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Oregon Appellate Court – January 3, 2018

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by: Mary A. Sofia • January 9, 2018 • no comments

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

CIVIL COMMITMENT

Civil Commitment—Sufficiency of Evidence—Unable to Meet Basic Needs/Danger to Others

Trial court’s findings that appellant is unable to meet basic needs and is a danger to others as a result of his mental illness not supported by sufficient evidence.

Appellant seeks reversal of a judgment authorizing his 180-day involuntary commitment to the Oregon Health Authority, and challenges the trial court’s findings that as a result of his mental illness he is unable to meet his basic needs and is a danger to others. Appellant has paranoid schizophrenia. Appellant was highly agitated during the commitment hearing and repeatedly interrupted the proceedings, and the court removed appellant from the courtroom. A nurse testified that, during appellant’s prior jail stays, he was not really aggressive, just delusional, and that although he refused medications and most food, an evaluation revealed that he was not dehydrated or malnourished. A mental health consultant testified that appellant refused to speak with her about his plan for release, and, in her opinion, was unable to develop a plan to meet his basic needs.

The court holds that the trial court’s findings are not supported by legally sufficient evidence. The record is insufficient to support a finding that it is highly likely that appellant will commit an act of violence in the near future. Specifically, there is no evidence that appellant committed an act of physical aggression at any time relevant to the commitment proceeding or that appellant explicitly threatened violence. The record is also insufficient to establish that appellant lacked the capacity to meet his basic needs due to his mental disorder. Although appellant experienced delusions relating to food and water, he ate sporadically and the record does not demonstrate that he was at risk of dehydration or malnourishment. Further, appellant’s inability to communicate or follow through with a release plan to meet his basic needs is insufficient to support that finding. Judge Lagesen dissents. She agrees with the majority’s holding with respect to the trial court’s basic needs finding, but believes that appellant failed to make an adequate record of what transpired at the hearing to permit meaningful appellate review of the danger to others finding. Because appellant bears that burden on appeal, Lagesen would affirm.

State v. T.W.W., 289 Or App 724 (2018) (Garrett, J.)

Civil Commitment—Advice of Rights—Plain Error

Trial court plainly erred in failing to advise appellate of her rights under ORS 426.100(1).

State v. L.D.M., 289 Or App 768 (2018) (Per Curiam)

CRIMES

Crimes—Endangering Welfare of Minor—MJOA

Evidence—OEC 510—Privilege for Identity of a Confidential Informant

Trial court did not plainly err by failing to sua sponte acquit defendant of endangering the welfare of a minor because it was not obvious that defendant’s residence did not qualify as a place where unlawful activity is maintained or conducted. The court did not error in concluding that the OEC 510 privilege applied because the requested discovery could have revealed the CI’s identity. Because the trial court was satisfied that the CI was reasonably believed to be reliable and credible, it also did not error in refusing to disclose the CI’s identity, review the discovery in camera, or place the discovery under seal for appellate review.

Defendant appeals from his judgment of conviction for unlawful delivery of methamphetamine and endangering the welfare of a minor and raises six assignments of error. Evidence at trial showed that a reliable cooperative informant had been present during two drug transactions at defendant’s residence. During a warrant search, an officer found syringes, a pipe with methamphetamine residue on the bedroom floor that would have been accessible to defendant’s year-and-a-half old child, and a large quantity of methamphetamine on top of the television set. Defendant also made statements about selling large amounts of methamphetamine.

In his first assignment of error, defendant contends that the trial court erred in failing to sua sponte acquit defendant of endangering the welfare of a minor on the grounds that the state failed to prove beyond a reasonable doubt that defendant’s residence “was principally or substantially used for unlawful drug activity,” under State v. Gonzalez-Valenzuela, 358 Or 451 (2015). The court concludes that this case is sufficiently unlike Gonzalez-Valenzuela such that it is not obvious that the Supreme Court’s holding in that case would compel an acquittal here. In defendant’s remaining assignments of error, he challenges the trial court’s denial of his discovery request for the audio recording of a controlled by provided by the CI, the contact between the state and the CI, and the CI’s criminal history. The court holds that the trial court did not error in denying the discovery requests. The court did not error in concluding that the OEC 510 privilege applied because the requested discovery could have revealed the CI’s identity. Because the trial court was satisfied that the CI was reasonably believed to be reliable and credible, it also did not error in refusing to disclose the CI’s identity, review the discovery in camera, or place the discovery under seal for appellate review.

State v. Robertson, 289 Or App 703 (2018) (Tookey, J.)

SEARCH & SEIZURE

Motion to Suppress—Warrantless Seizure—Extension of Traffic Stop

Officer did not unlawfully seize defendant by calling probation officer where record supports finding that call did not extend duration of stop.

Defendant appeals from his judgment of conviction for various drug offenses and assigns error to the trial court’s denial of his suppression motion. Defendant concedes that officers lawfully stopped him for a noncriminal traffic violation. He argues that officers unlawfully extended the stop by calling his probation officer, which was not reasonably related to the stop. Evidence during the suppression hearing established that the officer called defendant’s probation officer while filling out the citation and that another officer spontaneously showed up and finished processing the citation while the first officer asked for defendant’s consent to search. The trial court found that although the entire stop lasted slightly longer than the usual stop, the increased time was due to recent changes in procedures for processing tickets. The court also found that the officer processed the citation at the same time that he spoke with defendant’s probation officer. The court concludes that it need not reach defendant’s argument because the evidence defendant seeks to suppress was not obtained during an unlawful extension of the stop. The trial court implicitly found that the traffic stop was not extended, which is supported by evidence in the record.

State v. Urig, 289 Or App 693 (2018) (Ortega, P.J.)

SENTENCING

Sentencing—$255 DUII Conviction Fee

Trial court erred in imposing a DUII conviction fee because defendant was not convicted of DUII.

State v. Williams, 289 Or App 766 (2018) (Per Curiam)