Oregon Appellate Court - August 22, 2012
by: Sduclos • August 22, 2012 • no comments
For a defendant to establish that his 6th Amendment right to confrontation was violated, he must show that (1) the out-of-court statements were testimonial, and (2) the witness was not available for cross examination.
Here, the victim in a child sex abuse case testified on direct as to the date and truth of her statements to a DHS worker, but did not testify as to their content. At the end of its case-in-chief, the state played a DVD of the victim's DHS interview, and the defendant did not recall the victim to question her. The court holds that although the statements were testimonial, this tactic did not violate defendant's right to confrontation because the witness was available in court to be questioned.
The defense also argued that the victim's mother should not have been permitted to testify about statements made by the victim while riding in the back seat of the family car. The court holds that this was not the "functional equivalent" of testimony, and the statements were properly admitted. State v. Pollock.
Demonstrating a Walk is Not Testimonial Evidence
Because walking is physical evidence concerning appearance or physical condition, and does not communicate beliefs, knowledge, or state of mind, it is not testimonial evidence.
Here, surveillance video showed someone stealing a gun from a vehicle. Defendant sought to demonstrate his walk in order to show the peculiarity of his walk due to a broken back. The trial court ruled that demonstrating a walk was testimonial and that by demonstrating the walk Defendant would waive his right not to testify. Defendant chose not to demonstrate his walk and was convicted. The court holds this to be harmful error and reverses. State v. Fivecoats
Reckless Burning > Property must have market value or replacement value
Property that is burned in an arson-related offense must have a market value or a replacement value. If market value cannot be shown, there must be a cost for replacement. Here, Defendant burned a used cracker wrapper, an unspecified quantity of toilet paper, and a paper drinking cup in his room at a rehab center. The State failed to show that there was an actual market or replacement cost for the items burned.
The state also failed to show that the items were "the property of another," which requires that someone other than the actor has a legal or equitable interest in the property. Nothing in evidence showed that the items burned were meant to be returned to the rehab center as their own property. Reversed. State v. Nyhuis.
Rules of Conduct Provided by Department of Corrections Are Not "Rules" under the APA
"[R]ules of conduct for persons committed to the physical and legal custody of the Department of Corrections, the violation of which will not result in disciplinary procedures adopted pursuant to ORS 421.180" are not "rules" for the purposes of the APA. ORS183.310(9)(f). Here, the defendant challenged a notice that warned that "inappropriate behavior could also warrant exclusion from participation in the hearing." Because the notice was a rule of conduct, not discipline, the the department did not need to follow the APA notice requirements. Smith v. Dept. of Corrections
Permanency Plan Under Indian Child Welfare Act (ICWA) - DHS Must Prove "Active Efforts" Toward Family Reunification Where Child is an "Indian Child"
Where a child is an "Indian Child," DHS must demonstrate "active efforts" before changing the permanency plan. Here, mother had two children, one, A, who was an "Indian Child" and one, J, who was not. DHS must make "active efforts" respecting A and reasonable efforts respecting J. Both of A's parents were incarcerated and parties to the case. J's father was unknown.
Mother: DHS worked with mother's prison counselor and facilitated letter-writing between mother and children and attempted to allow the children to visit mother in DOC custody, but the child's psychologist did not recommend it. DOC would not provide drug and alcohol treatment, but mother nonetheless received AA and similar services with DHS assistance. Thus, DHS made "active efforts" to reunify mother with A (and "reasonable efforts" to reunify with J as well).
Father: Father did not have any prior knowledge that he was A's father. DHS made efforts to establish a parental relationship between them by approving written contact, contacting Comanche Nation concerning the permanency plan and A's enrollment, reconnecting father with his relatives, giving A cultural books about Comanche Nation, and holding a meeting with father and attorney. However, DHS did not offer father any parenting programs, as requested by the Comanche Nation. Thus, DHS failed to make "active efforts" to reunify father with A. DHS v. DLH
