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Oregon Appellate Ct - Dec 14, 2016

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by: Sara Werboff • December 16, 2016 • no comments

Merger - Sex Abuse Convictions Merged Because There Was No Sufficient Pause Between Acts

The court concludes that merger was required for two guilty verdicts for first-degree sexual abuse. Defendant groped his neighbor over the course of about 10 minutes, by grabbing her breasts and her vaginal area. The state contended that defendant committed two discrete acts, and it was not part of an uninterrupted course of conduct. The court, relying on its decision in State v. Nelson, 282 Or App 427 (2016), rejects that argument. The state alternatively argued that the touching was not simultaneous, it was sequential, and therefore separated by a pause. Again relying on Nelson, the court concludes that merger of guilty verdicts of multiple acts of sex abuse is appropriate where, as here, the conduct occurred in one location, without interruption by any significant event, and without a pause in the defendant's aggression. Neither defendant's ability to retreat nor the sequential nature of the touching established that something of significance occurred between the touching, and the state failed to establish that there was a sufficient pause between the acts of touching.

State v. Dugan, 282 Or App 768 (2016) (Duncan, P.J.)

Sentencing - Indeterminate Life Sentence with 25-Year Minimum is the Sentence for Murder

In this state's cross-appeal, the court concludes that the trial court correctly sentenced defendant to an indeterminate life sentence with a 25-year minimum term of confinement. At defendant's trial, the state pleaded and proved several sentencing enhancement factors that brought defendant's guidelines sentence to 538 months (nearly 45 years). The state argued that the trial court had discretion to impose an indeterminate life sentence with a 538-month minimum term of confinement. The trial court concluded that under ORS 163.115(5)(a) and (b), it could impose the indeterminate life sentence with a 25-year minimum. The court affirms the trial court and rejects the state's argument after reviewing the text, context, legislative history, and historical background of the murder sentencing statute. The court concludes that the legislature intended an offender convicted of murder to be sentenced to an indeterminate life sentence with a 25-year minimum term of incarceration, and did not intend for the trial court to rely on the guidelines or any other source for establishing that minimum term of confinement.

State v. Ambill, 282 Or App 821 (2016) (Lagesen, J.)

To Show That Delivery "Is For Consideration" State Need Only Show Delivery with Purpose of Obtaining Something of Value in Return

The court holds that the state presented sufficient evidence that defendant was guilty of delivery of methamphetamine for consideration under ORS 475.900(2)(a) (the delivery "is for consideration") notwithstanding its earlier opinion in State v. Villagomez, 281 Or App 29 (2016), in which it held under a different section of the same statute that the state is required to show a completed transaction or agreement to enter into a transaction for purposes of proving that the transaction "was for consideration." In this case, defendant bagged methamphetamine and stated that he "needed to make some money."

After analyzing the text, context, and legislative history, and discussing the same analysis undertaken in Villagomez of a different, past-tense construction of "for consideration", the court concludes that the meaning of "is for consideration" in paragraph (2)(a) applies when a defendant commits an unlawful delivery with the purpose of obtaining something of value in return, even if the defendant has not yet received payment or the promise of payment at the time he commits the delivery.

State v. Stewart, 282 Or App 845 (2016) (Garrett, J.)

Civil Commitment - Appellant Failed to Preserve Argument That, Because He Was in Jail, He Could Meet Basic Needs

The court affirms appellant's civil commitment order and the trial court's finding that appellant could not meet his basic needs. The court concluded that appellant, who was in jail at the time, would be unable to meet his needs if he were released. On appeal, appellant argued that the state failed to present any evidence of when he would be released from jail and therefore the court could not have concluded that his near-term survival was in jeopardy. The court concludes that appellant failed to preserve that argument when he made a general argument challenging the sufficiency of evidence. Had appellant made that specific point below, the state and the trial court would have had the opportunity to address the issue.

Judge Duncan dissents, finding that the argument was preserved by appellant's argument that he was capable of meeting his basic needs. Additionally, finding that the argument is preserved, Judge Duncan also finds that the evidence was insufficient to support the civil commitment.

