State v. McLeod

Opinion

474 August 26, 2026 No. 803

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON, Plaintiff-Respondent,

v.

AUSTIN McLEOD, Defendant-Appellant.

Jackson County Circuit Court 21CR46823; A181638

Kelly W. Ravassipour, Judge. Argued and submitted May 9, 2025. Laura A. Frikert, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Oregon Public Defense Commission.

Christopher A. Perdue, 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, Hellman, Judge, and O’Connor, Judge.

O’CONNOR, J. Reversed and remanded.

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O’CONNOR, J.

Defendant appeals from a judgment of conviction for first-degree felony murder, ORS 163.115; second-degree abuse of a corpse, ORS 166.085; and tampering with physical evidence, ORS 162.295. Defendant was also found guilty of first-degree robbery, and the guilty verdict merged with the felony murder verdict into the single conviction for felony murder. He raises five assignments of error. In his first assignment of error, defendant argues that the trial court erred when it denied his motion to suppress statements that he made while police interrogated him. He contends that he made the statements while in compelling circumstances and without being provided Miranda warnings, in violation of Article I, section 12, of the Oregon Constitution.

We conclude that defendant was in compelling circumstances at the start of the interrogation at a police station . The trial court erred when it denied defendant’s motion to suppress, and that error was not harmless. Accordingly, we reverse and remand to the trial court on defendant’s first assignment of error.

We address defendant’s second, third, and fourth assignments of error because they could provide greater relief. In a combined argument in support of the second and third assignments of error, defendant argues that the trial court erred when it denied his motions for judgment of acquittal on Count 1, felony murder, and Count 2, first- degree robbery. The state elected a theory of accomplice liability on the first-degree robbery charge, and the first-degree robbery is the predicate felony for the charge of felony murder . Defendant challenges the sufficiency of the evidence on the theory that he was an accomplice to first-degree robbery . We reject that argument because the evidence, viewed in the light most favorable to the state, was sufficient for a factfinder to find defendant guilty of first-degree robbery as an accomplice, as we explain in more detail below.

In his fourth assignment of error, defendant argues that the trial court plainly erred when it did not declare a judgment of acquittal on Count 1, felony murder, because the legislature intended only a principal in a predicate felony to

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be guilty of felony murder, not an accomplice to the predicate felony. The interpretation of the felony murder statute advocated by defendant is reasonably in dispute. See State v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013) (explaining that plain error is “an error of law, obvious and not reasonably in dispute, and apparent on the record without requiring the court to choose among competing inferences”). Thus, the trial court did not plainly err.

Defendant’s fifth assignment of error challenges the trial court’s sentence. We do not reach it because we reverse his convictions on the first assignment of error and remand for further proceedings.

I. FIRST ASSIGNMENT OF ERROR A. Standard of Review “We review the trial court’s denial of defendant’s motion to suppress, including the question whether defendant was in compelling circumstances when the police interrogated [him], for errors of law.” State v. Rodriguez, 337 Or App 728, 734, 564 P3d 471 (2025). “We are bound by the trial court’s factual findings if there is constitutionally adequate evidence to support them.” State v. Edwards, 319 Or App 60, 62, 509 P3d 177, rev den, 370 Or 212 (2022). When a trial court did not make an express factual finding below, “we presume that a trial court implicitly resolve[d] factual disputes consistently with its ultimate conclusion.” Pereida- Alba v. Coursey, 356 Or 654, 670-71, 342 P3d 70 (2015). But “[i]f an implicit factual finding is not necessary to a trial court’s ultimate conclusion or is not supported by the record, then the presumption does not apply.” Id. at 671. B. Facts 1. Background Facts Defendant and his younger brother and codefendant , Dylan, were staying at the apartment of the second codefendant, Scofield.1 On the night of September 24, 2021, defendant, Dylan, and their sister travelled in defendant’s truck to meet an acquaintance. They returned to an area 1 We refer to defendant’s brother by his first name to avoid confusion because defendant and his brother share a last name.

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near Scofield’s apartment early in the morning on September 25, 2021. Defendant later told the police that he had not slept at all that night.

On the morning of September 25, 2021, security camera footage from outside Scofield’s apartment showed defendant and Dylan returning to Scofield’s apartment at 5:48 a.m. Defendant’s sister remained in the truck. Scofield texted the victim, S, to come to the apartment to engage in a drug sale and indicated that Scofield would be alone in the apartment. S arrived at the apartment at 6:56 a.m. Sometime before 7:26 a.m., S was repeatedly hit with a hammer or a socket wrench, and S died in the apartment from his injuries. At 7:26 a.m., Dylan ran to defendant’s truck to retrieve a ratchet strap. Between 7:26 a.m. and 11:22 a.m., defendant, Dylan, and Scofield cleaned the apartment and placed S’s body into a refrigerator, using the ratchet strap to hold the refrigerator closed. Defendant had brought electrical tape into the apartment from his truck at the request of Scofield, before S’s arrival at the apartment. Defendant believed that Scofield wanted to use it to “tie up his bongs.” Electrical tape similar to what defendant said he brought into the apartment was found on S’s mouth and neck when his body was discovered in the refrigerator. Defendant changed clothes and left the apartment at 11:22 a.m.

