State v. Stephens

311 Or.App. 588

493 P.3d 2

STATE of Oregon, Plaintiff-Respondent,

v.Mitchell Keith STEPHENS, Defendant-Appellant.

A166474

Court of Appeals of Oregon.

Argued and submitted May 9, 2019.

May 19, 2021

Thaddeus Betz, Bend, argued the cause and filed the briefs for appellant.

Joanna L. Jenkins, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before DeHoog, Presiding Judge, and Aoyagi, Judge, and Hadlock, Judge pro tempore.

HADLOCK, J. pro tempore.

While driving down a straight stretch of road during daylight hours, defendant hit a bicyclist who was riding on the road's shoulder. The bicyclist died. Defendant did not stop, and he later expressed belief that he had hit a deer. A police investigation revealed evidence that defendant had been intoxicated when he hit the bicyclist. Defendant moved to suppress evidence of his intoxication, and the trial court suppressed some, but not all, of that evidence. Defendant then entered conditional guilty pleas to one count of second-degree manslaughter and two counts of driving under the influence of intoxicants (DUII). As part of the sentence for those convictions, the trial court ordered defendant to pay $101,335.74 in restitution to the manslaughter victim's husband, D. On appeal, defendant raises issues related both to the partial denial of his suppression motion and to the award of restitution. We reject each of defendant's arguments and, therefore, affirm.

We begin by addressing defendant's first three assignments of error, which challenge the trial court's rulings on aspects of defendant's suppression motion. "We review trial court rulings on motions to suppress for legal error, deferring to the trial court's explicit and implicit factual findings where there is evidence in the record to support them." State v. Pryor , 309 Or. App. 12, 18, 481 P.3d 340 (2021). We set out the pertinent facts, as established through evidence presented during the suppression hearing, in keeping with that standard of review.

Oregon State Trooper Hargis was on patrol at 5:50 p.m. on a clear day in late August 2016 when he heard a 9-1-1 request for assistance at a collision on a road in Lake County. Hargis drove to the collision scene, which he described as being on "a long straight stretch" of road where "you can see for at least a mile, there's no shrubs, there's no bushes in the way." Hargis saw the victim, who was wearing a fluorescent jacket, but he could not identify her. Hargis saw a shoe over the fog line, out of the lane of travel. Hargis also saw some "gouges which we see commonly on vehicle crashes, some kind of metal object or hard object skidding across the pavement," as well as a "mangled" bicycle. Those gouges, like the shoe, were over the fog line. Pieces from a vehicle were also present, including what looked to Hargis like the cover for a fog light.

A second state trooper, Tague, also responded to the call. Tague saw the victim's husband at the scene and realized who had been killed. Another person indicated that defendant had been involved in the crash.

Hargis, who had known defendant for years, called defendant's wife and told her that he needed to speak to defendant. Defendant returned Hargis's call at 6:38 p.m. Defendant was upset and crying, his speech was slurred, and he said that he thought he had hit a deer. Defendant agreed to show Hargis his truck, which he had left at a ranch, and they agreed to meet at a specific location a few miles outside of town.

Hargis found several people at that spot, including defendant and two other men (Kerr and Leal). Hargis noticed that defendant's eyes were bloodshot and glassy, his speech was "slurring at times," and his breath had a "moderate odor of alcohol." Defendant "was reiterating that he had just hit a deer." After a minute or two, one of the other people present drove defendant to the place where defendant had left his truck, and Hargis followed.

It took a few minutes to drive to defendant's truck, which Hargis could see was parked behind the gate to a ranch. The hood, right front headlight area, and fender well of the truck were damaged, "consistent with a right side strike." Given the information that he had, Hargis "had no doubt that that was the vehicle that struck [the victim]." Hargis noted that the truck's right "fog marker cover" was gone, and the one on the opposite side of the truck matched the evidence at the collision scene. At about 7:00 p.m., Tague arrived to provide backup.

