Oregon Appellate Court 3-28-12

by: Aalvarez • March 28, 2012 • no comments

Read the full post for a summary of today's opinions

• Sentencing--400% Rule--Plain Error
• Dependency--Jurisdiction--Insufficient Record
• Restitution--Date of Calculation
• Sentencing--Plain Error--Refusal to Exercise Discretion
• Automobile Exception--Moving in Connection with a Crime
• Dependency--Psych Eval--Related to the Court's Jurisdiction
• Solicitation--MJOA
• Witness's Invocation of the 5th Amendment--Limitation on Cross Examination
• Preservation--Exceptions to Jury Instructions
• Restitution--Objectively Verifiable Losses
• SPO--Objectively Reasonable Alarm
• Manufacture/Possession of Marijuana--Registered Medical Marijuana Card Holders--MJOA
• Civil Commitment--Danger to Others

Sentencing--400% Rule--Plain Error

It was plain error to sentence the defendant to 208 days when the 400% rule only allowed him to be sentenced to 136 days. In using its discretion to reverse and remand, the court relied on the gravity of the error (4 extra months) as well as the fact that the trial court merely adopted the state's sentencing recommendations with absolutely no regard to the 400% rule.

State v. Truong

Dependency--Jurisdiction--Insufficient Record

Jurisdiction over the child was improper since there was no evidence that either mother or father posed a risk of harm to the child. While the mother, who suffered from a developmental disability requiring adult support services and a variety of medications, had trouble changing diapers and holding the baby's head up on the day it was born, there was no evidence showing that these problems continued. The court bemoans the lack of a developed record, noting that "without those details--particularly when combined with the lack of evidence regarding mother's cognitive abilities generally--it is impossible to determine that mother lacks the capacity to learn the necessary skills without "special assistance," which is the theory upon which jurisdiction was based." Reversed and remanded.

DHS v. 'S.P

Restitution--Date of Calculation

Defendant was ordered to pay $888,793 in restitution arising out of an Assault II charge. Defendant advanced a variety of arguments to the appellate court, most of which were rejected as unpreserved. Defendant's preserved argument, that the court could not award restitution for lost income beyond the date of the plea agreement, was rejected on its merits. A victim is entitled to restitution for loss of income up to the date the trial court determines and awards restitution, not the date of the plea agreement. Affirmed.

State v. Jordan

Sentencing--Plain Error--Refusal to Exercise Discretion

The court refused to exercise its discretion to correct a plain sentencing error where it believed the defendant made a strategic choice not to object. Defendant signed a plea agreement consistent with the sentence imposed and acknowledged that the parties jointly recommended to the court the sentence that was imposed. Moreover, the defendant obtained a significant benefit by entering into the plea agreement (a M11 count was dropped) and was therefore in a poor position to complain to the appellate court. Affirmed.

State v. Nolasco-Lara

Automobile Exception--Moving in Connection with a Crime

On remand from Kurokawa-Lasciak, the court found that a warrantless search of the defendant's car did not fall within the automobile exception because the car was not moving "in connection with a crime" when police first saw it. The moving car was not connected with a crime until after the officer randomly ran the defendant's license plate, discovering that the car had an outstanding warrant. It was only after this finding that the defendant was stopped and drugs were discovered. Moreover, the officer could not have justified the search as under exigent circumstances or a search incident to arrest. Reversed.

State v. Groom

Dependency--Psych Eval--Related to the Court's Jurisdiction

Requiring the father to take a psychological evaluation was rationally related to the basis of the court's jurisdiction over his child. The reason for the court's jurisdiction in the first place was the father's unavailability and imprisonment for assault and riot. The court further found that the father posed a risk to the child, a finding which was supported by the record. A psychological evaluation would aid DHS in assessing father's safety risk and moreover, would actually benefit the father because he would "benefit from services to help him establish a relationship with her." Affirmed.

DHS v. B.W.

Solicitation--MJOA

The trial court correctly denied the defendant's MJOA on a solicitation charge. The defendant, a member of a biker gang called "The Outsiders," was charged with solicitation after attempting to hire a police informant (Informant #1) to kill someone. Informant #1's conversation with police was recorded on a DVD.

While in jail, the defendant asked his roommate, Informant #2, to get the DVD to the Outsiders, noting that once they got the DVD they would "get rid" of Informant #1 and make sure he didn't show up for trial.

The court found that the defendant had solicited Informant #2 to kill Informant #1, even though he didn't actually ask Informant #2 to do the killing. The court held, as a matter of law, "a person commits the crime of solicitation when that person solicits an intermediary to procure a third party to commit the intended crime, so long as the intermediary is aware of that intended crime."

State v. Everett

Witness's Invocation of the 5th Amendment--Limitation on Cross Examination

The trial court did not err in refusing to strike all of the witness's direct testimony when he invoked the 5th amendment on cross. The questions that the defendant asked him were not necessary to testing his direct testimony, nor did the witness's invocation of his rights hamper the defendant's ability to put on a defense. Affirmed.

State v. Everrett

Preservation--Exceptions to Jury Instructions

Defendant's unpreserved objection to a faulty aid-and-abetting instruction was non-reviewable by the COA. ORCP 59(H)(1) requires that the defendant except to an instruction immediately after the trial court instructs the jury in order to be reviewable.

State v. Alonzo

Restitution--Objectively Verifiable Losses

In a per curiam opinion, the state concedes that the court erred when it ordered the defendant to pay 12 percent interest on the unemployment benefits he had unlawfully received. Restitution is limited to "objectively verifiable monetary losses." The interest that the victim-the Oregon Employment Department-would receive is not such a loss. Reversed and remanded.

State v. White

SPO--Objectively Reasonable Alarm

Per curiam reversal of a SPO where the record was legally insufficient to establish the requisite objectively reasonable alarm

A.M.G v. Young

Manufacture/Possession of Marijuana--Registered Medical Marijuana Card Holders--MJOA

A per curiam reversal where the trial court improperly denied the defendant's MJOA on his manufacture and possession of marijuana charges. The state did not prove that the useable marijuana present at his address was more than he and his cousin, both registered medical marijuana cardholders, could lawfully possess.

State v. Brewer

Civil Commitment--Danger to Others

A per curiam reversal of a civil commitment where the state concedes that there is insufficient evidence to show that the AMIP was a danger to others because of her mental disorder.

State v. W.C.