Oregon Appellate Ct - Aug 17, 2016
by: Sara Werboff • August 19, 2016 • no comments
Identity Theft - Converting to One's Own Use Means Appropriating a Person's Personal Identification Without Consent of that Person
To convert the personal identification of another to a defendant's own use, a defendant must exercise control over that information without the permission and consent of the person identified. Defendant was an inmate awaiting trial on domestic violence charges. Defendant's cellmate placed a call to defendant's girlfriend using his PIN, spoke briefly with her, and then handed the phone to defendant who spoke with her for about 20 minutes. Defendant was charged with, among other things, identity theft for converting to his own use the personal information of his cellmate. Converting to one's own use requires that the defendant "take, appropriate, or somehow divest the other person of their personal identification" with the requisite intent. In this case, the issue narrowed to the meaning of "appropriates" because the parties agreed that defendant did not take or divest the PIN. After reviewing the text and context of the statute, the court concludes that a defendant does not convert to his own use the personal identification of another person when that personal identification is used "with the consent or permission of the individual whom it identifies."
State v. Ritter, 280 Or App 281 (2016) (Schorr, J.)
Probable Cause - Drugs Found in Passenger's Possession Does Not Create Probable Cause that Driver Possessed Drugs
An officer could not rely on a passenger's possession of a heroin to establish probable cause to arrest the driver, defendant. for possession of heroin where there was no evidence suggesting that the two men jointly possessed the heroin. The officer approached two men in a parked car. During the encounter, the officer spotted a small piece of clear plastic containing a brown, gooey substance on the seat by the passenger's right leg. The plastic bag was out of defendant's view but within his "arm span." No evidence suggested that defendant actually possessed the heroin. The state argued that defendant constructively possessed the heroin. The court rejects the state's argument noting that 1) the heroin was not visible from defendant's vantage point, 2) there was no evidence in the record that there had been recent heroin ingestion, 3) defendant's control of the vehicle did not mean that defendant exercised control over everything in the car, 4) defendant's nervousness added little to the probable cause analysis, and 5) there was no evidence that defendant or his passenger were engaged in selling illegal drugs which might give rise to an inference that defendant constructively possessed the drugs.
The court also rejects the state's alternative argument that defendant voluntarily consented to a search of his vehicle. The state did not argue a lack of exploitation theory in the trial court and the record below could have developed differently, so the court does not consider the state's alternative basis for affirmance.
State v. Keller, 280 Or App 249 (2016) (Hadlock, C.J.)
Miranda Warnings - State Must Prove Spanish Miranda Warnings Were Understood
The court concludes that the state failed to meet its burden of proof that defendant received adequate Miranda warnings and that the admission of defendant's statements was not harmless. Police responded to a domestic violence call and arrested defendant. One of the officers knew that defendant's relative, Garcia, lived nearby and had previously worked with the police department as an interpreter. The officer called Garcia. Garcia read to defendant the Miranda warnings on the officer's prepared card and told the officers that defendant said that he understood the warnings. During the suppression hearing, the state did not call Garcia or introduce the prepared Miranda card. The state called an officer who admitted that he did not know what Garcia had translated or whether Garcia was a certified interpreter. The court holds that the record is insufficient to support a finding that the Miranda concepts that Garcia translated were constitutionally adequate. The court further holds that the statements were not harmless because they impacted defendant's credibility at trial.
State v. Casarez-Hernandez, 280 Or App 312 (2016) (De Muniz, S.J.)
Exigent Circumstances - Entry Into Private Garage Lawful to Pursue Fleeing Suspect
An officer's warrantless entry into a private garage, after defendant fled from the officer's efforts to stop defendant for DUII, was lawful under Article I, section 9, and the Fourth Amendment. Defendant argued below that the officer should have set up a perimeter around the garage and secured a warrant before entering into the private garage to arrest defendant. The court rejects that argument and hold that under Article I, section 9, the warrantless entry was justified under the exigent circumstances exception to forestall defendant's escape. The court further holds that the warrantless entry was reasonable under the Fourth Amendment because defendant had committed a crime in the officer's presence and the officer was in hot pursuit of a fleeing suspect.
State v. Wright, 280 Or App 259 (2016) (Armstrong, P.J.)
Probation Revocation - Court Does Not Need to Find that Probation Violation was Willful to Revoke Probation
The court concludes that ORS 137.540(6) did not require the trial court to determine that defendant had willfully violated his probation before revoking his probation. Defendant was charged with violating his probation by changing residences without reporting to his probation officer after defendant was kicked out of his group home for refusing to take a urine test. Defendant admitted that he violated probation but argued that it was not a willful violation. The court explains that prior case law where the court found that a defendant willfully violated probation did not require that the trial court find a hold that a probation violation was willful in order to revoke probation.
State v. Gray, 280 Or App 277 (2016) (Egan, J.)
State Concedes Insufficient Evidence of Second-Degree Criminal Mischief - Per Curiam
The court reverses the defendant's conviction for second-degree criminal mischief after the state conceded that there was insufficient proof that the defendant caused damage to another's property.
State v. Bryan, 280 Or App 320 (per curiam)
Attorneys Fees - In Camera Review - Per Curiam
After conducting its own review of records from the Crime Victim's Compensation Fund, the court affirms the trial court's decision not to disclose the disputed records following an in camera review. The court reverses the trial court's imposition of attorney fees.
State v. Sanders, 280 Or App 322 (2016) (per curiam)
