Oregon Appellate Ct - April 20, 2016
by: Aalvarez and Cmaloney • April 21, 2016 • no comments
Speedy Trial – Former ORS 135.747 – Re-Trial After Mistrial
A defendant’s speedy trial rights under ORS 135.747 were not violated when, after being charged with a misdemeanor in November of 2008 was brought to trial in October of 2009, even though the result of that trial was a mistrial. This is because under former ORS 135.747, a person is “brought to trial” even when the trial results in a mistrial that requires a re-trial. Here, even assuming that the defendant did not consent to any of the 11 month delay prior to his trial, the delay was nonetheless reasonable in light of the litigation required due to the complexity of issues that were presented by the defendant’s theory of defense. State v. Bronson, 277 Or. App. 586 (2016)
Unlawful Hunting – Native American Treaty Rights as a Defense
The defendant, a member of the Nez Perce tribe, was not prejudiced by the trial court’s denial of his demurrer, motion to dismiss, motion for judgment of acquittal, and proposed jury instructions because he effectively conceded, on appeal, that the treaty he sought to rely on as a defense did not practically apply to his behavior. Here, the defendant killed two bighorn sheep and as a result was charged with unlawfully taking and possessing wildlife. The defendant argued that the terms of an 1855 treaty between the federal government and Nez Perce tribe allowed him to hunt the sheep and operated as a defense to the charges. A long and complex series of motions were argued regarding the effect of the treaty the defendant argued supplied his defense. Ultimately, the trial court wound up ruling that the treaty only protected the defendant if the area where the defendant was hunting were historically used by the Nez Perce for hunting or if the area was historically occupied by the Nez Perce in 1855. Based on the testimony presented during the defendant’s bench trial, the trial court found that the area where the defendant was hunting was not historically used by the Nez Perce for hunting or occupied by the Nez Perce at the time of the treaty of 1855.
On appeal, the defendant contended that the trial court wrongfully determined that the treaty did not protect his rights to hunt in the area where he was caught hunting. The Court of Appeals declines to reverse the defendant’s conviction, noting that on appeal, the defendant conceded that hunting rights under the treaty are in fact, limited to areas that the Nez Perce historically used for hunting. Because the trial court expressly found that the area where the defendant killed the sheep was not historically used by the Nez Perce for hunting, there was no basis on which to reverse his conviction. State v. Bronson, 277 Or. App. 586 (2016)
PCR – IAC – Failure to Hire An Expert – Dangerous Offender Determination
Defense counsel was inadequate for failing to consult with or call an expert witness at the defendant’s dangerous offender hearing where his decision to not call an expert to the stand was made without even consulting with an expert to find out what testimony he could have provided and where such testimony would have actually helped the defendant.
Here, during the defendant’s dangerous offender hearing, the state called an expert who testified that the defendant suffered from an anti-social personality disorder, a disorder that expressly qualified him for an enhanced sentence as a dangerous offender. Defense counsel, without consulting with an expert, chose to attempt to dismantle the state’s expert opinion through cross-examination. The jury credited the state’s expert and determined that the defendant qualified as a dangerous offender. Defendant filed for post-conviction relief and the post-conviction court granted him relief, finding that defense counsel was inadequate at the defendant’s dangerous offender hearing. The state appealed.
On appeal, the Court of Appeals affirms the findings of the post-conviction court, finding that the defense counsel’s choice not to present expert testimony was inadequate, because it was made without even consulting with an expert. Although failing to present expert testimony may not always constitute inadequate assistance of counsel, here, the decision to fail to present a competing expert was made without properly investigating alternative defense strategies.
