Oregon Appellate Court 10-26-11

by: Abassos • October 25, 2011 • no comments

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

• Probable Cause - Attempted DUII
• Recording a Police Officer
• Equal Privileges - Aggregation of Thefts
• Harmless Error - Southard
• Compelling Circumstances/Custodial Interrogation
• PCR - Inadequate Assistance of Counsel
• Plain Error - OEC 513(2)
• Dependency - Change in Permanency Plan to Adoption
• Dependency - Jurisdiction
• Maximum Determinate Sentence

Probable Cause - Attempted DUII

An officer has probable cause to believe a person is attempting to Drive Under the Influence of Intoxicants where he sees the person, clearly intoxicated, trying to get into his truck outside of a restaurant, keys in hand and a restaurant employee trying to stop defendant from driving. Oh, and Attempted DUII is definitely a crime according to the Appellate Court. State v. Minow

Recording a Police Officer

A person does not commit the crime of Unlawfully Obtaining the Contents of a Communication by recording a conversation if both parties know the conversation is already being recorded. Here, the officer told defendant their conversation was being recorded. But the defendant was also secretly recording the conversation. The court finds that the requirement that all participants be "specifically informed" in ORS 165.540(1)(c) is satisfied by knowledge of the first recording. The state raises a slew of concerns but, ultimately, the logic of the issue prevails:

In this case, the best protection that [Officer] Ou had in guarding against the possible inaccuracy of an additional record of his conversation with defendant was to do precisely what he told defendant he would do - that is, obtain his own recording of the conversation. State v. Neff

Equal Privileges - Aggregation of Thefts

Where the prosecutor has a multi-factor, ad-hoc charging policy, the defendant has the burden of demonstrating inconsistent application. Here, the DA made the decision how to aggregate thefts by having the charging deputy look at a bunch of different named factors and come up with a decision particular to that case. See State v. Pettengill (the companion case to Savastano). The defendant challenged the policy but did not raise evidence of an inconsistent application. Affirmed. State v. Smith

Harmless Error - Southard

A diagnosis of sexual abuse in the absence of physical evidence is not harmless error merely because the defendant made some admissions. Here, defendant told the police that the complainant had touched his penis. But the state's allegation was that defendant had called complainant into the bathroom while he was masturbating and made her touch his penis. Defendant's admission does not count as "overwhelming evidence" of the state's theory. It was especially harmful error because the DA explicitly invoked the "medical diagnosis" in closing to support the credibility of the complainant. Reversed. State v. Olsen

Compelling Circumstances/Custodial Interrogation

Defendant was neither in compelling circumstances nor custodial interrogation when FBI agents came to the hotel room where she was illegally selling purses and interrogated her for two hours. She was not in compelling circumstances because:

• Two hours is not so much time that it becomes a qualitative factor
• It took place in a neutral setting
• While there were references to defendant's guilt they were in no way coercive (defendant admitted the agents were cordial and nice).
• While defendant reasonably felt she wasn't free to leave, that factor doesn't outweigh the others in this totality of the circumstances test.

Defendant was also not in custody if she wasn't in compelling circumstances. State v. Northcutt

PCR - Inadequate Assistance of Counsel

It is not inadequate assistance of counsel to fail to object to an issue in which there is no valid objection. Petitioner claimed that his attorney failed to object to the non-merger of multiple counts of reckless endangering but State v. Sumerlin clearly prohibits merger where each count is based on separate victims. This is a mystifyingly obvious case, made interesting only by the fact that the allegations in the underlying case were that defendant was driving really fast on I-5 going the wrong way. Jones v. Oregon

Plain Error - OEC 513(2)

It was plain error for the court to advise defendant, in front of the jury, of his right to testify. The judge could easily have excused the jury to give that advice. Thus, he violated OEC 513(2) which requires that a colloquy regarding privileges be conducted outside the presence of the jury if at all practicable. It is a substantial error because the jury could have taken the judge's questioning as surprise, undercutting the defense. State v. Benson

Dependency - Change in Permanency Plan to Adoption

Where the jurisdictional judgment is based on an unexplained, non-accidental injury, the scope of jurisdiction encompasses any unsafe or detrimental conduct. The scope of jurisdiction does not include hygiene or general parenting. Because the change in permanency plan in this case was based, in part, on issues outside the jurisdiction of the original judgment, it was insufficient. Reversed. DHS v. NML

Dependency - Jurisdiction

It's not easy to pull a rule out of this case except that Lane County DHS and the trial court made egregiously bad decisions. The evidence for jurisdiction in this case, against Dad, was that Mom used drugs but that Dad, a social worker, did not allow mom to be around the children unsupervised and that if she was using she was not allowed in the house. There were no allegations of actual harm in any way. In fact, DHS agreed that Dad had done a good job with the children and they seemed happy and well adjusted. The concern that sprouted into jurisdiction was that there was a possibility that mom could be around the children and that, if she were using, it would "take but a moment" for harm or awareness to occur. As the court points out:

the children's circumstances are less than ideal, but they are not inherently or necessarily more harmful or dangerous than other circumstances that would, by no stretch of the imagination, justify state intervention into the parent-child relationship. DHS v. DSF

Maximum Determinate Sentence

You can't get 48 months prison and 24 months PPS on a C felony. You just can't. Even if the judge says that the PPS shall be reduced by whatever amount is necessary to make the total actual time less than 60 months. In that case it's an indeterminate sentence, which is also not allowed. State v. Savelieff