of the house;

the man said that the two had been in an argument, that

things had never become physical, and that “everything was

fine now.” Id. Police, making efforts to isolate the declarant

from the perpetrator so that they could “investigate what

366 State v. Nebeker

had happened,” asked her what had occurred, and had her

fill out and sign a “battery affidavit.” Id. at 820. The Court

ruled that those circumstances more closely resembled the

post-emergency, stationhouse interrogation easily found

to be testimonial in Crawford. 547 US at 829-30 (“It was

formal enough that [the declarant’s] interrogation was con-

ducted in a separate room, away from [the perpetrator] (who

tried to intervene), with the officer receiving her replies for

use in his ‘investigation.’ ”).

In Camarena, the Oregon Supreme Court assessed

the primary purpose of an interrogation by a 9-1-1 operator.

344 Or 28. In that case, the declarant had just been injured

in a domestic dispute, and the perpetrator had fled. Id. at

30. After concluding that the circumstances of interroga-

tion involved an ongoing emergency, the court held that the

parts of the 9-1-1 call that established the nature and loca-

tion of the emergency; the identity and location of the per-

petrator, including his name and physical characteristics;

and whether the declarant required medical attention were

all nontestimonial and therefore admissible. Id. at 37-41.

However, the primary purpose of the interrogation evolved

from emergency response to include those designed to estab-

lish facts for later prosecution. Id. at 40. The testimonial

statements included that the perpetrator was on probation,

the operator’s question about the cause of probation, and the

declarant’s response. Id. at 31, 40. The declarant also stated

that she was financially dependent upon the perpetrator

and did not want him to go to jail, to which the operator

responded with her belief that the perpetrator should go to

jail for hitting the declarant. Id. All of those statements, the

court concluded, as well as a later statement the declarant

made to an investigating officer that the perpetrator had

struck her eye, were inadmissible at trial. Id. at 40-41.

The interrogation at issue in this case is more sim-

ilar to the latter half of the 9-1-1 call in Camarena and the

circumstances of the interrogation in Hammon than the

interrogations in Davis and Bryant. In Davis, the perpetrator

had fled during the call and could have returned to further

threaten the declarant at any moment. In Bryant, the per-

petrator’s location was unknown, and officers did not know

Cite as 350 Or App 357 (2026) 367

if he was a threat to their own safety or that of the public.

Further, in Bryant, the declarant-victim was in an extreme

state of physical emergency such that he would have had

no purpose beyond the emergency response. Camarena sug-

gests that it is not merely the existence of an ongoing emer-

gency—the facts in that case were narrowly distinguishable

from the facts in Davis—but also, importantly, the nature

of the statements made by the declarant that determine

whether statements are testimonial.

In reviewing the trial court’s decision, we first exam-

ine the circumstances in which the interrogation occurred,

as that context guides our understanding of the statements

that were made. Bryant, 562 US at 360, 371 (“[T]he relevant

inquiry is not the subjective or actual purpose of the indi-

viduals involved * * * but rather the purpose that reasonable

participants would have had, as ascertained from the indi-

viduals’ statements and actions and the circumstances in

which the encounter occurred.”).

In the case before us, the trial court determined that

circumstances suggested that, from Slaven and Kringhelde’s

perspective, the emergency was ongoing. When Kringhelde

arrived, Slaven was hiding behind a tree on the golf course

at the edge of the backyard, still on the phone with the 9-1-1

operator, and shaken from having just witnessed a murder.

For her part, Kringhelde was not privy to the status of the

emergency response or investigation, the whereabouts of the

defendant, or the parties involved. The trial court also based

its ruling, in part, on the fact that the interaction was infor-

mal and brief, taking place in the backyard for about five

minutes. While acknowledging that some of Slaven’s state-

ments were “borderline historical,” the trial court concluded

that they were “part of the ongoing scenario.”

We agree that those facts suggest that reasonable

people in both Slaven and Kringhelde’s position would have

understood there to be an ongoing emergency, and the inter-

rogation occurred with the degree of informality and tempo-

ral proximity to the emergency event that would suggest a

primary purpose of facilitating an emergency response.2

2

We note that the parties dispute whether, when conducting the ongo-

ing-emergency analysis, we should consider the knowledge that the particular

368 State v. Nebeker

That context frames the more difficult question of

whether the elicited statements Slaven made to Kringhelde

were “necessary to resolve the present emergency.”

