State v. Peterson

76 November 8, 2023 No. 580

IN THE COURT OF APPEALS OF THE
STATE OF OREGON

STATE OF OREGON,
Plaintiff-Respondent,
v.
ANTHONY DUANE PETERSON,
Defendant-Appellant.
Lane County Circuit Court
20CR69212, 20CR51858;
A175984 (Control), A176010

Jay A. McAlpin, Judge.
Argued and submitted December 20, 2022.
Marc Brown, Deputy Public Defender, argued the cause
for appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Office 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.
HELLMAN, J.
In Case No. 20CR69212, convictions on Counts 3 and 4
reversed; remanded for resentencing; otherwise affirmed.
In Case No. 20CR51858, affirmed.
Cite as 329 Or App 76 (2023) 77

HELLMAN, J.
In this consolidated criminal appeal, defendant
appeals from a judgment of conviction and a probation vio-
lation 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 con-
viction. As explained below, we conclude that the state’s evi-
dence 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 P3d 310 (2005), as
“plainly wrong” under State v. Civil, 283 Or App 395, 406,
388 P3d 1185 (2017), and inconsistent with our other case
law addressing ORS 811.700.1 As we explain below, that hold-
ing 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 lan-
guage. 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 P3d 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
1
Because this opinion overrules our existing precedent, the panel specifi-
cally advised all members of the court of the effect of its decision, but neither the
Chief Judge nor a majority of the regularly elected or appointed judges referred,
under ORS 2.570(5), the cause to be considered en banc. Judge Mooney did not
participate in any part of that process for this case.
2
Although it appears that the trial court based its decision to revoke defen-
dant’s probation in Case No. 20CR51858, in part, on those new convictions, defen-
dant does not request that we reverse the probation violation judgment if we
reverse his convictions on Counts 3 and 4 or argue that we should do so. We
therefore do not express an opinion on that judgment.
78 State v. Peterson

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 con-
tact 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 evi-
dence 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 stat-
ute defining the offense, the issue is one of statutory con-
struction that we review for legal error.” State v. McQueen,
307 Or App 540, 544, 478 P3d 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 rea-
sonable inferences and reasonable credibility choices, could
have found the essential element of the crime beyond a rea-
sonable doubt.” State v. Hunt, 270 Or App 206, 209, 346 P3d
1285 (2015) (internal quotation marks omitted).
Cite as 329 Or App 76 (2023) 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 vehi-
cle who knows or has reason to believe that the driver’s vehi-
cle 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 P2d 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 pri-
vately owned and whether or not a fee is charged for the use
of the premises.” ORS 801.400. Because the terms “prem-
ises” 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 Labor and Industries,
317 Or 606, 611, 859 P2d 1143 (1993). As relevant here, the
definition of “premises” is “a specified piece or tract of land
with the structures on it” and “public” means “the people
as a whole.” Webster’s Third New Int’l Dictionary 1789, 1836
(unabridged ed 2002).
Our case law confirms that understanding. We have
held that “the phrase should be defined so as to achieve its
primary purpose, which is to protect members of the pub-
lic from serious driving offenses[.]” State v. Sterling, 196
Or App 626, 630, 103 P3d 1162 (2004). Specifically, “the key
evidentiary fact the state has to prove is that members of the
public, including ‘those with a legitimate business purpose,
80 State v. Peterson

such as garbage collectors, meter readers and paper carri-
ers, are allowed on the premises.’ ” Id. at 630-31 (quoting
State v. Scott, 61 Or App 205, 207, 655 P2d 1094 (1982)).
In State v. Mulder, 290 Or 899, 901, 904, 629 P2d
816 (1981), the Supreme Court held that a rational trier of
fact could find that an apartment parking lot was open to
the public when the state presented evidence that “paper-
boys, the milkman, and people like that” used the parking
lot and that “no attempt” was made to prohibit members of
the public from accessing it. In contrast, in Baehr, we held
that the mere fact that a residential driveway connects to
a public road without a barrier is insufficient to satisfy the
state’s burden. 85 Or App at 158. In Baehr, the defendant
was driving on a public street and pulled her car into a res-
idential driveway, colliding with an unattended truck. Id.
at 157. Although the state argued that its evidence was suf-
ficient for a conviction because the driveway connected to a
public road and nothing prevented the defendant’s car from
entering it, we concluded that the state “offered no evidence
that the driveway was open to the public” and, consequently,
failed to meet its burden. Id. at 158.
The sole reason that this case is not a straightfor-
ward application of Mulder and Baehr is because of Probe,
200 Or App at 712, a case on which the state relies heavily.
In Probe, the defendant was charged with failure to perform
the duties of a driver, based on damage he caused by driving
his car on a private golf course.3 Id. at 711. On appeal, he
challenged the trial court’s denial of his motion for judg-
ment of acquittal, asserting that the state’s evidence was
insufficient to prove that the golf course on which he drove
was open to the public as required by former ORS 811.700(2)
(2005) renumbered as ORS 811.700(3) (2019). Id. at 712.
Despite the state’s concession that the golf course was not a
“premises open to the public” we affirmed, explaining that
“[t]here was evidence, however, that the damaged tenth
fairway is adjacent to the public road and the public parking
3
The defendant was charged under former ORS 811.700(1)(c) (2005) which
applied when a collision “result[ed] only in damage to fixtures or property legally
upon or adjacent to a highway[.]” That subsection is currently numbered as ORS
811.700(1)(d).
Cite as 329 Or App 76 (2023) 81