Moreover, that failure to consult with an expert prejudiced defendant. During post-conviction proceedings, the defendant presented the testimony of an expert psychologist, who explained that there was an alternative diagnosis for defendant that would not have qualified him for a dangerous offender sentence. Had defense counsel put on such a witness and the jury accepted that testimony, it could have found that the defendant did not suffer from a disorder that qualified him as a dangerous offender. Richardson v. Belleque, 277 Or. App. 615 (2016)
Article I, Section 11 – Right to Counsel – Questioning on Represented Matters
Questioning the defendant about a prior charge on which he was represented violated the defendant’s right to counsel and required that the evidence discovered as the result of those questions be suppressed.
Here, during the execution of a search warrant in the house where the defendant was found, detectives located a handgun. A detective questioned the defendant and asked whether the handgun was the handgun used in an earlier menacing case for which the defendant was facing charges and was already represented on. Further, based on the finding of the handgun and during the question about the prior menacing incident, the detective asked the defendant if there were any other firearms in the home. Defendant admitted that there were firearms in the home, showed them to the detective, and was charged with felon in possession of a firearm.
On appeal, the Court of Appeals holds that defendant’s admission that there were other firearms in the home, and the firearms subsequently found by detectives as a result of those admissions, should have been suppressed as a violation of his right to Counsel under Article I, section 11. Questioning the defendant about the menacing charge plainly violated his rights under Article I, section 11, as he was represented by counsel on that charge and the police did not contact his attorney before interviewing him. Further, the Court of Appeals finds that the detectives questioning about the additional guns in the home was sufficiently “factually related” to the defendant’s menacing charges to require suppression of the statements and subsequently discovered evidence:
"When defendant denied using a real gun in the menacing incident by telling [the detective] that he had used a toy gun, [the detective] responded by confronting defendant with the fact that a gun had been found in the house, and asking defendant if there were more guns, thereby eliciting defendant’s admission that there were—an admission that then led to the discovery of the additional weapons….Although we recognize, as the trial court appears to have found, that [the detective] subjectively intended his questions about the firearms to be independent from his question about the menacing incident, by initiating that line of questioning by asking about the menacing charge, [the detective] linked the two investigations.” State v. Beltran-Solas, 277 Or App 665 (2016)
Endangering the Welfare of a Minor – “Permitting” – MJOA
For the purposes of an endangering the welfare of a minor prosecution, the state fails to put on sufficient evidence that the defendant “permitted a minor to enter or remain in a place where unlawful activity involving controlled substances is conducted” where the state fails to show that the defendant engaged in some affirmative conduct authorizing or otherwise making it possible for the minors to enter or remain.
Here, the charges against the defendant arose after police executed a search warrant for the house in which the defendant lived with his extended family. When police arrived, they found the defendant, his wife, the defendant's three adult children, and three minor children. During the search, police located heroin, methamphetamine, and various drug paraphernalia. Eventually the defendant was charged with three counts of endangering the welfare of a minor. On appeal, the Court of Appeals holds that there was insufficient evidence that the defendant permitted the minor children to enter or remain in a place where unlawful activity involving controlled substances was occurring, explaining:
“The record contains no evidence that defendant—as opposed to any of the other adults living in the house—had authorized the children to be in the house, or even that defendant had the authority to make that decision within the structure of the extended family that was occupying the house.” State v. Beltran-Solas, 277 Or App 665 (2016)
UUV – Operable/Inoperable Motor Vehicle – MJOA
ORS 164.135, the UUV statute, does not require the state to prove that the vehicle over which defendant exercised control was operable at the time defendant controlled it. Here, the state presented evidence that the defendant had a pickup truck towed and sold for scrap metal without the consent of the owner. However, the engine, transmission, and clutch were not working. At trial, the defendant contended he could not be convicted of UUV because the vehicle was not operable at the time he sold the truck for scrap metal. The trial court disagreed and held that the vehicle does not have to be operable in order for the defendant to be convicted of UUV.
