Oregon Appellate Court - Feb. 12, 2014
by: Abassos • February 12, 2014 • no comments
Retrograde Extrapolation is Scientific Evidence
Testimony regarding the likely amount of drinks a person consumed to get a certain blood alcohol content is scientific evidence. It requires "a formulaic calculation derived from scientific understandings of physiological processes that cannot be achieved through reading a training manual, conducting routine DUII investigations in the course of law enforcement, and attending an NHTSA course." Here, the arresting officer in a DUII case testified that defendant would have had to have had way more than the amount of drinks to which he testified at trial in order to get to a .17. Such testimony was scientific evidence on which the officer was not qualified to opine. The error was prejudicial because the case essentially amounted to a credibility contest. The officer arrested defendant at a campsite, to which defendant had driven an hour earlier. Defendant testified that he had a few drinks since arriving at the campsite. The officer was essentially testifying that the defendant had to be lying about how many drinks he had since he drove. State v Ohotto, 261 Or App __ (2014).
Using a Child as Display in Sexually Explicit Conduct - A Photo of A Sexual Act with a Child Present is Enough to Survive MJOA
The element of “permitting” sexual conduct in ORS 163.670 (using a child as display in sexually explicit conduct), is satisfied when a person allows a child to participate in sexually explicit conduct. “Participation” can occur through the actions of another participant without any volition of the victim. Here, the defendant photographed a sexual act with a consenting woman while a young child was in the background. One photo depicted the child near the act, touching the defendant’s leg, and reaching towards the defendant. While mere proximity to or observation of sexually explicit activity is not enough to prove that the child is participating in the sexually explicit activity, the evidence was sufficient to survive MJOA and for the reasonable trier of fact to infer that the child was put deliberately in the photograph to “participate” in the sexual conduct. State v. Richardson, 261 Or App __ (2014).
Crim. Mischief III is Not a Lesser-Included of Crim. Mis. II
Criminal mischief III is not a lesser-included offense of criminal mischief II because it requires the state to prove an element -- intent to cause substantial inconvenience to the owner—that isn’t included in criminal mischief II. Thus, the trial court erred when it convicted the defendant of the uncharged crime of criminal mischief III as a lesser-included offense. State v. Bax, 261 Or App __ (2014).
Unauthorized Departure is Not a Lesser-Included of Escape
Unauthorized departure is not a lesser-included offense of escape II or III because it requires the state to prove an element - transitional or temporary leave from a correctional facility - that isn't required for Escape. Accordingly, a defendant cannot be convicted of unauthorized departure when charged only with escape. State v. Gruver, 261 Or App __ (2014).
PCR - A Constitutionally Adequate Counsel Would Request a No Character Evidence Instruction in a Multi-Victim Rape Trial
Where defendant was charged with sex cases against 8 different victims, defense counsel should have requested an instruction informing the jury that they could not use other charges to find that the defendant, on any single charge, acted in conformity with an apparent propensity to sexually assault minors. The danger was obviously great, particularly in light of the prosecutor's specific argument that 8 different victims couldn't be just coincidence. Defendant suffered prejudice from the failure to request an instruction on all counts where the primary issue was credibility. Greene v Frank, 261 Or App ___ (2014)
Burglary - A Room Is "Open to the Public" if it Is Reasonable to Believe No Permission is Required to Enter
A room in a building is “open to the public” for the purposes of criminal trespass and burglary if its "physical nature, function, custom, usage, notice or lack thereof or other circumstances at the time would cause a reasonable person to believe that no permission to enter or remain is required." Here, two office burglaries were at issue. A room in a university building that was open to faculty and students would appear to be open to the general public and, therefore, was open to the public for the purposes of burglary. This is true even though defendant entered a more private area behind the counter. Since the state never proved that the area behind the counter was a separate unit or building, the question was whether the room was open to the public at all. However, a room on the 2nd floor of an office building was not open to the public where there were no people present, no signs indicating it was open and no reception or desk (and was, in fact, a private office). State v. Davis, 261 Or App ___ (2014)
DUII - Admissibility of Verbal Field Sobriety Tests Despite Admonishment
Verbal field sobriety tests are admissible so long as the defendant was not under the impression, based on the officer's words, that a refusal could be used in court. This is in contrast to physical FSTs which are not testimonial and can be compelled by an admonishment regarding the admissibility of a refusal. Here, the officer asked defendant to do physical FSTs and gave the admonishment regarding admissibility of a refusal. Immediately after, the officer asked defendant to do verbal FSTs, without clarifying that a refusal of verbal FSTs is not admissible. The court finds that there was sufficient evidence to support a finding that defendant understood the admonishment to only apply to the physical FSTs (based primarily on the officer's demonstration of the physical tests at the time of the admonishment). Affirmed. State v. Adame, 261 Or App ___ (2014)
AIP – Bad Court Behavior and Lengthy Criminal History Are Enough to Deny Eligibility for AIP
Under ORS 137.750, a judge must find substantial and compelling reasons to deny a defendant eligibility for early release or alternate incarceration programs (AIP). Here, the lower court did not err when determining that defendant’s court behavior at sentencing (indicating that he was “not remorseful”) and his lengthy criminal history served as compelling enough reasons to deny defendant eligibility for AIP. State v. Hikes 261 Or App ___ (2014)
Jury Instructions: Standard for Harmless Error
In determining whether an error in instructing the jury probably affected the outcome of a case, the court considers the instructions as a whole, in light of evidence provided at trial and the parties’ theories of the case. Here, the trial court gave UCJI 1900, which states the defendant is guilty of criminal trespass if the property entered was not open to the public, or the entry was unlicensed. However, case law requires the state to prove both that the property was not open to the public and the entry was unlicensed. The issue in the case was whether a reasonable person would know the property is not open to the public. The court notes that the jury was instructed not to find guilt if a reasonable person would believe the property is open to the public, and holds the error as harmless considering the instructions as a whole in light of the evidence provided and the parties’ theories of the case. State v. Nugent 261 Or App ___ (2014)
