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Oregon Appellate Ct - Aug 23, 2017

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

Search and Seizure – Automobile Exception Applied to Warrantless Search

The court affirms the denial of defendant’s motion to suppress evidence obtained during a warrantless search of a vehicle in which defendant was a passenger. Police stopped the vehicle because they initially believed the driver matched the description of a suspect. An officer quickly determined that the driver was not the suspect, but then noticed an open beer next to defendant. The officer opened the door to get the beer can, and then noticed the strong odor of marijuana coming from a duffel bag. The officer opened the duffel bag, found more than an ounce of marijuana, and arrested defendant.

On appeal, defendant argued that there was no ongoing exigency once the officer had determined that the driver was not the suspect, because at that point the car was parked and not mobile, and because the discovery of the beer can was not evidence of a crime but rather a traffic violation. The court rejects that argument, asserting that Supreme Court case law creates a per se exigency that permitted the warrantless search at issue here.

State v. George, 287 Or App 312 (2017) (Ortega, P.J.)


Traffic Violation – Defendant’s Conduct of Coordinating Farm Sales Fell Under Exception to Use of Mobile Communications Device

The court reverses defendant’s traffic citation for use of a mobile communications device after concluding that defendant’s conduct fell within the exception for a person using such a device for “the purpose of farming or agricultural operations.” Defendant was stopped on the Fremont Bridge in Portland while she was on the phone with her father coordinating deliveries for her family pig farm. After reviewing the text, context, and legislative history, the court concludes that agricultural operations encompasses activities associated with the farm business as a whole, including the delivery of products to market.

State v. Bennett, 287 Or App 338 (2017) (DeVore, J.)


Restitution – Restitution for Missing Items Not Proper – Remand for Additional Findings for Damage to Police Vehicle

Defendant was convicted of criminal mischief and attempting to elude a police officer. Defendant was seen bringing five pairs of pants into a dressing room. Defendant damaged two pairs of pants and another two pairs were not recovered. The court holds that because defendant was charged with damaging the pants and not theft, it was improper to impose restitution for the missing pants.

Defendant was involved in a police chase after he left the store. An officer executed a PIT maneuver to force defendant to stop and the police car was damaged. The court remands to the trial court to determine whether the PIT maneuver and resulting damage was a reasonably foreseeable result of his criminal conduct.

State v. Parsons, 287 Or App 351 (2017) (DeVore, P.J.)


Fines and Fees – Compensatory Fine Properly Included Losses Incurred Outside Time Period Covered by Guilty Plea – Court Would Not Exercise Discretion to Correct Error as to Amount of Fine

Defendant pleaded guilty to aggravated identity theft and first-degree criminal mistreatment after defrauding an elderly man. The trial court imposed a $156,565.82 compensatory fine on the criminal mistreatment count. The court rejects defendant’s argument that the trial court erred in imposing a fine that encompassed the victim’s total losses and not just losses for the time period for which defendant pleaded guilty. A compensatory fine need not be calibrated or limited to the amount of economic damages sustained by the victim. The court agrees with defendant that the trial court plainly erred in imposing the fine on the criminal mistreatment count, because it exceeded the statutory maximum fine of $125,000 for a class C felony. However, the court declines to correct the error because the error is clerical and the trial court would impose the same fine on remand on the aggravated identity theft count, a B felony.

State v. Garlitz, 287 Or App 372 (2017) (Lagesen, J.)


Search and Seizure – Warrantless Entry Into Home Not Justified by Emergency Aid Exception – Defendant Did Not Consent

The court concludes that defendant was entitled to suppression of evidence of an assault because police were not justified in entering his home without a warrant. When police responded to a call concerning a domestic dispute, defendant was outside and the victim was inside and upstairs where she felt safe. An officer told defendant that she would be going into the house to check on the victim and defendant said “go ahead, she’s inside.” The officer testified that they entered to see if anyone inside was injured or whether a crime had been committed. The court concludes that the entry was not justified by the emergency aid exception because there was no evidence that the officers subjectively believed that the victim had suffered serious physical injury and was in need of immediate assistance. The court further concludes that defendant’s statement to the officer to “go ahead” inside was acquiescence to the officer’s stated intention to go inside, and was not voluntary consent.

State v. Stanley, 287 Or App 399 (2017) (Garrett, J.)


Forged Permanent Resident Card and Social Security Card Were Not “Valuable Instruments”

The court reverses defendant’s conviction for possession of a forged instrument after concluding that the permanent resident card and social security card were not “valuable instruments” under ORS 165.013(1)(a)(A). The state proceeded against defendant under the theory that the documents were “part of an issue of money, securities, postage or revenue stamps, or other valuable instruments issued by a government or governmental agency.” Defendant argued that the documents must had inherent pecuniary value. The court agrees and explains that it had earlier determined that it had rejected a construction of valuable instruments that rendered it a broad catchall for any government-issued instrument. A valuable instrument refers to instruments that are “inherently valuable” and “issued in large or discrete series.” The documents at issue here did not meet that standard.

State v. Gonzalez-Aguilar, 287 Or App 410 (2017) (Garrett, P.J.)


