Oregon Appellate Court 02-23-11

by: Abassos • February 22, 2011 • no comments

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

• Jury Trial - Enhancement Facts on Remand for Resentencing
• Jury Trial - In-Trial Waivers and The Prosecutorial "Objection" Revisited
• Miranda Warnings - Exploitation and Pre-Miranda Interrogations
• Using a Child in a Display of Sexual Conduct - Definition of "Permitting"
• Restitution - Contested Amounts and Required Hearings
• Negotiating a Bad Check - Proof of "Knowledge" that a Check will not be Honored
• DUII Diversion - Timeframe for Acts Relevant to Revocation
• Search and Seizure - Traffic Stops and Possessory Interests in Automobiles
• Parole Revocation - Requisite Evidence, Vagueness of Special Conditions and Right to Counsel
• Motion for Reconsideration - Successfully Appealing Denial of MTS
• Diagnosis of Child Sexual Abuse - Plain Error to Admit Absent Physical Corroboration

Another busy day at the COA features 11 new criminal opinions, two of which are resolved per curiam. The issues span a variety of topics, including the application of Blakely on remand, the exploitation-type analysis used for Miranda violations, and possessory interests in automobiles under Article I, section 9. Forgive the lengthiness of the synopses, but many cases address multiple issues-so be sure to give them a good skim.

Jury Trial: Enhancement Facts on Remand for Resentencing

Defendant had previously won an appeal challenging the erroneous imposition of a PPS term. On remand, defendant also argued to the trial court for the first time that Blakely precluded an upward departure to his manslaughter conviction based on certain judicial findings of fact. The trial court rejected this argument, apparently believing that the limited nature of defendant's COA victory required a similarly narrow approach on remand.

Multiple aspects of the COA opinion are worth noting. First, the COA finds that Blakely applies to cases on direct appeal that were originally decided prior to that decision, but now require remand for resentencing. Second, the COA notes that when a sentence is vacated and a case remanded pursuant to ORS 138.222(5)(a), then the entire sentence is vacated. Third, the trial court must entertain all constitutional sentencing arguments made by a defendant at resentencing. Accordingly, in the case of a Blakely argument, ORS 136.792 requires that a trial judge empanel a jury for enhancement facts not previously found by a jury. Sentence vacated and case remanded for resentencing. State v. Hollingquest

Jury Trial: In-Trial Waivers and The Prosecutorial "Objection" Revisited

After submitting a case to the jury, the trial court received an incomprehensible question from the jurors regarding the mens rea of self-defense. The court asked the jury to rephrase the question, which it never did. The defendant moved to waive jury trial, arguing that the question demonstrated that the jury was "hopelessly confused." The state objected and the court denied the requested waiver.

As an initial matter, the COA assumes, without deciding, that a defendant may waive jury trial at any point prior to a jury verdict so long as the waiver is in writing and the court consents. However, the lateness of a request for waiver is an appropriate factor in considering whether to reject that request. Under the facts of this case, the trial court considered appropriate factors, properly exercised its discretion and did not give undue weight to the state's objection. Affirmed. State v. Harrell

Miranda Warnings: Exploitation and Pre-Miranda Interrogations

Defendant was taken into custody and interrogated on multiple occasions by the arresting officer. The first set of interrogations occurred directly after the arrest, and the officer informed defendant that none of his responses would be admissible as he had not yet been Mirandized. The second set of interrogations occurred after defendant had been booked and Mirandized.

Applying the recent decision in State v. Vondehn, 348 Or. 462 (2010), the COA notes that the "dispositive question" in such circumstances is "whether, in light of the previous unwarned questioning, [the officer's] belated Miranda warnings were sufficient to ensure that defendant's decision to waive his right to remain silent was voluntary." Answering that question in the affirmative, the COA recounts several factors relevant to its inquiry:

1. The nature of the questioning before and after the Miranda warnings;
2. The existence of a temporal break between pre- and post-Miranda questioning;
3. Whether the officer informed defendant that pre-Miranda statements are inadmissible; and
4. Whether any additional coercion was present during post-Miranda questioning.

Affirmed. State v. Bielskies

Using a Child in a Display of Sexual Conduct: Definition of "Permitting"

Defendant was convicted under ORS 163.670 for "permitting" his daughter to engage is sexual conduct with his housemates on several occasions. Defendant never actively participated in the abuse. At trial, defendant filed, and lost, a MJOA on the grounds that he could not have "permitted" the participation of his daughter, as they had no legal relationship and therefore he could neither permit nor restrict her behavior.

On appeal, the COA focuses heavily on a legislative intent in concluding that defendant's narrow construction "is unfathomable." Therefore, the COA holds, "when it used in ORS 163.670 the phrase 'permits…a child to participate or engage in sexually explicit conduct,' the legislature did not intend to limit liability to those with a legal relationship to the child; rather, we conclude that the legislature intended 'permit' to convey the broader meaning of 'allow' or 'make possible.'" Affirmed. State v. Porter

Restitution: Contested Amounts and Required Hearings

Defendant objected to restitution and requested a hearing pursuant to ORS 137.106(5). Although initially agreeing to a hearing, the trial court executed a restitution order without providing defendant an opportunity to contest the restitution figure.

