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Oregon Appellate Court--October 4, 2017

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by: Mary A. Sell • October 6, 2017 • no comments

Written by Erin Severe, OPDS | Edited by Mary Sofia, OCDLA

CIVIL COMMITMENT

Civil Commitment—Advice of Outcomes—Plain Error

Trial court plainly erred in failing to advise alleged mentally ill person of all possible outcomes of commitment proceeding. Court holds that the trial court plainly erred in failing to advise alleged mentally ill person of all possible outcomes of the commitment hearing, as required by ORS 426.100(1). At commitment hearing, the trial court informed the alleged mentally ill person that he could be discharged (if was not found to be mentally ill) or committed (if he was found to be mentally ill). The court did not inform the alleged mentally ill person that the court could also dismiss the case if he agreed to voluntary treatment or that it could order conditional release. Court concludes that trial court’s error is plain, overruling State v. J.D.C., 226 Or App 563 (2009), and exercises its discretion to correct the error.

State v. M.M., 288 Or App 111 (2017) (Egan, P.J.)

Civil Commitment—Advice of Rights—Plain Error

Trial court plainly erred in failing to advise person with intellectual disability of his right to subpoena witnesses to commitment hearing. Court holds that the trial court plainly erred by failing to advise person with an intellectual disability of his right to subpoena witnesses, as required by ORS 427.265(1). Trial court’s error is not harmless notwithstanding trial counsel’s statement to the court that he had not subpoenaed witnesses. That statement did not demonstrate that the person with an intellectual disability was provided with all of the information required by statute.

State v. M.L.S., 288 Or App 117 (2017) (Egan, P.J.)

EVIDENCE

Evidence—OEC 403—Sufficiency of record for appellate review

Appellate court vacates and remands because trial court’s reason for admitting prior bad acts evidence is unclear. The state charged defendant with raping, sodomizing, sexually abusing, and engaging in incest with his disabled adult daughter. The victim told law enforcement that defendant had forcefully raped her, but at trial testified that she and defendant had engaged in consensual intercourse. To refute the victim’s characterization of the sexual encounter as consensual, the state sought to admit evidence that defendant had committed two prior acts of sexual violence against the victim. Over defendant’s relevance and OEC 403 objections, the trial court admitted the evidence. The court did not expressly adopt a theory of relevance or conduct balancing under OEC 403. Because it is not clear for what purpose the trial court admitted the evidence, the court concludes that it cannot assess whether the trial court abused its discretion in admitting the evidence under OEC 403. Hence, it vacates defendant’s convictions and remands the case to the trial court to provide an explanation.

State v. Roberts, 288 Or App 145 (2017) (DeHoog, J.)

JUVENILE DEPENDENCY/DELIQUENCY

Juvenile Delinquency—Sentencing—Conditions of Probation

Juvenile court exceeded its authority in authorizing juvenile department to sanction probation violation with detention. In this consolidated delinquency proceeding, youth admitted to conduct that would constitute crimes if committed by an adult. Based on youth’s admissions, the juvenile court determined that youth was within the court’s jurisdiction and placed youth on probation. One condition of probation authorizes the juvenile department to sanction youth with detention for probation violations admitted by youth. Another condition authorizes the department to electronically monitor youth. In the juvenile court and now on appeal, youth contends that the juvenile court erred in imposing both conditions because they constituted unlawful delegations of the court’s authority to the juvenile department. The court concludes that the text, context, and legislative history of ORS 419C.453 shows that the legislature intended that the decision to punish youth must be made exclusively by the juvenile court following a hearing. Consequently, the court holds that the condition authorizing the juvenile department to sanction youth with detention is invalid. The court rejects youth’s preserved challenge to the electronic monitoring condition on its merits and concludes that youth’s additional challenges to that condition are unpreserved.

State v. B.H.C, 288 Or App 120 (2017) (Lagesen, J.)

SENTENCING 

Sentencing—Restitution—CARES evaluation

Defendant failed to adequately preserve argument that restitution award to CARES was improper on grounds that entity does not suffer “verifiable monetary losses” for expenses incurred as part of its ordinary operations. Defendant pleaded guilty to offenses related to his sexual abuse of a 15-year-old victim. Prior to defendant’s guilty plea, the victim was referred by DHS to CARES for a sexual abuse evaluation. The state asked to the trial court to award restitution to CARES and DHS for the cost of the medical services rendered at the evaluation. Defendant argued that restitution was inappropriate because (1) the evaluation cost did not fit into the statutory definition of economic damages because it was investigatory as opposed to medical and (2) that those components of the evaluation that were not investigatory (e.g., a hearing exam) were not causally related to defendant’s criminal activities. On appeal, defendant contends that the court erred in awarding restitution for investigatory costs that were part of CARES’s ordinary operating expenses. That argument concerns whether there is a theory of civil liability by which CARES could recover its costs from defendant. Because defendant’s appellate argument was not presented to the trial court, it is unpreserved.

State v. Ixcolin-Otzoy, 288 Or App 103 (2017) (Ortega, P.J.)