OR Appellate Ct - Dec. 26, 2013

by: Abassos • December 26, 2013 • no comments

Former Fugitive Doctrine - Ten Year Absence

An appellate court has the inherent authority to dismiss an appeal where a defendant fled the jurisdiction, thereby interfering with the appellate process such that the government would be prejudiced in locating witnesses and presenting evidence at a retrial after successful appeal. Here, defendant was found guilty of Sex Abuse I and, prior to sentencing, fled to California where he lived under an assumed name. After 6 years in California defendant was arrested on new charges and given a lengthy prison sentence. Oregon was only able to get defendant back temporarily for sentencing in 2010. The state would be prejudiced because (1) it would be difficult to locate the 21 witnesses the state called at the first trial; (2) the jury might react differently to victims and witnesses in their mid-twenties than they would to ones in their mid-teens (3) it would be inequitable to cause the state great expense to bring defendant back from California where defendant caused his absence; and (4) if allowed an appeal, defendant would benefit from more favorable case law than existed ten years prior, a benefit that should not be received in exchange for flouting the system.

Also, the Interstate Act on Detainers does not apply to situations where the defendant has already been convicted. It only provides for transfer of prisoner between states "for trial". Thus, the IAD did not compel California to return defendant to Oregon. State v Sills, 260 Or App ___ (2013)

Murder by Abuse - A Person Can Be Dependent Based on Transitory Injuries

A victim can be a "dependent person" under ORS 163.205(2)(b) (Murder by Abuse), based on transitory injuries. In other words, a physical disability is any physical issue that leave a person dependent, not the sort of sustained or permanent disability that might be referred to as a handicap in modern parlance. Here, defendant assaulted his girlfriend, leaving her incapacitated and in his care. If he had sought medical care right away she likely would have lived. He did not and she died from the assaultive injuries. Since the victim was dependent on the defendant for at least 2 days before she died, a jury could reasonably find that she was a "dependent person" for the purposes of Murder by Abuse. State v Fitzhugh, 260 Or App ___ (2013).

Unlawful Possession of a Firearm - A Campsite Can Be a Place of Residence

ORS 166.250(1)(a), unlawful possession of a firearm, criminalizes carrying a concealed firearm. There is an exception for doing so within one's place of residence. The term "place of residence" in ORS 166.250(2)(b) can include temporary residences, like a campsite. And, it can include outdoor areas, like the curtilage of a house or the campfire in front of a tent, if those "areas form part of the place in which a person "actually lives." Here, defendant had rented a campsite for a week. He was in possession of a concealed pistol while standing in front of his tent. Because the campfire area outside of one's tent is where one eats, drinks and regularly conducts activities of daily living, it is part of the residence. Accordingly, defendant was entitled to have the jury instructed as to the place of residence exception to unlawful possession of a firearm. State v Wolf, 260 Or App ___ (2013).

FSTs Are Presumptively Justified By the Exigency of an Evanescent Substance

Field sobriety tests, both to detect alcohol and drugs, are presumptively justified by the exigent circumstances exception to the warrant requirement: "In Machuca, the Supreme Court observed that, as a general matter, "the undisputed evanescent nature of alcohol in the blood" provides "a sufficient basis to conclude that a warrant could not have been obtained without sacrificing that evidence.". . . We see no reason why that rule would not also apply to cases, like this one, involving FSTs, which are designed to enable officers to detect current impairment." State v Mazzola, 260 Or App ___ (2013).

Sex Abuse I - Knowingly Applies to "Forcible Compulsion"

In Sexual Abuse in the First Degree, the mental state of knowingly applies to the element of forcible compulsion. Forcible compulsion is an element that "concerns the substance or quality of the crime--the harm or evil sought to be prevented"; therefore it requires a mental state. ORS 161.095(2). Since forcible compulsion is conduct (rather than a circumstance or result), the mental state cannot be recklessness or negligence. Thus, it was error not to give defendant's accurate instruction requiring the state to prove that "defendant knew that his actions amounted to forcible compulsion". The element of lack of consent in Sexual Abuse in the Third Degree only requires a mental state of negligence. It is an element that relates directly to the evil sought to be prevented; therefore it requires a mental state. However, it is not conduct, but rather a circumstance; therefore knowledge, recklessness or negligence may be used. Defendant's instruction as to that count, requiring knowledge, was inaccurate and appropriately declined. Also, the state was not bound by its indictment to the mental state of knowingly because it was ambiguous as to the consent element (defendant "did unlawfully and knowingly subject [the second victim] to sexual contact, . . .said [victim] not consenting thereto".) State v Wier, 260 Or App ___ (2013).

Right to Counsel Pre-Breath Test - Unequivocal Refusal of a Reasonable Opportunity

Defendant was given a reasonable opportunity to consult with an attorney prior to a breath test where he is given a private room with a telephone and unequivocally indicates a refusal to take advantage of the opportunity. Here, defendant came out of the room after 5 seconds and instigated a physical altercation with the jail guards. He was then asked whether he would take a breath test. Defendant responded: "not until an attorney is right here with me". Thus, he was given an opportunity to consult counsel and unequivocally indicated that he would not take the opportunity. State v Groner, 260 Or App ___ (2013).

