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Oregon Appellate Court – December 28, 2017

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by: Mary A. Sofia • January 2, 2018 • no comments

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


Appeals—Alternative Basis for Affirmance

Appellate court may not consider state’s proffered alternative basis for affirmance where youth could have created a different record had the state raised argument in the juvenile court.

Youth appeals a judgment finding her within the jurisdiction of the juvenile court for acts that, if committed by an adult, would constitute unauthorized use of a vehicle. Youth assigns error to the trial court’s denial of her motion to suppress statements she made to her juvenile probation officer. On appeal, the state essentially concedes that the trial court erred in denying suppression on the grounds advanced in the trial court, but argues that the appellate court should affirm the trial court’s ruling on an alternative basis. The appellate court concludes that it may not affirm on the proffered alternative basis because, had the state raised that argument below, youth could have created a different record that could have affected the disposition of that issue.

State v. M.S.S.K., 289 Or App 450 (2017) (Egan, P.J.)


Crimes—Third-degree assault of an emergency medical services provider—MJOA

Evidence—Mental Disease or Defect Notice Requirement—Lay Witnesses

An emergency room nurse is not an “emergency medical services provider,” within meaning of the third-degree assault statute, ORS 163.165(1)(g). Defendant is not required to provide notice of lay witness mental disease or defect evidence.

Defendant appeals from a judgment of conviction for third-degree assault of an emergency medical services provider and second-degree criminal mischief and raises two assignments of error. Defendant, a patient in an emergency room, struck an emergency room nurse in the head, causing injury, and damaged hospital equipment. Defendant contends that the trial court erred in denying his motion for judgment of acquittal on the third-degree assault count because the nurse was not an “emergency medical services provider” and also erred in excluding lay witness testimony relevant to the mens rea on each conviction.

In view of the text, context, and legislative history of ORS 163.165(1)(g) and ORS 682.025(4), the court concludes that the legislature did not intend for an emergency room nurse to be included in the definition of an emergency medical services provider. The court also concludes that that the trial court erred in ruling that the lay witness testimony suggesting that defendant had a mental disease or defect was inadmissible because defendant had not provided notice under ORS 161.309(2). The notice requirement applies to expert testimony; defendant does not have to provide notice of mental disease or defect evidence from a lay witness.

State v. Bales, 289 Or App 470 (2017) (DeVore, P.J.)


Criminal Procedure—Variance between pleading and proof

Variance between the state’s pleading and proof impermissibly prejudiced defendant because it required defendant to defend against a different theory than that specified in the indictment.

Defendant appeals from a judgment of conviction for, among other crimes, felon in possession of a firearm and raises two assignments of error in which he asserts the trial court erred in allowing the state to proceed on a different theory of felon in possession of a firearm than what was alleged in the indictment. The charge alleged that defendant knowingly possessed a firearm having been previously convicted of a felony “within the past 15 years.” The state may also prove a violation of the felon in possession of a firearm statute, ORS 166.270, by showing that the person has been convicted of more than one felony. The record at trial established that defendant had an 8-year old conviction for possession of a controlled substance, a felony, that had been treated as a misdemeanor at the time of sentencing. Defendant also had 1989 convictions for delivery and possession of controlled substances.

Prior to trial, defendant moved to exclude evidence of the misdemeanor conviction as irrelevant and the 1989 convictions as irrelevant because they occurred outside the time period alleged in the indictment. The trial court excluded the misdemeanor conviction, but denied the motion in limine with respect to the felonies on the grounds that “within the past 15 years” was not a material element of the felon-in possession charge and that defendant would not be prejudiced by allowing the state to rely on the 1989 convictions. Following the state’s case-in-chief, defendant renewed his arguments in a motion for judgment of acquittal, which the trial court denied.