Camarena, 344 Or at 39; see also State v. Rafeh, 361 Or 423,

433, 393 P3d 1155 (2017) (“[W]hether an ongoing emergency

exists is simply one factor * * * that informs the ultimate

inquiry regarding the primary purpose of the interroga-

tion.”). To the single question of “what happened or what’s

going on,” Slaven gave a detailed account of events, includ-

ing statements of intent that defendant had made to Slaven

earlier in the evening and other inculpatory statements

made just before committing the act. For example, she said

that while the two were out picking up fast food defendant

told her that he planned to act like he was going to have sex

with G and then kill him. She further stated that defendant,

just before killing G, had walked into the kitchen and asked

her for rubber gloves so that he didn’t have to touch him.

As in Camarena, we conclude that some of the

statements Slaven made to Kringhelde were nontestimonial

while others were testimonial. Identification of defendant

and descriptions of the murder itself—Slaven having heard

crashing sounds coming from G’s room; having heard cries

for help coming from the room; having witnessed defendant

kill G using a bag or a rope; and defendant asking her to

help dump the body, which caused Slaven to flee to the golf

course—were nontestimonial, as they are the type of state-

ments frequently elicited to aid in emergency response. In

any event, many of those details were provided by Slaven

to her husband and to the 9-1-1 operator, both of which the

trial court allowed as nontestimonial excited utterances

that are not being challenged. However, Slaven’s statements

regarding her conversation with defendant in the car in

which he stated that he was going to pretend to have sex

with G and then kill him; her statement that she and defen-

dant had been drinking earlier in the evening; her obser-

vations of defendant and G going in and out of the bath-

room as though they were going to have a sexual encounter;

officer possesses about the state of the investigation or, rather, the knowledge

that the entire law enforcement response team possesses. We need not decide

that question to reach our conclusion that the statements made by declarant were

testimonial and, therefore, do not decide it.

Cite as 350 Or App 357 (2026) 369

defendant’s request for gloves in the kitchen so that he didn’t

have to touch G, and any other statements that were focused

on establishing facts in the past that were unnecessary to

resolve the perceived ongoing emergency were testimonial

for purposes of the Confrontation Clause. Therefore, the

trial court erred in denying defendant’s motion to suppress

those statements. We need not decide whether the error was

harmless given the procedural posture; when a defendant

reserves the right to appeal adverse pretrial motions as part

of a conditional guilty plea under ORS 135.335(3), any error

found provides the defendant with an opportunity to decide

whether to withdraw their guilty plea and proceed to trial.

B. Article I, Section 12, and the Fifth Amendment

In his first assignment of error, defendant argues

that intoxication prevented him from knowingly, intelli-

gently, and voluntarily waiving his right against compelled

self-incrimination under Article I, section 12, of the Oregon

Constitution, as well as the Fifth Amendment to the United

States Constitution. Pursuant to the Fifth Amendment,

a defendant’s right against compelled self-incrimination

attaches when they are in inherently coercive circumstances

akin to police custody. Stansbury v. California, 511 US 318,

322, 114 S Ct 1526, 128 L Ed 2d 293 (1994). The Article I,

section 12, right similarly provides protection to defendants

who are in custody or “compelling circumstances.” Reed, 371

Or 478, 484, 538 P3d 195 (2023). We begin with the protec-

tions provided by Article I, section 12.

Article I, section 12, provides that “[n]o person

shall * * * be compelled in any criminal prosecution to tes-

tify against himself.” To protect the right against compelled

self-incrimination, law enforcement must give Miranda

warnings to a person who is either in “full custody” or in

circumstances that “create a setting which judges would

and officers should recognize to be ‘compelling’ ”—that is, a

setting containing “the sort of police-dominated atmosphere

that Miranda warnings were intended to counteract.” State

v. Roble-Baker, 340 Or 631, 638, 641, 136 P3d 22 (2006); see

also Miranda v. Arizona, 384 US 436, 467, 86 S Ct 1602,

16 L Ed 2d 694 (1966) (explaining that Miranda warnings

were intended to counteract the “inherently compelling

370 State v. Nebeker

pressures” of “in-custody interrogations”); State v. Vondehn,

348 Or 462, 474, 236 P3d 691 (2010) (describing the same

intention under the Oregon Constitution). Therefore, when

reviewing whether a defendant’s Article I, section 12, rights

were violated, courts first determine whether the defen-

dant was in custody or in compelling circumstances such

that officers were required to give Miranda warnings. Reed,

371 Or at 488; Roble-Baker, 340 Or at 639. If officers were

required to give Miranda warnings and did so, any waiver

of those rights by a defendant must be knowing, intelligent,

and voluntary under the totality of the circumstances. State

v. Nichols, 361 Or 101, 107, 390 P3d 1001 (2017).