Defendant called 9-1-1 at 11:33 a.m. and reported that he and Dylan “walked in” on Scofield “beating some guy with a hammer.” Defendant said that Scofield tried to prevent them from leaving by threatening them with Dylan’s AK-47. Defendant also said that he believed the victim was unconscious and might be dead. He provided the general location of Scofield’s residence and description of Scofield’s car. The 9-1-1 operator told defendant to answer the phone because officers would need to speak with him.

Police arrived at Scofield’s apartment at 11:54 a.m.

Scofield had a gun and had barricaded himself inside the apartment, resulting in a stand-off with police outside the apartment for some time before Scofield surrendered.

At 12:17 p.m., Officer Bryant called defendant on defendant’s mother’s cell phone. Bryant asked defendant

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and Dylan to return to Scofield’s apartment and told him that officers needed to “chat” with him. Bryant thought defendant and Dylan were witnesses. Defendant and Dylan returned to Scofield’s apartment.

2. Police Encounter The subsequent encounter between defendant and the police formed the basis for defendant’s motion to suppress in the trial court and provides the facts relevant to the compelling circumstances analysis. We thus discuss it in detail.

When reviewing a trial court’s pretrial ruling, we view the facts as presented to the trial court when it made its ruling. State v. Gilliland, 347 Or App 256, 259, 587 P3d 394 (2026). We thus summarize the facts from the pretrial hearing on defendant’s motion to suppress because those are the facts upon which the trial court based its ruling denying defendant’s motion to suppress.

When defendant and Dylan returned to the scene, they approached Deputy Greive. Grieve directed defendant and Dylan to sit. Officer Jantzer took defendant’s gun, placed it in his car, and told defendant he could probably get the gun back “when [they] leave[.]” Janzter told defendant to “keep your hands in your lap, please, and we won’t have to do anything crazy.” At that point, Janzter thought defendant was a witness to the murder, and Janzter and other officers, according to Janzter, “tried to just be nice to him.” Another officer patted down defendant.

Officer Vega separated defendant and Dylan.

Janzter questioned Dylan, and Vega questioned defendant . Defendant told Vega that he and Dylan had arrived at Scofield’s apartment around 5:00 or 6:00 a.m. The two of them then left to go to a market, and when they returned, Scofield was hitting someone with a hammer. Scofield tried to get defendant and his brother to help him and threatened them with Dylan’s AK-47, but defendant and Dylan escaped. Defendant went back to the market and called his mother, he told Vega. His mother met up with him immediately, and he used her cell phone to call 9-1-1, because defendant did not have a cell phone. In response to hearing this story, Vega 480 State v. McLeod

told defendant to wait at the scene until a detective talked with him.

Detective Ford interviewed defendant in his unmarked patrol car for 25-30 minutes. Ford did not have a recorder with him. Defendant told Ford essentially the same information he told Vega. Ford asked defendant if he would go to the station to give a recorded interview, and defendant agreed. Janzter drove defendant to the police station in the back of his patrol car.

Ford met defendant at the station. He led defendant to a “soft interview room.” The room looked like an office. Defendant did not have a driver’s license, and he had admitted to driving his truck. Ford told defendant he was not in trouble for driving without a license, told him to wait in the room, left the room, and closed the door behind him. Ford described their interaction as “casual” and did not observe any of defendant’s other interactions, if there were any, at the police station because he “was busy doing other things[.]” The door was unlocked, although the record does not contain evidence that defendant knew that.

Defendant waited at the station for about five hours while officers questioned Dylan. Ford testified that he placed defendant in a soft interview room and instructed him to wait, although it is unclear exactly when he did so. Regardless, defendant was at the station, waiting, for approximately five hours. The same detective who interviewed Dylan, Detective Diane Sandler, also questioned defendant. Sandler began the interview of defendant at 6:17 p.m. After a few minutes, Ford asked Sandler and defendant to move to a different “soft interview room” because the microphone was not working in the first room. The room looked similar to the first room—like an office. The door was closed and unlocked, although the record again does not contain evidence that defendant knew that the door was unlocked.

Sandler began the interview by explaining that she had interviewed Dylan and that other detectives were interviewing defendant’s parents and sister. She reiterated that the police were not investigating defendant for driving without a license. She explained that defendant needed to

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be truthful and consistent with his brother’s and sister’s stories because otherwise the police would “think somebody’s trying to cover something up[.]”

A three-and-a-half hour interview followed. We do not discuss the interview in detail because, as we explain below, we conclude that Article I, section 12, required Sandler to provide defendant with Miranda warnings at this point. Sandler began by asking questions about defendant’s background and then turned to questions about the homicide. Over the course of the interview, defendant provided Sandler with different versions of his and Dylan’s actions. Defendant revealed more incriminating details that established he was present in the same room before, during, and after the killing of S, and that he had participated in some way, and he claimed that he had done so while Scofield held him at gunpoint.

