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Oregon Appellate Ct - Aug 3, 2016

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by: Sara Werboff • August 7, 2016 • no comments



First-Degree Criminal Mistreatment - Taking of Elderly Person's Money Does Not Include Accepting Gifts - First Impression

When a person is charged with first-degree criminal mistreatment by “tak[ing] the [elderly person’s] money or property for, or appropriat[ing] the money or property to, any use or purpose not in the due care and lawful execution of the person’s responsibility[,]” ORS 163.205(1)(b)(D), the state must prove that the person did not obtain that money through the voluntary consent of the elderly person, i.e., as a gift. Defendant cared for a wealthy elderly woman. The woman gave defendant several checks for substantial amounts of money. After the woman died, the checks were discovered and defendant was charged with first-degree criminal mistreatment. The state argued that the criminal mistreatment statute precluded any taking of an elderly person’s money, even if it was voluntarily given. “Takes” in criminal law is “generally understood to be limited to transfers of property that are effected without the consent of the owner of the property.” The legislature tried to craft a provision that was “broad enough to cover abuse without being overly inclusive” and did not intend to criminalize gifts.

State v. Bevil, 280 Or App 92 (2016) (Duncan, P.J.)


Disorderly Conduct - Physically Offensive Condition Means Creating Unpleasant Sensory Effects

The court held that the disorderly conduct statute “was intended to apply to conditions whose sensory features cause people exposed to them to experience unpleasant effects.” Defendant was convicted of second-degree disorderly conduct following an incident where defendant, on public transportation during rush hour, made lewd comments to and masturbated in the direction of a female passenger. The state argued that a physically offensive condition reaches conduct that, “because it is morally or intellectually offensive, creates unpleasant physical sensations in the people exposed to it.” The court rejected that broad definition, holding that defendant's conduct created images and sounds, but this would not cause a reasonable person to experience sensory effects, as opposed to physical effects like disgust.

State v. Hawkins, 260 Or App 26 (2016) (Armstrong, J.)


Aggravating Sentencing Factors - Does Use of Dangerous Weapon Justify Upward Departure for Murder - Sufficiency of Trial Court's Findings

The court remands this case for resentencing because 1) the trial court may have considered unalleged enhancement facts in imposing an upward departure sentence, and 2) because the reasons the trial court gave did not establish why an upward departure sentence was justified. In 1991, defendant, then 16 years old, murdered a 22 year old woman in the course of an attempted rape. The murder weapon was a small, dull “Boy Scout knife.” Defendant repeatedly cut the victim’s throat with the small knife until she was nearly decapitated. The state alleged and defendant conceded defendant's use of a dangerous weapon as an aggravating sentencing factor. The trial court imposed a 600-month sentence and justified that departure because the small knife that defendant chose caused him to come into “very close proximity” to the victim and caused her an “increased amount of pain and suffering. The trial court also identified the defendant’s “obvious lack of empathy” as “the most overriding issue” concerning future safety of the public and whether rehabilitation had occurred.

The court first holds that OAR 213-008-0002(2), which precludes aggravating factors that are “a statutory element of the crime” or are “used to subclassify the crime on the Crime Seriousness Scale,” does not preclude the use of a weapon as an aggravating factor for murder because the crime of murder does not include use of a weapon as an element of that offense. Next, because the trial court’s comments indicated that it may have relied on such factors that were not alleged or proven the case must be remanded for resentencing. Finally, the court concludes that the trial court’s explanation failed to demonstrate why defendant’s use of a dangerous weapon justified departure. The court found that the trial court was effectively punishing defendant for not premeditating more and choosing a more efficient weapon. The court further found that the weapon did not cause pain or suffering greater than that already contemplated by the legislature when it set the presumptive sentence for murder.

State v. Davilla, 280 Or App 43 (2016) (Ortega, J.)


Search & Seizure - Silence is Not an Unequivocal Manifestation of Intent to Abandon Property

In order to relinquish a person’s constitutionally protected interest in an item, that person must unequivocally manifest an intention to do so. The court will not infer that intentional relinquishment from the person’s silence. An officer encountered defendant next to a parked van. The van was not registered. In response to questioning, defendant told the officer that the van belonged to his friend. The officer called the van’s owner, who gave the officer permission to search the van. The officer asked defendant if he had any belongings in the van and defendant said all the bags with clothing in them belonged to him. The officer searched the van, excluding the bags defendant described, and found a container holding methamphetamine that defendant then admitted was his. The state bears the burden of proving that the defendant abandoned his constitutionally protected interest in the item. Because there was no evidence that defendant disclaimed ownership of the container, the search of the container was unlawful.

State v. Jones, 280 Or App 135 (2016) (Wilson, S.J.)


Search & Seizure - Scope of Consent to Patdown - Officer Safety

The police exceeded the scope of defendant’s consent to a patdown by reaching into defendant’s pocket to remove a hard object. The search also was not justified by officer safety concerns. A patdown is generally sufficient to alleviate officer safety concerns, and any step beyond that must be supported by reasonable suspicion, based on specific and articulable facts, that the person poses a serious threat of harm and a further search would eliminate that threat. Here, the court concluded, the officer’s safety concerns that methamphetamine users are unpredictable and pose safety risks, were too generalized. Defendant’s cooperative conduct and characteristics, the nature of the object itself, and the surrounding circumstances of the stop did not support the state’s contention that defendant posed a safety risk.

