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In re M. S. S. K.

Court of Appeals of Oregon

December 28, 2017

In the Matter of M. S. S. K., a Youth. STATE OF OREGON, Respondent,
v.
M. S. S. K., Appellant.

          Submitted November 7, 2017

         Marion County Circuit Court 15JU04379 Heidi O. Strauch, Judge pro tempore.

          Adrian Tobin Smith fled the briefs for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jacob Brown, Assistant Attorney General, fled the brief for respondent.

          Before Egan, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case Summary: In this juvenile delinquency case, youth appeals a judgment fnding her within the jurisdiction of the juvenile court for acts which, if committed by an adult, would constitute unauthorized use of a vehicle. On appeal, youth challenges the juvenile court's denial of her motion to suppress statements that she had made to her juvenile probation offcer. The state, essentially, concedes that the ground on which the juvenile court denied the suppression motion was incorrect but argues that we should affrm the juvenile court's ruling on an alternative basis.

         Held: This is not an appropriate case in which to affrm on an alternative basis because, had the state raised the alternative basis for affrmance below, youth could have created a different record that could have affected the disposition of the issue.

         [289 Or.App. 451] EGAN, P. J.

         In this juvenile delinquency case, youth appeals a judgment finding her within the jurisdiction of the juvenile court for acts which, if committed by an adult, would constitute unauthorized use of a vehicle, ORS 164.135. On appeal, youth challenges the juvenile court's denial of her motion to suppress statements that she made to her juvenile probation officer.

         Youth contends on appeal, as she did before the trial court, that the statements at issue were the product of a custodial interrogation that was conducted without youth having been properly given a Miranda warning. She further asserts that any error in denying her motion to suppress was not harmless because, without her statements to the probation officer, the evidence was insufficient to support the adjudication.[1] See State v. Walton, 311 Or. 223, 229-31, 809 P.2d 81 (1991) (assessing harmlessness of trial court's failure to suppress statements obtained without required Miranda warnings).

         Before the juvenile court, the state argued-and the juvenile court agreed-that the statements should not be suppressed because they were unresponsive to the probation officer's question. The state has, properly, abandoned that argument on appeal, essentially conceding that that was an incorrect ground on which to deny youth's motion to suppress. We agree; youth's statements were responsive to the probation officer's questioning. The state also appears to acknowledge that any error in denying the suppression motion was not harmless.[2] Again, we agree.

         [289 Or.App. 452] The state's sole contention on appeal is that we should affirm the juvenile court's ruling on an alternate basis. See Outdoor Media Dimensions Inc. v. State of Oregon. 331 Or. 634, 20 P.3d 180 (2001). Specifically, the state argues that we should affirm because "youth was informed of her Miranda rights by a police officer, mere hours before making the challenged statements to her juvenile probation officer, and a reasonable person in youth's position would not have understood her rights to have changed in the meantime." Youth responds that we should not affirm the juvenile court's ruling on that alternative basis, asserting, in part, that had that issue been raised below, she could have developed different arguments and submitted different evidence. We agree with youth that this is not an appropriate case in which to affirm on an alternative basis.

         We may affirm a trial court on a "right for the wrong reason" basis when certain conditions are met:

"The first condition is that, if the question presented is not purely one of law, then the evidentiary record must be sufficient to support the proffered alternative basis for affirmance. That requires: (1) that the facts of record be sufficient to support the alternative basis for affirmance; (2) that the trial court's ruling be consistent with the view of the evidence under the alternative basis for affirmance; and (3) that the record materially be the same one that would have been developed had the prevailing party raised the alternative basis for affirmance below. In other words, even if the record contains evidence sufficient to support an alternative basis for affirmance, if the losing party might have created a different record below had the prevailing party raised that issue, and that record could affect the disposition of the issue, then we will not consider the alternative basis for affirmance. The second condition is that the decision of the lower court must be correct for a reason other than ...

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