Oregon Appellate Court 03-02-11

by: Abassos • March 1, 2011 • no comments

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

• Felony Hit and Run - Who is a "Victim" for Purposes of Merger
• Confessions - Sufficiency of Evidence Corroborating Confession of Sex Abuse
• Improper Diagnosis of Sex Abuse- Harmless Error Analysis
• Sex Abuse- Is Semen a Sexual or Intimate Part of Defendant's Body
• Accomplice Liability- Circumstantial Evidence of Intent
• Accomplice Liability- "Natural and Probable Consequences" Instruction
• DUII Breath Test- Opportunity to Seek Advice of Counsel
• Motions to Suppress: New Crime Exception to the Exclusionary Rule
• Substantive Issue Unidentified

The COA offered up nine new opinions today, although four of those are per curiam dispositions. Among other issues, the COA addresses who is a "victim" for the purposes of hit-and-run, how much corroboration is needed to support a confession of sexual abuse, and whether a certain bodily fluid is part of a defendant's body for the purposes of sex abuse under former ORS 163.415. All in all, the cases are fairly fact-specific, but a few legal nuggets can be found.

Felony Hit and Run: Who is a "Victim" for Purposes of Merger

Defendant pled guilty to two counts of felony hit and run, ORS 811.705, after he left the scene of an accident in which two people were killed. No evidence was submitted specifically as to when or how the deaths occurred. Accordingly, defendant argued that the State of Oregon was the sole "victim" for the purposes of ORS 161.067 and therefore the sentences should merge. The trial court disagreed.

On appeal, the COA notes that "[w]here the statute defining a crime does not expressly identify the person who qualifies as a 'victim,' the court examines the statute to identify the gravamen of the crime and determine the class of persons whom the legislature intended to directly protect by way of the criminal proscription." Relying on that test, the COA holds "that each person injured in a single accident is a separate 'victim' for purposes of ORS 811.705." Affirmed.[javascript:void(0)/*551*/ State v. Moncada]

Confessions: Sufficiency of Evidence Corroborating Confession of Sex Abuse

Defendant was charged with second-degree sexual abuse for allegedly having sex with a sixteen year-old girl. At trial, the state adduced evidence that: (1) defendant was in a lengthy and ongoing relationship with the girl; (2) an empty condom wrapper was found on defendant while he was with the girl, and (3) defendant confessed to having intercourse with the girl. Defendant moved for acquittal on the ground that the state had failed to sufficiently corroborate his confession.

Applying State v. Lerch, 296 Or. 377 (1984), the COA concludes that the first two pieces of evidence were sufficient corroboration. First, the empty condom wrapper suggests that defendant had sex. Second, the nature of the relationship suggests that the sex was with the underage girl. Affirmed.[http://www.publications.ojd.state.or.us/A139764.htm State v. Ofodrinwa]

Improper Diagnosis of Sex Abuse: Harmless Error Analysis

This is another Southard case. Here, the state concedes that the trial court erred in admitting a diagnosis of sex abuse in the absence of confirmatory evidence, but contends that the resulting error was harmless because the defendant raised an insanity defense and did not affirmatively deny the physical act of abuse.

The COA makes two distinct rulings in rejecting the state's arguments. First, defendant's decision to raise an insanity defense did not operate as an admission that the abuse occurred: "Rather, as noted, defendant's position was that, if the alleged conduct occurred, his other personality, 'Josh,' was responsible for it." This distinguishes the case from State v. Sanchez-Alfonso, 238 Or. App. 160 (2010). Second, the expert's testimony was "qualitatively different" than that offered by lay witnesses, and therefore was not simply cumulative. Reversed and remanded.[http://www.publications.ojd.state.or.us/A141206.htm State v. Brown]

Sex Abuse: Is Semen a Sexual or Intimate Part of Defendant's Body

Defendant was convicted of third degree sexual abuse under former ORS 163.415 after the evidence at trial established that he had ejaculated on the shin of his friend's wife while she slept. Defendant assigned error to denial of his MJOA, asserting that no "sexual contact" was made.

On appeal, the COA frames the issue as follows: Whether a defendant "[causes] the victim to touch a sexual or intimate part of defendant's body by causing the victim to come into contact with defendant's semen." Concluding that this is not prohibited contact, the COA reads former 163.415 to exclude "conduct by which a person causes another person to touch semen or other fluids expelled from the actor's body, that is, to touch things that, when touched, are not part of the actor's body." The COA does note, however, that the statute at issue has been amended. Reversed.[http://www.publications.ojd.state.or.us/A139214.htm State v. Serafin]

Accomplice Liability: Circumstantial Evidence of Intent

Defendant was convicted as an accomplice to second-degree assault after she helped perpetrate an ambush during which her brother struck the victim over the head with a rock. On appeal, defendant argues that accomplice liability requires intent to aid and abet an offense as serious as the one at issue, and that there was no evidence to demonstrate that she knew her brother was going to use a dangerous weapon.

Assuming the accuracy of defendant's premise (that specific intent as to offense seriousness is required), the COA nevertheless concludes that ample evidence supported an inference of such intent. First, defendant had previously threatened that the victim was "dead." Second, defendant's get-away car contained a ski mask, a canister of mace and a baseball bat. Affirmed.[http://www.publications.ojd.state.or.us/A142051.htm State v. Baranovich]

Accomplice Liability: "Natural and Probable Consequences" Instruction

The state concedes that the "natural and probable consequences" test is no longer an accurate statement of the law, but argues that instructing the jury on that test was harmless. The COA summarily rejects that argument. Reversed and remanded.[http://www.publications.ojd.state.or.us/A137433.htm State v. Perez-Chi] (per curiam)

DUII Breath Test: Opportunity to Seek Advice of Counsel

The state concedes that the trial court erred in denying defendant's motion to suppress a breath test where the officer did not give defendant a reasonable opportunity to consult counsel before administering that test. Reversed and remanded. State v. Hyatt (per curiam)

Motions to Suppress: New Crime Exception to the Exclusionary Rule

The COA affirmed by a simple citation to State v. Neill, 216 Or. App. 499 (2007) (denying motion to suppress based on exception to exclusionary rule announced in Janicke that even if initial search is illegal, evidence of a new crime against a police officer occurring after that search is admissible). State v. Prasad

Substantive Issue Unidentified

Affirmed by a simple citation to State v. Carter, 238 Or. App. 417 (2010) (addressing multiple issues). [http://www.publications.ojd.state.or.us/A141608.htm State v. Guzma

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