A variance between an allegation in an indictment and the state’s proof at trial is impermissible if the variance concerns a material element or prejudices defendant. Here, defendant conceded at trial that the phrase “within the past 15 years” was not a material element. The court concludes that the variance prejudiced defendant because it required defendant to defend against a different theory than that specified in the indictment. The court also rejects the state’s argument that the trial court could allow the state to amend the indictment to delete the phrase “within the past 15 years” to correct a defect in the form of the indictment because the state failed to carry its burden of proving that the factual theory upon which the grand jury based its indictment was the same one that the state relied on at trial.

State v. Samuel, 289 Or App 618 (2017) (Duncan, J.)


Custodial Interrogation—Right to Counsel—Invocation & Waiver

Defendant’s invocation was, at the very least, equivocal, detectives impermissibly failed to clarify defendant’s intent, and defendant’s subsequent responses did not voluntarily reinitiate conversation.

Defendant appeals from a judgment of conviction for first-degree manslaughter with a firearm and assigns error to the trial court’s denial of his motion to suppress statements made following his invocation of the right to counsel. Detectives interviewed defendant following his arrest for murder. During the interview, defendant said, “Well can I, I, I, really don’t wanna say too much * * * I would rather have my lawyer with me but,” at which point one detective said that was “completely [his] right.” After six seconds of silence, the detective said, “[I]f that’s the way you wanna go with it then that’s the way we play it. We came here to try to get your side of it though because we believe that there’s more to it.” Afterwards, defendant made incriminating statements, including that the shooting was an accident.

The court concludes that defendant’s invocation was, at the very least, equivocal and that the detective’s statement, which parroted that defendant had a right to invoke, did not sufficiently clarify defendant’s invocation. Rather, the detective impermissibly continued the interrogation without a break in time or change in circumstances to allow for a waiver of a previously invoked right. Finally, the court concludes that the trial court’s error in denying suppression was not harmless.

State v. Hickman, 289 Or App 602 (2017) (James, J.)


Evidence—OEC 403—Record of Balancing

In totality of circumstances, record adequate to show that trial court conducted OEC 403 balancing and permit meaningful appellate review.

Defendant appeals from a judgment of conviction for unlawful possession of methamphetamine and assigns error to the trial court’s admission of evidence that defendant possessed a syringe absent a record demonstrating OEC 403 balancing. The state argues that defendant failed to preserve his contention. The court concludes that defendant’s argument is preserved for appeal: a request that a court balance the probative value of evidence against its unfair prejudice preserves a contention that the trial court failed to create a record demonstrating 403 balancing. However, in the totality of the circumstances, the record demonstrates that the court conducted the required balancing and is sufficient for meaningful appellate review.

State v. Ydrogo, 289 Or App 488 (2017) (Lagesen, J.)


Juvenile Delinquency—Juvenile Court’s Authority to Modify Disposition

Juvenile court retained authority following termination of jurisdiction to modify delinquency disposition to lift “deferral” of requirement that youth provide a DNA sample because DNA sample requirement is not punishment, was not imposed as a sanction, and juvenile court lacked authority to defer requirement initially.

Youth appeals from an order of a juvenile court modifying youth’s delinquency disposition. ORS 419.610 permits a juvenile court to “modify or set aside any order made by it upon such notice and with such hearing as the court may direct.” Here, in 2004, the juvenile court erroneously “deferred” two conditions, the requirements that youth provide a DNA sample and comply with sex offender registration laws. A decade later, after jurisdiction had been terminated, the trial court modified the delinquency disposition by lifting the deferrals of the two conditions. The court concludes that this case is moot with respect to the requirement that youth register as a sex offender because current statutes require him to register as a sex offender in the absence of a court order to register. With respect to the requirement that he provide a DNA sample, youth argues that as a matter of statutory construction and due process, ORS 419C.610 did not authorize the state to impose additional requirements upon a youth offender after the youth has fully served his disposition and jurisdiction is terminated.

In view of the statute’s text and context and maxims of statutory construction, the court concludes that the juvenile court retained authority to enter the modification order to require the DNA sample, which does not constitute punishment and was not imposed as a sanction.

State v. E.C.P., 289 Or App 569 (2017) (DeHoog, J.)

