Oregon Appellate Cases - Sept. 10, 2014

by: Abassos and Francis Gieringer • September 10, 2014 • no comments

Stalking Order - Qualifying Contacts - Alarm and Apprehension

Throwing a plastic toy and angrily yelling and lunging qualify as contacts for the purpose of a stalking protective order when seen in the context of a past relationship involving violence. That is, petitioner's alarm and apprehension were objectively reasonable. And the fact that she called the police and testified that she was shaken up established her subjective alarm and apprehension. CJR v Fleming, 265 Or App ___ (2014)

A Pretrial Affidavit Waives Self-Incrimination for the Contents of the Affidavit

The filing of a pretrial affidavit in support of a motion in limine waives the right against self-incrimination as to the contents of the affidavit. Here, defendant filed an affidavit supporting his collateral attack on a predicate conviction in a DUII case. The affidavit said that he had not knowingly waived his right to counsel or been advised by the judge of the dangers of proceeding pro se. The state had a right to cross-examine the defendant, in limine, as to the contents of the affidavit. State v Strickland, 265 Or App ___ (2014)

Vehicle Exception and Officer Safety - Backpack in a Car

Ordinarily the vehicle exception allows officers to search the contents of any containers within the vehicle. Here, a backpack within the vehicle could be searched absent any specific or addition evidence pertaining to the backpack. However, a second search of the backpack was unjustified where defendant, handcuffed in his wheelchair, asked officers for his catheter so he could pee. It was not justified by the vehicle exception since that search was complete. "Because the police controlled the backpack, no reasonable suspicion of an immediate threat was present here" and the officer safety exception did not apply. State v Bennett/McCall, 265 Or App ___ (2014)

IPO - Passive Resisting = Techniques Associated with Civil Disobedience

Under ORS 162.247, interfering with a police officer, the test for determining if defendant is passively resisting is whether the “defendant was engaging in specific acts or techniques that are commonly associated with governmental protest or civil disobedience,” such as refusing to move or stand after being told to do so. Here, defendant’s acts were not those “commonly associated” with civil disobedience when defendant refused to get on the ground after being ordered by the police to do so, continued to move around a nearby jeep, tried to put the Jeep’s top and door on, removed something from a nearby boat, approached an officer with an aggressive tone, and backed away from another officer. "Ignoring the officer's commands and continuing to work on his jeep" was not a technique commonly associated with civil disobedience. State v Patnesky, 265 Or App ___ (2014)

Stop - Pat Down - Proximity to a Robbery

An officer had reasonable suspicion to stop and pat down defendant under the totality of the circumstances where: 1) defendant appeared 75 yards away from the location of a robbery, 2) the robbery was reported 45 minutes before the stop, 3) a knife was used during the robbery, 4) the large number of officers at the scene most likely prevented the suspect from fleeing the area, 5) defendant appeared nervous, and 6) defendant’s explanation that he was at the grocery store was unconvincing. Given these circumstances officers had reasonable suspicion to stop and pat down defendant for the knife. State v. Worthington, 265 Or App ___ (2014)

Stops - Extension - Unavoidable Lull

An officer does not unlawfully extend a traffic stop when he asks a second officer to complete the traffic citation while the first officer makes inquiries of the driver. Here, defendant was stopped for a traffic violation. The officer who initially pulled defendant over asked another officer who arrived later to complete the citation while the first officer asked defendant’s consent to a pat down search and search of defendant’s car. Even though the inquiry was unrelated to the reasons behind the stop, because it occurred during an unavoidable lull while the second officer was completing the traffic citation, there was no unlawful extension of the stop. State v. Aung, 265 Or App ___ (2014)

Pat Down - Vague Statement Regarding Possessing a Weapon

A vague statement of possessing a weapon can be sufficient grounds for police to conduct a pat down search. Here, defendant’s statement that he had “something” in response to officer’s inquiry of whether defendant had a weapon was sufficient justification for the officer to pat down the defendant under the officer safety exception to the warrant requirement. State v. Russell, 265 Or App ___ (2014)

Assault - Self Defense - Error to Instruct on Complainant's Lawful Use of Force

In an assault case where both complainant and defendant used force, it is harmful error to instruct the jury on the complainant’s lawful use of force where the defendant’s theory is self-defense. Here, the trial court gave the jury instruction on criminal trespass and defense of premises in response to the jury’s question of whether complainant could have lawfully used force to escort the defendant of the premises. Because the question was whether a reasonable person in defendant’s situation would have used force in self-defense, no matter whether complainant lawfully used force, the jury instructions confused the jury on an irrelevant issue and were thus prejudicial to the defendant. State v. Carlon, 265 Or App ___ (2014)

Assault of an Estranged Stepchild is Not DV

Step parent does not commit DV assault when they assault a minor step child whom they do not cohabitate with. Here, defendant was only guilty of assault IV when he assaulted his estranged step-daughter. Because the stepdaughter was not an adult person related to the defendant by blood or marriage and they were not cohabitating, defendant’s assault did not constitute domestic violence under PRS 135.230. State v. McKarge, 265 Or App ___ (2014)

Restitution May Not Be Imposed on Codefendant For Uncharged Crimes

Restitution cannot be imposed joint and severally on a defendant for criminal activity that only codefendant was convicted of. Here, defendant and his wife were found guilty of healthcare fraud. Defendant was convicted for activities that occurred from 2009 to 2012 whereas his wife was convicted on activities that took place from 2007 to 2012. Because the state had not charged defendant with any activity before 2009, he could not be liable for the full restitution amount for the full period of his wife’s criminal activity. State v. Muhammad, 265 Or App ___ (2014)

Felon In Possession of a Firearm - No Merger Where Guns Obtained at Different Times with Sufficient Pause Between

Two counts of felon in possession of a firearm do not merge if the guns were obtained at different times and there was a sufficient pause for the defendant to renounce his criminal intent. Here, defendant’s two counts of felon in possession of a firearm did not merge because the guns were obtained at two different times from two different people. Because there was sufficient pause between acquiring the two guns, the two counts did not merge. State v. Davis, 265 Or App ___ (2014)

PC for FSTs - Physical Signs of Intoxication Not Necessary

“Physical manifestations of intoxication” are not required for an officer to have probable cause to order a driver to submit to a field sobriety test where a succession of driving violations combined with driver’s behavior indicates intoxication. Here, defendant was stopped for speeding, refused to provide registration, and was “‘short tempered and angry’ while receiving the citation.” When the officer asked defendant if he had been drinking, defendant denied it and sped off without stopping at a stop sign. When defendant was stopped again, he failed to remember speeding away from the officer and admitted that he didn’t see the stop sign. Although there were no physical indicia of intoxication, defendant’s behavior and reckless driving were sufficient to provide the officer with probably cause to conduct a field sobriety test. State v. Miller, 265 Or App ___ (2014)