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Oregon Appellate Ct - Aug 2, 2017

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by: Sara Werboff • August 4, 2017 • no comments

Miranda Waiver – The State Failed to Establish that Defendant Voluntarily, Knowingly, or Intelligently Waived his Miranda Rights

The court reverses defendant’s convictions for attempted murder and second-degree assault after concluding that defendant did not validly waive his Miranda rights. An officer encountered defendant unconscious and lying naked in the fetal position. The officer handcuffed defendant and when he came to, read him his Miranda rights. Defendant made incriminating statements and also told the officer that he was “a sasquatch from a family of sasquatches.” Defendant was later interviewed by a deputy from the mental health team who concluded it was obvious that defendant was “having a break from reality.” Defendant and his family testified to explain that defendant was undergoing a mental health crisis at the time of his arrest.

The court explains that in determining whether there was a valid Miranda waiver, the court must consider defendant’s mental state. Here, there was legally insufficient evidence to demonstrate that at the time defendant was read his rights that he maintained the requisite level of comprehension to do so.

State v. Norgren, 287 Or App 165 (2017) (Tookey, J.)

Charges Were Not Properly Joined – Hearsay Was Inadmissible as a Past Recollection Recorded

Defendant was charged with attempted murder, attempted assault, and unlawful use of a weapon (Counts 1, 2, 3) and failure to perform the duties of a driver and unlawful possession of a firearm (Counts 5 and 6). The first three counts arose from an incident where defendant fired a gun at a man during an altercation, and the second two counts arose from defendant’s efforts to flee the scene and his subsequent arrest. With respect to defendant’s demurrer, the court concludes that counts 5 and 6 were improperly joined and the error was not harmless with respect to those counts, because evidence of the attempted murder/assault would not be cross-admissible in a trial for the failure to perform the duties of a driver and possession of a firearm.

Defendant’s two companions during the shooting were interviewed by police and made statements that incriminated defendant. Both were called by the state to testify during trial and were unable to recall the incident. The state successfully introduced their recorded police interviews under OEC 803(5), past recollection recorded, over defendant’s objection. The court concludes that the police interviews were not admissible under that exception because there was no evidence that the record was made or adopted by the witness. The court explains that to make a record, at minimum, the declarant must know that his or her statement is being recorded. Here, there was no evidence that the witnesses were aware of that. Additionally, there was no evidence that the witnesses adopted their statements when the statements were fresh in their memory. The court concludes that the error in admitting the evidence was not harmless.

State v. Miller, 287 Or App 135 (2017) (Egan, J.)

Prosecutorial Misconduct – Reversal Required when Prosecutor’s Statements During Closing were Impermissible

The court concludes that a prosecutor’s comments during closing crossed the bounds of permissible argument and prejudiced defendant’s right to a fair trial, and the trial court abused its discretion in overruling defendant’s objections and failing to grant a mistrial. Defendant was charged with multiple domestic violence offenses against a single victim, C. Defense counsel highlighted inconsistencies in C’s testimony during cross-examination and during closing. During rebuttal closing the prosecutor made several comments disparaging defense counsel and counsel’s efforts to convince the jury that C was lying, including the statement that defense counsel is “not asking for justice.” Defendant moved for a mistrial, which was denied.

On appeal, defendant argued that the trial court should have, at minimum, sustained counsel’s objection to the prosecutor’s comment that defense counsel was “not asking for justice.” The court agrees. Within the context of the entire rebuttal closing, the comment was an unwarranted personal attack on defense counsel, and improperly urged the jury to find defendant guilty based on a desire to punish defense counsel for C’s treatment at trial.

State v. Brunnemer, 287 Or App 182 (2017) (Garrett, P.J.)

Defendant’s Arrest for Public Drinking was Lawful because City Ordinance was Not Preempted by State Law

The court rejects defendant’s challenge to his conviction for possession of methamphetamine. The drugs were discovered after defendant was arrested for violating a Beaverton city ordinance that prohibited drinking “while in or upon any public place.” Defendant challenged the validity of the ordinance arguing that the ordinance conflicts with state law. Specifically, defendant contended that the ordinance conflicted with ORS 430.402, which provides that a city shall not adopt a local law that penalizes “public drinking, except as to places where any consumption of alcoholic beverages is generally prohibited.”

