Oregon Appellate Court - Nov 27, 2013

by: Abassos • November 30, 2013 • no comments

Consent to Search Expires When the Search is Terminated

Consent to search normally expires on the termination of that search. It does not automatically extend to a later search by a different officer. Here, defendant gave consent to search her car during an unavoidable lull. That officer completed his search and handed off the stop to a 2nd officer who completed the citation, and created a new stop without reasonable suspicion, in which he gained consent to search. The first officer's consent did not extend to the 2nd search because the first search was clearly terminated when the 2nd officer took over. State v Marino, 259 Or App ___ (2013)

Vouching - Detective's Training and Experience in Determining Credibility

It was inadmissible vouching when a detective testified that when defendant paused after a question during a police interrogation, that indicated to the officer, from his training and experience, that defendant was being deceptive. Such vouching was not harmless because defendant's credibility was an issue in the trial and the officer's statement that he had the ability to discern deception is likely to affect a jury. State v Watts, 259 Or App ___ (2013)

Sentencing Proportionality is For Individual, Not Aggregate, Sentences

A proportionality analysis is not required for an aggregate sentence. Here, defendant was sentenced to 119 months for 10 convictions of possessing child porn (encouraging child sex abuse). Since none of the individual consecutive sentences (16, 27, 35 and 41 months) would shock the moral sense of reasonable people, the sentence is constitutionally proportionate. State v Parker, 259 Or App ___ (2013)

DOC's Porn Ban Okay

The Department of Corrections rule banning sexually explicit material neither violates inmate petitioner's freedom of expression, nor that of his wife Stormii. It also does not exceed the DOC's statutory or rulemaking authority. OAR 291-131-0035. Wilson v DOC, 259 Or App ___ (2013)

Knowledge of a Crime Not Enough for Accomplice Liability

Knowledge of and presence at a crime are insufficient to establish criminal liability. Here, the court sorts through a complicated set of facts to find that a signed plan was insufficient to infer fraud (theft) related to defendant's husband's disability payments; a signed tax return was enough to infer tax evasion; and a letter written by defendant, was sufficient to infer theft of food stamps from the state. State v Stewart, 259 Or App ___ (2013)

Dependency - Right to Testify at a Hearing on a Change to Adoption

There is a right to testify, and be present, at a hearing on a permanency plan change to adoption. Here, the court twice unsuccessfully attempted to call father at the prison where he was being held and then started the hearing without father. The court violated father's rights under ORS 419B.875(2)(b) and prejudice resulted because father's willingness to participate in treatment upon release was relevant to the determination of whether to make the change to adoption. DHS v DJ, 259 Or App ___ (2013)

Dependency - TPR - Anger Issues

After reviewing 16 pages of facts, the court finds that father's continued volatility and anger problems were seriously detrimental to his child and that, given the persistence of the problems and the child's need for permanence, reintegration would not occur within a reasonable amount of time. Thus, termination of father's parental rights was appropriate: "When considered individually or in the abstract [father's outbursts] may not appear particularly significant, but, when they are considered in the context of father's psychological deficits and his historical pattern of behavior, the evidence is clear and convincing that father is prone to acting in an angry, impulsive, and reactive manner regardless of the treatment he had successfully completed at the time of trial." DHS v FJS, 259 Or App ___ (2013)

Per Curiam

• A government issued check, here a US Treasury check, is not an "other valuable instrument" for the purposes of Forgery I. State v Torrez, 259 Or App ___ (2013)
• A Miles instruction is inappropriate in a DUII case unless there is "evidence that the defendant's condition made him more susceptible to the influence of alcohol". Here the state concedes there was none. State v Rich, 259 Or App ___ (2013)