Oregon Appellate Court August 29, 2012

by: Sduclos • August 29, 2012 • no comments

Stop > Sufficient Show of Authority > Request for Consent Search Not a Stop

In the absence of physical restraint or show of authority, request for consent to search passenger's car is not a stop. Here, officers stopped a car in which defendant was a passenger. Because the driver of the car did not have a valid license, officers checked defendant's driver's license and ran his records to ensure he was able to drive. When the officers returned the defendant's license, they asked for his consent to search the car. The court held that under these circumstances, the defendant was free to leave upon the return of his license, and the request for consent to search was not a "stop" because there was no evidence he was coerced, handcuffed, restrained, or questioned about his own activity. State v. Mazzucchi, __Or App __ (2012).

Stop > Police following someone for thirty feet on foot, re-directing him to walk the opposite direction, asking his name, and if he has any weapons, was not a stop.

An encounter is a "seizure of a person only if the officer engages in conduct significantly beyond that accepted in ordinary circumstances." St v. Homes, 311 Or 400 (1991).

Here, no stop because:

• The police did not use the patrol car's lights or sirens, spoke in a conversational tone, and did not park so as to impede the course of several men walking down the street, they just parked behind them.
• Defendant did not "clearly demonstrate" that he did not want to talk to the officer by walking away and ignoring his questions, and the officer did not try to overcome defendant's freedom of movement by following him and trying to get his attention.
• Asking defendant to walk 30 feet the other direction, towards defendant's friends who were talking to second police officer, was not a stop because he did not indicate the subject of the conversation, and defendant would not feel he was the subject of a criminal investigation.
• Asking for defendant's name and whether he had any weapons, in a conversational tone, was not a seizure.

State v. Soto, ___ Or App ___ (2012).

Oregon RICO > "Enterprise" is an organization, however loose, with ongoing continuity, and is distinct from the commission of the separate crimes.

Under the Oregon RICO statute, proof of an "enterprise" can be a formal or informal association that: (1) is an organization, however loose, (2) has an ongoing continuity, and (3) is distinct from the commission of separate criminal acts.

Here, Defendant and an accomplice stole disposable diapers, laundry detergent, beer, and shrimp on three occasions from two different Safeway stores within a two month period. The court held that:

1. Evidence was sufficient that Defendant and his accomplice were associated in an ongoing illicit enterprise because they had entered the store together and stolen the same items each time, suggesting a mutually planned course of action.
2. Two-month period satisfied the ongoing requirement.
3. The collective character of defendants' informal partnership made it distinct from the separate criminal acts.

State v. Walker, __ Or App ___ (2012).

Probable cause for traffic stop - ORS 811.370 - Crossing a white fog line is probable cause for failure to maintain lane.

Crossing a fog line satisfies the elements of ORS 811.370, failure to maintain a lane. State v. Roberts, 241 Or App 5889 (2011). Thus, an officer had probable cause to stop the defendant when he crossed the fog line on a curvy road. The court did not consider defendant's argument that crossing the line was too "incidental and momentary" to support probable cause because he failed to preserve the issue, and there was no plain error. State v. Wentworth, ___ Or App __ (2012).

Expert Testimony > OEC 702 - Offer of Proof Must Demonstrate How Expert's Testimony Will Be Helpful to the Jury

Under OEC 702, where a defendant offers expert testimony on a particular diagnosis, he must demonstrate a nexus between the proffered diagnosis and the specific behavior at issue. Here, the state used defendant's inappropriate responses and behavior during an investigation to imply guilt. The defendant sought to introduce testimony from defendant's counselor that she suffered from mental health disorders and drug addiction. However, the defendant failed to demonstrate how the counselor testimony would be helpful to the jury because he did not explain how the defendant's mental health issues might be manifested in defendant's behavior during questioning by the police. Thus, the trial court did not err in excluding the evidence. State v. Nichols, ___ Or App ___ (2012).

Jury Instructions - Evidence that Defendant did not act "knowingly" in committing an Assault II entitles him to jury instruction on Assault IV

When a defendant adduces evidence that he did not act "knowingly" in committing an assault two, there is a disputed issue of fact as to whether he knowingly caused physical injury but did not knowingly cause it by a dangerous weapon.

Here, defendant presented evidence that he was intoxicated and suffered a concussion at the time of the stabbing, and thus had not acted "knowingly." The court held that the jury could have found, "based on a composite of evidence" that the defendant knew he had struck the victim but not that he was using a knife. Thus, he was entitled to an assault four instruction.

State v. Jackson, ___ Or App ___ (2012).

