Oregon Appellate Court - February 13, 2013

by: Jevans and Abassos • February 13, 2013 • no comments

Automobile Exception Applies Only When the Car is Mobile After Police Suspect It To Be Involved in Crime

Under Kurakowa-Lasciak, the automobile exception applies only when a car is mobile “at the time that the police encounter it in connection with a crime.” (emphasis added). When police see a vehicle moving before they suspect it is involved in a crime, but the vehicle is parked at all times after the suspicion arises, then the automobile exception does not apply. Here, police saw someone park a truck, but only later learned that this was the defendant’s truck. The subsequent search was unlawful because, by the time officers realized the truck was involved in a crime, it was parked and immobile. State v. Pirtle, ___ Or App ___ (Feb. 13, 2013).

A Waiver of Trial by Jury Must Be Supported by Evidence that the Waiver is Knowing and Voluntary

A trial judge’s finding of fact that a defendant executed a written waiver of trial by jury is not sufficient on its own to demonstrate that the waiver was voluntary and knowing. Reversed. State v. Gilbert, ___ Or App ___ (Feb. 13, 2013).

PCR - Prejudice

There is no prejudice, for purposes of Post-Conviction Relief, where counsel’s failure of skill and judgment had no negative consequence. Here, counsel failed to tell his client that a stipulation to separate acts could lead to the imposition of consecutive sentences. However, while the judge did impose consecutive sentences, he relied on a section of the consecutive sentencing statute that did not require separate acts. Thus, the stipulation was of no consequence with no resulting prejudice. Byersv. Premo, ___ Or App ___ (Feb. 13, 2013).

Vouching Not Admissible – Even in Support of a Medical Diagnosis

Comments “on the credibility of a witness [do] not become admissible merely because [they are] offered as part of a discussion of” a witness’s process of making a medical diagnosis. Here, defendant was charged with multiple sex crimes in relation to his step-granddaughter, K. At trial, K’s therapist testified that she had no “concerns or red flags [that K’s account] was some story that she adopted from somewhere else,” and that nothing about K led the therapist to believe that K was particularly suggestible. The court finds the therapist’s statements to be conclusions regarding K’s credibility which are inadmissible as “further support for [the] diagnosis.” All convictions supported by the therapist’s testimony reversed. State v. Preuitt, ___ Or App ___ (Feb. 13, 2013).

Evidence Admitted Despite Objection is not Cumulative when Re-Admitted on Cross Examination

If a judge overrules defendant’s objection during the State’s direct examination of a witness, it is not cumulative for the defendant to solicit the same testimony during cross-examination for purposes of discrediting the original assertion. Here, defense counsel objected to a therapist’s statements as to the credibility of the victim, and was overruled. Later, on cross, defendant brought up the testimony and attempted to address and challenge the therapist’s conclusion. On appeal of the overruled objection, the court finds that this is not a circumstance where the redundant evidence precludes the defendant from showing harm. State v. Preuitt, ___ Or App ___ (Feb. 13, 2013).

Sex Abuse II Can Be Lesser-Included of Sodomy I

Sex Abuse II is a lesser included offense of Sodomy I when the state’s theory is that the victim was incapable of consent due to mental defect, incapacitation, or physical helplessness. Here, the lesser-included instruction should have been given even though it may have been inconsistent with the defense theory. “[W]hether a lesser-included instruction must be given depends only on the evidence adduced at trial, not on the logical consistency between the instruction and the [defense’s] theory . . . .” State v. Cluver, ___ Or App ___ (Feb. 13, 2013). See also Ryan Scott's blog post about this case.

Per Curiams

• Must Merge Possession of a Stolen Vehicle into UUV—Upon conviction, trial court committed “plain error” when it failed to merge two counts of Possession of a Stolen Vehicle into two counts of Unauthorized Use of a Vehicle. State v. Epps, ___ Or App ___ (Feb. 13, 2013) (per curiam).