Oregon Appellate Court December 5, 2012
by: Erick Tobias and Abassos • December 5, 2012 • no comments
Appellate Ct Will Remand for a Hearing on Good Cause When a Court Imposes a Restitution Judgment Past 90 days.
When a court imposes a supplemental restitution judgment past 90 days without a finding of good cause, the appropriate appellate disposition is not to reverse the judgment outright but to remand for a determination of whether good cause existed at the time of the order. Here, the court ordered restitution 104 days after entry of the original judgment without ever holding a hearing, and the court remands. State v. Beckham , __ Or App __ (2012).
Other Bad Acts > Evidence of Plan > Concurrence of Common Features
To get a prior bad act in as evidence of plan requires such a concurrence of common features between the prior bad acts and the charged conduct that "the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations." Here, defendant was charged with sexual abuse and the state offered the abuse of the victim's two sisters as evidence of plan. The court holds that sister A's testimony was admissible because both she and the victim viewed defendant as a father, were groomed by defendant with playful physical contact, and were home alone while their mother was at work when victimized. Conversely, Sister S's testimony had insufficient concurrence of common features because S was older, didn't view defendant as a father, and was not groomed by defendant. State v. Febuary , __ Or App __ (2012).
Identity of the Victim is Not Material to the Offense of Identity Theft
An indictment for identity theft need not identify the victim because identity of the victim is not material to the offense. The material element is that the identification has to be personal. Therefore, where the indictment erroneously identified a company, the Oregon Department of Transportation, as the victim but presented evidence at trial that the defendant obtained personal identification of an employee of ODOT, the variance is immaterial. State v. Kowalskij , __ Or App __ (2012).
Some Income is All That is Required to Sentence a Defendant to Pay Attorney Fees
A court may find that a defendant "is or may be able to pay" attorney fees when a defendant indicates that he has "some income." Evidence that the defendant received disability income was sufficient to impose a $400 attorney fee. State v. Eshaia, __ Or App __ (2012).
A Defendant Waives his Right to Speedy Trial at the Commencement of the First Trial
A defendant may not make a speedy trial objection, under ORS 135.747, after defendant's first trial commences. Thus, when the defendant moved for dismissal after a mistrial but before his second trial, he had already waived his right to a speedy trial. State v. Contreras, __ Or App __ (2012).
"Physical Evidence of Abuse" in Sexual Abuse Diagnoses
Fecal matter may constitute "physical evidence of abuse" supporting a diagnosis of sexual abuse that falls outside the holding of State v. Southard, 347 Or 127 (2009), "when (1) the significance of [the fecal matter] is 'the sort of complex factual determination that a lay person cannot make as well as an expert,' (2) the [fecal matter] is corroborative of the type of abuse actually alleged, and (3) the medical expert actually relies on the [fecal matter] in making a diagnosis of sexual abuse." Here, a nurse practitioner diagnosed the child, A, with sexual abuse, relying upon A's statements in an interview and the fact that A's mother had discovered fecal matter on the floor, consistent with the alleged abuse. A's medical evaluations revealed no discernible physical trauma, so the fecal matter "gained heightened significance at trial." State v. Ovendale, __ Or App __ (2012).
Disproving a Choice of Evils Defense - Failure to Perform the Duties of a Driver
Evidence that a defendant attempted to leave the scene of an accident before a threat to his safety materialized, is sufficient to disprove defendant's choice of evils defense. Here, defendant was charged with failure to perform the duties of a driver for hitting a pedicab. The driver of the pedicab refused defendant's offer of $100 to allow him to leave the scene. Defendant nonetheless attempted to leave. As he did so, a third party hit his car several times with a metal object. The timing of his attempt to leave, along with evidence that he smelled of alcohol, appeared intoxicated, and offered the driver $100, showed that defendant was attempting to leave before it became necessary to avoid a threatened and imminent injury. State v. Cespedes-Rodriguez, __ Or App __ (2012).
PCR - Failure to Make an Argument
Trial counsel's performance was deficient where he failed to make the right argument as to why his evidence was admissible. He argued that the child victim's prior allegations of abuse were admissible as prior false allegations. However, his theory could not have been that all prior allegations were false because trial counsel did not contest the physical evidence regarding tearing of the victim's hymen. In fact, the actual defense theory was that prior abuse explained the physical evidence. But he did not argue in liimine that the prior allegations were admissible to explain the physical evidence, as allowed by OEC 412. Thus, the evidence was kept out, defendant was convicted and trial counsel was deficient. Ayer v Coursey
Stop - Extension
The following evidence is insufficient for reasonable suspicion to extend a traffic stop into a drug trafficking investigation:
· Defendant was nervous and evasive
· he did not appear to have any luggage, and
· he was driving a car that he had recently purchased with cash, for which he did not have registration or insurance information.
Nervousness during a traffic stop contributes little weight, if any, to reasonable suspicion. The superficial appearance of no luggage has no weight because there were lots of places the officer didn't look that could have held luggage. Even if there were no luggage it provides little to no evidence of criminal activity. Finally, the recent purchase of the vehicle provides little to no evidence of drug trafficking. Taken separately or together, the officer did not have reasonable suspicion to extend the traffic stop and request consent to search. State v Espinoza-Barragan
Stalking Order > "I will have to confront you" is not a threat of violence
Unwanted contact for the purposes of a stalking protective order must include an unequivocal threat of violence that is "objectively likely to be acted upon." Brown v. Roach, 249 Or 579 (2012). A text message from defendant stating that "I will confront you" is not objectively likely to be followed by violent or unlawful acts. V.A.N. v. Parsons, __ Or App __ (2012).
Stalking Order > Sufficiency of Evidence
Evidence is sufficient to support a stalking protective order (SPO) where defendant twice dry-fired a gun at complainant and later went to complainant's house trying to get him to come outside. Defendant and complainant were both employees of the DEA. Because defendant's intent was to intimidate complainant, the conduct was outside the scope of his "official duties" and therefore the court may consider the incidents. The two incidents constituted unwanted contacts because complainant had previously told defendant he no longer wanted "anything to do with [him]." That complainant showed up at work the following day knowing defendant would be there is irrelevant because the two had no further contact while defendant was employed at the DEA. However, only the first dry-firing incident is a qualifying contact for the purposes of issuing the SPO because only the first caused complainant subjective alarm. At a later date, defendant stopped his motorcycle in front of complainant's house and tried to get him to come outside. While complainant did not testify explicitly that he was alarmed by the contact, he did state that he believed that defendant was armed and trying to get him to come outside for some type of confrontation. Complainant also stated that his wife called 9-1-1. The first dry-firing incident and the contact at complainant's home constituted two actionable contacts sufficient for issuing the SPO. D.A. v. White, __ Or App __ (2012).
Dependency > A history of drug abuse does not "current endangerment" make
When the only evidence of recent drug abuse is dad's confession that he hasn't used in 11 months, there is insufficient evidence to support a finding that the child is currently endangered. Even where there is evidence that dad regularly used meth 2 1/2 yrs prior to the hearing. Dept. of Human Services v. M.Q., __ Or App __ (2012).
Per Curiam:
- Evidence was insufficient to support conviction for fourth-degree assault constituting domestic violence because there is no evidence that defendant and victim (the son of defendant's live-in girlfriend) were family or household members. State v. Sturgeon.