With deference to the trial court’s findings of his-

torical facts, we review for legal error both whether circum-

stances were compelling and, if so, whether any waiver of

the rights was knowing, intelligent, and voluntary. Reed,

371 Or at 488; State v. Ward, 367 Or 188, 200, 475 P3d 420

(2020).

In this case, the trial court concluded that defen-

dant was not in custody or compelling circumstances when

he spoke to Mitchell in the driveway. Accordingly, the trial

court concluded that Mitchell was not required to give

Miranda warnings—i.e., that no waiver was necessary. See

State ex rel City of Pendleton v. Woodell, 338 Or App 85,

90, 565 P3d 80, rev den, 373 Or 815 (2025) (“[A]n officer is

not required to obtain a waiver of the rights enumerated

in Miranda warnings from a defendant who is not in cus-

tody or compelling circumstances.”); Reed, 371 Or at 488

(“The state bears the burden of proving that a defendant’s

unwarned statements were made under circumstances that

were not compelling,” such that the Miranda warnings were

not required.). Independently, the trial court concluded that,

even if Mitchell was required to give Miranda warnings,

defendant voluntarily waived his rights.

On appeal, defendant argues only that any waiver

of his Miranda rights was involuntary, without making

any argument that the trial court was wrong to conclude

that the circumstances were not compelling such that the

right against compelled self-incrimination never attached.

Because he does not challenge the trial court’s determination

Cite as 350 Or App 357 (2026) 371

that Miranda warnings were not required, we affirm the

trial court’s denial of defendant’s motion to suppress his own

statements. State v. Nunes, 295 Or App 91, 101, 433 P3d 374

(2018), rev den, 364 Or 849 (2019) (affirming when the defen-

dant failed to challenge an independent, sufficient basis for

the trial court’s ruling).

In a post-argument memorandum of additional

authorities, defendant also argues that, based on the

Supreme Court’s recent decision in Miller II, even when cir-

cumstances are not compelling such that Miranda warn-

ings and a knowing, intelligent, and voluntary waiver of

Miranda rights are not required, any statements he made

to Mitchell must have been voluntary. 375 Or at 190. In that

case, the defendant had argued that circumstances were

compelling and that her waiver of Miranda rights had not

been knowing, intelligent, and voluntary. 336 Or App 606,

607, 561 P3d 675 (2024) (Miller I). We determined that the

record supported the trial court’s conclusion that the circum-

stances were not compelling, which “rendered the corollary

requirement to obtain a valid waiver of those rights unnec-

essary,” and affirmed the ruling on that basis. Id. at 609.

On review, without disagreeing with our assessment, the

Supreme Court explained that, even when circumstances

are not compelling such that Miranda warnings are not

required and the state is not required to establish a know-

ing, intelligent, and voluntary waiver of Miranda rights,

“the state must still establish that [the] defendant’s state-

ments made [to law enforcement officers] were voluntary.”

Miller II, 375 Or at 183-84, 190 (“Whether a person makes

statements to the police voluntarily is a separate question

from whether the police were required to inform a suspect

of their Miranda rights or obtain a knowing and voluntary

waiver of those rights.”).

Because the question of whether a person makes

statements to the police voluntarily is separate from the

Miranda question and because that issue was not raised

in defendant’s opening brief or litigated below, we decline

to rely on the factual record before us to decide in the first

instance whether defendant’s statements to Mitchell were

themselves voluntary. On remand, should defendant choose

372 State v. Nebeker

to rescind his conditional plea, the parties can litigate the

issue of whether defendant’s statements were voluntary.

III. CONCLUSION

Concluding that many of Slaven’s statements to

Kringhelde were testimonial, we reverse the trial court’s

denial of defendant’s motion to exclude those statements.

Under ORS 135.335(3), we reverse and remand the judg-

ment of conviction to give defendant an opportunity to decide

whether to withdraw his guilty plea. State v. Leach, 294 Or

App 639, 646, 432 P3d 310 (2018). We affirm the denial of

defendant’s motion to suppress on Miranda grounds, but

we note that Miller II requires an assessment of whether

defendant’s statements to Mitchell were voluntary. Should

defendant choose to withdraw his guilty plea, the parties

will have an opportunity to litigate and create a factual

record on the issue of whether defendant’s statements to

Mitchell were voluntary and, if necessary, to address the

issues raised in defendant’s third assignment of error.

Reversed and remanded.