On appeal, the Court of Appeals affirms the trial court’s denial of the defendant’s MJOA, holding that in the absence of a statutory definition, the ordinary definition of vehicle, which does not specify whether an object generally recognized as a vehicle must be “operable” to be a “vehicle," applies for the purposes of the crime of UUV. State v. Eastep, 277 Or. App. 673 (2016)
SPO – Speech Related Contacts and “Imminent Threats of Violence”
A petitioner in SPO case was not entitled to an SPO based on repeated speech-based contacts where the contacts, although very disturbing and strange, did not express an unambiguous threat of imminent and serious physical violence.
Here, the respondent repeatedly sent the petitioner, a person who previously modeled lingerie for him, text messages/voicemails after she stopped speaking with him and declined to accept another appointment with him. The Court of Appeals found the most disturbing voicemail listed below. In referring to why the petitioner should finally come out of her house and talk to the respondent, the respondent stated:
“Have it your way. You know, it’s not going to be pretty I don’t think. I’m giving you one last chance, like 15 minutes or (laughs) well, you ought to be stressing hard now. I would be.”
In finding that messages like this were insufficient to sustain a SPO, the Court of Appeals held that “the message did not express an unambiguous threat of imminent and serious physical violence to petitioner.” Moreover, the messages would not cause an objectively reasonable fear that the respondent had the ability to carry out any threatened harm at the time he sent them, because the petitioner was not even in town when the respondent left the messages. Further, the home that respondent believed the petitioner was in at the time was not even her actual home. Thus, the petitioner suffered no objectively reasonable fear that the respondent could cause her imminent physical harm.
Further, the other non-speech related contacts listed by the petitioner were also insufficient to support the issuance of an SPO. The petitioner claimed that the respondent had left a note outside her former workplace. Apart from concerns about the contents of the note, there was nothing in the record that supported the inference that respondent’s leaving the note caused petitioner a reasonable apprehension regarding her physical safety. N.M.G. v. McGinnis, 277 Or App 679 (2016)
Felony Public Indecency – Not Plain Error to Enter a Conviction of Felony Public Indecency When Defendant Has a Prior Conviction for an Attempted Sexual Offense
It is not plain error for a court to enter a conviction for felony public indecency when the defendant has a prior conviction for an attempted sex crime. Although generally a misdemeanor, public indecency can be elevated to a felony if the person has a prior conviction for public indecency or another sex crime. Here, defendant argued on appeal that it was plain error for the trial court to enter a conviction for felony public indecency, because his prior convictions for attempted sex offenses were legally insufficient to elevate his public indecency offense from a misdemeanor to a felony. The defendant argued criminal attempt is a distinct crime–that is, distinct from completed offenses–“described” in ORS 161.405 (attempt described). Furthermore, nothing in ORS 163.355 to ORS 163.445” refers to culpability for criminal attempt. Consequently, defendant argued that neither of his prior convictions for attempted sex offenses were for a “crime described in ORS 163.355 to ORS 163.445" and, thus, cannot serve as a predicate for felony public indecency under 163.465(2)(b). The Court of Appeals held that defendant failed to satisfy the requirements of “plain error” review because defendant’s construction of ORS 163.465(2)(b) was not so obvious as not to be reasonably in dispute. Affirmed.State v. Smith, 277 Or App 709 (2016)
Felony Public Indecency – Life Sentence Not Unconstitutional When Predicate Convictions Are Not Solely for Public Indecency and There Is Egregious Uncharged Sexual Misconduct
