No. 299 June 14, 2023 371

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

In the Matter of M. T. F., 

a Youth.

STATE OF OREGON,

Respondent,

v.

M. T. F.,

Appellant.

Lane County Circuit Court

20JU07068; A175638

Debra E. Velure, Judge.

Argued and submitted September 12, 2022.

Erica Hayne Friedman argued the cause and filed the 

opening brief for appellant. Also on the opening brief was 

Youth, Rights & Justice. Christa Obold Eshleman and 

Youth, Rights & Justice filed the reply brief.

Erica L. Herb, Assistant Attorney General, argued 

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

Rosenblum, Attorney General, and Benjamin Gutman, 

Solicitor General.

Before Shorr, Presiding Judge, and Mooney, Judge, and 

Pagán, Judge.

MOONEY, J.

Affirmed.

Pagán, J., concurring.
372 State v. M. T. F.
Cite as 326 Or App 371 (2023) 373

MOONEY, J.

Youth, M, appeals from a judgment adjudicating 

her delinquent for assaulting a public safety officer. ORS 

163.208.1

 M asserts two assignments of error in her opening 

brief, contending that the juvenile court erred by denying 

her motion to suppress evidence, and by adjudicating her 

delinquent for an act that, if committed by an adult, would 

constitute assaulting a public safety officer under ORS 

163.208. We conclude that the juvenile court did not err in 

denying the motion to suppress or by adjudicating M delinquent. We affirm.

We review the denial of a motion to suppress for 

legal error. State v. Oxford, 311 Or App 1, 7, 488 P3d 808 

(2021). “[W]e are bound by a trial court’s factual findings, 

if the record contains evidence to support them.” State v. 

Serrano, 346 Or 311, 326, 210 P3d 892 (2009). If the court 

did not make an express factual finding on a pertinent issue, 

we presume it decided the disputed facts in a manner consistent with its ultimate conclusion, as long as there is some 

evidence in the record to support that conclusion. Oxford, 

311 Or App at 3. We draw the facts from the record in accordance with the applicable standard of review.

On December 9, 2020, members of the Eugene 

Police Department responded to a report that a person was 

overdosing on drugs inside a tent at a city park. Officers 

Peckels and Vinje arrived at the park first, in full uniform. 

Several individuals approached Peckels, led him to the tent, 

and told him there was a female inside. Peckels testified 

that in suspected overdose situations, police must render 

the area safe before medics may enter, and, in this case, he 

believed medics would soon be there. Officers Cardwell and 

McCartney responded soon after.

As Peckels approached the tent, through the open 

tent flap he saw M laying on her back with her arm over 

her face, her teeth were chattering, and she was visibly 

1 ORS 163.208, as relevant, states:

“(1) A person commits the crime of assaulting a public safety officer if the 

person intentionally or knowingly causes physical injury to the other person, 

knowing the other person to be a peace officer *** and while the other person 

is acting in the course of official duty.”
374 State v. M. T. F.

trembling, which he understood to be early signs of an overdose. A medical volunteer with Occupy Medical was with M 

in the tent when Peckels arrived and left when Peckels indicated that medics were on their way. Peckels put one foot in 

the tent and announced “Eugene Police” before asking M 

her age. He testified that M did not reply or acknowledge 

him, and that when she did speak, she slurred her words. 

Peckels communicated with the en route medics that M was 

conscious, breathing, and speaking.

Peckels told M that medics were on their way, and 

he asked her what she had taken. M responded that she had 

taken heroin, although she did not know how much she had 

taken. Peckels testified that he believed that M was experiencing a medical emergency. He stood ready to administer 

Narcan if M became unresponsive. M began telling Peckels 

to “go away” and leave her alone. McCartney had joined 

Peckels in the tent, and they explained to M that, in order to 

ensure her safety, the officers would not leave until medics 

arrived. M began kicking at Peckels. Peckels, McCartney, 

and Vinje physically restrained M at that point. M screamed 

for the officers to let go of her and to leave her tent. The 

officers repeatedly explained that they needed to stay with 

M until the medics arrived. Peckels exited the tent to speak 

with the medics while McCartney and Vinje stayed with M. 

A sergeant outside the tent directed McCartney and Vinje to 

exit the tent and M continued to yell at McCartney to leave. 

McCartney responded to M saying: “I am. You’re not going 

to kick me in the process, okay?” M mocked McCartney 

at that point and then, after McCartney released her, M 

kicked McCartney several times in the knee. Approximately 

four minutes elapsed from the time the officers arrived on 

scene to the time that McCartney and Vinje left M’s tent. 