At 8:20 p.m., Sandler read defendant Miranda warnings. Defendant said he understood his rights and continued to speak to the officer. He told the story from the beginning, and he made incriminating statements about his and his brother’s role in the robbery and killing of S and in attempting to clean up after S died. Among the many statements he made, defendant said that he had brought electrical tape into the apartment from his truck before S had arrived at the apartment—similar to electrical tape that was found on S’s face and body. He admitted that he saw Scofield striking S with a hammer and told Scofield to “hit” S with his fist to just “knock him out.” Under further questioning , defendant eventually admitted that he saw Dylan hit S with “something in his hand” and that strike “dropped” S to the ground. Defendant no longer claimed that Scofield had held him at gunpoint. Defendant eventually confirmed that sometime shortly before S arrived that morning Dylan told him it was going to “get bad.” Defendant understood that to mean that S was going to be robbed, knocked out, and taken somewhere to be dropped off.

3. Procedural History The state charged defendant with felony murder , robbery, unlawful use of a weapon, abuse of a corpse, and tampering with physical evidence. Pretrial, defendant 482 State v. McLeod

moved to suppress the statements that he made during the interview with Sandler. The trial court determined that the circumstances of defendant’s interrogation were not compelling , and it denied defendant’s motion to suppress. In making that determination, the trial court explained:

“In this case, we know that [defendant] initiated the encounter. He called 9-1-1, responded to the police, and was cooperative in talking about his statement as a witness to the case.

“The length of the interview was several hours, unlike some of the other cases that have been previously addressed * * *.

“The amount of pressure exerted by [the detective]. “I find that her testimony was credible that she believed him to be a witness. She obviously employed interview techniques that she’s learned through her training and experience, and, in that, there did become a shift in [defendant ]’s statements to her.

“And at that point, she did Mirandize him specifically. “And then the last test under both of those is if a defendant is able to terminate those encounters.

“And, prior to the Miranda [warnings], he never did articulate that he wanted the interview to end. He never asked to leave.”

Defendant proceeded to a jury trial. The state presented much of the same evidence as it did during the suppression hearing, including a recording of defendant’s interview with Sandler and Sandler’s testimony about the interview. The jury found defendant guilty of felony murder , robbery, abuse of a corpse, and tampering with physical evidence. The jury found defendant not guilty of unlawful use of weapon. The court sentenced defendant to 25 years in prison. This appeal followed.

On appeal, defendant argues that he was in compelling circumstances from the beginning of the police interview and he was not provided with Miranda warnings, in violation of Article I, section 12. Alternatively, defendant argues that if he was not in compelling circumstances at the outset of the interrogation, then the circumstances became

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compelling during the interrogation, specifically at the point when the detective warned defendant that it would “screw” defendant and his brother up if defendant was not truthful. The state argues that the circumstances did not become compelling until after defendant was advised of his Miranda rights. Having considered the parties’ arguments, we conclude that the trial court erred when it denied the motion to suppress because the circumstances became compelling at the beginning of the station house interrogation of defendant. C. Analysis 1. Relevant Law Article I, section 12, of the Oregon Constitution, provides: “No person shall be * * * compelled in any criminal prosecution to testify against himself.” That provision “guarantees a right to remain silent and a derivative or adjunct right to have the advice of counsel in responding to police questioning.” State v. Reed, 371 Or 478, 483, 538 P3d 195 (2023) (internal quotation marks omitted). A police officer must inform a person “of those rights prior to interrogating them in custody or otherwise compelling circumstances.” Id. (internal quotation marks omitted). The requirement of Article I, section 12, is “similar to but broader than, the requirement under the federal constitution established in Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed 2d 694 (1966).” Id. at 483-84.

The United States Supreme Court held in Miranda that the Fifth Amendment to the United States Constitution requires a police officer to inform a person of their right to remain silent and their right to counsel prior to subjecting them to a custodial interrogation. 384 US at 478-79. Those warnings inform a person “that they have the right to remain silent, that anything they say can and will be used against them in a court of law, that they have the right to have an attorney present during the interrogation, and that, if they cannot afford an attorney, one will be appointed for them on request before the interrogation.” Reed, 371 Or at 485 (citing Miranda, 384 US at 479). The Miranda warnings are necessary “to counter the coercive 484 State v. McLeod

effects inherent in custodial interrogations.” Reed, 371 Or at 484. The warnings protect the right to be free from compelled self-incrimination because that right “is fulfilled only when the person is guaranteed the right to remain silent unless he chooses to speak in the unfettered exercise of his own free will.” Miranda, 384 US at 460 (internal quotation marks omitted).

