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Oregon Appellate Court – December 20, 2017

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by: Mary A. Sofia • December 27, 2017 • no comments

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

APPEALS

Appellate Review—Jury Instructions

Appellate court will only review accuracy of jury instruction actually submitted to the trial court notwithstanding conceded “typographical” error.

Defendant appeals from a judgment of conviction for one count of felony murder, manslaughter, and first-degree assault and assigns error to the trial court’s rejection of a special injury instruction on felony murder. The proposed instruction stated in part: “If the felony was completed, terminated, or withdrawn from prior to the coparticipant’s commission of the felony, this may be sufficient to break the causal connection between the felony and the homicide * * *.” Although defendant and the state agree that the proposed instruction contains a typographical error in that the italicized portion should state “commission of the homicide,” the appellate court concludes that it must review the jury instruction actually submitted. Because, as the parties agree, the submitted instruction was not a correct statement of the law, the trial court did not error in refusing to give it.

State v. Lopez-Minjarez, 289 Or App 403 (2017) (James, J.)

CIVIL COMMITMENT

Civil Commitment—Advice of Outcomes—Plain Error

Trial court plainly erred in failing to advise appellant that possible results of commitment proceeding included voluntarily treatment or conditional release.

State v. D.A.R., 289 Or App 435 (2017) (Per Curiam)

DEFENSES

Defenses—Jury Instructions—Choice of Evils/Duress

Error to refuse choice of evils and duress instructions where defendant presented evidence that he committed crimes to prevent imminent injury to his daughter.

Defendant appeals from a judgment of conviction for first- and second-degree burglary and third-degree theft and assigns error to the trial court’s refusal to instruct the jury on the choice-of-evils and duress defenses. In the light most favorable to defendant, there was sufficient evidence from which the jury could infer that defendant participated in the crimes because his co-defendant’s brother threatened serious harm to defendant’s daughter. Defendant testified that the brother, who had a reputation for being a dangerous man, had threatened that if “I didn’t want anything to happen to my daughter, I would do what [codefendant] told me to do.” Defendant did not have a phone to call his daughter. The arresting officer also testified that defendant asked him to “please find [daughter]” and stated that if she was not home then [codefendant’s brother] has her.” The trial court declined to give the instruction in part because it did not find defendant’s testimony credible. The appellate court reverses, holding that there was sufficient evidence from which that the jury could find that defendant’s commission of the crime was “necessary” to avoid the threatened injury (choice of evils) and that he had been coerced into the commission of the crimes by a threat of imminent unlawful force (duress).

State v. Paul, 289 Or App 408 (2017) (James, J.)

EVIDENCE

Evidence—Vouching—Plain Error

Witness’s testimony that she “totally believed” victim not plain error because plausible that defendant strategically chose not to object.

Defendant appeals from a judgment for first-degree sexual abuse and assigns error to the trial court’s failure to sua sponte strike a witness’s testimony that she “totally believed” the victim. Evidence at trial established that defendant moved in with B, her mother, and brother, when B was seven to eight years old. B testified that defendant touched her vaginal area over her clothes in 2012, when she was 13. B shared that information with her friend, D, and later, with D’s mother, Strawn. Strawn testified that she did not immediately share B’s report because B asked her not to but she “totally believed” B’s story. B also later told her mother, who did not confront defendant or disclose the incident.

Defendant’s theory at trial was that B fabricated the allegations. In support of that defense, defendant tried to highlight the inconsistencies in B’s account of the incident and Strawn and B’s mother’s failures to report the incident, suggesting that they did not report the abuse because they did not believe B.

The court concludes that although Strawn’s testimony was impermissible vouching, it is not plain error because it is plausible that defendant made the strategic choice not to object to the error. The court also concludes that even if the error were plain, it would not exercise its discretion to correct the error because it was a bench trial, Strawn was not an expert witness, and the statement was made in passing.

Judge Duncan dissents, contending that there is no “plausible” reason, given defendant’s theory of the case, for his failure to object and that the court should exercise its discretion to correct the error, as it has in other plain error vouching cases.

State v. Cone, 289 Or App 391 (2017) (Garrett, J.)

Evidence—Jury Instructions—Less Satisfactory Evidence

Trial court did not error in refusing to give less satisfactory evidence instruction where party failed to demonstrate that video footage was stronger evidence than the other evidence presented by the state.

Defendant appeals from a judgment of conviction for unlawful use of a vehicle and first-degree theft by receiving, and assigns error to the trial court’s failure to give the less satisfactory evidence instruction. Evidence at trial established that defendant sold a trailer to a scrap metal recycling center. Defendant signed a receipt, and the recycling center copied defendant’s driver’s license as part of that transaction. The recycling center also made a video recording of defendant driving the trailer over a scale used to weigh scrap metal. Later, the owner of the recycling center showed that video to an officer investigating theft of the trailer. At trial, the owner’s wife testified that she provided a copy of the video to the officer. The owner and his wife also testified that they knew defendant because they had purchased scrap metal from him on several prior occasions.