Eventually, M was transported to the hospital by medics.

The state filed a petition alleging that M was within 

the juvenile court’s jurisdiction for acts that, if committed 

by an adult, would constitute assaulting a public safety 

officer under ORS 163.208, a Class C felony. The petition 

alleged that M unlawfully and knowingly caused physical 

injury to McCartney, who M knew to be a public safety officer, while McCartney was acting in her official duty. Prior 

to trial, M filed a motion to suppress all evidence obtained 
Cite as 326 Or App 371 (2023) 375

from the officers’ presence in her tent, which the trial court 

denied after a hearing. At trial, at the close of evidence, M 

requested a jury instruction that assigned a mental state to 

the result element of “physical injury,” but the juvenile court 

ruled that the “knowing” mental state did not apply to physical injury and instead required “that the person act[] with 

an awareness that her conduct was assaultive.” The juvenile 

court then found that the state had proved the allegations of 

the petition beyond a reasonable doubt and concluded that 

M was within its jurisdiction.

In her first assignment of error, M asserts that the 

juvenile court erred by denying her motion to suppress “all 

evidence” resulting from the warrantless entry into her tent. 

She had argued to the juvenile court that no exception to the 

warrant requirement applied and, therefore, the evidence 

was obtained in violation of her Article I, section 9, rights.2

The juvenile court denied the motion to suppress. We understand the juvenile court to have found that the emergency 

aid exception applied to any argument about whether the 

officers needed a warrant to enter the tent, and that the 

court determined that the officers’ intent was consistent 

with aiding M, as opposed to searching the tent for evidence 

of a crime. On appeal, both parties focus their arguments 

almost entirely on the emergency aid exception.

According to the Supreme Court,

“an emergency aid exception to the Article I, section 9 warrant requirement is justified when police officers have an 

objectively reasonable belief, based on articulable facts, 

that a warrantless entry is necessary to either render 

immediate aid to persons, or to assist persons who have 

suffered, or who are imminently threatened with suffering, 

serious physical injury or harm.”

State v. Baker, 350 Or 641, 649, 260 P3d 476 (2011) (footnotes omitted).

It is the state’s burden to prove each element of the 

emergency aid exception and, additionally, to prove that the 

2 Article I, section 9, of the Oregon Constitution provides, in relevant part:

“No law shall violate the right of the people to be secure in their persons, 

houses, papers, and effects, against unreasonable search, or seizure * **.”
376 State v. M. T. F.

particular emergency did not dissipate and, thus, render 

the exception inapplicable at any point. State v. Garcia, 276 

Or App 838, 850, 370 P3d 512 (2016). M argues first that 

the state failed to prove that the officers had an objectively 

reasonable belief that warrantless entry into her tent was 

necessary to render immediate aid. She contends that officers actually entered her tent to determine whether there 

was an emergency, not to administer aid, because at the 

time they entered the tent a medical volunteer was present, 

and Peckels had reported that M was conscious and speaking. M further argues that the state failed to prove that the 

emergency aid exception applied to McCartney’s entry, even 

if McCartney believed M was experiencing a medical emergency, because it failed to prove why McCartney’s presence, 

in particular, was necessary to aid M in her emergency. 

Second, M argues that the officers’ belief was not objectively 

reasonable, because nothing in the record supports a finding 

that M was in a condition that the officers could assist with 

by entering the tent.

The emergency aid exception to the warrant 

requirement applied here, and we reject M’s arguments to 

the contrary. There is sufficient evidence in the record to 

support the conclusion that the officers subjectively believed 

that their entry into M’s tent was necessary to render immediate aid to her and, further, that their belief was objectively 

reasonable. As we have described, the officers arrived at the 

scene within minutes of each other in response to a 9-1-1 

call expressing concern that someone may have overdosed. 

They were taken directly to M’s tent where they observed 

M exhibiting early signs of a drug overdose. Moreover, the 

presence of a medical volunteer did not render the officers’ 

intervention unnecessary. That the officers took charge of 

the scene when they arrived is simply evidence that the 

emergency response process was underway. M’s need for 

emergent care was transitioned from a medical volunteer to 

medical professionals through the assistance of law enforcement officers. The officers stood ready to administer Narcan 

if that became necessary before the medics arrived. The 

record supports a conclusion that the officers had an objectively reasonable belief that their entry into the tent was 

necessary to render M immediate aid.
Cite as 326 Or App 371 (2023) 377

M argues, alternatively, that even if the officers’ initial entry into the tent was justified, they unlawfully remained after any emergency had dissipated. The 

