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Oregon Appellate Court--February 14, 2018

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by: Rankin Johnson IV • February 23, 2018 • no comments

Summarized by Rankin Johnson, OCDLA

  • SELF-INCRIMINATION - Compelling circumstances

Miranda warnings required for criminal suspect asked to come to police station to give his version of events.

Defendant, a cable installer, was accused of exposing himself to a customer. Police asked defendant "voluntarily" to come to the police station to give his side of the story. He did so, and was interviewed by two uniformed officers in a small room. Miranda warnings were not given. His version of events changed repeatedly during the course of the interview. Police asked about his sex life and his pornography-viewing habits. Police implied that his previous statements had been dishonest. Defendant ultimately made incriminating statements. The court observed that this was “a close case,” but decided that the defendant was under compelling circumstances and Miranda warnings were required. The case was reversed and remanded.

State v. Grimm 290 Or App 173 (February 14, 2018) (Egan, J.)

  • DEFENSES -- Events triggering statute of limitations

Report by eight-year-old that defendant had ‘raped’ her did not trigger statute of limitations.

The statute of limitations for some sex offenses is 12 years after the earlier of the victim’s 18th birthday or the date the offense is reported to law enforcement. The victim, when she was eight, told a friend that defendant had ‘raped’ her, and the friend told her mother, who told DHS.

The court decided that a report that triggers the statute of limitations must include facts constituting an offense. The court declined to issue a per-se rule that an allegation of “rape” would never be sufficient, but the allegation was too vague and ambiguous to do so on the facts of this case.

State v. Eladem 290 Or App 212 (February 14, 2018) (Ortega, J.)

  • DEFENSES - Conduct of victim bearing on negligence

Defendant was charged with criminally-negligent homicide when his car struck and killed a road-crew worker. Trial court did not err by excluding evidence that the road crew had not followed the applicable safety guidelines.

On appeal, defendant argued that the road crew’s negligence and failure to place proper signs meant that defendant had not acted negligently and had not ‘caused’ the victim’s death.

In rejecting that argument, the court reasoned that ‘cause’ meant the but-for or factual cause; the victim’s conduct does not affect whether the defendant’s conduct was the but-for cause of the victim’s death.

Similarly, whether the defendant acted negligently by failing to be aware of a substantial and unjustified risk is unaffected by the victim’s conduct.

The court explained that, to prove criminally negligent homicide, the state need only prove that the defendant’s conduct was the but-for cause of the victim’s death and that, in doing so, the defendant had a mental state of criminal negligence.

Some of the defendant’s proffered evidence was relevant. Whether the road crew’s negligence meant that a reasonable driver would have been aware that he was entering a work zone was relevant to whether the defendant’s lack of awareness was negligent. But, the court held, the error in failing to admit that evidence was harmless.

Accordingly, the court affirmed.

State v. Fruitts 290 Or App 222 (February 14, 2018) (Lagesen, J.)

  • EVIDENCE -- other-bad-acts

Trial court erred by admitting sexual notes defendant wrote to other women to show defendant’s sexual intent toward victim.

Defendant was accused of attacking the victim while she was jogging. He tackled her, but she was able to fight him off, and he ran away. He was charged with kidnapping, attempted sexual abuse, and assault.

At trial, defendant’s theory was that the assailant had been someone else, and, also, that there was no evidence of sexual intent or sexual contact.

In order to prove sexual intent, the state presented evidence that the defendant had left notes for two different women, unknown to him, containing threats of sexual violence. The state reasoned that the evidence showed the defendant’s desire for rough sex with women he did not know.

The Court of Appeals decided that the evidence of intent was not relevant. The court reasoned that the state’s purpose for the evidence required a character-based inference, and therefore the evidence was inadmissible character evidence.

The court did not consider whether the evidence was admissible under OEC 404(4) (regarding propensity evidence in a child-sex-abuse case) because the state did not make that argument below.

Although there was no direct evidence of sexual intent, the court concluded that a rational juror could find sexual intent and therefore the trial court did not err in denying defendant’s MJOA.

The case was remanded for new trial.

State v. Davis. 290 Or App 244 (February 14, 2018) (Garrett, J.)

  • SELF-INCRIMINATION -- Questioning following invocation

Police wrongfully continued questioning defendant after he invoked his right to counsel.

Defendant was charged with murder. After being arrested and while being questioned, defendant said “I’m going to get a lawyer,” and then answered a pending question about the identify of the victim, who lived in defendant’s house. Because defendant’s statements after his invocation showed a combative, hostile demeanor and were offered to rebut his claim of self-defense, the error was not harmless.

The case was remanded for new trial.

State v. Wirkkala. 290 Or App 263 (February 14, 2018) (Garrett, J.)

  • EVIDENCE -- Reputation evidence of truthfulness

Trial court erred by excluding witness testimony about victim’s reputation for truthfulness.

Defendant was accused of assault and strangulation. There was no physical evidence, and he denied that the events occurred, and thus it was a swearing contest. The trial court admitted testimony of one witness and excluded testimony of another regarding the victim’s reputation for truthfulness. The court decided that the excluded testimony was relevant and the exclusion was harmful, and thus it remanded for a new trial.

State v. Mackey 290 Or App 272 (February 14, 2018) (Dehoog, J.)

  • EVIDENCE -- Evidence of bias

In child-sex-offense prosecution, trial court erred by excluding evidence that the defendant was previously accused, and acquitted, of sex offenses against children.

Defendant was accused of sexual offenses against two children. Before trial, he moved to exclude evidence of his 2008 prosecution and acquittal for similar offenses against another child. The court did not rule on that motion. During voir dire, a potential juror said that she was familiar with defendant’s prior trial. Thereafter, defendant asked for permission to offer evidence relating to the 2008 trial. Defendant argued that, because some of the witnesses were aware of that trial, they were biased against him. He also argued that, as a result of that trial, he had limited his own contact with children. The trial court excluded the evidence, but the Court of Appeals reversed. The court reasoned that a party is entitled to offer evidence of bias, and, although bias evidence can be excluded through the exercise of discretion under OEC 403, that is only permissible once initial evidence of bias has been received. The court remanded the case for a new trial.

State v. Lulay 290 Or App 282 (February 14, 2018) (Shorr, J.)

  • SENTENCING -- Consecutive sentences

Imposing a dispositional departure prison sentence requires enhancement fact notice and a jury decision or waiver.

Also, imposing attorney-fee award in criminal case requires a finding on the record that the defendant is able to pay, and is reviewable as plain error.

The case was remanded for resentencing.

State v. Frinell 290 Or App 164 (February 14, 2018) (Aoyagi, J.)

  • SENTENCING -- Consecutive sentences

A court plainly errs by imposing consecutive sentences after incorrectly stating on the record that consecutive sentences are “required. ”

Also, imposing attorney-fee award in criminal case requires a finding on the record that the defendant is able to pay, and is reviewable as plain error.

The case was remanded for resentencing.

State v. Moore 290 Or App 306 (February 14, 2018) (Aoyagi)

  • EVIDENCE -- other-bad-acts

The Court of Appeals accepted the state’s concession that the trial court erred by failing to engage in OEC 403 balancing as to other-bad-act evidence admitted against the defendant.

State v. Chavez 290 Or App 317 (February 14, 2018) (Per curiam)