Oregon Appellate Ct. - Nov. 26, 2014
by: Frangieringer, Abassos and Alarson • November 26, 2014 • no comments
Providing False Information – Officer Must Know of Arrest Warrant to Convict Under ORS 162.385
Defendant cannot be arrested for providing false information to a peace officer for arrest on a warrant when the officer does not know if defendant had any outstanding warrants. Here, officer stopped defendant for overly tinted windows. He had no idea who defendant was or whether he had warrants for his arrest. Because the officer had no idea whether there was a warrant out for defendant’s arrest, the state failed to prove one of the necessary elements of the offense. As such, it was plain error to convict defendant of providing false information to a peace officer for the purposes of arresting the defendant on a warrant.
State v. Lusk, 267 Or App, ___ (2014).
Expectation of Privacy – No Privacy in Utility Subscriber Information
There is no privacy right in “power subscriber information, power records, and method of payment.” Here, the information collected gave no more than the addresses of several residences and the amount of electricity those residences used. Because that information revealed less than cell phone usage and internet subscriber information, areas where the defendant lacked a privacy interest, there was no privacy interest to the power subscriber information.
State v. Sparks, 267 Or App ___ (2014).
Temporary Custody – Intermittently Watching over Young Children is Sufficient to Show Control
Although a person who has control over the premises, does not, by virtue of that control, also have control over any children on the premises, such control can be inferred if children had been left under that person’s care previously. Here, there was sufficient information for the jury to find that defendant had control over a 7 and 10 year old. The children had been left under defendant’s care off and on when the mother had been out of the state. Given the age and previous instances of babysitting, there was sufficient information to find that defendant had control over the children.
State v. Sparks, 267 Or App ___ (2014).
Dependency Hearing – Must Look at Parent’s Behavior Throughout the Life of the Case
Courts will compare parent’s conduct and DHS’s actions throughout the life of the case to determine whether DHS made reasonable efforts in reuniting child and parent. Here, DHS had made reasonable efforts when it: 1) worked with the father to get him into a treatment program, 2) made it clear that the father was expected to attend AA/NA while incarcerated and the father opted out of participating, 3) the Department made a “considered decision” that prison visits would be inappropriate for child who was both emotionally and physically fragile, 5) where the father would be incarcerated until September 2015, and 6) where the father only made one effort to have the child visit him, and that was at the behest of DHS. Given these facts, despite waiting until 2013 to reach out father’s prison councilor, the circumstances were sufficient for the juvenile court to conclude that DHS had made reasonable effort to reunify the parent and child.
Ortega’s dissent: The Court of Appeals is creating a new standard for parents to affirmatively show their efforts at reunification instead of having DHS help parents reunite with their children.
Dept. of Human Services v. S.W., 367 Or App ___ (2014).
Permanency Hearings – DHS Must Look at Both Parents For Unification
DHS does not take reasonable steps to reunify child with parent when it fails to contact parent for a year, in which time parent takes initiative to reestablish relationship with child. Here, DHS focused its efforts on the mother and not the father, who was incarcerated, despite father’s repeated requests for assistance with reunification, his participation in AA/NA programs, employment while in prison, attending chapel services, meeting regularly with counselors, working towards his GED, and father’s attempts to establish visitation with child via letters. Because DHS ignored father for a year until mother was no longer a viable candidate for unification, DHS did not make reasonable efforts for unification before attempting to change the permanency plan.
Dept. of Human Services v. T.S., 267 Or App ___ (2014).
Matrix Sentencing System – Board of Parole Can Choose Election Date That Gives Most Information
When an inmate has multiple elections into the matrix sentencing systems and could be subject to different substantive legal standards depending on the dates of the inmate’s elections, the Board of Parole chooses to rely on the election that allows the Board to consider the “most information available” in deciding to postpone an inmate’s release date. Here, there was confusion as to which legal standard to apply and the Board chose to apply the standard that allowed the Board to consider the most information regarding the defendant. This was deemed a rational explanation by the court for why the Board departed from the prior instances where it had used a different election date.
Gordon v. Board of Parole and Post-Prison Supervision, 267 Or App ___ (2014).
Restitution – Criminal Conduct Must be the “But For” Cause of the Expenses
A restitution order must require (1) criminal activity, (2) economic damages, and (3) a causal relationship between the two. Here, defendant made a false claim on her insurance policy and was convicted of attempted aggravated theft. Because the insurance company’s expenses flowed directly from defendant’s false insurance claims, which included expenses incurred after the insurance company denied her claim but were still related to her criminal trial, the trial court did not err in the amount of restitution it awarded.
State v. Ramos, 267 Or App ___ (2014).
Aid and Abet - Accomplice Liability Allowed for Assault-3
A person who is present during an assault involving multiple assailants and who aids in its planning may be directly liable under a theory of aiding and abetting even if the person did not directly inflict physical injury. Here, the defendant helped plan an assault and then record the attack on his mobile phone. The court found this evidence sufficient to survive an MJOA.
State v. Ryder, 267 Or App ___ (2014).