The court concludes that the ordinance is not in conflict with the state law, because the state law’s exception permits cities to ban consumption of alcohol in any place it designates “so long as the ban is a general prohibition on public drinking.” The court also rejects defendant’s alternative argument that a city may not impose a greater punishment for “substantially similar” conduct prohibited by state law. Here, the ordinance imposes a maximum of $2,500 fine and 365 days in jail. Defendant argued that drinking in public is substantially similar to drinking alcohol in a motor vehicle on a public highway, which has a lesser maximum punishment. The court concludes that the two offenses are not substantially similar because they address different conduct and different dangers.

State v. Uroza-Zuniga, 287 Or App 214 (2017) (Wilson, S.J.)

Post-Conviction Relief – PCR Judgment Does Not Satisfy Requirements

The court reverses and remands the post-conviction judgment with respect to petitioner’s second and third claims for relief because the judgment fails to make apparent the legal bases for denying relief on those claims.

Bradford v. Premo, 287 Or App 123 (2017) (Hadlock, C.J.)

Merger – Multiple Counts of Identity Theft Involving Different Victims Did Not Merge into Aggravated Identity Theft

The court rejects defendant’s argument that the guilty verdicts for 27 counts of identity theft involving different victims should merge into the guilty verdict for aggravated identity theft. The court explains that because there are 27 separate victims, under the anti-merger statute, there are 27 separately punishable offenses. However, because identity theft is a lesser included offense of aggravated identity theft, one of the 27 identity theft counts should have merged for total of 27 convictions (not 28).

State v. Gensitskiy, 287 Or App 129 (2017) (Armstrong, P.J.)

Indictments – Disallowance of Demurrer was Harmless Error

Defendant was charged with several counts involving the misuse of public benefits, and counts involving theft, and each were charged in the language of the statute. Defendant demurred, arguing that the indictment failed to meet the joinder requirements. The court concludes that the counts involving the misuse of public benefits were of the same or similar character. With respect to the theft counts, the court concludes that any error in joining those counts was harmless because the evidence would have been cross-admissible.

State v. Warren, 287 Or App 159 (2017) (Tookey, P.J)

Merger – Trial Court Erred in Failing to Merge Convictions Involving Single Victim

The court concludes that the trial court erred in failing to merge two sets of second-degree robbery convictions (Counts 3 and 5, and Count 4 and 6). Each set involved the same victim and two alternative theories of robbery. The state concedes that the counts involving the same victim, same incident, and different theories should merge, and the court accepts the state’s concession.

State v. Wooten, 287 Or App 178 (2017) (Tookey, P.J.)

Expungement – Trial Court Erred in Failing to Set Aside Defendant’s Arrest Record

Defendant was charged with various crimes that were later dismissed without prejudice. When defendant sought to set aside the arrests, the state objected and contended that under ORS 137.225(12) the arrest records should not be set aside. On appeal, the state now concedes that by its plain terms ORS 137.225(12) does not apply to records of arrests.

State v. Malm, 287 Or App 201 (2017) (DeHoog, P.J.)

Trial Court Did Not Err In Failing to Give Choice of Evils Defense Instruction

The court affirms defendant’s conviction for resisting arrest. Defendant contended that he resisted being handcuffed because he “had cancer all over his arms” and it was painful and sought to present a choice of evils defense. The court concludes that the trial court did not err when it failed to give the uniform instruction because, under the facts of defendant’s case, that instruction was incomplete. If the jury were to find that defendant used physical force to resist arrest, then the choice of evils defense was not available to him because it was inconsistent with a deliberate legislative choice to foreclose that defense in cases involving physical force to resist arrest. Here, there was sufficient evidence for the jury to conclude that defendant resisted with physical force, and therefore the instruction was incomplete when it failed to advise the jury that it could not apply the defense if it also found that defendant used physical force.

State v. Moreno, 287 Or App 205 (2017) (Shorr, J.)

Per Curiam – Contempt – State Concedes It Misfiled Contempt Proceeding and Trial Court Erred in Imposing Punitive Sanctions

The court accepts the state’s concession and reverses a contempt judgment, after concluding that the state improperly initiated a remedial contempt in a separate proceeding, in violation of ORS 33.055(3) and that the trial court erred in imposing a punitive sanction in a remedial contempt proceeding.

State v. Gardner, 287 Or App 225 (2017) (per curiam)