The COA accepts the state's concession that the trial court's imposition of restitution without a hearing was error under the circumstances: "The plain text of ORS 137.106(5) requires that, when a defendant objects to the amount of restitution and asks for a hearing, the trial court must accede to such a request. The failure to do so constitutes reversible error." Remanded for resentencing.[http://www.publications.ojd.state.or.us/A141891.htm State v. Umphery]

Negotiating a Bad Check: Proof of "Knowledge" that a Check will not be Honored

Defendant was convicted of passing bad checks under ORS 165.065 upon proof that he informed a hotel manager that the check with which he was paying was not supported by sufficient funds. The check was never cashed and defendant's accounts never audited. Defendant filed a MJOA on the ground that the state failed to satisfy the prima facie elements of "knowledge" required by ORS 165.065(2)(a) & (b).

The COA rejects defendant's argument that 165.065(2)(a) & (b) add elements to the crime of negotiating a bad check. Rather, meeting the dictates of that statutory subsection is merely one way of obtaining a permissive inference concerning the defendant's awareness that a check would not be honored. In this case, defendant's statement to the manager was another permissible avenue. Affirmed. State v. Kirkland

DUII Diversion: Timeframe for Acts Relevant to Revocation

At the end of his diversion period, defendant had a remaining balance of $3 in filing fees but had not filed for a six-month extension. Furthermore, after the diversion period had concluded but before the DUII charge was dismissed, defendant was charged with a new DUII offense. The state initially moved for revocation due to non-payment of fees. However, in its amended complaint the state focused only on the new DUII allegation. The trial court waived the $3 balance and concluded that the new charge did not provide a basis for revocation.

In rejecting the trial court's resolution, the COA makes two significant observations. First, the state's failure to raise the issue of non-payment of fees does not impact the affirmative duty to terminate diversion placed on the trial court by ORS 813.225. Second, the COA holds that:

when a trial court considers whether to terminate a diversion agreement and enter a guilty plea pursuant to ORS 813.255(5)(a) on the ground that a "defendant [has failed] to fulfill the terms of the diversion agreement," the court must look solely to whether, within the time required by the agreement-including any extension authorized by ORS 813.225-the defendant fulfilled the terms of the agreement.

Therefore, defendant's new DUII allegation was irrelevant. On the other hand, the trial court erred in attempting to waive the filing fees after the expiration of the diversion agreement because defendant had not applied for an extension. Reversed and remanded. State v. Reed

Search and Seizure: Traffic Stops and Possessory Interests in Automobiles

Defendant, whose license was suspended, owned a truck that was being driven by third parties. After seeing the truck weave over the center line, an officer ran the plates and pulled it over upon learning of defendant's status. During the stop, the officer asked the driver and passenger where defendant was, and they indicated that he was driving a motor home a short distance ahead of them. The officer then pulled defendant over and cited him for DWS. Defendant moved to suppress the statements made by the occupants of the truck.

On appeal, the COA rejects defendant's argument that the officer "significantly interfered" with his possessory interest in the truck. In doing so the COA distinguishes two cases. Here, the sixty to ninety-second detention of defendant's truck to interrogate its passengers is constitutionally distinct from the hour-long detention in State v. Juarez-Godinez, 326 Or. 1 (1997). Defendant's reliance on State v. Smith, 327 Or. 366 (1999), is similarly misplaced, as defendant's bailees remained in possession during the detention. Affirmed. State v. Whitlow

Parole Revocation: Requisite Evidence, Vagueness of Special Conditions and Right to Counsel

Parolee argued that the revocation of his parole was not supported by sufficient evidence, that the terms of the special condition for which he was revoked were unconstitutionally vague, that the Board failed to allow proper cross-examination, and that he was entitled to a Board-appointed attorney at the hearing.

As to parolee's first contention, the COA determines that the Board's decision was supported by "substantial evidence on the record," namely (1) the smell of alcohol on parolee's breath, (2) parolee's bloodshot eyes, (3) parolee's BAC results of .013, and (4) a urinalysis reporting high volumes of alcohol.

As to parolee's second, third and fourth contentions, the COA offered the following analysis. First, the COA summarily rejects the argument that the phrase "intoxicating beverages" is unconstitutionally vague as applied to these facts. Second, the COA rejects parolee's arguments concerning the limitation of his right to cross-examination because the error was harmless. Third, the COA concludes the Board did not err in failing to provide counsel because defendant did not make a timely request. Affirmed. Murphy v. Board of Parole

Motion for Reconsideration: Successfully Appealing Denial of MTS

The COA accepts the state's petition to reconsider its earlier disposition in State v. Hartman, 238 Or. App. 582 (2010). In that case the COA reversed the trial court's denial of defendant's motion to suppress. However, because that motion only impacted the evidence relating to two of defendant's seven convictions, the other five convictions should have been affirmed. Opinion modified to reflect this resolution, otherwise adhered to. State v. Hartman (per curiam)

Diagnosis of Child Sexual Abuse: Plain Error to Admit Absent Physical Corroboration

Defendant failed to preserve argument that the trial court erred in admitting expert diagnosis of child sexual abuse in the absence of any physical evidence. See State v. Southard, 347 Or. 127 (2009). Nevertheless, the COA concludes that admission of such evidence requires reversal as plain error. Reversed and remanded. State v. Robledo (per curiam)