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Oregon Appellate Court – November 22, 2017

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by: Mary A. Sell • November 30, 2017 • no comments

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

DEFENSES

Defenses—Guilty Except for Insanity Defense—Insufficient Evidence

Evidence insufficient to support GEI defense instruction where no evidence that as a result of defendant’s mental disease or defect he lacked the substantial capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of the law.

Defendant appeals from a judgment of conviction for first-degree burglary, second-degree robbery, identity theft, and possession of methamphetamine. On appeal, he assigns error to the trial court’s refusal to instruct the jury on the guilty except for insanity (GEI) defense and refusal to include a GEI option on the jury verdict form. Evidence at trial showed that defendant had burglarized a residence and, two days later, robbed an adult video store. Prior to trial, defendant was twice evaluated by a psychologist to determine to determine if he could aid and assist in his defense, and a third time for the purpose of offering testimony in support of a potential GEI defense. To establish a GEI defense, a defendant must show that, as a result of a mental disease or defect, he lacked the substantial capacity to appreciate the criminality of his conduct and to conform that conduct to the requirements of the law when he committed the crime. Evidence presented at trial showed that defendant was very low functioning, had persistent auditory hallucinations, and delusional beliefs. Defendant was diagnosed with unspecified schizophrenic spectrum or other psychotic disorder, which did not meet the full criteria for the disorders in the schizophrenia spectrum and other psychotic disorders class, and severe stimulant use disorder. The court concludes that even if there was sufficient evidence from which the jury could conclude that defendant suffered from a mental disease or defect, there was no evidence that, as a result, defendant lacked the substantial capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of the law. Because defendant did not establish a connection between defendant’s condition and his conduct, the trial court did not error in denying the GEI instruction or GEI option on the verdict form.

State v. Shields, 289 Or App 44 (2017) (Shorr, J.)

EVIDENCE

Evidence—Non-Hearsay—Out-of-court statement identifying defendant as the shooter not statement of identification

Declarant’s out-of-court statements identifying defendant as the shooter not statement of identification under OEC 801(4)(a)(C).

Defendant appeals from a judgment of conviction for second-degree assault and unlawful use of weapon. On appeal, defendant assigns error to the trial court’s admission of out-of-court statements by the victim’s girlfriend stating that defendant had shot the victim. Evidence at trial established that defendant, the victim, and the victim’s girlfriend were friends. One evening, they and defendant’s girlfriend got together in defendant’s camper trailer. There, defendant confronted the victim about Christmas presents that had been taken from a car. The victim’s girlfriend then heard shots and saw that the victim was hurt. She later identified defendant as the shooter in a lineup.

At trial, two officers testified that the victim’s girlfriend identified defendant as the shooter. Defendant objected on hearsay grounds to the first officer’s testimony and did not object to the second officer’s testimony. Under OEC 801(4)(a)(C) exception to the definition of hearsay for out-of-court statements of identification did not apply to officers’ testimony recounting statements of victim’s girlfriend identifying defendant as the shooter. To qualify as non-hearsay, the identification must result from, and not merely follow, the declarant’s perception of the person. Here, the girlfriend’s identification of defendant did not result from perceiving defendant in the line-up; rather, it resulted from her earlier acquaintance with defendant. Because the hearsay statements were not harmless, the court reverses and remands for a new trial.

State v. Hartley, 289 Or App 25 (2017)

JUVENILE DEPENDENCY/JUVENILE DELINQUENCY

Juvenile Dependency—Juvenile court’s jurisdiction to continue durable guardianship

Juvenile court erred in failing to determine whether it continued to have jurisdiction over child in durable guardianship.

Mother appeals from a juvenile court judgment entered after the court denied her motion to vacate the guardianship and terminate the court’s wardship over mother’s child. Juvenile court asserted jurisdiction over the child due to mother’s substance abuse in 2012. In a 2013 permanency hearing, the plan for reunification with the child was changed to a durable guardianship. In 2016, mother moved to vacate the guardianship and terminate the court’s wardship over the child on the grounds that she had ameliorated her substance abuse issues. By statute, a durable guardianship may continue only if the juvenile court has jurisdiction over the child. Here, the court concludes that the juvenile court erred by failing to determine whether it continued to have jurisdiction over the child. The court vacates and remands to the juvenile court to make that determination.