State v. Musalf, 280 Or App 142 (2016) (Wilson, S.J.)


Hearsay from Confidential Informant - Opening the Door - Harmless Error

The trial court erred in admitting a police officer's testimony relating hearsay statements from CI linking defendant to stolen firearms and methamphetamine. The state below argued that the hearsay was admissible because defendant opened the door by attacking the CI's reliability. The court concluded that defendant's attack on reliability did not create an unfair impression and did not open the door. Additionally, the hearsay testimony did not serve to rehabilitate the CI. On appeal, the state argued that the error was harmless. The court concluded error was not harmless as to theft because the hearsay statements provided the only direct evidence that defendant knowingly possessed a stolen firearm, but was cumulative of other evidence concerning methamphetamine charge.

State v. Henderson-Laird, 280 Or App 107 (2016) (Egan, J.)


Post-Conviction Relief - Sufficiency of PCR Judgment Denying Claims for Relief

Because a PCR judgment denied claims for relief but did not clearly state the trial court's basis for denying those claims, the court reverses and remands for entry of a new judgment including the findings required by ORS 138.640(1).

Vincente v. Nooth, 280 Or App 9 (2016) (Hadlock, C.J.)


Post-Conviction Relief - Sufficiency of PCR Judgment Denying Petition as Untimely

The court affirms denial of PCR petition due to untimely filing of the petition and adds that the judgment in this case is not deficient despite not stating a basis for denying the claims for relief because the petition was dismissed on procedural grounds.

Lopez-Becerra v. State of Oregon, 280 Or App 89 (2016) (Ortega, J.)


Challenge to Department of Corrections Rules - Retroactivity - Vagueness - Exceeding Statutory Authority

The court upholds the validity of three Department of Corrections rules in response to facial challenges that the department exceeded its rulemaking authority. The first challenge concerned the retroactive application of a rule allowing the department to reopen a disciplinary order (OAR 291-105-0005(3) and OAR 291-105-0100). The court held that the department has authority to give rules retroactive effect. The second challenge argued that a rule providing that an "order" that an inmate must follow includes "all federal, state and local laws" (OAR 291-105-0010(29)) exceeded the department's authority under statute. The court concludes that the rule was within the broad grant of rulemaking authority from the legislature to provide for the security of the institution. The court also concludes that the rule is not vague because "all federal, state and local laws" is a term "capable of precise identification." Finally, the court rejects an as-applied challenge to the rule defining racketeering (OAR 291-105-0015(4)(n) because it is procedurally improper basis for a rule challenge.

Hessel v. Dept. of Corrections, 280 Or App 16 (2016) (Armstrong, P.J.)

Assault IV - Physical Injury - Sufficiency of Evidence - Per Curiam

Youth argued that no reasonable fact-finder would be able to conclude that he had caused “physical injury” to the victim, a required element of fourth-degree assault. The state conceded no physical injury but argued that youth was still properly within the jurisdiction of the juvenile court for attempted fourth-degree assault. The court reverses youth’s juvenile delinquency judgment for fourth-degree assault and remands with instructions to enter a delinquency judgment for attempted fourth-degree assault.

State v. M.S.T-L, 280 Or App 167 (2016) (per curiam)


Merger - Trial Court Can Find Sufficient Pause from Defendant's Guilty Plea to Date Range - Per Curiam

Because defendant had pleaded guilty to committing a crime within a range of dates, the trial court may consider that crime to have been committed on any of the dates within the range, and therefore, the trial court could find for the purposes of merger that the identity thefts occurred on different dates and were separated by a sufficient pause.

State v. White, 280 Or App 170 (2016) (per curiam)


Jury Instructions Including Theories Not Alleged in Indictment are Erroneous - Per Curiam

A jury instruction that allows the jury to convict on a basis not alleged in the indictment violates Article VII (Amended), section 5, of the Oregon Constitution and is not harmless when the state argues to the jury that it may convict defendant under either theory.

State v. Warren, 280 Or App 164 (2016) (per curiam)


Search & Seizure - Unlawful Extension of Stop - Per Curiam

An officer's authority to detain defendant dissipated when he concluded their investigation of the DUII and the traffic infraction, and walking a drug dog around defendant's vehicle without reasonable suspicion that defendant's possessed drugs unlawfully extended the stop.

State v. Hanussak, 280 Or App 161 (2016) (per curiam)


Declaratory Relief - Waiver or Deferral of Filing Fees - Per Curiam

Pro se inmate alleged a justiciable claim for declaratory relief (whether ORS 421.121 authorizes a reduction in earned time credit for his crime of conviction), and the trial court erred in dismissing his application for waiver or deferral of filing fees. The trial court may decline such an application if the pleadings fail to state a claim for which relief may be granted but here the inmate did properly allege a claim.

Hays v. Dept. of Corrections, 280 Or App 173 (per curiam)