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Oregon Appellate Ct - April 26, 2017

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by: Sara Werboff • April 28, 2017 • no comments


Trial Court Did Not Err in Amending Judgment Without Resentencing Defendant

In 1993, defendant was convicted of attempted aggravated murder, first-degree robbery with a firearm, and first-degree assault. Twenty years later, the state moved the trial court to amend the judgment to include the grid block scores and presumptive sentences for the two counts of attempted aggravated murder that it had previously announced in open court. At that time, defendant argued that the trial court should reconsider those sentences because they were erroneous. The trial court declined to do so, stating that defendant could have raised challenges to the sentences in his direct appeal and post-conviction cases, long since completed. The court concludes that the trial court did not abuse its discretion when it declined to revisit the substance of defendant’s sentences.

State v. Dizick, 285 Or App 1 (2017) (Sercombe, P.J.)


Civil Commitment – Insufficient Evidence that Appellant was a Danger to Himself

The court concludes that the state failed to prove by clear and convincing evidence that appellant was a danger to himself. Appellant has suffered auditory hallucinations for years. Before his commitment, appellant’s voices told him to kill himself. Appellant went to a bridge intending to jump but decided he wanted to live and left. Appellant then sought help at a hospital. The doctors there found that appellant did not have ongoing suicidal ideation. The trial court committed appellant finding that while the suicidal thoughts were concerning, it was more concerned about appellant’s auditory hallucinations putting appellant in harm’s way. The court concludes that there was an insufficient showing that appellant was likely to be harmed by his hallucinations. Aside from the serious incident where appellant considered suicide – a situation he resolved on his own – there was no evidence that appellant’s longstanding hallucinations had put him in harm’s way.

State v. T.Y., 285 Or App 21 (2017) (Sercombe, P.J.)


Post-Conviction Relief – Petitioner Failed to Prove that Counsel’s Response to Vouching Testimony was Inadequate

The court affirms the denial of petitioner’s petition, concluding that petitioner failed to show that trial counsel was inadequate for failing to move to strike or seek a mistrial as a result of vouching evidence. Petitioner was convicted for sexual assault of a 15-year-old girl, who was intoxicated at the time of the assault. The defense theory at trial was that the girl did not remember the assault and was relating information given to her by others. A police detective stated his opinion that the girl was not being untruthful and trial counsel objected. The trial court sustained, stating “Can’t have anybody testify as to somebody’s truthfulness.” Before trial the trial court also provided a preliminary instruction that told to jury not to consider evidence that had been objected to and the objection sustained.

The court rejects petitioner’s argument that trial counsel was required to do more, because under the facts of this case, trial counsel’s actions were sufficient. The trial court, in sustaining the objection, also immediately explained that the testimony was improper. Additionally, petitioner’s case theory did not rely on the jury concluding that the complainant intentionally lying. The jury could still believe that the complainant was truthful about the facts as she believed them to be and acquit petitioner.

Woods v. Franke, 285 Or App 28 (2017) (Duncan, P.J.)


Post-Conviction Relief – Petitioner is Presumed to Know Immigration Law and Petition Did Not Fall into Escape Clause

The court affirms the dismissal of petitioner’s petition as untimely. Petitioner filed the petition outside of the two year window, arguing that counsel was ineffective for failing to advise regarding immigration consequences and that the petition could not have been filed earlier because petitioner did not learn that he was convicted of a deportable offense until after the time period had run. Petitioner conceded that under Benitez-Chacon v. State, 178 Or App 352 (2001), the court held that a petitioner is presumed to know immigration law and so a subjective lack of awareness as to legal consequences will not delay the time in which a petition must be filed. The court declines petitioner’s invitation to distinguish that case or overrule it.

The court does note that cases that support the rule in Benitez-Chacon may have been called into doubt by the supreme court’s decision in Verduzco, but that case does not provide further guidance.

Gutale v. State of Oregon, 285 Or App 39 (2017) (Duncan, P.J.)


Failure to Appear Requires Proof that Defendant Knew of Court Date at Time He Failed to Appear

The court concludes that the state is required to prove that a person charged with failure to appear, at the time of his scheduled court appearance, know of his obligation to appear in court. Defendant presented evidence at trial that he suffered from Alzheimer’s and had difficulty remembering dates. The state presented evidence that defendant had been given notice of the court date. The trial court concluded that the state only had to show that defendant had been given notice of the court date, and expressly declined to infer what defendant knew or didn’t know the date of his appearance. The court concludes that the trial court erred because failure to appear requires a concurrence of the mental state and the criminal act. Therefore the state is required to show that defendant knew of his obligation to appear when he failed to appear.

State v. Servatius, 285 Or App 45 (2017) (Duncan, P.J.)


Fines and Fees – Trial Court Did Not Err in Imposing Unitary Assessment and Criminal Fine but Did Err in Imposing County Assessments

Defendant was convicted in 2015 for conduct that occurred between 2006 and 2008. Although the legislature repealed the unitary assessment statute in 2011, the repeal only applied to crimes committed after January 1, 2012. Therefore the trial court did not err in imposing the unitary assessment. The state concedes that the court did err in imposing $25 county assessments because those fines were not announced in open court and defendant had no opportunity to object. Finally, the court concludes that the trial court did not plainly err by imposing a $200 fine without considering defendant’s ability to pay because the record supported a competing inference that the trial court had considered defendant’s ability to pay.