record does not support that argument. The video footage 

confirmed that the officers were in the tent for about four 

minutes. In that time, they entered her tent, observed M’s 

physical condition, and, to the extent they could, interacted 

with M. After the medics arrived, M was transported to the 

hospital. The emergency did not dissipate. The warrantless 

entry was justified during the entire four-minute period.3

In her second assignment of error, M asserts that 

the juvenile court erred in adjudicating her delinquent for 

acts that, if committed by an adult, would constitute assaulting a public safety officer under ORS 163.208. The parties’ 

arguments on this assignment of error have evolved during 

the course of this appeal as a result of the Supreme Court’s 

decision in State v. Owen, 369 Or 288, 505 P3d 953 (2022). 

In her opening brief, filed before the decision in Owen, M’s 

argument focused on the sufficiency of the evidence to disprove her claim of self-defense.

By the time the state filed its response brief, the 

Supreme Court had decided Owen. The state acknowledged 

that M had preserved in the juvenile court an argument 

that the court was required to find that M acted with at 

least criminal negligence with respect to whether her conduct would cause physical injury. In view of that, the state, 

in addition to responding to M’s argument that the evidence 

was insufficient to disprove self-defense, acknowledged that 

the evidence had to be sufficient to support a finding “that 

[M] was at least criminally negligent as to the fact that her 

actions could cause McCartney to suffer physical injury—

a requirement that the Oregon Supreme Court recently 

addressed in State v. Owen * **, which overruled, in part, 

State v. Barnes, 329 Or 327, 986 P2d 1160 (1999).” The state 

further acknowledged that the juvenile court had concluded 

that, under Barnes, it did not need to decide whether M 

3 Because we determine that the officers were not, at any point, in M’s tent in 

violation of Article I, section 9, we do not reach M’s argument that evidence of her 

conduct is presumptively tainted and inadmissible under the exclusionary rule, 

which requires the suppression of evidence discovered from illegal police conduct.
378 State v. M. T. F.

had a culpable mental state. Noting that defendant had not 

assigned error to that determination, the state nonetheless 

acknowledged that it was erroneous under Owen, and then 

argued that the error was harmless because the juvenile 

court’s comments on the record demonstrate that it would 

nevertheless have found that M acted with the necessary 

culpable mental state.

In reply to the state’s concession that the juvenile 

court had plainly erred in its application of the law in light 

of Owen, M argued that the proper course is to remand to 

the juvenile court to apply the correct legal standard. M also 

disputed the state’s contention that the error was harmless. 

In sur-reply, the state argued that we should not consider M’s 

contention about the court’s erroneous conclusion regarding 

the culpable mental state requirement recognized in Owen, 

because M had not assigned error to that determination in 

the opening brief but had, instead, raised it on reply. The 

state acknowledged that it had conceded the legal error in 

its answering brief when it addressed the sufficiency of the 

evidence to support M’s adjudication and also repeated its 

argument that any error was harmless.4

We begin with whether there was sufficient evidence presented by the state to disprove self-defense. When 

reviewing a challenge to the sufficiency of the evidence, we 

review whether, viewing the evidence in the light most favorable to the state, a rational trier of fact could have found the 

essential elements of the crime proved beyond a reasonable 

doubt. State v. Hall, 327 Or 568, 570, 966 P2d 208 (1998). 

When self-defense is raised as an affirmative defense, the 

state must disprove its applicability beyond a reasonable 

doubt. State v. Boyce, 120 Or App 299, 305-06, 852 P2d 

4 Typically, when a material change in the law occurs after the opening brief 

is filed, an appellant who wishes to raise a new assignment of error or a distinct 

new argument should move to file an amended opening brief or a supplemental 

brief, which, among other things, ensures that the respondent will have a full 

opportunity to respond to both the request and any new briefing that is allowed. 

See Kragt v. Board of Parole, 325 Or App 688, ___ P3d ___ (2023). However, as we 

explain more below, in the particular and unique circumstances of this case, we 

deem it appropriate to make an exception to the well-established rule that “an 

issue raised for the first time in an appellant’s reply brief generally will not be 

considered on appeal.” State v. Murga, 291 Or App 462, 468, 422 P3d 417 (2018); 

see also ORAP 1.20(5) (“For good cause, the court on its own motion or on motion 

of any party may waive any rule.”).
Cite as 326 Or App 371 (2023) 379

276 (1993). The use of physical force on another person is 

justified when it is reasonably necessary to defend against 

“the use or imminent use of unlawful physical force.” ORS 

161.209. In her second assignment of error, M asserts that 

the state failed to prove that she lacked a reasonable belief 

that her use of force against McCartney was necessary to 

defend herself from what she reasonably believed was the 

infliction of unlawful force on her person. We do not agree.