A “true life” sentence for felony public indecency is not unconstitutionally disproportionate when the predicate convictions are not solely for public indecency and there is egregious uncharged sexual misconduct. In Rodriguez / Buck, the Oregon Supreme Court considered the alleged constitutional disproportionally of the sentences by assessing three nonexclusive factors: (1) the comparison of the severity of the penalty and the gravity of the crime; (2) a comparison of the penalties imposed for other, related crimes; and (3) the criminal history of the defendant. The proper comparison for the second factor encompasses all of a defendant’s predicate convictions. The Court of Appeals has found that second factor weighs in favor of a determination of disproportionally when comparing public indecency to other sex crimes that do not subject recidivists to a “true life” sentence under ORS 137.719(1) (presumptive sentence for certain sex offenders). In this case, defendant was convicted for felony public indecency and had at least two previous felony sex crime convictions. The Court imposed the presumptive sentence of life imprisonment without the possibility of release or parole under ORS 137.719(1). On appeal, defendant argued that his sentence was impermissibly disproportionate in violation of Article I, section 16, of the Oregon Constitution and the Eighth Amendment to the United States Constitution. The Court of Appeals held that the defendant’s sentence was not unconstitutionally disproportional. In reaching this holding, the court considered that defendant’s predicate convictions were not solely for public indecency. Rather, his convictions pertained to other sexual conduct, including the use of force and conduct directed at minors. Additionally, the court found that defendant’s egregious (and unapologetically proclaimed) uncharged sexual misconduct, and particularly his history of criminal conduct with young girls, refuted any implication of unconstitutional disproportionally. Finally, the court rejected without extensive discussion defendant’s contention that ORS 137.719(1) violates the Equal Protection Clause, as applied to his conviction for felony public indecency because it is under inclusive. Affirmed. State v. Smith, 277 Or App 709 (2016)
Subject Matter Jurisdiction – How to Challenge Subject Matter Jurisdiction of a State Court Over Crimes Committed Within Indian Country
In a case involving crimes committed within Indian country, a criminal defendant who seeks to challenge subject matter jurisdiction of a state court must assert his or her Indian status and provide the trial court with evidence of that status in time to permit the state to rebut that evidence and to prove the defendant’s non-Indian status. A defendant’s non-Indian status is determinative in challenge to the subject matter jurisdiction of a state court over crimes committed in Indian country, because state courts do not have criminal jurisdiction over crimes committed by Indians in Indian country unless Congress has granted jurisdiction.
In this case, defendant was convicted for second-degree disorderly conduct and fourth-degree assault as a result of an incident at a casino owned and operated by the Confederated Tribes of the Umatilla Indian Reservation. At trial, defendant moved for dismissal, arguing that the court lacked subject matter jurisdiction. On appeal, defendant again asserted that the court lacked subject matter jurisdiction, but offered a new rationale for his position: because the incident occurred in Indian country, (1) the state bore the burden, but failed, to present evidence regarding his non-Indian status, which was necessary for the court to determine its subject matter jurisdiction, and (2) even though he did not alert the court that his non-Indian status was required for the court’s jurisdiction, the court was required to dismiss the case.
The Court of Appeals concluded that defendant raised a challenge to the court’s subject matter jurisdiction as circumscribed by federal law and that he correctly asserted that his non-Indian status was the determining factor in whether the trial court had jurisdiction over the charged crimes. However, although the trial court record was silent regarding the defendant’s non-Indian status an outright reversal was not proper in this case. Rather, the Court of Appeals decided, as a matter of first impression in Oregon, the better course was to vacate the judgment and remand to permit defendant an opportunity to provide the trial court with evidence sufficient to permit a conclusion that he is Indian. If defendant meets his burden of production, the trial court must determine, with the state bearing the burden of persuasion, the jurisdictional fact of defendant’s non-Indian status. If defendant does not meet his burden of production, or if the trial court determines defendant’s status as non-Indian, then the trial court shall reinstate the judgment.
Justice Armstrong wrote a dissenting opinion and maintained that defendant’s challenge was a matter of personal jurisdiction, rather subject matter jurisdiction. Accordingly, defendant’s challenge to the court’s authority over him could not be raised for the first time on appeal. State v. Hill, 277 Or App 751 (2016)
Disorderly Conduct – Per Curiam Reversal
Per curiam reversal of a second degree disorderly conduct conviction where there was insufficient evidence that the defendant engaged in violent or tumultuous behavior. State v. Devall, 277 Or. App. ___ (2016)