Plain Error in Failing to Provide an Interpreter > It Must Be Obvious That Defendant Does Not Understand English Adequately

It is not plain error not to provide an interpreter to defendant where it is not obvious that Defendant does not understand English adequately. Here, during direct exam of the Defendant, Defendant did not understand a question and the trial court, sua sponte, requested an interpreter for the remainder of the PR hearing. Failing to provide an interpreter at the outset was not plain error because the Defendant had engaged in adequate English conversation with the court, Defendant's counsel did not inform the court of any language difficulties, and the trial court was not required to determine if Defendant had previously had an interpreter. State v. Erives, ___ Or App __ (2012).

OEC 404(3) > Rapping About Pimping Not Admissible to Prove Intent to Promote Prostitution

When evidence of other crimes, wrongs, or acts is proffered to show intent it must satisfy all five factors established in State v. Johns in order to determine whether it is relevant: (1) Does the present act require intent?; (2) Did the prior act require intent?; (3) Are the victims similar?; (4) Are the types of acts similar?; and (5) Are the physical elements of the acts similar?

Here, Defendant was charged with promoting prostitution. The State sought to admit two rap videos of the Defendant making general statements about participation in the prostitution trade. The State argued these videos were evidence of "other crimes, wrongs, or acts" under OEC 404(3) and were admissible to show intent. Defendant's statements in the videos were not specific enough to determine the similarities between the prior acts and the charged act and thus were not relevant to show intent. (The court assumed, but did not decide, that the videos were evidence of "other crimes, wrongs, or acts.") State v. McIntyre, ___ Or App __ (2012).

PCR - Defense counsel's failure to request a jury instruction on a lesser-included offense as a failure to exercise professional skill.

Failure to request a jury instruction on a lesser-included offense, if warranted, is a failure to exercise professional skill unless it can be adequately explained as a tactical decision. It also prejudices the Defendant and warrants PCR.

Here, Defendant was charged with 1st degree robbery where he tried to steal milk and snacks from a store. A security guard and another employee took him to a back room where he was ordered to empty his backpack. While doing so, Defendant pulled a gun from the backpack. There was some dispute as to whether the Defendant pointed the gun at the security officer or simply removed it from the backpack as instructed. At trial, defense counsel did not request a jury instruction on the lesser-included offense of 3rd degree robbery. Defendant was convicted of 1st degree robbery and the jury also found an enhancement fact of using or threatening to use a firearm.

No reasonably competent attorney would have failed to request the lesser-included jury instruction and no tactical decision can explain the failure because there was no evident downside to requesting the instruction. Pereida-Alba v. Coursey, __ Or App __ (2012).

Error - Denial of two-day delay between verdict and judgment is not harmless error

Denial of Defendant's statutory right to a two-day delay before sentencing is not harmless error because the statute is intended "to ensure the deliberate and carefully considered pronouncement of judgment in criminal cases" and constitutes a substantial right. Here, the trial judge denied defendant's request under ORS 137.020(2)(a) to a two-day delay between the jury verdict in his DUII case and sentencing. Even if the judge would have imposed the same sentence two days later, the court's error prejudiced defendant with respect to a substantial right. State v. Dawson, ___ Or App ___ (2012).

Per curiams

• Merger - Criminal possession of a forged instrument in the first degree and forgery in the first degree merge. State v. Keanu, ___ Or App __ (2012). Per Curiam.
• PCR - the evidence did not support the PCR court's factual finding. The PCR court indicated that petitioner's trial attorney told defendant to call the office to set up the appeal, which defendant did not do. However, the transcript showed that the trial attorney told defendant "to call my office and tell us that you want to appeal," after which defendant said, "I want to appeal," and trial counsel said, "All right." Henley v. Coursey, ___ Or App __ (2012). Per Curiam.
• Stalking and violation of SPO - The state must demonstrate that contacts constitute a "threat" in order to prove stalking. However, under State v. Ryan, the free speech requirement for a "threat" in a stalking case does not apply to violation of a SPO. Thus, where the state failed to show defendant's contacts with victim constituted a "threat," the court reverses his conviction but affirms VSPO conviction. State v. Nahimana, ___ Or App __ (2012). Per curiam.
• Sex Abuse 2^nd Degree - It was plain error for the sentencing court to assign a crime seriousness score of "7" to child sex abuse 2 under State v. Simonson. Exercising discretion to correct the error was appropriate because defendant could receive a substantially shorter prison term on remand, and the state has no interest in sustaining a constitutionally infirm sentence. State v. Decamp, ___ Or App __ (2012). Per curiam.