A Book from the Library of Defense

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by: Mary A. Sofia • November 21, 2017 • no comments

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


Failure to Report as a Sex Offender—Classification of juvenile adjudication determines whether failure to report is a felony

Defendant’s failure to report as a sex offender was a felony because “the crime for which the person is required to report” refers to the statutory offense giving rise to the reporting requirement.

Failure to report a move and a new address as a sex offender is a misdemeanor unless “the crime for which the person is required to report is a felony.” Former ORS 181.599(3)(b)(B) (2011). Here, defendant had a juvenile adjudication for acts that, if committed by an adult, would constitute felony sex crimes and failed to report his new address after changing residences. He argued that the juvenile adjudication that triggered the reporting requirement was not a felony because juvenile adjudications are not “crimes.” The court rejected that same argument in State v. Hinkle, 287 Or App 786 (2017).

State v. Rogers, 288 Or App 769 (2017) (Egan, P.J.)

Tampering with Physical Evidence—MJOA—Plain Error

Trial court plainly erred in failing to grant MJOA on tampering with physical evidence count because no evidence from which a reasonable juror could find beyond a reasonable doubt that defendant knew that an official proceeding was pending or about to be initiated when he destroyed evidence. Court exercises discretion to correct error because of magnitude of error and because correcting error does not undermine policies favoring preservation.

State v. Matzke, 288 Or App 842 (2017) (Per Curiam)


Custodial Interrogation/Miranda—Compelling Circumstances

Detective’s statements that he had probable cause to obtain a warrant for defendant’s arrest and that he intended to arrest defendant if she did not cooperate in questioning created compelling circumstances.

Detectives went to defendant’s home to discuss recent thefts at a Safeway store. Both detectives were in uniform, wore badges, and drove marked patrol vehicles. When no one answered the door, the detectives called several times. When they finally spoke over the phone, defendant told the detectives that she did not want to speak with them because she was naked and sick. The detective who spoke to her gave defendant two options: if she spoke to him at her door, he would issue her a citation; if she refused, he would obtain a warrant for her arrest. Defendant agreed to speak to the detectives at her doorway. After repeatedly denying involvement in the thefts and being chided for her denials, the detective told her that defendant that she was under arrest. At that point, defendant said, “Fine, I’ll admit guilt.” The trial court reasoned that Miranda warnings were not required because defendant was neither in custody nor under compelling circumstances and because she did not admit guilt in response to a question. The Court concludes that the circumstances were compelling in light of the amount of pressure exerted on defendant during the interview, specifically the detective’s statements that he had probable cause to obtain a warrant for her arrest and indicating his intent to arrest her if she did not cooperate. Because defendant’s admissions derived from the constitutional violation and were not harmless, the trial court erred in denying suppression.

State v. Esquivel, 288 Or App 755 (2017) (Ortega, P.J.)


Evidence—ORS 136.444—Corroboration of Accomplice Testimony

Evidence insufficient to corroborate accomplice testimony because it did not independently connect defendant to the crime or corroborate the commission of the offense.

Defendant was apprehended and convicted of 17-counts after he and two accomplices were observed burglarizing a uniform supply store. Defendant assigns error to the trial court’s denial of his motion for judgment of acquittal on six counts that concerned two earlier conspiracies, to kidnap a jewelry store employee and to rob a cellular phone store, on the grounds that he was convicted based solely on the testimony of his accomplices without extrinsic evidence connecting him to the crimes.

Under ORS 136.44(1), a person may not be convicted based on an accomplice’s testimony unless it is corroborated by other evidence that tends to connect the defendant with the commission of the offense. Even slight or circumstantial evidence will suffice if it tends to connect the defendant with the crime alleged so long as it is independent of the accomplice testimony and there is independent evidence that the crime actually occurred. With respect to the kidnapping episode, the state argues that the accomplice testimony was corroborated by defendant’s apprehension with the two accomplices during the uniform supply store burglary and various items found in their vehicle (firearms, syringes, thermite, zip ties, and a stolen animal shelter jacket), that were to be used in the kidnapping.