State v. Brooks, 285 Or App 54 (2017) (Duncan, P.J.)


Juvenile Dependency – Trial Court Did Not Err in Changing Permanency Plan

The court concludes that there was sufficient evidence that parents could not make sufficient progress in addressing their substance abuse and mental health issues in a reasonable time to allow their child, K, to return safely home. The court explains that there is sufficient evidence in the record of K’s specific needs for permanency and her parents’ tendency to relapse when not under DHS supervision to support the juvenile court’s determination.

DHS v. D.I.R., 285 Or App 60 (2017) (DeVore, J.)


Attempt – Sufficient Proof of Substantial Step

The court affirms defendant’s convictions for attempted aggravated murder, attempted murder, and witness tampering. Defendant was in jail awaiting trial on burglary charges. Defendant asked his cellmate whether he knew anyone who could kill or intimidate witnesses to the burglary. Specifically defendant wanted his father-in-law, his brother-in-law, and the DA killed, and a number of other witnesses intimidated. The cellmate said he knew someone. Defendant wrote a letter detailing what he wanted done and gave it to the cellmate. The cellmate gave the letter to prison officials. After giving the cellmate the letter, defendant inquired several times when the hitman would complete the job. Defendant was charged with attempted murder and witness tampering. At trial, he moved for a judgment of acquittal, arguing that the state failed to prove he took a substantial step toward the commission of the crime.

The court concludes that the evidence was sufficient to convict him of the attempts and the witness tampering. Defendant believed that his letter alone would result in the murders and intimidation.

Judge Sercombe concurred, acknowledging that under current case law, defendant’s conduct constituted a substantial step. However, he questions whether maybe the case law has “pushed the substantial step line too far into the territory of conduct that is merely preparatory in nature.”

State v. Kimbrough, 285 Or App 84 (2017) (Tookey, J.) (Sercombe, P.J., concurring)


Traffic Violation – Violation for Pedestrian “Improperly Proceeding Along a Highway” Does Not Include Pedestrians Who Are Crossing

Defendant was hit by a car while crossing a street at a diagonal and cited for violation ORS 814.070(1) which prohibits “improperly proceeding along” the roadway. The court concludes that ORS 814.070(1) requires the state to prove that the pedestrian’s direction of travel was in a line that generally paralleled the direction of the roadway where there is an adjacent usable sidewalk or shoulder. The state failed to prove that defendant violated that provision when he crossed the street at a diagonal.

State v. Tyler, 285 Or App 101 (2017) (Tookey, J.)


Confessions – Defendant’s Confession was Inadmissible Because it was Induced by Promises and Threats

The court concludes that defendant’s confession to shaking his infant was inadmissible under ORS 136.425(1) because it was induced by promises and fear produced by threats. In the course of interrogating defendant, a detective told defendant that if he admitted to accidentally hurting his baby he would receive “help.” The detective also told defendant that if he did not admit to the conduct, police would also have to investigate and charge defendant’s wife. The court concludes that defendant’s confession was induced by the detective promise that if he admitted to accidentally harming his child, he would receive treatment and not prosecution. The court also concludes that the detective threatened adverse consequences to defendant’s wife if he did not confess. Under the totality of those circumstances, defendant’s confession was not voluntary and not admissible.

State v. Hogeland, 285 Or App 108 (2017) (DeHoog, J.)


Conviction for Improper Use of Emergency Communication System Requires Proof that Caller Knew He Was Calling for Prohibited Purpose

The court concludes that ORS 165.570 requires the state to prove that a person who makes an emergency call must know that the call was for a prohibited purpose. A person violates ORS 165.570 when that person “knowingly * * * [m]akes an emergency call * * * for a purpose other than to report a situation that the person reasonably believes requires prompt service in order to preserve human life or property.” Defendant was convicted of this offense after he repeatedly called 911 to report prowlers on his property. Police responded, told defendant there were no prowlers, and admonished him to stop calling 911. Defendant continued to call and was arrested. Defendant genuinely believed that he needed emergency services, however, the trial court found him guilty because his belief was objectively unreasonable.

On appeal, the court construes the statute to require a knowing mental state for all elements. Thus, the state must prove that defendant understood that he was using the 911 system to report activities that he did not reasonably believe required emergency services.

Judge DeVore dissents, arguing that the majority opinion omits the word “reasonably” from the statute and construes the statute more narrowly than the legislature intended.

State v. Wiborg, 285 Or App 131 (2017) (Flynn, J.) (DeVore, J., dissenting)


Per Curiam – State Concedes Unlawful Search and Inventory

The court accepts the state’s concession that defendant was unlawfully searched incident to arrest and that police did not conduct a lawful inventory.

State v. Scheler, 285 Or App 159 (2017) (per curiam)