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Oregon Appellate Court--July 25, 2018

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by: Rankin Johnson IV • July 27, 2018 • no comments

Summarized by Rankin Johnson, OCDLA

POST-CONVICTION RELIEF-Conviction which can be attacked

Following a completed, i.e., dismissed, conditional discharge, petitioner did not have a “conviction” that could be attacked through post-conviction relief. Affirmed.

Velasco v. State 293 Or App 1 (July 25, 2018) (Egan, J.)

TRIAL PROCEDURE-Amending judgment

Trial court plainly erred by entering amended judgment once the original judgment had been executed. Reversed and remanded with instruction to re-enter the unamended judgment.

Defendant was convicted of many crimes and received many sentences. At sentencing, the court announced its intent to impose a 150-month prison term. The judgment was a complex mix of consecutive and concurrent sentences which actually led to a 120-month term. After defendant began serving the sentence, issued an amended judgment that changed one sentence, which had been explicitly concurrent, to consecutive. That change was improper, because defendant had already started serving the changed sentence, and therefore it was executed and the trial court lacked authority to correct it. The record did not establish that the change was directed toward an “error;” the court’s statement that the sentence would be 150 months could have been deliberate or could have been an arithmetic error.

State v. Golden 293 Or App 14 (July 25, 2018) (Hadlock, J.)

EVIDENCE-Forfeiture-by-wrongdoing hearsay exception

Trial court erred by ruling that victim’s unavailability was not caused by the defendant. Reversed and remanded for trial.

State’s appeal. Defendant was accused of assaulting the victim, locking her in a trailer, threatening to kill her if she told the police, and reminding her that he was a member of an outlaw motorcycle gang which viewed snitches with disfavor. When he released her, she went to the hospital and called 911. At a pretrial hearing, the prosecutor represented that the victim had chosen not to attend grand jury for safety reasons, she had been subpoenaed to trial, that detectives had spoken with the victim in the days leading up to trial, and that she had texted the detective immediately before trial to say that she did not plan to attend. The trial court ruled that the victim was not “unavailable” for purposes of the forfeiture-by-wrongdoing hearsay exception because the state had not sought a material witness warrant. The Court of Appeals disagreed, reasoning that arresting the victim was not required to rely on the forfeiture-by-wrongdoing exception.

State v. Iseli 293 Or App 27 (July 25, 2018) (Hadlock, J.)

EVIDENCE-403 balancing

Trial court did not err in its 403 balancing of other-bad-act evidence. Affirmed.

At trial, in order to explain the victim’s delay in reporting and the defendant’s predisposition toward the victim, the state offered evidence that defendant had threatened or committed offenses against the victim in California. Defendant argued that the evidence was propensity evidence, because the probative value depended on inferences about the defendant’s character. Because it was propensity evidence, defendant argued, the trial court had used the wrong standard in balancing prejudice and probative value. The Court of Appeals explained that prior acts of abuse, used to explain a delay in reporting, were not propensity evidence and therefore the trial court did not err in its analysis.

‘’State v. White’’ 293 Or App 62 (July 25, 2018) (Lagesen, J.)

APPEALS-Record necessary for review

Record did not demonstrate that trial court’s offhand statement prevented defendant from calling witnesses. Affirmed.

On Thursday, defendant announced ready for Monday trial. On Friday, in CPC, defense counsel requested a continuance, explaining that defendant had just identified two possible witnesses and defense counsel was trying to reach the witnesses. The trial court denied the motion, and, in ruling, said “you don’t get to call them.” On Monday, in CPC before a different judge, a different DDA said that the first CPC judge had “excluded” defendant’s witnesses. Thereafter, in front of the trial judge, defense counsel argued that the first CPC judge had not prohibited defendant from calling his witnesses. The court and counsel discussed the issue but did not resolve it on the record. Defendant's witnesses did not testify, and he was convicted. On appeal, defendant argued that the CPC judge and trial judge erred by prohibiting defendant from excluding his witnesses. The Court of Appeals rejected that argument because the record did not show that the rulings had occurred or caused the witnesses not to testify.

State v. Richen 293 Or App 68 (July 25, 2018) (Lagesen, J.)

SEARCH AND SEIZURE-Officer safety

Trial court erred in finding that officer-safety concerns justified the seizure of the defendant. Reversed and remanded.

Police encountered defendant in his vehicle, on a narrow road, at night, near a quarry where illegal activity often took place. A police officer asked defendant to speak with him, and defendant agreed. Defendant quickly reached toward the passenger side of the vehicle and the officer ordered him to place his hands on his steering wheel. Defendant did so, and the officer thereafter discovered evidence of drug use. The Court of Appeals explained that defendant’s single furtive movement did not raise a legitimate concern about officer safety, and thus ordering defendant to put his hands on the steering wheel was an improper seizure.

State v. Meeker 293 Or App 82 (July 25, 2018) (Powers, J.)

EVIDENCE-403 balancing

The trial court abused its discretion in comparing the prejudice and probative value of previous abuse by defendant of victim. Reversed and remanded for new trial.

Defendant was convicted of various offenses, and of violating a restraining order, for following his estranged wife in traffic and bumping her car with his. The state offered evidence of prior assaults to prove “lack of mistake.” Because defendant denied following the victim or bumping her car with his, the evidence was not admissible to show lack of mistake.

State v. Kelley 293 Or App 90 (July 25, 2018) (Powers, J.)

SENTENCING-Merger

Trial court erred by failing to merge two convictions for being a felon in possession of a firearm based on two firearms possessed simultaneously. Reversed and remanded for resentencing.

State v. Jackson 293 Or App 104 (July 25, 2018) (Per curiam)

SEARCH AND SEIZURE-Patdowns

State confessed error that police officer conducted unlawful search when, after patdown, he removed a small item from the defendant’s pocket out of curiosity. Reversed and remanded.

State v. Coop 293 Or App 108 (July 25, 2018) (Per curiam)