Article I, section 12, like the Fifth Amendment, requires Miranda warnings prior to custodial interrogation. Additionally, Article I, section 12, “recognizes that circumstances other than custody can be coercive” because “they can undermine an individual’s ability or willingness to exercise their constitutional rights.” Reed, 371 Or at 486. In those “compelling circumstances,” Article I, section 12, “furnishes an independent basis” for requiring a police officer to give Miranda warnings before interrogating a person. State v. Magee, 304 Or 261, 266, 744 P2d 250 (1987).

“The state bears the burden of proving that a defendant ’s unwarned statements were made under circumstances that were not compelling.” Reed, 371 Or at 488. The Oregon Supreme Court has explained that “[t]here is no bright-line rule under Oregon law for when circumstances are compelling[.]” Id. at 486. We consider the totality of the circumstances and determine whether a defendant is in “circumstances that create a setting which judges would and officers should recognize to be compelling.” State v. Roble-Baker, 340 Or 631, 638, 136 P3d 22 (2006) (internal quotation omitted). That is, we consider whether, under the totality of the circumstances, the police created the kind of “police-dominated atmosphere that Miranda warnings were created to counteract.” Rodriguez, 337 Or App at 735 (internal quotation marks omitted). The inquiry “does not turn on either the officer’s or the suspect’s subjective belief or intent; rather it turns on how a reasonable person in the suspect’s position would have understood [their] situation.” State v. Shaff, 343 Or 639, 645, 175 P3d 454 (2007).

In Roble-Baker, the Oregon Supreme Court has identified a list of nonexclusive factors for a court to consider when determining whether the circumstances were compelling : “(1) the location of the encounter; (2) the length of the

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encounter; (3) the amount of pressure exerted on the defendant * * *; and (4) the defendant’s ability to terminate the encounter.” State v. Heise-Fay, 274 Or App 196, 202, 360 P3d 615 (2015) (citing Roble-Baker, 340 Or at 640-41). “Except in the most extreme case, no single factor is dispositive.” Id. at 203. We turn to an examination of the totality of the circumstances of this case. We organize our analysis using the nonexclusive factors identified in Roble-Baker.

2. Application a. Location. In this case, the location of the interview weighs in favor of compelling circumstances. Defendant was interviewed in a police-dominated environment: a police station to which he was transported in the back of a patrol car for questioning about his connection with a homicide. See State v. Grimm, 290 Or App 173, 180, 414 P3d 435, rev den, 363 Or 282 (2018) (“[T]he unfamiliar, police-station setting of the interview tend[s]—necessarily—toward a police- dominated atmosphere.” (Internal quotation marks omitted .)). Defendant was questioned by Detective Sandler in an interview room in a police station with the door closed. An interrogation in a police station is precisely the type of coercive atmosphere that Miranda warnings were designed to counteract. See Reed, 371 Or at 489 (explaining that a probation office was like a police station in concluding that an interrogation that took place in a probation office was a police-dominated environment and citing Miranda, 384 US at 449-50, in which the United States Supreme Court described “manuals that advise investigators to conduct interrogations in their offices because the location ‘suggests the invincibility of the forces of the law’ ” (quoting Charles E. O’Hara & Gregory L. O’Hara, Fundamentals of Criminal Investigation, 99 (1st ed 1956))).

As the state points out, some facts in this case potentially reduce the compelling nature of the station house interview. First, Sandler questioned defendant in a “soft” interview room, furnished with office furniture, instead of the interview room reserved for suspects. Defendant was not restrained, and the interview room door was unlocked. On 486 State v. McLeod

the other hand, the state did not present evidence that defendant knew that the room was unlocked or that he knew he was free to leave. On balance, the absence of a locked door or an express order that defendant was not free to leave does not significantly mitigate the coercive effect of interrogating defendant in an interview room at a police station with the door closed.

Second, the state points out, the police asked defendant to come to the station, and he agreed to do so. The coercive effect of a station house interview can be “lessened somewhat” when a person comes to the station “on his own power and at a time of his own choosing.” Grimm, 290 Or App at 180; see also State v. Barber, 179 Or App 674, 679, 41 P3d 455, rev den, 334 Or 632 (2002) (concluding that the circumstances were not compelling when the defendant agreed to an interview at the police station, set an appointment time, arrived late, and was questioned “briefly”, among other circumstances). The circumstances in this case, however, distinguish it from Grimm and Barber. Unlike the defendants in Grimm and Barber, defendant did not arrive at the police station on his own power or at a time of his choosing. Defendant was separated from his brother; the police seized his gun; he was questioned by multiple officers on the scene; he was driven to the police station in the back of a patrol car; and he was instructed to wait at the station while the police interviewed his brother. Thus, even though the location of the interview did not, by itself, require Miranda warnings, the location weighs in favor of compelling circumstances.

b. Length The length of a police interview is not dispositive of compelling circumstances. Rodriguez, 337 Or App at 736 (citation omitted). Its significance depends “on the character or quality of the interaction,” and we evaluate the “qualitative dynamics” of the amount of time and the pressure on the defendant. Id. (Internal quotation marks omitted). The pressure placed on a defendant includes the number of times a defendant has been questioned by officers and whether a defendant was sleep deprived at the time of the interview. See State v. Nolen, 333 Or App 376, 381-82, 552 P3d 741 (2024) (explaining that the conditions to consider include

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“whether the defendant * * * was tired”); see also State v. Machain, 233 Or App 65, 75, 225 P3d 75 (2009) (holding that the circumstances were compelling where, among other things, the defendant’s two-and-a-half-hour interview was her third in less than 24 hours, she appeared tired, and, early in the interview, she said that she felt tired).

