State v. Kilgore

315 Or.App. 695

499 P.3d 889 (Mem)

STATE of Oregon, Plaintiff-Respondent,

v.Wayne Lee KILGORE, Defendant-Appellant.

A171750 (Control), A171751

Court of Appeals of Oregon.

Argued and submitted October 7, 2021.

November 17, 2021

Erik Blumenthal, 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.

E. Nani Apo, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Lagesen, Presiding Judge, and James, Judge, and Kamins, Judge.

PER CURIAM

In this consolidated criminal appeal, defendant appeals a judgment of conviction for first-degree possession of a forged instrument, Case No. 19CR13949, and a judgment of conviction for failure to appear, Case No. 19CR30861. None of defendant's assignments of error challenge the judgment in Case No. 19CR30861, so we affirm that judgment. For the reasons that follow, we reverse the judgment in Case No. 19CR13949.

Starting with defendant's contention that the trial court erred by denying his motion for judgment of acquittal, we conclude that the trial court did not err.

Turning to defendant's contention that the trial court erred in denying defendant's motion to suppress, our review is for legal error, accepting the trial court's factual findings to the extent that the evidence supports them. State v. Acuna , 264 Or. App. 158, 163, 331 P.3d 1040, rev. den. , 356 Or. 400, 339 P.3d 440 (2014). Applying that standard, we agree that the motion to suppress should have been granted on the ground that defendant was unlawfully seized. Specifically, we agree, for reasons similar to those stated in the factually comparable case of State v. Kingsmith , 256 Or. App. 762, 302 P.3d 471 (2013), that officers lacked reasonable suspicion to seize defendant based on suspected involvement in criminal drug activity. In so concluding, we reject the state's argument that this case, as a factual matter, is more like Acuna , 264 Or. App. at 167-69, 331 P.3d 1040, a case in which we concluded that reasonable suspicion was present, than it is like Kingsmith , a case in which we concluded that reasonable suspicion was not present.

In Case No. 19CR13949, conviction for first-degree possession of a forged instrument reversed and remanded. In Case No. 19CR30861, affirmed.