Oregon Appellate Court November 7, 2012

by: Stephanie Clark and Abassos • November 7, 2012 • no comments

Increase in "Look-Back" Period for DUII Diversion Is Not an Ex Post Facto Violation

The five-year increase in the "look-back" period for DUII diversion eligibility does not result in "greater or additional punishment" for DUII such that the increase is an ex post facto violation. The change in eligibility requirements was not an increase in "punishment" because the primary purpose of the change was to be a procedural alternative to punishment, not to change the crime of or sentence for, DUII. State v. Carroll, __ Or App __ (2012).

Particularity Requirement for Admitting Abuse-Victim Hearsay

The pretrial notice required under OEC 803(18a)(b) for admitting an abuse victim's out-of-court statements must identify the particular statements to be offered. Here, the state violated the rule by only providing copies of reports and stating that the reports "contain the particulars of statements made by [victim] that the state intends to offer." State v. Bradley, __ Or App __ (2012); see also State v. Wood, __ Or App __ (Oct. 24, 2012).

Aiding-and-Abetting After-the-Fact Is Not a Crime

Oregon law does not recognize an aid-and-abet after-the-fact theory of criminal liability because "the aid-and-abet statute plainly applies only to conduct prior to or during the commission of a crime." Here, the trial court erroneously convicted defendant of fraudulent use of a credit card for helping the principal actor escape arrest after defendant learned of the theft and misuse of the credit card. The court exercises its discretion to correct the trial court's unpreserved error and remands for a new trial because defendant "stands convicted of something that is not a crime." State v. Barboe, __ Or App __ (2012).

Merger, Valuation of Stolen Property, and Restitution in Juvenile Proceedings

The court affirms the juvenile court's judgment of jurisdiction for acts that, if committed by an adult, would constitute first-degree arson, aggravated first-degree theft, and two counts of second-degree burglary.

• The two counts of burglary do not merge because youth had sufficient time to renounce his criminal intent between entering a school building with intent to commit theft and later reentering with intent to commit arson.
• ORS 164.115(1), governing the valuation of property under the theft statutes, does not bar the court from considering the cost of replacements as a factor in determining fair-market value. Here, the juvenile court properly considered the cost of replacement computers in finding that the stolen property was worth at least $10,000 as required for aggravated first-degree theft.
• The term "victim" for restitution purposes in juvenile proceedings includes insurance companies. "Victim" is given its definition in the Criminal Code, not the juvenile code.

State v. G.L.D., __ Or App __ (2012).

Stop - Reasonable Suspicion

An order to come out of a house with your hands up is a stop. Here, there was reasonable suspicion for the stop where defendant entered a house occupied by two murder victims, didn't match the description of anyone who lived there, and didn't answer the telephone when officers called the house. Also, officers had probable cause to enter the house since there was probable cause to believe that there was evidence of recent murders inside and that it was at risk of being destroyed. And, for the same reasons, there were exigent circumstances that required the officers to secure the house. The officers gained probable cause to arrest when defendant came out of the house and they noticed blood on his pants. Finally, it was not a violation of Miranda when defendant asked if he needed an attorney and the officers responded that "It's up to you." Defendant's statement was equivocal and officers responded appropriately. State v. Hudson, __ Or App __ (2012).

Dependency > Preservation > Failure to Make Required Findings

Because a dispositional order is required at the conclusion of a dependency hearing, the contesting party must object at that time if a juvenile court fails to include statutorily required findings under ORS 419B.340(2) in order to preserve the issue for appeal. DHS v. C.C.

Dependency > Subject Matter Jurisdiction

In a custody case involving multiple jurisdictions, ORS 109.741(1)(b) confers jurisdiction to Oregon when no other state has jurisdiction under paragraph (1)(a) and both subparagraphs (1)(b)(A) and (1)(b)(B) apply. Here, mother had "a significant connection" with Oregon because she:

• had belongings in Oregon
• had lived in the state for four years
• received prenatal care in Oregon
• applied for and collected public assistance in the state.

