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Oregon Appellate Ct - Aug 16, 2017

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by: Sara Werboff • August 18, 2017 • no comments

Restitution – Comparative Fault Rules Do Not Apply in Restitution Proceeding

The court rejects defendant’s argument that a restitution award should have been reduced by the amount of the victim’s comparative fault. Defendant was driving under the influence of intoxicants when he struck a pedestrian who had entered the roadway in a dark area without a crosswalk. Defendant pleaded guilty to reckless assault and DUII. The trial court awarded as restitution the full amount of the pedestrian’s medical bills, over defendant’s objection that the award should be reduced by the pedestrian’s comparative fault. The court first rejects defendant’s argument that the trial court must consider the victim’s comparative fault as part of the causation analysis of restitution because in a civil trial, comparative fault does not concern causation but rather the apportionment of damages once causation is already determined. The court then also rejects defendant’s argument that the trial court is required to consider comparative fault in awarding economic damages to a victim in restitution. The court explains that under ORS 137.106, the trial court shall award the “full amount” of the victim’s economic damages.

State v. Gutierrez-Medina, 287 Or App 240 (2017) (Armstrong, P.J.)

Joinder – Any Error in Consolidating of Charging Instruments was Harmless

The court concludes that if the trial court erred in consolidating defendant’s assault and harassment case with his contempt case, any error was harmless. Defendant was charged with assault and harassment and a no-contact order was entered. Defendant thereafter contacted the complainant and was charged with contempt. The trial court permitted the state to consolidate the charging instruments and try the cases together, with the trial court deciding the contempt charges and the jury the assault and harassment charges. The trial court stated that it would keep the presentation of evidence “clean and pristine” so the jury would hear nothing about the contempt and the trial court would not consider the evidence of the assault and harassment in deciding the contempt charge.

The court does not decide the merits of defendant’s argument that the charges were improperly joined because it concludes that any error was harmless. Although not all of the evidence of the assault and harassment would have been admissible in the contempt proceeding, in this bench trial, the trial court did not consider that evidence in deciding the contempt charges.

State v. Pack, 287 Or App 254 (2017) (Tookey, P.J.)

Post-Conviction Relief – PCR Court Erred in Allowing Hearsay Evidence – PCR Court Erred in Applying Prejudice Standard

The court reverses the PCR court’s denial of several of petitioner’s claims. Petitioner was convicted of assault. At trial, petitioner raised a voluntary intoxication defense and, on PCR, argued that trial counsel was ineffective for failing to adequately investigate and present sufficient evidence of that defense. At the PCR trial, over petitioner’s hearsay objection, the state introduced an affidavit from the prosecutor detailing a conversation he had with a juror after the trial. The juror explained that the jury had quickly rejected defendant’s voluntary intoxication defense. In ruling on petitioner’s claims concerning the adequacy of counsel’s investigation and defense, the PCR court relied on that hearsay evidence from the juror to conclude that additional evidence supporting the voluntary intoxication defense would have been persuasive. The state concedes that the PCR court erred in overruling the hearsay objection and the court concludes that, in light of the PCR court’s explanation of its ruling, that error affected the court’s decision on petitioner’s various claims about the voluntary intoxication evidence.

The court also concludes that the PCR court erred when it concluded that petitioner’s counsel’s failure to attend petitioner’s pretrial psychological evaluation by the state’s expert did not prejudice petitioner. The court also rejects the state’s cross-appeal argument that counsel’s failure to attend the evaluation was not a failure to exercise reasonable professional skill and judgment. Under the circumstances of this case, trial counsel’s failure to attend the evaluation was a failure of professional judgment because counsel knew or should have known that petitioner was at a high risk of incriminating himself during that evaluation and the only way to prevent that was to attend the evaluation. Further, attendance at the evaluation would have helped petitioner to decide whether to pursue the voluntary intoxication defense at trial and would have been essential to an effective cross-examination of the state’s expert. Finally, the court concludes that the PCR court applied an incorrect prejudice standard by requiring petitioner to prove that the failure had a significant effect on the outcome of the trial, instead of the correct standard of whether the error could have tended to affect the outcome of trial.

Docken v. Myrick, 287 Or App 260 (2017) (Shorr, J.)

Search and Seizure – Police Unlawfully Extended Traffic Stop

The court concludes that police unlawfully extended a traffic stop when they asked defendant for consent to search and that request did not occur during an unavoidable lull and the extension was not supported by reasonable suspicion. Police stopped the truck defendant was driving for speeding. The truck belonged to defendant’s passenger, who had recently been arrested for possession of methamphetamine by one of the officers. While defendant’s passenger was searching for the truck’s registration, an officer asked defendant if there was anything illegal in the car and defendant became nervous and his demeanor noticeably changed. The officer asked for consent to search and both defendant and passenger voluntarily exited the truck. Police found methamphetamine on defendant.

The court first rejects the state’s argument that defendant’s nervous demeanor and association with a known drug user was sufficient to support reasonable suspicion. The court then concludes that the request for consent did not occur during an unavoidable lull because police had abandoned the traffic investigation to conduct a criminal investigation.

State v. Reich, 287 Or App 292 (2017) (Sercombe, S.J.)

Per Curiam – Post-Conviction Relief – PCR Court Erred in Sua Sponte Granting Summary Judgment on Brady Claim

The court reverses the PCR court’s grant of summary judgment on petitioner’s Brady claim because the state did not seek summary judgment on that claim and concedes that the PCR court erred in sua sponte granting summary judgment on that claim.

Evett v. Nooth, 287 Or App 304 (2017) (per curiam)

Per Curiam – Post-Conviction Relief – PCR Court Lacked Jurisdiction to Enter Order

The court vacates an order from the PCR court denying petitioner’s motion for a protective order. The court explains that the PCR court lacked jurisdiction to deny the order due to petitioner’s pending appeal of an earlier order denying petitioner’s request for a protective order.

Johnson v. Premo, 287 Or App 307 (2017) (per curiam)

Per Curiam – Juvenile Dependency – Insufficient Evidence to Support Jurisdiction

The court accepts the state’s concession that the juvenile court erred when it denied mother’s motion to dismiss jurisdiction and terminate wardship because there was insufficient evidence to support continued jurisdiction.

DHS v. M.C., 287 Or App 310 (2017) (per curiam)