Oregon Appellate Court--March 14, 2018

by: Rankin Johnson • March 28, 2018 • no comments

Summarized by Rankin Johnson, OCDLA

SEARCH AND SEIZURE -- Closed containers

Probable cause to search a stopped car included probable cause to seize a passenger’s purse.

Police stopped a car containing two fugitives and two other passengers, one of whom was defendant. Some of the car’s occupants had convictions for drug offenses and were in possession of drugs and cash. Defendant was allowed to leave, but police declined to let her take her purse, which was heavy and padlocked, unless she consented to a search of it. Defendant left without her purse, and police later searched the purse pursuant to a warrant and found drugs and a handgun. The Court of Appeals decided that police had probable cause to seize the vehicle and any containers in it that might have contained contraband, including the purse. The court expressly declined to decide whether defendant had a possessory interest in the purse. Affirmed.

State v. Walls 290 Or App 735 (March 14, 2018) (Ortega, J.)

APPEALS -- Preservation of Error

1. Trial court did not err by declining to instruct jury that a witness was an accomplice and testimony should be viewed with distrust; although the witness had been an accomplice to prior crimes, she was not an accomplice to charged crimes. 2. Trial court erred in denying MJOA on burglary charge; indictment alleged intent to commit theft, but evidence at trial showed only intent to commit theft of services. 3. Failure to give principal/accomplice concurrence instruction was plain error.

An associate of defendant’s moved into a rental house without permission, and forged documents tending to show that she had rented the house from a fictitious person. Defendant assisted and was charged with several offenses including burglary and identity theft. As to two counts, the state argued that defendant could have been either a principal or an accomplice. Because the indictment alleged that defendant had committed burglary with intent to commit ordinary theft, but the only evidence of a crime in the residence was theft of services by using the utilities, the trial court erred by denying a motion for judgment of acquittal. Although defendant’s arguments at trial was not focused, the trial court expressly discussed this issue, and therefore it was preserved for appellate review. Where there were both principal and accomplice theories of criminal liability, failure to give a concurrence instruction was plain error. The judgment was reversed and remanded for entry of a conviction for trespassing on the burglary charge, for retrial on the single remaining charge that had both principal and accomplice theories, and for resentencing.

State v. Miranda 290 Or App 741 (March 14, 2018) (Lagesen, J.)

STALKING/VROs -- Acts constituting violation

Asking a bus driver to ask the petitioner to leave a public bus so defendant could ride it was “contact” sufficient to deny defendant’s MJOA for contempt for violating a FAPA order. Affirmed.

State v. Harrison 290 Or App 766 (March 14, 2018) (Tookey, J.)

CRIMES -- Endangering the welfare of a minor

Defendant and his daughter lived in a trailer where police found residue and packaging materials and a safe containing methamphetamine and a scale, and defendant admitted to regular use. That evidence was not sufficient to prove endangering the welfare of a minor. Reversed and remanded for resentencing as to other counts.

State v. Hobbs 290 Or App 773 (March 14, 2018) (Shorr, J.)

SENTENCING -- Restitution

Trial court plainly erred by ordering restitution; the record did not show that the $150 award was a reasonable payment required by defendant’s crime.

State v. Gallup 290 Or App 781 (March 14, 2018) (Per curiam)

CRIMES -- Possession of concealed firearm

Breezeway connecting garage and house, furnished with a table and chairs, is part of the ‘residence’ for purposes of the place-of-residence exception to possession-of-concealed-firearm offense. Reversed and remanded for new trial with correctly-instructed jury.

State v. Folkerts 290 Or App 784 (March 14, 2018) (Per curiam)