Merger - There Is No "Merger For Sentencing"

There is no merger for sentencing. There is only merger of convictions. Here, the trial court, on remand with orders to merge, "merged for sentencing". Convictions vacated and remanded for merger of counts 4-12 and 18-20 into single convictions. Also, a remand for resentencing requires a resentencing. Here, the judge simply amended the judgment and refused to allow a resentencing. State v Link, 260 Or App ___ (2013).

ORS 419B.040(1)'s Child Abuse Exception to the Privilege Rules Does Not Apply to Statements Diminishing Complainant's Credibility

ORS 419B.040(1) creates a limited exception to psychotherapist privilege where the statements reference the abuse of a child. It does not extend to statements unrelated to abuse that would be used for impeachment purposes. Here, the defense wanted the complainant's therapist to testify to his notes indicating that the complainant was prone to exaggeration and hallucinations. However, such testimony was properly excluded because it was privileged. State v Evans, 260 Or App ___ (2013).

Solicitation to Commit a Crime Can Be Enough For an Attempt to Commit the Crime

Where defendant solicited two men to break into someone's apartment and kidnap a baby girl, she was properly convicted of attempted burglary. She appealed, arguing that she could not have been an accomplice to a burglary that was never committed. But the court finds that she was properly convicted as a principal, not as an accomplice. A jury can reasonably find that a solicitation goes beyond mere preparation. And here, there was evidence of a very specific plan that defendant was trying to carry out. Also, separate convictions for solicitation to commit burglary based on different incidents on different days do not merge. State v Badillo, 260 Or App ___ (2013).

A Dangerous Offender Sentence Requires Both an Indeterminate and a Determinate Term of Prison

A dangerous offender sentence requires both the imposition of an indeterminate prison term and a determinate minimum. For example, a 30 year indeterminate term and a presumptive guidelines minimum. Here, the trial court neither imposed a determinate term nor calculated the presumptive sentence. Then the parole board simply found, contrary to what the relevant criminal statutes would indicate, that the presumptive sentence was the same as the full indeterminate dangerous offender term; which means defendant would never be eligible for consideration for release until the indeterminate term is over. But more importantly, the parole board has no power to set a presumptive or minimum term, even where the trial court fails to do so. Remanded to the parole board "for further consideration, for it to determine its proper course of action in resolving this problem." Dizick v Board of PPS, 260 Or App ___ (2013).

"Highly Concerning for Sexual Abuse" is, in the Absence of Physical Evidence, an Inadmissible Comment on Complainant's Credibility

It is beyond dispute that the testimony of a nurse-practitioner in a sex abuse case was inadmissible where she testified to her belief that the situation was "highly concerning for sexual abuse". In the absence of physical evidence, it was a comment on the complainant's credibility. However, in this case defense counsel drew out the diagnosis on cross-examination and neither moved to strike nor objected. After a lengthy analysis of defense counsel's questions and arguments, the court finds that it was plausible that counsel made a strategic decision not to object or move to strike in order to avoid calling attention to the fact that it was, essentially, a diagnosis. Because defense counsel may have been acting strategically, the judge had no legal obligation to, sua sponte, strike the testimony. Affirmed. State v Ramirez-Estrada, 260 Or App ___ (2013).

Pretrial Detainees Retain Privacy Rights in Their Possessions

The state may not seize a pretrial detainees possessions from a defendant's cell for the purpose of searching for evidence (absent a warrant). Here, defendant was working on a manuscript of a book with uncanny parallels to his own life, complete with inculpatory statements. Once the guards heard about the manuscript, they searched defendant's cell and seized it. Thus, "defendant was subjected to a warrantless seizure of a noncontraband, personal item during a targeted police investigation. Therefore, based on Hartman, defendant retained a protected interest in his manuscript, at least to the extent that the manuscript could not be seized without a warrant and subsequently used as evidence in defendant's criminal trial." State v Moore, 260 Or App ___ (2013).

Dependency - Impermissible Inferences - What a Person Believes is Not the Same as What He or She Is Likely To Do

It was insufficient evidence from which to change a permanency judgment to adoption that (1) father's jurisdiction was for corporal abuse; (2) he has not yet learned appropriate discipline techniques; (3) he has not internalized social norms against corporal punishment. It is an impermissible inferential leap from insufficient knowledge and belief to likely abuse. Particularly since father testified that he would not use corporal punishment as he now understood it to be against the law.

"Although we do not question the assumption that a person is more likely to conform his or her conduct to societal norms that he or she has internalized and adopted as his or her own, that is a far cry from accepting the premise that a person is likely to deviate from unassimilated norms. We can accept that a person who believes that it is unsafe to drive more than 65 miles per hour on a rural interstate highway is more likely than a nonbeliever to observe a 65 mile per hour speed limit. That does not justify an inference that the nonbeliever is likely to drive faster than the limit." DHS v JM, 260 Or App ___ (2013).