Oregon Appellate Court - 7-5-2012

by: Abassos • July 5, 2012 • no comments

Inherent Contempt - Nine month delay in imposing sanction is too long

A court must impose inherent contempt sanctions at the first reasonable opportunity. Defendant was held in contempt for yelling at the court after receiving a guilty verdict on a harassment charge. The trial court imposed a sanction nine months later, after defendant was acquitted on retrial. Because the justification for the summary imposition of a direct contempt sanction depends on the need to protect the authority and dignity of the court, the court's inherent contempt power is subject to a temporal constraint. Where there were no exigencies to require a delay, the imposition of the sanction after a nine month delay exceeded the trial court's contempt authority. State v. Spainhower

Punitive Contempt - Confessions Must Be Corroborated

Contempt confessions must be corroborated. Here, the defendant admitted to taking drugs in violation of his probation after he was told of his positive result from a drug test, which was later suppressed. The fact that the defendant had been on probation for a drug possession charge and had been ordered to undergo treatment, which he did not do, does not provide proof that the defendant actually used drugs and is therefore insufficient to corroborate the confession.

Also, because a judgment of punitive contempt, like a criminal conviction, is stigmatizing, a contempt appeal is not rendered moot by completion of confinement. State v. Hauskins

Merger - Robbery I

Merger is appropriate where separate counts represent the same act under alternative theories. Defendant was convicted of six counts of first-degree robbery at trial and appealed. The Oregon Court of Appeals finds that the subparagraphs of ORS 164.415(1), Robbery I, define a single crime and therefore the trial court erred when it entered separate convictions based on alternative theories of the same act. State v. Edwards

Resisting Arrest - Self Defense Instruction

A defendant in a resisting arrest case is entitled to a self-defense jury instruction if he reasonably believed that the arresting officers were using more physical force than was necessary. There was sufficient evidence for a self-defense instruction, in this case, where defendant had a limited understanding of English, attempted to let officers in, and was punched in the face.

Defendant's proposed instruction was an accurate description of the law where it was essentially a direct quotation from Oliphant but failed to state that, under the self-defense statute, a "person may use the degree of force which the person reasonably believes to be necessary." The instruction was not incomplete where the degree of force defendant used was not at issue. State v. Wan

Emergency Aid

The emergency aid doctrine allows officers to enter a home when they have an objectively reasonable belief that a warrantless entry is necessary to assist persons who have suffered or are imminently threatened with suffering serious physical injury or harm. Here, the officers that entered defendant's apartment knew that a woman had been crying in an apartment for four hours after an argument, could hear loud crying as they approached, and saw a woman lying in a fetal position. Thus, it was objectively reasonable for the officers to believe that the woman was threatened with serious physical harm. State v. Wan

Motions to Dismiss Must be Filed at Least 21 Days Before Trial

Under UTCR 4.0101, motions to dismiss must be filed at least 21 days before trial. Defendant filed a motion to dismiss for lack of speedy trial on the day trial proceedings were to begin. The trial court denied the motion as untimely under UTCR 4.0101. UTCR 4.0101 requires that pretrial rulings on matters subject to ORS 135.037 must be filed at least 21 days before trial. The defendant argued that ORS 135.037, the omnibus hearing statute, does not apply to all pre-trial motions. The court concluded, based on a reading of the ORS 135.037, that although it does not specifically mention motions to dismiss, the statute applies to all pretrial motion and requests. Therefore, the UTCR's 21 day timeline applies to motions to dismiss. In addition, the court concluded that the trial court's decision not to review the merits of the motion was justified because it would have caused a disruption in the judicial process and prejudiced the state. State v. Peterson

Due Process - Failure to Preserve Evidence

Police failure to preserve "potentially useful" evidence does not violate defendant's right to due process when the value of the evidence to defendant's case is speculative, and any failure to preserve such evidence is not a result of bad faith. Here, an unpreserved gun was only potentially useful when the forensic tests that defendant could have performed were speculative in nature. Nor did the police act in bad faith when they did not believe the gun was favorable to the defendant. Although the police acted negligently in returning the gun to a felon, this did not constitute bad faith. Lastly, any delay that resulted was due to the inertia caused by multiple changes in defense attorneys.

Limiting evidence is not prejudicial when its admitted use accomplishes the same thing as the proffered use. The judge admitted evidence that another transient possessed a black powder gun, but he did not admit the evidence to impeach the state's investigation, as proffered by defendant. Because the evidence accomplished the same thing, supporting the defendant's theory, the error was not prejudicial. State v. Faunce

Dependency - Jurisdiction > Based on Current Threat of Harm

When determining whether the court has jurisdiction because of conditions and circumstances, the court should focus on the child's current conditions and circumstances. Where mother moved out of abusive father's home, had not had contact with him for several months, and was participating in a parenting class and support group, there was no basis for jurisdiction because there was no current risk of harm. The likelihood that mother might in the future fail to recognize an abusive partner is insufficient to create a current threat. DHS v. LG

Dependency - Permanency Plan

To change a permanency plan from reunification to adoption, the court must find that despite DHS's reasonable efforts, a parent has not made sufficient progress to enable the child to return home safely. Where despite the parents' cooperation and participation in DHS services, they denied having any knowledge concerning the source of their infant's injuries (27 fractures in various stages of healing), the parents failed to make sufficient progress for reunification. Because DHS could not provide appropriate services to alleviate the risk of injury without knowing the cause of the injury, DHS's efforts were reasonable. DHS v. TR

There were no per curiams today.