Oregon Appellate Court 02-16-11

by: Abassos • February 15, 2011 • no comments

Read the full article for details about the following new cases:

• Waiver of Jury Trial - Enhancement Facts
• Waiver of Jury Trial - The Prosecutorial "Objection"
• Waiver of Jury Trial - Conditional Release Agreements not Sufficient
• Unlawful Use of a Weapon - Merger and Lesser-Included Offenses
• Mandatory Terms of Post-Prison Supervision - Mootness
• Motions for New Trial - Appellate Review
• Aiding and Abetting - "Mere Presence" Insufficient
• Money Laundering - Intent to Promote a Future Unlawful Activity
• FDWS: Proof of Suspension's Existence (not Validity) Required
• CAA Fees - Requesting Special Findings of "Ability to Pay"
• Diagnosis of Sexual Abuse - Confirmatory Physical Evidence and OEC 403
• Involuntary Commitment - Sufficiency of the Evidence
• PPS and First Degree Rape - Max Indeterminate Sentence Less Time Served

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Waiver of Jury Trial: Enhancement Facts===

Even though the state provided adequate notice of its intent to rely on juvenile adjudication as an "enhancement fact," the trial court correctly concluded that State v. Harris, 339 Or. 157 (2002) precluded the use of that adjudication at sentencing. In so ruling, the COA rejected the State's argument that guilty pleas entered following the State's compliance with the notice provisions of ORS 136.765 create an "implied waiver" of the right to a jury trial on enhancement factors.

In order for a defendant's consent to waiver of a jury trial on enhancement facts to be valid, the trial court must obtain a written waiver specifically addressing that right; however, the trial court's failure to obtain such a waiver does not warrant remand to allow the State a second opportunity to prove enhancement facts. Affirmed. State v. Lafferty

Waiver of Jury Trial: The Prosecutorial "Objection"

Defendant requested the trial court's consent to a waiver of jury trial. In rejecting that request, the trial court relied, at least in part, on the prosecution's "request that the Court exercise its discretion" before consenting to such a waiver.

Affirming the trial court, the COA notes the general principle that "if the trial court's decision was based simply on the fact that the state opposed defendant's jury-waiver request, that is, if the court effectively gave the state veto power over defendant's request, then the court's ruling violated Article I, section 11." At the same time, however, "the state's position on whether the court should grant a requested jury waiver was intended to be an appropriate factor for a court to consider in exercising its discretion to grant or deny a waiver." The facts of this case fell within the latter category rather than the former. State v. Wilson

Waiver of Jury Trial: Conditional Release Agreements not Sufficient

In a bench trial, defendant was convicted of multiple offenses. On appeal, defendant claimed that the use of a bench trial was constitutional error because the trial court failed to assure that she had waived the right to a jury trial. The State countered by arguing that the following language from defendant's conditional-release agreement sufficed to constitute a waiver: "If I fail to appear, I realize that my release agreement will be revoked, a warrant will be issued for my arrest and the jury will be notified not to appear."

In summarily rejecting the State's argument and reversing the defendant's conviction, the COA notes that "[w]e think that a written waiver of a criminal defendant's constitutional right to trial by jury must be made of sterner stuff" than the evidence relied on by the State. Reversed and remanded. State v. Bailey

Unlawful Use of a Weapon: Merger and Lesser-Included Offenses

As an initial matter, the COA rejects defendant's contention that the merger analysis in State v. Crawford, 215 Or. App. 544 (2007) (unlawful use of a weapon), is no longer good law in light of the "one unified legislative objective test" elucidated in State v. White, 346 Or. 275 (2009) and State v. Parkins, 346 Or. 333 (2010).

Second, the COA also rejects defendant's argument that his conviction for ORS 166.220 (1)(b) was a lesser-included offense of his conviction for 166.220 (1)(a). As plead, subsection (1)(a) required a discharge of a weapon within Portland city limits. On the other hand, subection (1)(b) required carrying or possession of a weapon with intent to use against another person. In passing, the COA also notes that discharge of a weapon may occur without carrying or possession: "for example, when a defendant rigs a gun to fire in his absence." Affirmed. State v. Gray

Mandatory Terms of Post-Prison Supervision: Mootness

Defendant challenged, on ex post facto grounds, the trial court's corrected judgment determining that he was not eligible for good-time credits on multiple sex crimes. The COA refused to rule on the merits of the case because defendant had already completed his term of incarceration and was facing a mandatory term of PPS: "[W]hen an inmate subject to a post-prison supervision term pursuant to ORS 144.103(1) is released from prison, that release does moot any appeal that concerns the date on which he should have been released from prison, because that release date does not govern the length of the inmate's term of post-prison supervision." State v. Fulleylove