Here, the qualitative dynamics of the length of time and the pressure placed on defendant weigh in favor of compelling circumstances. Approximately six hours passed between when defendant was first interviewed by Vega at the scene and when Sandler began her interview of defendant at the police station. Defendant remained in the presence of the police the entire time. He had been interviewed three times by three different officers at the scene. His interview with Sandler was his fourth time being subjected to questioning that day, and a different officer interviewed him each time. At the station, defendant waited about five hours before he was questioned. During that time, defendant knew that officers were questioning his brother, his sister, and his parents about his and Dylan’s connection with the homicide. Defendant had not slept at all the night before, and the police were aware that defendant was exhausted. Sandler began the interview by informing defendant that she had just finished interviewing Dylan and stressing that “what needs to happen is your story needs to jive with your brother’s story and your sister’s story. We need consistency here cause otherwise we think somebody’s trying to cover something up okay[.]”

Sandler’s admonition set the tone for the interrogation . A reasonable person in defendant’s situation would have understood that he was in trouble and that he needed to answer Sandler’s questions or else she would believe that he and his brother were covering up their involvement in robbing and killing S with Scofield. The “qualitative dynamics ” of the length of time and the pressure placed on defendant by Sandler at the start of the interview weigh in favor of compelling circumstances.

c. Pressure In addition to the pressure placed on defendant that we discussed in the section above, we also evaluate the 488 State v. McLeod

questioning officer’s “use of aggressive and coercive police interrogation practices, especially including those explicitly predicated on assumptions of a suspect’s guilt or calculated to contradict a suspect’s assertions of innocence.” Rodriguez, 337 Or App at 736 (internal punctuation and quotation marks omitted). Here, defendant knew that Sandler had just completed her interrogation of Dylan. Sandler’s first statement to defendant—that he needed to tell the truth and that his story needed to match his brother’s and sister’s stories or the police would believe there was a cover-up— communicated to defendant that Sandler suspected he and Dylan had helped Scofield. And it would have communicated to a reasonable person in defendant’s position that Sandler did not believe the statements that defendant had made in his three prior interviews that day. A reasonable person in defendant’s position would have felt compelled to talk in an attempt to exculpate themselves and their sibling.

The state points out that the trial court credited Sandler’s testimony that she believed defendant was a witness , not a suspect, until mid-way through the interview when she provided Miranda warnings. Sandler’s subjective belief, however, does not control the compelling circumstances inquiry. Shaff, 343 Or at 645. Instead, we ask whether a reasonable person in the defendant’s position would have felt compelled to answer the detective’s questions . Id.

Sandler did not tell defendant that she believed he was a witness or that she did not believe that he had not committed a crime. She told defendant that his story “needed to jive” with his brother’s and sister’s story or Sandler would think defendant and his siblings were trying to cover up something. A reasonable person in defendant’s situation would have viewed that as coercive pressure. For those reasons, the amount of pressure that the police placed on defendant weighs in favor of compelling circumstances.

d. Ability to terminate the encounter This factor also weighs in favor of compelling circumstances because a reasonable person in defendant’s circumstances would not have felt free to terminate the

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encounter. The trial court determined that this factor weighed in favor of the circumstances not being compelling, based on testimony from the officers involved that defendant was free to leave. Although we accept that the officers would have allowed defendant to leave if he had asked them directly, the record lacks evidence that the officers communicated to defendant that he was free to leave. Additionally, defendant lacked any practical ability to leave the police station , and the police knew that defendant could not realistically leave the station. A reasonable person in defendant’s position would not have felt free to leave the station.

The police had separated defendant from his brother, questioned defendant three times, and seized defendant ’s gun. An officer had driven defendant to the police station for the purpose of conducting a recorded interview of him. Defendant did not have his truck with him. (And he did not have a driver’s license.) Defendant did not have a cell phone. His younger brother, with whom he was very close and who had been present with him at Scofield’s residence during the killing of S, was being interrogated at the same station. Defendant had been told to wait at the station so a detective could interview him after the interview with his brother. Defendant was not told he could leave. A reasonable person in defendant’s position would have believed that they needed to remain at the station until the police concluded their interview of him and told him he could leave. This factor thus weighs in favor of concluding that the circumstances were compelling.

e. Totality of circumstances In sum, all four of the Roble-Baker factors weigh in favor of compelling circumstances. Under the totality of the circumstances, we conclude that defendant was in compelling circumstances at the beginning of the station house interrogation by Sandler, when she told him that his story needed to be consistent with his siblings’ stories or else the police would believe that they were covering up something. Article I, section 12, required the police to provide defendant with Miranda warnings at that point to avoid the circumstances “undermin[ing defendant’s] ability or willingness to exercise [his] constitutional rights.” Reed, 371 Or at 486.