The Court concludes that that evidence is insufficient: defendant’s association with the accomplices was too temporally distant from the kidnapping conspiracy, alleged to have occurred two weeks earlier. The instrumentalities of that conspiracy are also insufficient because the state failed to connect them to the vehicle used in the conspiracy, connect defendant to the vehicle, and because, independent of the accomplice testimony, the items are lawful to possess. Finally, the animal shelter jacket, allegedly stolen as part of the plan for the commission of the burglary did not sufficiently corroborate the accomplice testimony because there was no independent logical connection that linked the animal jacket and the planned kidnapping. With respect to the attempted cellular phone store robbery, the court concludes that it does not need to address whether there was sufficient evidence to connect defendant to that crime because there was no evidence independent from the accomplice testimony that the attempted robbery occurred at all. Specifically, a note listing the cellular phone store as a potential target did not evidence that someone had taken a substantial step towards the attempted robbery.

State v. Riley, 288 Or App 807 (2017) (James, J.)

Evidence—Prior Bad Acts Evidence—Harmless Error

Admission of prior bad acts evidence harmless in view of trial court’s limiting instruction.

State v. Shinnick, 288 Or App 847 (2017) (Per Curiam)

Evidence—Vouching—Plain Error

Trial court’s failure to sua sponte strike purportedly vouching testimony not plain error because not obvious that statement was offered for its truth.

State v. Deleon, 288 Or App 850 (2017)( (Per Curiam)


Juvenile Delinquency—Sentencing—Conditions of Probation

Juvenile court exceeded its authority in authorizing juvenile department to sanction probation violation with detention.

State v. M.V.L., 288 Or App 845 (2017) (Per Curiam)


Motion to Suppress—Warrantless Searches—Record insufficient to establish that blood alcohol dissipation constituted an exigent circumstance

State failed to prove that exigent circumstances justified warrantless search for blood-alcohol evidence where record contains no evidence as to rate alcohol dissipates from blood.

While looking for a car involved in a driving-related offense, an officer made observations from outside defendant’s fenced and gated property that gave him probable cause to believe that defendant had committed driving under the influence of intoxicants (DUII). The officer entered the property. He believed it would take hours to get a warrant and knew that alcohol dissipates from the blood. To establish its burden of proving the existence of exigent circumstances, the state was required to develop a record that would permit an assessment of whether, at the time he entered the property, the officer believed that the blood-alcohol evidence was at risk of complete dissipation in the time it would take to get a warrant. Because the record does not include any evidence of the amount of time that the officer reasonably believed it would take for the evidence to be lost, the trial court did not error in concluding that the state failed to prove the existence of an exigency.

State v. Perrott, 288 Or App 837 (2017) (Duncan, J.)


PCR—PCR judgment—Remanded for PCR court to fashion relief that will cure petitioner’s actual prejudice

PCR judgment granting petitioner limited relief error where remedy in judgment fails to cure petitioner’s actual prejudice.

Petitioner/defendant appeals from a PCR judgment granting him limited relief on some of his claims by ordering that the judgment revoking his probation be amended to allow for Alternative Incarceration Programs (AIP). Petitioner pleaded guilty and received probation. He agreed that if his sentence were revoked he would receive 72 months’ imprisonment but would be eligible for AIP. Petitioner is not eligible for AIP based his crime of conviction, second-degree robbery. Petitioner later violated the terms of his probation and was revoked. He received 72 months’ imprisonment without eligibility for AIP. Petitioner sought post-conviction relief, contending that he received inadequate assistance of counsel at the revocation hearing, the revocation judgment breached the plea agreement, and that his plea was not knowing and intelligent. The post-conviction relief court amended the revocation judgment to make petitioner eligible for AIP. On appeal, petitioner alleges that the post-conviction court erred because he is ineligible for AIP and the Department of Corrections will not give the amended revocation judgment effect and asserts that the proper relief is to allow him to withdraw his plea. The Court concludes that the appropriate relief is not to reverse petitioner’s underlying convictions and allow him to withdraw his plea but to remand to the post-conviction court to fashion a remedy that cures petitioner’s actual prejudice.

Lujan v. Myrick, 288 Or App 763 (2017) (Ortega, P.J.)