Defendant was still upset and repeated that he "thought [he] hit a damn deer." Defendant said that the collision had happened at maybe about 5:30 p.m. Hargis felt that "the evidence was overwhelming," and he read defendant his Miranda rights, which defendant said he understood. Defendant then told Hargis that he had been heading to meet with Leal and Kerr to go hunting when he saw some deer cross the road, so he slowed down "and then * * * got down the road a little bit further and bam, I mean just—." Defendant said that he had not seen anything and "didn't even think, * * * just kept on going." Defendant went to one of the other men's houses, then they drove to the ranch, where he parked his truck.

Hargis asked defendant, "Have you been drinking?" Defendant initially said no, but then said that he had drunk one beer "after [he] got here." Hargis then asked defendant if he would go to the hospital to give urine and blood samples. Defendant said that he did not want to. Hargis replied, "Okay. Well, [defendant], I'm going to ask you to do a field sobriety test for me today, voluntarily." Some discussion ensued, during which defendant questioned the need for field sobriety tests (FSTs). However, defendant ultimately said, "Oh, okay." While Hargis spoke with defendant, he continued to observe that defendant's breath had an odor of alcohol, he "would slur his words," and his eyes were bloodshot, glassy, and watery. Hargis testified at the suppression hearing that "one beer wasn't consistent with what [he] was seeing."

Before he administered FSTs, Hargis spoke with Leal and Kerr, who were also present at the ranch gate. Leal told Hargis that defendant had showed up at Leal's house and said that he had hit a deer. Leal had expected defendant to arrive at 5:00 but he was a little early. Hargis knew from defendant that the collision occurred on his way to Leal's house and, therefore, that the collision must have occurred before 5:00, even though defendant had estimated that it happened at about 5:30. Hargis testified at the suppression hearing that he understands, from his training and experience, that people who are under the influence of alcohol can have "slowed" internal clocks and "can be off on their times, delayed."

Hargis asked Leal and Kerr whether they had been drinking with defendant after he had his accident, and Leal said that defendant had one beer at Leal's house. Kerr said that he had not consumed any alcohol with defendant. Hargis understood from the conversation that Leal and Kerr were indicating that defendant had drunk only one beer at the house "before they left to the ranch."

After that conversation, Hargis administered the horizontal gaze nystagmus (HGN) test to defendant, starting around or after 7:00 p.m. He told defendant that he was not going to administer certain physical tests because of the type of ground and gravel that the men were standing on. After explaining why he would not give defendant those particular tests, Hargis asked defendant if he was "willing to do a couple more." Defendant responded affirmatively. Hargis instructed defendant to recite a portion of the alphabet, then instructed him to count forward and backward from certain numbers.

Hargis, who has conducted about 100 DUII arrests and has had multiple trainings in administering the HGN test, testified that defendant showed six out of six clues of intoxication on that test, including "very obvious" sustained jerky movements of his eyes. That test result was not consistent with defendant's assertion that he had drunk only one beer. Hargis also felt that defendant showed signs of impairment in taking the other two tests.

After defendant's poor performance on the FSTs, Hargis told defendant that he thought defendant had had more than one beer. He again asked defendant to voluntarily give urine and blood samples. Defendant again refused.

Hargis testified at the suppression hearing that he had decided to administer FSTs without first seeking a warrant because over two hours had already elapsed since the time of the collision, it would take "a relatively significant time to get back into town with the process" and he was concerned about blood alcohol dissipation. In particular, Hargis testified that "there's no cell service in that particular area" and he would have needed to go into town, watch "his video," write his affidavit (which his supervisor would have had to proofread), submit the affidavit to the district attorney's office "to be approved to make any changes, find the Judge, have it proofed and then have it signed and then go back." Hargis estimated that it would take "two to three hours conservatively" to get a warrant depending in part "on where the Judge is." Hargis also would have had to get somebody else to watch defendant at the scene while Hargis obtained the warrant. And, he testified, "this was basically a homicide scene for us so everybody was involved at the crash scene and dealing with that evidence."

Hargis arrested defendant for DUII at 7:09 p.m. Hargis and Tague arranged for defendant's truck to be towed so it could be seized as evidence. The tow truck arrived at the ranch at about 8:05 and left with defendant's truck at 8:21, with Tague following.

By this point, Hargis had decided to transport defendant to the hospital for a blood draw, and he asked dispatch to send a "second unit" to the hospital because he thought defendant might ...