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Defendant was not provided with Miranda warnings until later in the interview, as we explained above. Accordingly, the trial court erred when it determined that defendant was not in compelling circumstances and denied his motion to suppress his statements from the police interrogation.

3. Defendant’s statements during the interrogation at the station house must be suppressed to remedy the Article I, section 12, violation. Defendant argues that all his statements during the interview with Sandler should have been suppressed because the belated Miranda warnings did not cure the Article I, section 12, violation that occurred at the beginning of the interrogation. The state makes no argument that defendant’s post-Miranda statements—which began nearly two hours into the interrogation—were attenuated from any Miranda violation.

When Miranda warnings are not timely delivered to a defendant in custody or in compelling circumstances, the trial court must suppress “any statements made in response to the unwarned questioning.” Rodriguez, 337 Or App at 735 (internal quotation marks omitted). “The state bears the burden of production and persuasion to show that subsequently obtained evidence did not derive from an [earlier] Article I, section 12, violation.” State v. Crawford, 350 Or App 689, 705, ___ P3d ___ (2026) (internal quotation marks omitted); see also State v. Vondehn, 348 Or 462, 467, 236 P3d 691 (2010) (“[A] trial court must exclude defendant’s warned post-Miranda statements unless the state establishes that, considering the totality of the circumstances, when the police belatedly administer Miranda warnings, they effectively and accurately informed the defendant of his or her Article I, section 12, rights.”). In the absence of any attempt by the state to meet its burden, we conclude that Article I, section 12, requires the suppression of defendant’s pre- and post-Miranda statements during the interrogation at the police station. Crawford, 350 Or App at 708 (explaining that when the state does not advance any attenuation argument, we will not address that fact-dependent question for the first time on appeal).

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4. The error was not harmless.

Under Article VII (Amended), section 3, of the Oregon Constitution, we cannot reverse a judgment based on a trial court’s legal error when the error is harmless. State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003). An error is harmless if there is “little likelihood that a particular error affected the verdict.” Id. (internal punctuation marks and quotation marks omitted). Defendant argues that the error was not harmless. The state does not address harmlessness in its brief. We conclude that the error was not harmless.

The state admitted and played the entirety of the interrogation’s audio and video to the jury at trial. The state relied on defendant’s statements during the interview with Sandler in its closing argument as admissions of guilt. The prosecutor also argued that the jury should not believe defendant’s trial testimony because his statements to all the officers, including Sandler, showed that he was a “good liar” and was capable of “giving a pretty good story” that fooled experienced officers into believing that he was a victim. We cannot say on this record that the erroneous admission of defendant’s statements during the interview with Sandler had little likelihood of affecting the jury’s verdicts.

II. SECOND THROUGH FIFTH

ASSIGNMENTS OF ERROR

Our conclusion makes it unnecessary to address defendant’s fifth assignment of error, which is a challenge to the constitutionality of his sentence. We address defendant’s second and third assignments of error, which challenge the denials of motions for judgment of acquittal, and his fourth assignment of error, which raises a plain error challenge to the trial court’s failure to grant a judgment of acquittal, because a reversal on those claims would provide defendant greater relief. We conclude that the trial court did not err. A. Second and Third Assignments of Error: The trial court correctly denied defendant’s motions for judgment of acquittal on Counts 1 and 2.

Defendant combines his argument in support of his second and third assignments of error. In his second 492 State v. McLeod

assignment of error, defendant challenges the trial court’s denial of his motion for judgment of acquittal on Count 2, first-degree robbery. In the third assignment of error, he challenges the trial court’s denial of the motion for judgment of acquittal on Count 1, felony murder. On the first-degree robbery charge, the state elected to proceed on a theory of accomplice liability based on the allegation that defendant aided the principal, Scofield, in committing first-degree robbery . The charge of first-degree robbery is the predicate felony for the charge of felony murder. The indictment alleged that defendant, Dylan, and Scofield committed first-degree robbery by “knowingly, while in the course of committing theft, with the intent of compelling [S] to deliver the property , use or threaten the immediate use of physical force upon [S], and use a dangerous weapon.”

Accomplice liability makes “a person * * * criminally liable for the conduct of another person” when:

“(2) With the intent to promote or facilitate the commission of the crime the person:

“* * * * * “(b) Aids or abets or agrees or attempts to aid or abet such other person in planning or committing the crime[.]” ORS 161.155. As the text indicates, accomplice liability “requires a specific intent; that is, to be liable as an accomplice for another person’s commission of a crime, a person must specifically intend to promote or facilitate the commission of that crime.” State v. Chisholm, 299 Or App 243, 250, 449 P3d 883 (2019) (emphasis in original).