When Peckels entered M’s tent, he announced himself as an officer. The officers who were present were in full 

uniform. M appeared to become more coherent over the 

course of the four-minute interaction, as she began to make 

direct eye contact with the officers and to verbally respond to 

them. Right before McCartney released M so that she could 

exit the tent, McCartney specifically warned M not to kick 

her, which M verbally acknowledged, albeit by mocking her, 

and as soon as McCartney released M, M kicked her several 

times. There was no objectively reasonable basis for M to 

believe that she needed to use force to defend herself against 

the use of physical force by McCartney. To the contrary, the 

officers were leaving M’s tent. They told her they were leaving, and they left. That McCartney warned M not to kick her 

as McCartney prepared to leave the tent does not change the 

fact that she was leaving with the other officers. There was 

no reasonable basis for M to believe that McCartney would 

use unlawful force against her. A rational factfinder could, 

on this record, have concluded that, in addition to meeting 

its burden of proving the elements of the charged crime, the 

state also met its burden to disprove M’s defense, all beyond 

a reasonable doubt.

We turn to the Owen issues. Although M did not 

squarely raise them in the opening brief, we consider them 

because, as the state forthrightly acknowledged in its 

answering brief, the issues are preserved and, in view of 

Owen, the court erred insofar as it concluded that a culpable 

mental state did not apply. The situation is somewhat akin 

to that in State v. Brown, 310 Or 347, 800 P2d 259 (1990), 

in which the Supreme Court considered—and corrected—

an error that was both unpreserved and unassigned, when 

the state brought the error to the court’s attention. 310 Or 

at 355. The main difference between this case and Brown is 
380 State v. M. T. F.

that here the assigned error was preserved in the juvenile 

court.5

As noted, the parties’ arguments frame two Owen

issues. The first is whether the evidence is legally sufficient to permit a finding that M was criminally negligent 

with respect to whether her conduct would cause physical 

injury. Our review of the record confirms that it is. The second issue, given the state’s concession, is whether the court’s 

legal error in concluding that a culpable mental state did 

not apply requires reversal. We examine the impact, if any, 

that the error may have had by focusing “on whether the 

error was harmless, that is, whether there is little likelihood 

that it affected the verdict.” State v. Stone, 324 Or App 688, 

693-94, 527 P3d 800 (2023). Here, we agree with the state 

that the error was harmless beyond a reasonable doubt. In 

an extensive conversation between the court and counsel, 

the juvenile court stated that it would not apply a “knowing” standard to the “physical injury” element, but that it 

would instead apply this standard: The state must prove 

“that the person act[ed] with an awareness that her conduct was assaultive.” Had the juvenile court considered the 

state’s evidence on the physical injury element by applying a 

criminally negligent mental state standard, it would likely 

have reached the same result. The court would have viewed 

the evidence to determine whether the state proved that M 

had “fail[ed] to be aware of a substantial and unjustifiable 

risk ** * of such nature and degree that the failure to be 

aware of it constitutes a gross deviation from the standard 

of care that a reasonable person would observe in the situation.” ORS 161.085(10). “Given that the [court] found that 

[M] acted with an awareness that [her] conduct was assaultive in nature and that [her] assaultive conduct * ** was 

committed with sufficient force to cause physical injury[,] 

*** there is little likelihood that it would have concluded 

that [M] was not at least negligent with respect to the risk 

that” physical injury could result. State v. Tellez-Suarez, 322 

5 As both parties acknowledge, and as the record reflects, the issue of what 

mental state, if any, is required for the physical injury element was thoroughly 

briefed and argued in the juvenile court. M argued that State v. Barnes, 329 Or 

327, 986 P2d 1160 (1999), should be overruled, and Owen has since done just that. 

There is no preservation issue.
Cite as 326 Or App 371 (2023) 381

Or App 337, 339, 519 P3d 561 (2022) (so holding in similar 

factual context).

In making its findings, the juvenile court relied 

heavily on the body camera footage from the officers and 

described the moment before M kicked the officer in the 

video as “revealing” as to M’s mental state. There is little 

likelihood that the juvenile court would have concluded that 

M was not at least negligent with respect to the risk of injury 

given its conclusion that M knowingly engaged in assaultive 

conduct. The error, therefore, does not require reversal.

Affirmed.

PAGÁN, J., concurring.