Defendant requested the less satisfactory evidence instruction because the state failed to produce the video at trial. A trial court abuses its discretion if it refuses to give the less satisfactory evidence instruction where the party has shown that there is other evidence that is reasonably available on a fact in issue and the jury could conclude that the missing evidence is stronger and more satisfactory than the evidence offered. The court concludes that, viewing the record in the light most favorable to the party requesting the instruction, defendant established that the video footage was reasonably available to the state. But the court holds that defendant failed to establish that the video footage was stronger evidence than defendant’s signed receipt, a photocopy of his driver’s license, and the two witnesses who identified defendant as the person who brought the trailer to the scrap yard.

State v. West, 289 Or App 415 (2017) (James, J.)

JUVENILE DEPENDENCY/DELIQUENCY

Juvenile Dependency—Active Efforts Determination—Appeal

Trial court’s determination that DHS had made active efforts to reunify family as required by Indian Child Welfare Act not appealable where judgments on appeal did not rule on any affirmative requests for relief or otherwise modify rights or duties of the parties.

Dept. of Human Services v. A.M.G., 289 Or App 440 (2017) (Per Curiam)

SEARCH & SEIZURE

Motion to Suppress—Warrantless Search—Inventory Exception

Inventory policy permitting opening of closed containers “designed” for holding “valuables” permitted warrantless search of small, black, nylon case apparently designed for holding a small computer hard drive or game console and is not unconstitutionally overbroad.

Defendant appeals from a judgment of conviction for possession of methamphetamine and menacing and assigns error to the trial court’s denial of his motion to suppress the methamphetamine evidence. Salem police discovered the methamphetamine during an inventory search of defendant following his arrest for menacing.

Defendant argues that the search violated Article I, section 9, because it was not authorized by the Salem Police Department’s inventory policy or, alternatively, because the policy is unconstitutionally overbroad. The policy authorizes officers to open closed containers “designed for” holding money “and/or other valuables.” Pursuant to that policy, a Salem officer opened a hard, black, nylon case that he found in defendant’s backpack that appeared to be a container for holding a small computer hard drive or video game console. The court concludes that the search fell within the policy because cases for small electronics fall within the scope of closed containers designed for holding “other valuables.” The court also concludes that the lack of a definition of valuables does not render the policy unconstitutionally overbroad because “valuables” is a category of property with sufficiently clear boundaries to impose the constitutionally required limitation on officer discretion.

Judge James concurs, acknowledging that although the court’s decision is supported by the appellate court’s case law, that case law rests on dubious analytical foundations and introduces significant discretion into the inventory exception.

State v. Cleland, 289 Or App 379 (2017) (Lagesen, P.J.)

Motion to Suppress—Warrantless Seizure—Traffic Stop Extension

An officer may not inquire into unrelated matters if those inquiries extend the length of the stop unless there is separate legal justification. Defendant appeals from a judgment of conviction for possession of methamphetamine and felon in possession of a restricted weapon and assigns error to the trial court’s denial of his motion to suppress.

Evidence during the suppression hearing established that an officer stopped defendant for bicycling without a headlight, a traffic violation, and because defendant “vaguely” matched the description of a male suspected of a possible residential burglary. After telling defendant his reasons for the stop and checking defendant’s identification, the officer explained why there were so many police vehicles in the area. Defendant repeatedly put his hands in his pockets after being told not to do so. After defendant put his hands in his pockets a third time, the officer conducted an officer safety patdown, which led to his discovery of a methamphetamine pipe and a restricted weapon. Defendant concedes that the officer had probable cause to stop him for the traffic violation and that his repeated conduct of putting his hands in his pockets raised legitimate officer safety concerns.

The issue on appeal is whether defendant was lawfully stopped during the officer safety patdown. The court concludes that defendant was unlawfully detained. The police may lawfully inquire into unrelated matters during an unavoidable lull in a lawful traffic stop so long as those inquiries do not result in any further restriction of movement. An officer may not inquire into unrelated matters if those inquiries extend the length of the stop unless there is separate legal justification. Here, the state failed to prove that the officer was still lawfully processing the traffic stop for the headlight violation at the time of the patdown. The state also failed to show that officer’s subjective belief that defendant may have been involved in the suspected burglary was objectively reasonable. Thus, the trial court erred in denying the motion to suppress.

State v. Blackstone, 289 Or App 421 (2017) (Aoyagi, J.)