The relevant provisions of the first-degree robbery statute provide:

“A person commits the crime of robbery in the first degree if the person violates ORS 164.395 [third-degree robbery] and the person:

“* * * * * “(b) Uses or attempts to use a dangerous weapon[.]”

ORS 164.415(1). A dangerous weapon is “any weapon, device, instrument, material or substance which under the

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circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or serious physical injury.” ORS 161.015(1).

A person commits robbery in the third degree, as alleged in this case, “if in the course of committing or attempting to commit theft * * * the person uses or threatens the immediate use of physical force upon another person with the intent of:

“* * * * * “(b) Compelling the owner of such property or another person to deliver the property* * *.” ORS 164.395(1). A person commits theft, as relevant to this case, “when, with intent to deprive another of property or to appropriate property to the person or to a third person, the person:

“(1) Takes, appropriates, obtains or withholds such property from an owner thereof[.]” ORS 164.015.

Defendant argues on appeal that the evidence, viewed in the light most favorable to the state, failed to establish the elements of first-degree robbery. Specifically, defendant argues that there was insufficient evidence that he intended to promote or facilitate Scofield’s use of a dangerous weapon to rob S and that there was insufficient evidence that defendant aided Scofield in the planning of the commission of the first-degree robbery. Because first-degree robbery was the predicate felony alleged for his charge of felony murder, the trial court should have granted judgment of acquittal on both Counts 1 and 2, he argues. The state responds that the evidence was sufficient. Although it is a close case, we conclude that a factfinder drawing reasonable inferences in the state’s favor could find defendant guilty as an accomplice to Scofield’s first-degree robbery of S.

On review of a trial court’s denial of a motion for judgment of acquittal, we examine the evidence “in the light most favorable to the state to determine whether a rational 494 State v. McLeod

trier of fact, accepting reasonable inferences and reasonable credibility choices, could have found the essential element of the crime beyond a reasonable doubt.” State v. Cunningham, 320 Or 47, 63, 880 P2d 431 (1994), cert den, 514 US 1005 (1995). We review the trial court’s ruling “in light of all evidence admitted at trial, and not only the evidence property admitted.” State v. Bautista, 271 Or App 247, 259, 351 P3d 79 (2015). Thus, our review includes defendant’s statements during the interview with Sandler that should have been excluded from trial. To the extent inferences from circumstantial evidence are necessary to prove an element, it is a question of law what reasonable inferences may be made from the evidence. State v. Bivins, 191 Or App 460, 467, 83 P3d 379 (2004). Reasonable inferences are allowed, but “speculation and guesswork are not.” Id. We summarize the facts consistent with that standard of review.

The evidence in the light most favorable to the state showed that defendant and Dylan were at Scofield’s apartment before S arrived. Also prior to S’s arrival, defendant retrieved electrical tape from his car. The jury heard evidence from which it could find that defendant knew that Scofield invited S to come over to purchase drugs, that Scofield intended to rob S, and that it was going to “get bad,” which defendant understood to mean that Scofield was going to rob S, render him unconscious, and drop his body somewhere . Defendant saw Scofield striking S with a hammer. Defendant told Scofield to use his fists to knock out S instead of the tool. After S died, defendant and Dylan helped Scofield put S’s body in a refrigerator. S’s body had electrical tape on it that a factfinder could infer was the same tape that defendant had retrieved from his car. S’s blood was on defendant ’s shoes and clothes, and defendant changed clothes. A $10 bill with S’s blood on it was found in defendant’s truck. A rational factfinder, drawing reasonable inferences, could find beyond a reasonable doubt from that evidence that defendant knew of Scofield’s plan to rob the victim by beating him with a dangerous weapon, intended to promote or facilitate the plan, and aided Scofield in carrying out the armed robbery.

Arguing to the contrary, defendant points out that a person’s presence during a crime committed by another, by

Cite as 352 Or App 474 (2026) 495

itself, cannot be sufficient for accomplice liability. See State v. Anlauf, 164 Or App 672, 678, 995 P2d 547 (2000) (so stating ); see also State ex rel Juv. Dept. v. Holloway, 102 Or App 553, 557, 795 P2d 589 (1990) (holding that the youth’s presence in a pickup truck with other people from which shots were fired during a drive-by shooting was not, by itself, sufficient to establish aiding and abetting).

Here, however, in the light most favorable to the state, the evidence includes more than defendant’s mere presence during the crime. Defendant knew that Scofield intended to use force powerful enough to seriously incapacitate S, such that Scofield planned to drop off S’s body somewhere , defendant observed Scofield strike S with a hammer, defendant advised Scofield how to knock out S, defendant remained at the scene, and possessed money with S’s blood on it, and helped attempt to dispose of S’s body and clean up the scene. That evidence distinguishes this case from Anlauf and Holloway.

