Oregon Appellate Ct - Aug. 6, 2014
by: Abassos, Lisa Fitzgerald, Evan Ottaviani and Katie Watson • August 6, 2014 • no comments
Motions for Continuance- Defendant’s Assertions Must Be More Than Speculation
In order to have an appellate issue on a denied motion for continuance, a defendant must assert more than speculation about his ability to retain a new attorney or an “abstract statement” about his need for a witness. Here, regarding his desire to retain new counsel, defendant indicated that he believed he would receive a tax refund, though he had not yet filed his taxes. Regarding the need to procure witnesses, defendant gave no information about witness whereabouts, expectations for how he would find them, or the usefulness of their testimony. The trial court did not abuse its discretion in denying such motions. Affirmed. State v. Ringler, 264 Or App ___ (2014).
DUII- $2,000 Fine for Third or Subsequent Conviction Not Mandatory If Defendant is Sentenced to Time in Jail
A jail sentence is considered a “term of imprisonment” that negates the $2,000 mandatory fine for a third or subsequent DUII conviction according to ORS 813.010(6)(c). Defendant was sentenced to five months in jail (as opposed to prison) after her fourth DUII conviction. Although the court had the discretion to order the $2,000 fine under ORS 161.635(1)(a), it was not required to under the mandatory minimum schedule in ORS 813.010(6). $2,000 fine vacated and remanded for resentencing. State v. Frier, 264 Or App ___ (2014).
Crim Mistreatment I - Leaving Child With a Known Abuser is Enough to Get Past MJOA
Leaving a child with a person who you know has previously abused the child is sufficient evidence of criminal mistreatment in the first degree under ORS 163.205 to withstand a motion for judgment of acquittal. Here, the defendant left her young children alone with her boyfriend on several occasions, knowing that her boyfriend had abused her older child. The defendant sought reconsideration, contending that the record contained a factual error when it stated that she was told that her older child’s bruising and liver damage indicated that he had been subjected to a second instance of assault by her boyfriend. The court allowed reconsideration to correct the factual error and adhered to its previous opinion as modified. State v. Burciaga, 264 Or. App. __ (2014).
The Fact That Defendant Lies About His Name to the Cops Is Not Itself Sufficient to Attenuate Such Statements From Prior Illegal Police Conduct.
A defendant’s decision to lie in response to a police inquiry made during an illegal stop does not constitute an intervening or mitigating circumstance that attenuates the response from the illegal police conduct. When an officer illegally stops a person and makes an inquiry, the person’s response to that inquiry is the product of the illegal stop and evidence obtained as a result of the inquiry is inadmissible, unless the state proves that the response was “independent of, or only tenuously related to the unlawful police conduct.” Here, during an illegal traffic stop, the police officer asked the defendant for his name and the defendant gave the name of one of his friends. Approximately one month later, the defendant informed a staff member of the district attorney’s office that he had given false information to a police officer. The court held that the statements made by the defendant approximately one month later were sufficiently attenuated from the illegal police conduct, but the statements made by the defendant during the illegal traffic stop were not attenuated and the admission of that evidence was prejudicial. Reversed and remanded. State v. Suppah, 264 Or. App. __ (2014).
Emergency Aid Exception—Officer Must Believe there is Immediate Need for Assistance
For the emergency aid exception to justify a warrantless entry, the officer must reasonably believe that there is an immediate need. In this case, the officer came upon a crash scene with blood spatter and noticed drops of blood leading to the defendant’s trailer door. The officer stated that his intention in entering the defendant’s trailer was to “make sure [he] was okay” and to “check on [his] wellbeing.” The court held that, though the officer believed the defendant was injured, there was no evidence that the officer believed that the injuries were serious or that he believed there was an immediate need for assistance. Suppression of all evidence resulting from the warrantless entry is affirmed. State v. Mccullough, 264 Or App ___ (2014).
Inventory Search Exception is Limited to Specific Terms of Inventory Policy
The inventory exception authorizes warrantless searches only if they comply with the specific provisions of the inventory policy. The Josephine County Sheriff’s inventory policy authorizes the search of a container which “based upon its context and/or physical appearance would be reasonably expected to contain valuables.” In this case, the officer searched the pockets of a pair of shorts located in the defendant’s car. The state argued that pockets of shorts are “designed to hold valuables,” and offered no evidence offered as to the context or appearance of the specific shorts. The court held that the search was unauthorized. Reversed and remanded. State v. Hockersmith, 264 Or App ___ (2014).
