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Oregon Appellate Court – Sept 27, 2017

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by: Msell@mpdlaw.com • October 2, 2017 • no comments

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

CRIMES/CONTEMPT

Violating a Stalking Protective Order—MJOA

Stalking protective order did not prevent defendant from waiting outside his daughter’s school for 10 seconds when people protected by the SPO were not present.

Defendant and his ex-wife (L) have two children, who both live with L. L obtained a stalking protective order that prevented defendant from having any contact with L, including “waiting outside the * * * school” of L or a member of L’s family or household. Defendant and his companion went to a daughter’s school about two and a half hours after L had picked up the daughter from school. The door was locked, so defendant rang a door buzzer to be let in. Defendant and his companion waited about 10 seconds before the door remotely unlocked, permitting them to enter. The state charged defendant with violating the stalking protective order. The court holds that this stalking protective order did not intend to prohibit the incidental and momentary pause required for defendant to gain entry into school—a place that defendant was not prohibited from going when neither L nor his daughters were present.

State v. MacDonald, 288 Or App 20 (2017) (DeVore, J.)

DUII—Attempted DUII instruction

Defendant not entitled to attempted DUII instruction based on theory that he was attempting to become intoxicated.

An officer pulled defendant over for failing to stop at a stop sign. Defendant told the officer that he had five or six beers at a local tavern over a four-hour period. The officer observed other signs of intoxication, and defendant failed two field sobriety tests. About an hour and a half after the arrest, defendant’s blood alcohol concentration (BAC) was .09 percent.

At trial, defendant requested that the court instruct the jury on attempted DUII on the theory that his BAC was rising at the time of the stop. The trial court refused to give the instruction and, following his conviction, defendant appealed. The court holds that the trial court did not err in refusing the give the attempted DUII instruction based on defendant’s theory of attempted intoxication. Because intoxication is a status that does not require conduct, intent, or a mental state, criminal attempt liability is inapplicable.

State v. Snyder, 288 Or App 58 (2017) (Shorr, J.)

PCR/HABEAS CORPUS

Post-Conviction Relief—Statute of Limitations

Two-year limitation period applies to successive petitions.

Petitioner/defendant pleaded guilty in 2009, and his appeal became final in September 2011. He timely filed for post-conviction relief, which was denied in December 2012. He filed a second petition in February 2014, after the passage of the limitation period, and an amended petition in September 2014 (hereinafter “the successive petition”). In the successive petition, petitioner alleged that he was entitled to post-conviction relief because the state violated its plea agreement to release a computer seized as evidence to defendant’s parents. Petitioner had learned of the breach in May 2013. The superintendent moved to dismiss, reasoning, among other things, that the successive petition was untimely because petitioner had actual knowledge of the claim during the two-year limitation period but failed to raise the claim during that time. The trial court granted the dismissal motion, and petitioner appealed. The court holds that the two-year statute of limitations in ORS 138.510(3) applies to successive petitions. Because petitioner had actual knowledge of the breach during the limitations period, he was required to raise that claim before the limitation period lapsed.

Maidens v. Nooth, 288 Or App 37 (2017) (DeHoog, J.)

SEARCH & SEIZURE

Motion to Suppress—Lost property exception—Officer lacked objectively reasonable belief that cell phone was lost

Warrantless search of cell phone not justified by lost-property exception to warrant requirement because officer lacked objectively reasonable belief that phone was lost property.

A woman dropped off a cell phone at a police station, explaining that the phone belonged to a man who she had kicked out of her home. A short time later, in an attempt to identify the phone’s owner, a police officer searched the phone, including the phone call log and the photograph file. The officer saw a sexual depiction of a minor and stopped his search. The officer then saw a text message screen that identified defendant. The officer recognized defendant’s name from a call he had responded to earlier in the day regarding an unwanted subject in a woman’s house. The officer contacted the woman, who turned over a folder that she said contained evidence of child pornography. A warrant search of the phone and folder revealed evidence of child pornography.

The court held that the lost-property exception to the warrant requirement did not apply because the state failed to establish that the officer had an objectively reasonable belief that the phone was lost property. The woman dropped off the phone at the police station so that its owner would not return to her home, not so that the police could identity its owner. Additionally, the person who received the phone from the woman did not attempt to obtain the woman’s or defendant’s identity. In that context, it was unreasonable for the officer to quickly conclude that the phone was lost without waiting a reasonable time for the phone’s owner to come forward. The state failed to establish that the evidence of child pornography in the folder would have been inevitably discovered because no evidence establishes that the officer would inevitably have identified or located the woman who turned over the phone, which led to the discovery of that evidence.

State v. Woods, 288 Or App 47 (2017) (Shorr, J.)

SENTENCING

Compensatory Fine—Plain Error

Trial court plainly erred in imposing a $5,000 compensatory fine in addition to the $200 punitive fine on each count of conviction.

State v. Moore, 288 Or App 85 (2017) (Per Curiam)

$2,000 Fine for Third DUII—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.

State v. Loudermilk, 288 Or App 88 (2017) (Per Curiam)

Merger—Notice of "sufficient pause"

Existence of “sufficient pause” for application of the anti-merger statute not an “enhancement fact” requiring notice under ORS 136.760(2).

State v. Silas, 288 Or App 93 (2017) (Per Curiam)

Merger—Felon in possession of a firearm--Plain Error

Trial court plainly erred in failing to merge separate convictions for felon in possession of a firearm.

State v. Russell, 288 Or App 96 (2017) (Per Curiam)