Defendant was convicted in a bench trial of, among other things, three counts of being a felon in possession of a firearm, ORS 166.270, and three counts of endangering the
The charges against defendant arose after police obtained and executed a search warrant for the house in which defendant lived with his extended family. Officers оbtained a warrant after receiving information that there was a methamphetamine lab operating in the house; the warrant authorized them to search for methamphetamine and other illegal controlled substances, methamphetaminе distribution equipment, “illegally obtained proceeds,” and a wide range of records, but did not authorize officers to search for weapons. Although the probable cause affidavit identified members of defendant’s extended family as being potentiаlly involved in offenses relating to controlled substances and endangering minors, defendant himself was not identified in the affidavit.
When officers arrived to execute the warrant, defendant, his wife Martha, defendant’s three adult children, two other adult males, and three minor children were escorted from the residence. At least two of the minor children had been placed in Martha’s custody by the Department of Human Services. One of defendant’s adult children was the parent of the other minor child.
At the time the warrаnt was executed, defendant had been charged with menacing for allegedly threatening neighbors with a shotgun, and had been appointed counsel in connection with that charge. When the police had responded to investigate defendant’s alleged menacing, they were unable to locate the gun that defendant reportedly used.
While searching defendant’s bedroom pursuant to the warrant, officers found a handgun. They relayed that information to Detective Carney, who was interviewing defendant. Aware of the menacing incident and the fact that the gun involved had not been located, Carney then asked about the previous incident “with a shotgun that had been investigated earlier.” In response, defendant stated that he had used a “toy gun” in the prior incident. Carney then told defendant that a gun had been found inside the residence, and asked whether additional weapons would be found within the residence. Defendant responded that there were two rifles hidden in the attic. Officers located the guns whеre defendant said that they would be.
Although the search did not uncover a methamphetamine lab, in addition to the guns, the search uncovered heroin, methamphetamine, and various drug paraphernalia. As noted, defendant was charged with three сounts of felon in possession of a firearm (based on the three guns found during the search of defendant’s house), three counts of endangering the welfare of a minor, and several controlled substances offenses.
Before trial, defendant moved tо suppress the evidence of the firearms found in the attic. He did so on the basis that, by questioning him about the prior menacing incident while defendant had appointed counsel, Carney violated defendant’s right to counsel under Article I, section 11, of the Oregon Constitution as that right has been explained in State v. Sparklin,
At trial, defendant moved for a judgment of acquittal on the three charges of endangering the welfare of a minor, arguing that the evidence was insufficient to permit a rational factfinder to find that defendаnt had violated the child endangerment statute, ORS 163.575, under the interpretation of that statute adopted by the Supreme Court in State v. McBride,
MOTION TO SUPPRESS
We first address defendant’s contention that the trial court erred in denying the motion to suppress evidence of the firearms. We review that denial for legal error and are
Defendant’s theory of suppression is that (1) defendant had a right to counsel under Article I, seсtion 11, and was in fact represented by counsel, in connection with the menacing charge; (2) by questioning defendant about that menacing charge, Carney violated defendant’s Article I, section 11, right to counsel; and (3) the discovery of the firearms in the attic derived directly from that illegal questioning and, for that reason, evidence of those firearms must be suppressed. In support of that argument, defendant relies on Sparklin, and a line of cases adhering to it. Under Sparklin, “Once an attorney is appointed or retained, there can be no interrogatiоn of a defendant concerning the events surrounding the crime charged, unless the attorney representing the defendant on that charge is notified and afforded a reasonable opportunity to attend.”
In response, the state does not dispute that Carney violated defendant’s rights under Article I, section 11, by questioning defendant about the prior incident, and concedes that defendant’s statement about using a “toy gun” could not be used in evidence against defendant. However, the state argues that Carney’s subsequent confrontation of defendant with the fact that officers had found a gun in the house, and his question about the presence of additional guns, was independent of the unlаwful interrogation and was, therefore, a permissible interrogation about an offense that was not “factually related” to the menacing.
It is not clear that the state’s “factually related” argument, which the state advanced before the Supreme Court’s decision in Prieto-Rubio, survives that decision, which, as noted, clarified that the relevant question is whether, as an objective matter, it is reasonably foreseeable that an interrogation will elicit incriminating information about a charged offense for whiсh a defendant has counsel.
Thus, Carney’s questioning of defendant about the prior menacing charge—including the questions that led to defendant’s admissions about the additional guns—violated defendant’s right to counsel under Article I, section 11. As a result, defendant’s admissions that there were guns in his attic should have been suppressed. Because the state did not demonstrate that it would have obtained the guns absent defendant’s admissions—as noted, the warrant did not authorize officers to search for weapons and the state does not suggest that officers otherwise would have found those two guns—evidence that officers found them in defendant’s attic should also have been suppressed. As that evidence likely played a role in defendant’s convictions on Count 1 and Count 2, we must reverse and remand with respect to those two convictions. Defendant does not suggest that the error affected the remaining convictions and, in any evеnt, we are persuaded that the error was harmless as to those convictions.
MOTION FOR JUDGMENT OF ACQUITTAL
Defendant also assigns error to the trial court’s denial of his motion for judgment of acquittal on the three counts of endangering the welfare of a minor, in violation of ORS 163.575. Defendant was charged with violating that statute by knowingly “permit [ting] a person under 18 years of age to enter or remain in a place where unlawful activity involving controlled substances is maintained or conducted.” ORS 165.575(1)(b). Defendant points out that in McBride, the Supreme Cоurt held that to prove that a defendant “permitted]” a minor to enter or remain in a place where unlawful activity involving controlled substances is conducted, “the state must demonstrate that defendant engaged in some affirmative conduct authоrizing or otherwise making it possible for the minors to enter or remain” in the place at issue.
We review the denial of a motion for a judgment оf acquittal “by examining the evidence in the light most favorable to the state to determine whether a rational trier of fact, accepting reasonable inferences and reasonable credibility choices, could have found the essеntial elements of the crime beyond a reasonable doubt.” State v. Cunningham,
Below and on appeal, the state points to evidence in the record of a large, framed collection of family photographs that was hanging on the wall in the living room of the house. In the center of that collection of photographs is a photograph of defendant. The state argues that a rational factfinder could infer from that photo arrangement that defendant was the “patriarch” of the family “who thus had control over the family.” We
Convictions on Counts 1 and 2 reversed and remanded; convictions on Counts 8, 9, and 10 reversed; remanded for resentencing; otherwise affirmed.