lot, both of which are premises open to the public. Viewing
the evidence in the light most favorable to the state, we
conclude that it was sufficient to convict defendant of the
charged offense.”
Id.
Admittedly, the rationale for our decision in Probe
is not entirely clear. Every theory of liability under ORS
811.700 requires proof that the collision itself occurred on
premises open to the public. ORS 811.700(3) (“The offense
described in this section, failure to perform the duties of a
driver when property is damaged * * * is applicable on any
premises open to the public.”); Baehr, 85 Or App at 158. But
in Probe, we affirmed the defendant’s conviction despite an
absence of evidence that the golf course on which the colli-
sion occurred was a premises open to the public. Although
our opinion lacks explicit analysis, it appears that we relied
on evidence of the location of the damaged property, rather
than evidence of the location of the collision that resulted
in the damaged property, to determine that a driver could
face criminal liability if the damaged property was “adja-
cent to * * * premises open to the public.” But the location
of the resulting damaged property is relevant to the duties
that arise under ORS 811.700(1)(d) (providing a driver’s
duties when a collision results “only in damage to fixtures
or property legally upon or adjacent to a highway” (empha-
sis added)). It does not supplant or satisfy the requirement
that the collision from which the damage results occur on
premises open to the public under ORS 811.700(3). Indeed,
“legally upon or adjacent to a highway” and “premises open
to the public” and are legally distinct concepts. Compare
ORS 801.305 (defining “highway”) with ORS 801.400 (defin-
ing “premises open to the public”). Thus, when we used them
interchangeably, our analysis for criminal liability was con-
trary to the statute. Whether we ignored an element of the
offense or allowed proof of one element to satisfy proof of
another, our application of the statute in Probe was wrong.
Defendant contends that Probe “was wrongly
decided and should be overturned.” In contrast, the state
argues that the case was correctly decided and urges us
to adhere to it. We agree with defendant’s position. Upon
82 State v. Peterson

review, Probe cannot stand because it is legally incorrect.
The state must prove that a collision itself took place on a
premises open to the public. ORS 811.700(3). And evidence
that a collision damaged property that was legally upon or
adjacent to a highway does not establish that the collision
itself occurred on a premises open to the public. Instead,
to support a conviction, the state was required to introduce
evidence about the location of the collision itself, such as the
evidence presented in Mulder that members of the general
public used the premises and there was no attempt made to
prevent them from doing so. Moreover, because they are dis-
tinct concepts, “premises open to the public” and “damage to
fixtures or property legally upon or adjacent to a highway”
cannot be used interchangeably.
Overruling prior case law is not done lightly, and
we do so only when we find it to be “plainly wrong.” State
v. Bates, 315 Or App 402, 413, 500 P3d 746 (2021); Civil,
283 Or App at 406. “That standard is ‘a rigorous standard
grounded in presumptive fidelity to stare decisis.’ ” Bates, 315
Or App at 413 (quoting State v. B. A. F., 290 Or App 1, 3, 414
P3d 486 (2018)). However, we will overrule a case in appro-
priate circumstances. One of those is the situation here—
when “an earlier decision is not well reasoned or conflicts
with other decisions.” State v. McCarthy, 369 Or 129, 144,
501 P3d 478 (2021). In those cases, the offending case “can
be difficult to apply and can result in confusion and uncer-
tainty.” Id. In other words, “adherence to case law that is in
conflict and demonstrably in error is not costless. It produces
its own threats to stability and predictability—the very vir-
tues that stare decisis is supposed to promote.” Horton v.
OHSU, 359 Or 168, 282, 376 P3d 998 (2016) (Landau, J.,
concurring), cited with approval in McCarthy, 369 Or at 144.
Allowing Probe to stand when its ORS 811.700 holding is
plainly wrong would continue to contribute to confusion in
our law. We thus overrule it.
Without Probe, this case is squarely controlled by
Baehr. As explained above, the state had the burden of prov-
ing that the driveway and the yard were open to the pub-
lic. As to Count 3, the state acknowledged at oral argument
that there was no direct or affirmative evidence that the
Cite as 329 Or App 76 (2023) 83

public were allowed to or did use the driveway in question.
However, the state argues that a photograph of the drive-
way was sufficient to prove that it was open to the public
because the photograph showed a “wide concrete pad with a
curb that was even with, and opening out to, the level of the
street.” We disagree. Evidence that a driveway connects to
a public road—without more—is insufficient for a rational
trier of fact to find that it was open to the public. Baehr, 85
Or App at 158. Because the record lacks any evidence that
members of the public were allowed to use their vehicles on
the victims’ driveway, we conclude that no rational trier of
fact could have found that it was a premises open to the
public.
Similarly, we conclude as to Count 4 that the state
failed to present evidence that would allow a finding that the
yard was a premises open to the public. Although the state
elicited testimony supporting a finding that the damaged
house was adjacent to a public highway, the state offered
no evidence that the yard—where the SUV that defendant
drove collided with the tree that damaged the house—was
“open to the general public for the use of motor vehicles[.]”
See ORS 801.400. Therefore, the trial court erred when it
denied defendant’s motion for judgment of acquittal on
Counts 3 and 4.
In Case No. 20CR69212, convictions on Counts
3 and 4 reversed; remanded for resentencing; otherwise
affirmed. In Case No. 20CR51858, affirmed.