Contempt – Sufficient Evidence to Prove Defendant Knowingly Violated Court Order

The court concludes that there was sufficient evidence for a factfinder to determine that defendant violated a court order. Defendant was sentenced to probation for multiple domestic violence offenses against the victim. One condition, announced in court, was that defendant continue to abide by the victim’s restraining order, which prevented defendant from being in her apartment. The trial court also ordered that defendant stay away from the apartment unless he had prior written permission from his probation officer. Defendant later met with a probation officer that was not assigned to his case, and told the officer that he lived at the apartment. The officer wrote in an “action plan” that defendant was to reside at a shelter, or alternatively, at the apartment if the victim was not there. Defendant went to the apartment where he was found and arrested.

The court rejects defendant’s argument that the state failed to prove a bad intent because he had permission from a probation officer to be in the apartment. The court notes that defendant concealed the existence of the restraining order from the officer. Defendant also was expressly told by the trial court to follow the terms of the restraining order. A factfinder could therefore infer that defendant was aware of the restraining order, or alternatively, that he had not obtained genuine permission to enter the apartment.

State v. Beleke, 287 Or App 417 (2017) (Garrett, J.)


Post-Conviction Relief – Remanding for Consideration of Whether Counsel Made a Considered Choice Not to Introduce Bias Evidence and Whether Counsel’s Failure to Contact Petitioner Prejudiced Him – Counsel’s Bar Disciplinary Records Were Admissible

The court remands this PCR case to the PCR court to decide in the first instance whether trial counsel’s failure to introduce emails between petitioner and the victim was a strategic choice. Petitioner was convicted of domestic violence crimes. Trial counsel had emails between petitioner and the victim where the victim threatened to ruin petitioner’s life. Counsel did not introduce the emails but used them during cross-examination of the victim. The court notes that the emails would have provided persuasive evidence in support of petitioner’s case theory, but that the emails also contained unflattering evidence about petitioner. The court therefore remands to the PCR court to determine whether the failure to introduce the emails was a result of a reasonable strategic choice following an adequate investigation.

The court also remands for the trial court to determine whether trial counsel’s failure to meet with petitioner until the night before his trial prejudiced him. The court explains that the failure, while clearly deficient performance, is not structural error and petitioner must show prejudice.

Finally, the court concludes that trial counsel’s bar disciplinary records were admissible in the PCR case because they were relevant to whether counsel had made a deliberate strategic choice not to introduce the emails.

Johnson v. Taylor, 287 Or App 424 (2017) (Flynn, J.)


Post-Conviction Relief – Statutory Interpretation – Unloaded Firearm Does Not Qualify as Deadly Weapon

The court concludes that trial counsel rendered ineffective assistance of counsel in petitioner’s underlying first-degree burglary trial when they failed to challenge the sufficiency of the state’s evidence that petitioner possessed a “deadly weapon” during the offense. In the underlying case, the state charged petitioner with committing a burglary while armed with a deadly weapon. During the offense, petitioner stole an AR-15 that was functional but unloaded and kept in a closed, zippered carry bag. Petitioner also took another bag which contained ammunition for the AR-15 and several other firearms. Petitioner was convicted of the burglary and was also sentenced to a higher grid block in light of the finding that he possessed a deadly weapon.

During post-conviction proceedings, petitioner asserted that trial counsel was ineffective for failing to challenge the evidence that he possessed a deadly weapon. The court, employing the customary statutory interpretation analysis, agrees with petitioner’s reading of “deadly weapon.” Specifically, the court determines that a weapon “presently capable” of causing death is a weapon that is immediately capable of doing so. Because the AR-15 was unloaded and in its carrying case, separated from its ammunition, it was not presently capable of causing death. The court further concludes that reasonable counsel would have raised the challenge to the evidence at the time of petitioner’s trial. The court disagrees that petitioner would have been entitled to an outright acquittal of the first-degree burglary charge but agrees that he was prejudiced because he was subject to a harsher sentence. The court grants relief in the form of resentencing.

Norwood v. Premo, 287 Or App 443 (2017) (Linder, S.J.)


Per Curiam – Error to Instruct Jury to Consider 9-1-1 Statements As Substantive Evidence

The court accepts the state’s concession that the trial court erred when it instructed the jury that it may consider the victim’s out-of-court statements to a 9-1-1 dispatcher as substantive evidence, when the statements were admissible only to impeach the victim’s trial testimony. The court further concludes that the error was harmless as to one of defendant’s convictions and remands for resentencing.

State v. Burns, 287 Or App 459 (2017) (per curiam)


Per Curiam – Jury Instructions – Plain Error in Failing to Instruct on Culpable Mental State

The court reverses defendant’s conviction for unlawful use of a vehicle when the trial court failed to instruct the jury that it must find that defendant knowingly used a vehicle without consent of the owner.

State v. Perez-Rodriguez, 287 Or App 461 (2017) (per curiam)


Per Curiam – Any Error in Admitting Evidence was Not Prejudicial

The court rejects defendant’s challenge to the admission of text messages. The trial court admitted the messages as relevant to only one issue, and so instructed the jury. Ultimately that issue was not presented to the jury. During closing, both the state and defendant acknowledged that the messages could be relevant to a different issue. In light of that admission, defendant failed to establish that admitting the messages was prejudicial error.

State v. Reed, 287 Or App 463 (2017) (per curiam)