DHS v. J.C., 289 Or App 19 (2017) (Armstrong, P.J.)

SEARCH & SEIZURE

Motion to Suppress—Warrantless Search—Scope of Search Incident to Arrest Exception

Search of defendant’s Jeep for two concealed guns lawful incident to defendant’s arrest for carrying a third concealed handgun.

Defendant appeals from a judgment of conviction for three counts of unlawful possession of a firearm and assigns error to the trial court’s denial of his motion to suppress evidence. An officer had initiated a traffic stop after observing defendant speeding. The officer saw defendant “doing a lot of motion,” before coming to a stop. After defendant’s Jeep came to a stop, defendant exited, against the officer’s repeated directions to stay in the car. The officer quickly detained defendant against the Jeep. The officer saw a machete through the window and found pistol magazines, an empty holster, and two knives on defendant. The officer asked defendant what was going on, and defendant said he had “an open carry going on.” The officer asked defendant if he had a permit, and defendant said no. At that point, the officer believed that defendant was in possession of an unlawfully concealed firearm. The officer asked defendant where the gun was, and defendant said nowhere and then in the car. After being handcuffed, defendant told the officer that there were two more guns in the Jeep. The officer asked about the location of the guns and then administered Miranda warnings.

Before trial, defendant moved to suppress. The trial court suppressed defendant’s statements after he was handcuffed, but not the guns on the basis that they were found in a lawful search incident to defendant’s arrest for carrying a concealed weapon. On appeal, the court concludes that the search for the two additional handguns were lawfully discovered incident to defendant’s arrest for carrying a concealed weapon. Under State v. Anfield, 313 Or 554 (2012), the officer’s search of defendant’s Jeep was permissible incident to his arrest for unlawful possession of a firearm even though the officer was searching for evidence of a new crime, not further evidence of defendant’s unlawful act of possession.

State v. Bladorn, 289 Or App 1 (2017) (Hadlock, C. J.)

SENTENCING

Sentencing—Resentencing—Increased sentence and scope of remand

Resentencing court did not error in imposing increased dangerous offender sentence where court articulated wholly logical, non-vindictive reasons for the increased sentence and initial sentencing court’s finding that defendant was a dangerous offender was binding under the law-of-the-case doctrine.

Defendant appeals a judgment of conviction and challenges the sentence he received on remand after a successful appeal. The Court of Appeals had concluded that a 280-month sentence imposed on one of defendant’s convictions was erroneous and remanded for resentencing. On remand, the resentencing court relied on the first sentencing court’s finding that defendant is a dangerous offender and, based on that finding, imposed a 30-year indeterminate sentence with a 120-month minimum determinate sentence.

On appeal, defendant again challenges his dangerous-offender sentence and makes two arguments. First, defendant argues that the increased sentence violates State v. Partain, 349 Or 10 (2010), because the record is insufficient to justify the increase. The court rejects that argument because the resentencing court articulated wholly logical, non-vindictive reasons for the increased sentence. Second, defendant argues that the resentencing court could not rely on the dangerous-offender designation of the initial sentencing court because defendant had not waived jury on remand. The court rejects that argument because defendant did not challenge the trial court’s finding in his first appeal and reversal of his sentence did not reverse the initial sentencing court’s finding that defendant is a dangerous offender.

State v. Rienke, 289 Or App 10 (2017) (Armstrong, P.J.)

Sentencing—Compensatory Fine—Plain Error

Imposition of a compensatory fine in addition to a punitive fine is plain error.

State v. Kellison, 289 Or App 55 (2017) (Per Curiam)

Sentencing—$2,000 Fine for Third DUII, $255 State Obligation, $60 Mandatory State Amount—Plain Error

Trial court plainly erred in imposing $2,000 fine for defendant’s third DUII conviction because court erroneously believed that the fine was mandatory rather than discretionary when the sentence includes jail. Trial court failed to exercise discretion when imposing a $255 fine. Trial court had no authority to impose $60 mandatory state amount.

State v. Larson, 289 Or App 60 (2017) (Per Curiam)