Juvenile Dependency—Rational Relationship To Basis for Jurisdiction

Juvenile court erred in ordering father to undergo psychological evaluation because Department of Human Services did not allege that father had psychological problems that contributed to the bases for jurisdiction.

Dept. of Human Services v. F.D.B., 289 Or App 633 (2017) (Per Curiam)


PCR—Meritless Petition—Appeal

Judgment dismissing meritless petition not appealable.

Petitioner/defendant appeals a judgment dismissing his petition for post-conviction relief with prejudice. Appointed counsel filed an affidavit averring that the petition could not be construed to state a ground for relief or be amended to do so. After a hearing on the sufficiency of the petition, the post-conviction court entered a general judgment of dismissal with prejudice. The court concludes that the general judgment is a “judgment dismissing a meritless petition” and, hence, is not appealable.

Gilderson v. Taylor, 289 Or App 496 (2017) (Lagesen, P.J.)


Motion to Suppress—Warrantless Search—Automobile Exception

Automobile exception justifies warrantless search of vehicle where officers stop vehicle to execute felony warrant and develop probable cause to search during lawful stop.

Defendant appeals from a judgment of conviction for unlawful delivery of heroin, unlawful possession of heroin, and unlawful possession of methamphetamine, and assigns error to the trial court’s denial of his motion to suppress evidence found during a warrantless search of the trunk of his car. Police initiated a stop of defendant, who was the subject of a felony arrest warrant, while defendant was driving. The officers discovered that defendant had a suspended license and decided to impound the car. Pursuant to department policy, the officers inventoried the vehicle and discovered a cigarette case containing drug paraphernalia and heroin, electronic scales, and air fresheners and dryer sheets stuffed behind the car’s air vents. Subsequent searches of bags in the trunk revealed methamphetamine, heroin, pills, cash, an additional scale, and a glass pipe with residue.

Defendant raised several challenges to the search, and the trial court denied the motion, ruling, among other things, that the search was lawful under the automobile exception. On appeal, defendant argues that the automobile exception did not apply because the car was not mobile when the officers encountered the vehicle in connection with the investigation of a crime. Specifically, defendant asserts that the officers stopped the vehicle because of the arrest warrant and developed probable cause to believe that the car contained evidence of a crime when the car was no longer mobile. The appellate concludes that the automobile exception justified the warrantless search because defendant’s car was mobile when officers encountered it in connection with defendant’s felony arrest warrant and, during a lawful stop, developed probable cause to search the trunk of the car.

State v. Campbell, 289 Or App 442 (2017) (Hadlock, C.J.)


Sentencing—Restitution—Loss of Use versus Conversion Damages

Trial court applied the wrong formula to calculate restitution damages by calculating damages based on loss of use instead of conversion.

Defendant appeals from a judgment of conviction for first-degree theft and assigns error to the trial court’s ruling allowing a witness to testify about his examination of property that had been unlawfully seized and to the court’s restitution award.

Acting on a tip, police determined that defendant had a stolen Bobcat on his property. Defendant said that he had purchased the Bobcat in 2004 and had a bill of sale. An officer went to defendant’s property and seized the Bobcat without a warrant. During a police interview, defendant estimated that the Bobcat was worth $8,000. At trial, an officer who examined the Bobcat after its seizure testified that the Bobcat was worth $10,000. After a jury found defendant guilty, the trial court imposed restitution based on the rental value of the Bobcat. The court concludes that any error in allowing the officer to testify about the value of the Bobcat is harmless in view of defendant’s own valuation of the Bobcat, which was above the $1,000 necessary to prove first-degree theft. The court holds that the trial court incorrectly relied on a loss-of-use formula to calculate restitution. For permanent or long-term deprivations, the conversion-based theory of recovery applies. Under that theory, the measure of damages is the reasonable market value of the goods at the time and place of the conversion plus interest and less the value of the property at the time of return if the property is returned plus interest from that date.

State v. Rosette, 289 Or App 581 (2017) (DeHoog, P.J.)