Focusing on the emergency aid exception to the 

warrant requirement in Article I, section 9, of the Oregon 

Constitution, the majority opinion correctly affirms the juvenile court’s denial of the motion to suppress. I agree that the 

emergency aid exception applied. I write separately to dispel 

any suggestion that if that exception did not apply, then the 

juvenile court should have granted the motion. By the very 

nature of the charge against the youth, which resulted from 

a decision by the youth to engage in conduct threatening 

an officer’s safety, the motion to suppress could have been 

denied whether or not the exception applied.

In the juvenile court and on appeal, the state 

argued, as an alternative ground for denying the motion to 

suppress, that the youth’s decision to assault a police officer “attenuated the taint from any unlawful police conduct.” 

When ruling on the motion to suppress, the juvenile court 

referred to the attenuation argument. It denied the motion 

to suppress, at least in part, based on its conclusion that it 

could not find that the accused crime of assaulting a police 

officer was “in any way a result of a warrantless search or 

search at all.”

The juvenile court’s reasoning in support of its 

ruling is somewhat unclear, but the juvenile court could 

be interpreted to have accepted the premise that, had the 

youth demonstrated that the officers entered the tent illegally, then the motion to suppress could have been granted. 
382 State v. M. T. F.

But such a framing ignores an important point that we have 

made repeatedly in our courts, using either the federal or 

Oregon constitutions: New crimes against officers or that 

threaten their safety fall within a clear exception to the 

exclusionary rule. In State v. Suppah, 358 Or 565, 576, 369 

P3d 1108 (2016), the Supreme Court noted that “the state 

and federal courts consistently have held that a defendant’s 

decision to commit a new crime in response to an unlawful 

seizure ordinarily will attenuate the taint of the seizure.” 

For example, “[a] decision to strike an officer in response 

to an unlawful arrest or to offer a bribe does not normally 

follow from the illegality, and the formation of the mental 

state necessary to give rise to those criminal acts provides 

further assurance that those acts are independent of the 

illegality that preceded them.” Id. at 579.

In my view, had the state even conceded illegality 

on the part of the officers, the facts of this case fit squarely 

within the attenuation line of cases in Oregon which stand 

for the specific proposition that the illegality of a stop or 

entry does not render inadmissible evidence of new crimes 

directed at police officers or threatening their safety. See 

State v. Bistrika, 261 Or App 710, 714-16, 322 P3d 583, 

rev den, 356 Or 397 (2014), cert den, 577 US 828 (2015) 

(affirming denial of defendant’s motion to suppress evidence of what occurred after an emergency had dissipated 

because the evidence concerned conduct that threatened 

officer safety); State v. Neill, 216 Or App 499, 508, 173 P3d 

1262 (2007), rev den, 344 Or 671 (2008) (“That the police 

may have acted unlawfully in initiating the search did not 

free defendant to interfere with reasonable directions by the 

police designed to reduce the risk of violence and maintain 

safety once the search had commenced.”); State v. Williams, 

161 Or App 111, 119, 984 P2d 312 (1999) (The exclusionary 

rule protects privacy interests but that purpose would not 

be served by suppressing evidence of new crimes “directed 

at the arresting officers, thereby threatening their safety.”); 

State v. Janicke, 103 Or App 227, 230, 796 P2d 392 (1990) 

(“Assuming, without deciding, that the entry into the residence was unlawful, we have declined to extend the exclusionary rule to evidence of crimes committed against police 

officers during what turns out to be an illegal stop or entry.”). 
Cite as 326 Or App 371 (2023) 383

As we stated so clearly in State v. Burger, 55 Or App 712, 

716, 639 P2d 706 (1982):

“The issue here, however, is not whether physical evidence obtained because of a warrantless entry should be 

suppressed, but whether evidence of crimes committed 

against police officers after they have unlawfully entered 

a home should be suppressed. We decline to hold that after 

an unlawful entry evidence of subsequent crimes committed against police officers must be suppressed. Such a rule 

would produce intolerable results. For example, a person 

who correctly believed that his home had been unlawfully entered by the police could respond with unlimited 

force and, under the exclusionary rule, could be effectively 

immunized from criminal responsibility for any action 

taken after that entry.”

See State v. Gaffney, 36 Or App 105, 108-09, 583 P2d 582 

(1978), rev den, 285 Or 195 (1979) (providing similar analysis 

in a case involving an illegal stop). Based on that line of 

cases, which survived the transition from the federal exclusionary rule to adoption of our rights-based approach under 

Article I, section 9, there can be no doubt that the juvenile 

court correctly denied the motion to suppress whether or not 

the emergency aid exception applied.

Accordingly, I respectfully concur.