Furthermore, mother's contacts with health care institutions and professionals, her interactions with DHS, and her erratic conduct constituted relevant evidence "concerning the child's care, protection, training and personal relationships" in Oregon under ORS109.741(1)(b)(B). Therefore, the Oregon court had jurisdiction. DHS v. S.C.S

Dependency > Continued Jurisdiction

A court may not base an order for continued jurisdiction on unalleged facts unless the underlying petition provided sufficient notice of what the parent must do to prevent continued jurisdiction. Here, the petition stated that the mother had alcohol problems and pleaded guilty to assault and strangulation. Thus, mother had sufficient notice that her anger problems were at issue. DHS v. M.M.B.

Failure to Demand a Speedy Trial

Where a defendant is in prison and knowingly fails to demand trial, the delay is attributable to the state, but it is otherwise reasonable under ORS 135.747. Here, defendant failed to appear for two separate court dates for a misdemeanor DUII. He was arrested on a bench warrant, and shortly thereafter, his probation on an unrelated charge was revoked. While in the DOC, defendant waited nine months to demand trial. The court holds that because defendant knowingly failed to demand, the nine-month delay was reasonable, and the cumulative delay of 16 months attributed to the state was also reasonable. State v. Bircher.

A Superficial Bruise Does Not Qualify as a Physical Injury

For the purposes of first-degree criminal mistreatment, "physical injury" means "impairment of physical condition or substantial pain." ORS 161.015(7). In turn, "impairment of physical condition" requires "harm to the body that results in a reduction in one's ability to use the body or a bodily organ for less than a protracted period of time." State v. Higgins, 165 Or App 442(2000). Here, defendant admitted to spanking her 16-month-old across his buttocks, which made the child cry and caused a bruise. However, the child's doctor testified that the bruise was 'superficial,' and the child had full range of motion. Thus, there was no evidence that the bruise was a 'physical injury' for purposes of criminal mistreatment.State v. Wright

MJOA - Variance between Indictment and Evidence

Variance between the indictment and the evidence at trial is prejudicial, "[i]f thedefendant would need to develop a different argument to contend with the variance." State v. Boitz, 236 Or App 350, 356 (2010). Here, defendant was charged with hindering prosecution. The indictment alleged that the defendant "did***prevent, by means of deception, the discovery or apprehension of Shane Culp." This differed from the statutory language and jury instruction which states that a person hinders prosecution where he, "[p]revents or obstructs, by means of * * * deception, anyone from performing an act which might aid in the discovery or apprehension ofsuch person[.]" Defendant's argument was that defendant did not prevent sheriffs from apprehending Shane Culp since the sheriffs decided that defendant was lying and ultimately arrested him. Instead, defendant prevented the sheriffs from immediately searching the house which would satisfy the statute but not the indictment. Thus, the variance in this circumstance was prejudicial, and the court reverses. State v. Hansen

DMV Can't Suspend a License Twice for the Same Failure to Pay a Fine

Where the DMV has already suspended a person's license for the maximum statutory period for failure to pay traffic fines, the DMV cannot re-suspend the license because the driver continues not to pay the fine. Here, because defendant had already been suspended for the statutory period, DMV lacked the authority to suspend his license again, and the appropriate remedy is exclusion of the later suspension order. Richardson v. DMV.

Per Curiams

• State v. Freeman: The automobile exception authorizes a warrantless search of a vehicle but does not extend to body searches of the vehicle's occupants.
• State v. K.B.G.: Civil commitment: Evidence was insufficient to support a finding that defendant was a danger to others and could not provide for her basic needs.
• State v. Withnell: The defendant was tried jointly with the defendant in today's case State v. Hansen, and the evidentiary record is identical. Thus, the trial court's denial of defendant's motion for judgment of acquittal is reversed for the reasons stated in Hansen.