Oregon Appellate Court 12-29-11

by: Abassos • December 28, 2011 • no comments

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

• Criminal Episodes - Hit and Run
• Corroboration of Confession - Restraining Order Violation
• Tort Liability - DOC - Sentence Computation
• Civil Commitment - Harms Way
• Sex Abuse - Southard - "Concerning for sexual abuse"
• Stop - Free to Leave
• Termination of Parental Rights - Detriment to Children
• Speedy Trial - 17 Month Delay
• Automobile Exception
• Administrative Searches - Courthouse
• Restitution - Evidence of Economic Damages
• FAPA Restraining Order Violation - Confrontation - Proof of Service

Criminal Episodes - Hit and Run

A DUII assault where the driver leaves the scene is two separate criminal episodes because the assault and the escape have two different criminal objectives. The court, in an opinion by J. Brewer, rejects the idea that there is a new dispositive test for criminal episodes having to do with whether a full account of one crime can be had without a complete account of the other crime. The test is whether there were discrete criminal objectives. End of story. The court also finds, following prior case law, that seven firearms found in defendant's house were separate criminal episodes because there was circumstantial evidence that they were placed there with separate criminal objectives at separate times. Separate criminal episodes meant that this defendant's criminal history score doesn't shift to I. So there's no good news for Mr. Orchard. But there might be a Criminal Episode Strategizing . Orchard v. Mills

Corroboration of Confession - Restraining Order Violation

The restraining order itself is insufficient corroboration of a confession to a violation of the restraining order. Without corroboration, a confession is insufficient to support a conviction. Here, defendant told police he texted back and forth with the petitioner for the restraining order on multiple occasions. But the state neither called the petitioner nor offered direct evidence of the text messages. The best thing about this case is the following hyper-articulate argument improvised by MDI attorney Ken Stafford:

[T]he existence of a restraining order is no more corroboration of a subsequent violation of it by text message than, for example, a statute against murder is corroboration of someone walking into a police station and saying I killed Jimmy Hoffa.

Brilliant. State v. Caldwell

Tort Liability - DOC - Sentence Computation

The state's immunity from tort liability for policy decisions does not extend to prison calculations. Here, the DOC allegedly read a concurrent sentence as a consecutive one, causing the plaintiff to spend an additional 13 months in prison. Because the individual DOC employee doing the time calculation was not deciding policy, the DOC does not have immunity and may be sued. Westfall v. Oregon

Civil Commitment - Harms Way

AMIP was committed because he had a habit of provoking and insulting people and there was a risk that someone would react violently toward him. In other words, the judge was worried that AMIP was dangerous to himself because he placed himself in harms way. But there was no evidence that AMIP had ever been in danger of serious physical harm. Speculation and conjecture are not grounds for commitment. State v. LD

Sex Abuse - Southard - "Concerning for sexual abuse"

The court incrementally extends the definition of diagnosis for the rule, from Southard, that a diagnosis of sex abuse is inadmissible in the absence of physical evidence. Here, the doctor merely testified that the circumstances were "concerning" for sexual abuse. State v. Merrimon recently held that "highly concerning for sexual abuse" was a diagnosis that constituted plain error. The court today rejects the state's argument that "concerning" is not a definitive diagnosis. In fact, while it carries with it much of the same prejudicial value and implicit vouching as a firm diagnosis, it becomes less probative as the diagnosis grows more uncertain. The court also rejects outright the state's argument that the trial attorney was making a strategic decision not to object, as evidenced by his arguments in opening and closing. Given the state of the law pre-Southard, the court says, the only inference to draw is that the trial attorney was combatting the state's evidence as best he could. State v. Feller

Stop - Free to Leave

Defendant was not stopped when an officer pulled up behind defendant's parked car and shined a spotlight toward his side mirrors. The officer did not turn on the emergency lights and parked far enough back that defendant could have pulled out. The court reasons that while a spotlight could be used to block someone's exit, there was no evidence in this case that defendant could not have safely pulled out. Since prior caselaw already holds that a spotlight, unlike emergency lights, doesn't create a stop, there is nothing, from the court's perspective, to distinguish this case from those prior opinions. State v. Aronson

Termination of Parental Rights - Detriment to Children

Where mother's "irresponsibility, dishonesty and instability" caused her to be unable to provide a safe, stable home there was clear and convincing evidence that her mental condition was a barrier to successful parenting. The fact that her condition and her situation did not improve after 22 months of intensive services, establishes that integration within a reasonable period of time was unlikely. DHS v. CLC

Speedy Trial - 17 Month Delay

A 17 month delay between indictment and arraignment required dismissal. Defendant was in custody the whole time and wasn't served with notice of the new charge for 15 months, after which he filed a speedy trial demand. While there was a return of service form from the Douglas County jail ostensibly showing that defendant was served notice after one month, the form was of no evidentiary value because it was not signed or dated and it didn't indicate that any particular officer actually served notice. State v. McFarland

Automobile Exception

The court reconsiders State v. Wiggins in light of Kurokawa II and comes to the conclusion that the automobile exception applies when the vehicle is mobile at the time the police first encounter the vehicle. This is true even if the officers break contact with the vehicle and return 90 minutes later. If it was mobile at first encounter it continues to qualify as an exigency unless the vehicle is rendered immobile, by for example being towed or becoming disabled. State v. Wiggins

Administrative Searches - Courthouse

The Jackson County security officer manning the front door of the Jackson County Courthouse was not permitted to open defendant's cigarette pack to check for weapons. It was a violation of Article I, Section 9. It wasn't a valid administrative search because the Jackson County policy did not "limit the discretion of those conducting the search". The policy said that everyone entering the courthouse was subject to a search of their person and possessions. But it did not indicate which possessions should be x-rayed, searched or opened and when. The decision how to search and how much to search was entirely in the hands of the individual security officer. The search wasn't a valid consent search because implicit consent to an administrative search depends on the legality of the administrative search. Here, the administrative search was illegal, thus the consent argument also fails. State v. Snow

Restitution - Evidence of Economic Damages

The state presented sufficient evidence of restitution by having the victim testify that she had gone to a jeweler, described and drew the diamond earrings and the jeweler told her that they were likely worth 18 to 22,000 dollars. 18,000 dollars restitution was imposed. State v. Yocum

FAPA Restraining Order Violation - Confrontation - Proof of Service

Proof of service may be admitted at a restraining order violation hearing without the testimony of the deputy who served the restraining order and without evidence of the deputy's unavailability. Prior case law indicates clearly that public records fall within a historical exception to the Oregon confrontation clause. The fact that the prior cases arguably address collateral matters as opposed to essential elements of the charge is of little import. Under the 6th amendment, proofs of service are not testimonial. J. Sercombe writes a concurrence "with misgivings", indicating that while the appellate court needs to follow it's ruling in State v. William, he's not sure the analysis is correct in light of State v Birchfield. As J. Sercombe points out, Birchfield was a case that involved hearsay and public records. The Oregon Supreme Court flatly said that it violated Article I, section 11 not to bring in the criminalist or demonstrate her unavailability. So, arguably, Birchfield implicitly overruled William, the case on which the court today relies. State v. Copeland