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Oregon Appellate Court--September 6, 2018

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by: Rankin Johnson IV • September 19, 2018 • no comments

Summarized by Rankin Johnson, OCDLA

SENTENCING - Disproportionate sentences

Defendant’s 25-year sentence for obtaining nude pictures from other teenagers shocked the conscience. Remanded for resentencing.

Beginning when he was sixteen, and ending when he was eighteen, defendant sought sexual activity with multiple girls who were two to four years younger than he. He received 70- and 75-month terms for sexual offenses, a 25-month term for felony assault in the fourth degree, and 25-year concurrent terms on each of ten counts of using a child in a sexually explicit display

In considering whether the sentence was improper, the Court of Appeals considered each offense and sentence individually. The court observed that defendant’s conduct, requesting nude photographs from girls younger than he but close to his age, was less serious than most conduct constituting using a child in a sexually explicit display, and that the ballot measure was intended to reach a small group of the worst sex offenders. Defendant was sentenced for multiple felony offenses in the same proceeding, which was pertinent but less significant than if he had previously been convicted and sentenced for unrelated offenses.

James, J, concurring, wrote that the offense of using a child in a sexually explicit display was intended to capture commercial and exploitive child pornography, not the new phenomenon of sexting as a social activity. Although sexting may fall within the language of the statute, that was not through deliberate legislative choice, but through historical happenstance. Egan, C. J., DeVore, J., Lagesen, J., DeHoog, J., and Aoyagi, J. joined.

In dissent, Garrett, J., argued that defendant’s 25-year sentence should be considered in connection with other context, including all of his offenses, such as corporal sexual offenses against girls as young as 13. Armstrong, J., Hadlock, J., Tookey, J., Shorr, J., and Powers, J., joined.

State v. Carey-Martin 293 Or App 611 (September 6, 2018) (Ortega. Concurrence by James, dissent by Garrett.) (Washington County, Wipper)

RESISTING ARREST

By physically preventing police officers from handcuffing him, leading to a minor physical altercation, defendant resisted arrest. The trial court did not err by denying motion for judgment of acquittal. Affirmed.

State v. Anderson 293 Or App 697 (September 6, 2018) (Garrett) (Multnomah County, Hodson)

FAILURE TO REGISTER AS A SEX OFFENDER - Time to register

Refusing to sign registration form immediately upon release from prison was not failure to register as a sex offender, because the statute permits registration within ten days. Reversed.

State v. Chandler 293 Or App 705 (September 6, 2018) (Garrett) (Tillamook, Bailey)

CRIMINAL MISTREATMENT - Dependent persons

In criminal mistreatment trial, court erred by instructing jury that a person under 18 is a dependent person. Remanded for new trial.

State v. Berry 293 Or App 717 (September 6, 2018) (DeHoog) (Multnomah, Greenlick)

PUBLIC RECORDS REQUESTS - Records relating to child abuse

City failed to demonstrate that arrest records were excluded from public disclosure. Remanded with direction to grant summary judgment to requestor.

The city argued that any police document containing a reference to child abuse was exempt from disclosure. The Court of Appeals disagreed, and held that the child-abuse exemption applied to mandatory-reporter records, not to ordinary police investigations of child abuse.

Pamplin Media Group v. City of Salem 293 Or App 755 (September 6, 2018) (DeHoog) (Marion, Prall)

SEARCH AND SEIZURE - Conduct constituting stop

A police officer saw defendant talking to a drug dealer in a parked car. When defendant drove away, the officer turned around in traffic to follow, followed her out of town for ten to fifteen minutes, and waited when she drove onto a side road and followed when she emerged from the side road onto a main road. When defendant drove into a parking lot for a closed business, the officer called for backup, and the officer and backup parked around defendant’s car, spaced so she could drive away, and approached her to talk to her. When defendant said that she was having car trouble, the officer asked about the drug dealer, separated the defendant and her passenger, and asked repeated questions about drug use and illegal things in the car. The court held that a reasonable person in defendant’s position would believe that he or she was not free to leave. Accordingly, it was a stop, and unsupported by reasonable suspicion.

State v. Brown 293 Or App 772 (September 6, 2018) (Aoyagi) (Yamhill, Stone)

SENTENCING - Special probation conditions

Trial court erred by imposing no-alcohol condition and DUII victim-impact panel as part of sentencing for driving while suspended. Remanded for resentencing.

State v. Borders 293 Or App 791 (September 6, 2018) (Aoyagi) (Lincoln, Sanders)

SEARCH AND SEIZURE - Emergency aid exception

Police officers, upon hearing altercation inside apartment, had a reasonable fear that someone inside needed immediate aid, and trial court correctly denied motion to suppress. Affirmed.

State v. Clay 293 Or App 797 (September 6, 2018) (Powers) (Multnomah, James)