Defendant also notes that a person’s conduct after the commission of a crime cannot establish accomplice liability . See State v. Barboe, 253 Or App 367, 375, 290 P3d 833 (2012), rev den, 353 Or 714 (2013) (explaining that actions after a crime are complete cannot, by themselves, constitute aiding and abetting). But “a defendant’s actions after a crime is completed can provide circumstantial evidence that [their] earlier actions constituted aiding and abetting.” State v. Holcomb, 246 Or App 687, 694, 268 P3d 684 (2011), rev den, 351 Or 675 (2012) (emphasis in original). Defendant argues that evidence of his presence and his conduct in helping Scofield clean up the crime scene and put S’s body in the refrigerator thus cannot establish his liability as an accomplice . In the light most favorable to the state, a factfinder could have inferred from defendant’s conduct after Scofield robbed and killed S, plus the other evidence present, that defendant aided and abetted Scofield in the armed robbery.

Defendant argues that even if the evidence was sufficient to establish that he intended to aid Scofield in committing a robbery, the state did not present sufficient evidence that he intended to aid Scofield in committing first-degree robbery. Specifically, defendant argues there is 496 State v. McLeod

insufficient evidence that he knew that Scofield would use a dangerous weapon to rob S or that defendant intended to aid Scofield’s use of a dangerous weapon to rob S. At most, the state proved he was an accomplice to a third-degree robbery, defendant argues.

We disagree. The record contains sufficient evidence for a factfinder to infer beyond a reasonable doubt that defendant intended to aid Scofield’s use of a dangerous weapon to rob S, as we have already explained.

In sum, the trial court correctly denied defendant’s motions for judgment of acquittal on the charges of first- degree robbery and felony murder, because the record contained sufficient evidence that defendant aided and abetted Scofield in robbing S using a dangerous weapon. B. Fourth Assignment of Error: The trial court did not plainly err when it did not enter a judgment of acquittal on Count 1.

In his fourth assignment of error, defendant argues that the trial court “plainly erred when it did not enter a judgment of acquittal on Count 1, felony murder, after the state elected to prosecute defendant for first-degree robbery on an accomplice theory.” Defendant argues that, as a matter of statutory interpretation of ORS 163.155(1)(b)—”felony murder”—the legislature intended only a principal in the predicate felony to be guilty of felony murder. As defendant recognizes, he did not preserve his assignment of error in the trial court, and thus he requests plain-error review. The state responds by conducting its own interpretation of ORS 163.115(1)(b) and arguing that the legislature did not intend to limit liability for felony murder to only principals in the predicate felony. For that reason, the state argues, the trial court did not err at all, let alone plainly err.

“Generally, an issue not preserved in the trial court will not be considered on appeal.” State v. Wyatt, 331 Or 335, 341, 15 P3d 22 (2000). However, we have discretion to correct a “plain” error. ORAP 5.45(1). An error is “plain” when it is an error of law, the legal point is obvious and not reasonably in dispute, and the error is apparent on the record without our having to choose among competing inferences.

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Vanornum, 354 Or at 629. Whether an error is “plain” is a question of law. State v. Gornick, 340 Or 160, 167, 130 P3d 780 (2006).

The trial court’s alleged error is not plain. Neither the Oregon Supreme Court nor we have interpreted ORS 161.155(1)(b) as defendant advocates for, as defendant candidly recognizes. Indeed, in at least two cases, State v. Perez- Chi, 251 Or App 661, 284 P3d 1195 (2012), and Walraven v. Premo, 277 Or App 264, 287, 372 P3d 1 (2016), we have assumed that an accomplice to the predicate felony can be liable for felony murder, as defendant also recognizes. When resolving the parties’ dispute about the meaning of a statute would “require complex or extended statutory interpretation [,] * * * the meaning of [the] statute is not obvious.” State v. C. E. W., 347 Or App 811, 817, 589 P3d 202 (2026). Here, resolving defendant’s plain error argument would involve complex and extended statutory interpretation and, potentially , revisiting our assumptions in at least two prior cases. Accordingly, the alleged trial court error is not plain.

III. CONCLUSION

We conclude that the trial court erred when it denied defendant’s motion to suppress the statements he made in the station house interview with Sandler. Defendant was in compelling circumstances, under Article I, section 12, at the start of the interview, he was subject to police interrogation, and he was not provided with Miranda warnings. His statements in the interview, including his statements after the belated Miranda warnings, should be suppressed.

The trial court did not err when it denied defendant ’s motions for judgment of acquittal on Counts 1 and 2, because the evidence was sufficient for a factfinder to find beyond a reasonable doubt that defendant aided and abetted Scofield in the first-degree robbery of S. The trial court also did not plainly err when it did not, on its own, declare a judgment of acquittal on Count 1. In ORS 163.115(1)(b), the legislature did not obviously intend to limit liability for felony murder only to people who were principals in the predicate felony. If on remand the case proceeds to a new trial, we expect that the record will develop differently without the 498 State v. McLeod

evidence obtained in violation of defendant’s Article I, section 12, privilege against self-incrimination. We, of course, have no way to know whether the case will proceed to a new trial and, if it does, whether the state will offer legally sufficient evidence on each count. We do not reach defendant’s fifth assignment of error, as explained above.

Reversed and remanded.