Motions for New Trial: Appellate Review

The COA refused to review defendant's argument that the trial court erred in denying his motion for a new trial made pursuant to ORCP 64B. Defendant's claim of error was a violation of his Sixth Amendment right to counsel based on the trial court's denial of a motion for continuance. However, the COA notes that appellate review of decisions made pursuant to ORCP 64B is appropriate "only if the motion was based on alleged juror misconduct or newly discovered evidence." State v. Alvarez-Vega

Aiding and Abetting: "Mere Presence" Insufficient

Defendant and his associate both assaulted the victim, who suffered a fractured orbital socket, fractured jaw and a lacerated arterial vein. However, defendant's associate did so first and did so with steel-toed boots. Defendant's blows were accomplished approximately a minute and a half afterwards and, arguably, without a weapon.

In reversing defendant's conviction for aiding and abetting his associate's assault, the COA notes that "[a]lthough defendant assaulted the victim about a minute and a half after Cufaude had broken off his assault, there is nothing-aside from defendant's 'mere presence' when Cufaude was kicking the victim-to establish that Cufaude's conduct and defendant's conduct constituted anything more than uncoordinated, seriatim assaults." But because the indictment was worded broadly and the jury did not explicitly reject the lesser-included offense of second-degree assault, the case is remanded for further proceedings. State v. Burgess

Money Laundering: Intent to Promote a Future Unlawful Activity

Defendant was charged with money laundering pursuant to ORS 164.170 (1)(b)(A) ( the "Promotion Prohibition"). The record at trial showed that defendant had made multiple fraudulent ATM withdrawals and had then transferred the money to Russia. Defendant submitted a MJOA due to the failure of the State to produce any evidence from which the jury could infer an intent to promote unlawful activity.

In reversing defendant's conviction, the COA held that "the Oregon statutes that prohibit transactions intended to promote the carrying on of unlawful activity to apply only to those transactions intended to promote future unlawful activity." (Emphasis added). Therefore, because the State offered no evidence indicating the facilitation of future unlawful activity, defendant's MJOA should have been granted. State v. Kholstinin

FDWS: Proof of Suspension's Existence (not Validity) Required

Defendant was convicted of Felony Driving While Suspended based, in large part, on the admission of a DMV suspension packet that included her driving record and proof that she received her suspension notice. On appeal, defendant argued, inter alia, that the State's failure to introduce adequate evidence to prove the fact of her prior conviction required acquittal.

In rejecting the defendant's arguments, the COA notes that the allegation of FDWS in this case only required proof that (1) the DMV had suspended defendant's license based on prior conviction for assault with a motor vehicle and (2) that defendant was driving while suspended. No proof of the validity of the underlying conviction is required. Thus, defendant's DMV driving record was sufficient to establish the proof required by prong (1). Affirmed. State v. Rust

CAA Fees: Requesting Special Findings of "Ability to Pay"

Defendant plead guilty to multiple offenses and, after imposition of sentence, asked the trial court to waive imposition of CAA fees based on the length of the sentence imposed. Defendant made no request that the trial court make special findings concerning his ability to pay. On appeal, defendant contends that imposition of CAA fees was error because no findings were made concerning his ability to pay. See ORS 151.505 and 161.665; Bacote v. Johnson, 333 Or. 28 (2001)

Two aspects of the COA's opinion are worth noting. First, the COA held that defendant failed to preserve his objection to the imposition of fees because he made no request that the requisite special findings be made. Second, and perhaps just as importantly, the COA goes out of its way to note that "defendant does not contend that the sentencing court lacked authority to impose payment of attorney fees because there is an absence of evidence of his ability to pay them." Affirmed." State v. Ashley

Diagnosis of Sexual Abuse: Confirmatory Physical Evidence and OEC 403

Trial court committed reversible error by admitting, in contravention of OEC 403, the testimony of a nurse practitioner that she diagnosed the alleged victim as "highly concerning" for sexual abuse despite the absence of any confirmatory physical evidence. Reversed and Remanded. State v. Legore (per curiam)

Involuntary Commitment: Sufficiency of the Evidence

The State concedes, and the COA accepts, that the trial court's decision to commit was based on legally insufficient evidence. Reversed. State v. A.S. (per curiam)

PPS and First Degree Rape: Max Indeterminate Sentence Less Time Served

In light of the fact that the maximum indeterminate sentence for First Degree Rape is 20 years, the State concedes, and the COA accepts, that the trial court erred in sentencing defendant to a PPS term of 20 years in addition to his term of 100 months incarceration. State v. Clark (per curiam)