State v. K.J.B., 282 Or App 862 (2016) (Garrett, J.) (Duncan, P.J., dissenting)

Disorderly Conduct - Insufficient Evidence that Defendant Engaged in Physical Act of Aggression

The court concludes that the state failed to prove that defendant committed second-degree disorderly conduct under ORS 166.025(1)(a) - by engaging in fighting, or in violent, tumultuous or threatening behavior. Defendant picked up and hugged the young daughter of his neighbor. Defendant became distraught and cried as he hugged her, and told her he "wanted a girl as pretty" as her. The girl explained that defendant had hugged her like her mother does, and it made her feel "weirded out." The girl's father, who observed the incident, said he was upset at first but then noted that defendant was crying and distraught and he did not want to escalate the situation. Defendant walked away after hugging the girl. Defendant thereafter left a letter to the girl containing a contract of sorts for the girl to sign and agree to tell her father if she was ever touched inappropriately. This letter angered the girl's father.

The court notes first that purely communicative conduct cannot form the basis of a conviction under ORS 166.025(1)(a). Instead, the state must show that a defendant used physical force, or engaged in physical conduct immediately likely to produce the use of physical force. The court first rejects the state's contention that defendant's physical act of leaving the letter supported his conviction. The statute does not reach physical acts that are actual but incidental to speech. The court next rejects the state's argument that defendant's physical act of hugging the girl supported the conviction because there was no physical aggression, and because defendant's actions were not perceived by either the girl or her father as outwardly threatening.

State v. Hosley, 282 Or App 880 (2016) (Flynn, J.)

Invited Error - Defendant Could Not Obtain Reversal of Trial Court's Denial of DNA Testing Because He Invited the Error

Defendant sought DNA testing by providing an affidavit in which he asserted that the victim's clothing should be tested to determine if bodily fluids were on her clothing and if so, who those belonged to. Defendant argued that the absence of bodily fluids would be highly probative evidence contradicting the victim's account. The state responded that defendant's motion was legally insufficient because he did not establish a prima facie showing that favorable lab results would establish his actual innocence. Defendant responded. Both the state and defendant made arguments referring to the standards set forth in Schlup v. Delo and House v. Bell in their interpretation of actual innocence, in particular, defendant relied on House and the trial court reviewed that case before ruling.

On appeal, defendant argues that the trial court's reliance on the Schlup/House standard was wrong. The court explains that this is a "quintessential" case of invited error. Because defendant argued that the House standard was applicable, he cannot now complain that the trial court applied it. NB: The court does not rule as to whether the Schlup/House standard is actually correct.

State v. Rogers, 282 Or App 888 (2016) (Haselton, S.J.)

Preservation - Defendant Failed to Preserve Claim That He Was Entitled to Cross-Examine Victim with Prior False Accusation

The court rejects as unpreserved defendant's argument that he was entitled, under State v. LeClair, to cross-examine the victim with a prior false accusation. The victim accused defendant of various sex offenses. The victim also had made an accusation of sexual abuse, that defendant contended was false, against defendant's wife. Before trial, defendant filed a motion under OEC 412 asking to present evidence of the false accusation to the jury. The state argued that the evidence defendant sought to introduce was not governed by OEC 412 and that defendant was only permitted to cross-examine the victim about the false accusation. Defendant acknowledged that he had filed his motion out of an abundance of caution, but asserted that he was entitled to present evidence of the false accusation if the victim did not admit to it on the stand, because it was evidence of motive or bias under OEC 404(2) and (3). Ultimately, following an offer of proof, the trial court determined that defendant's evidence did not meet the threshold of showing that the victim had made a prior false accusation.

On appeal, defendant asserted that the trial court violated his confrontation rights by excluding the evidence of the victim's prior false accusation and by failing to conduct a LeClair analysis. The court concludes that defendant did not preserve his LeClair argument because he argued below that the evidence was admissible under OEC 412 and 404(2) and (3) as evidence of the victim's motive, not, as LeClair held, evidence that is used to show the victim's lack of credibility.

State v. Scott, 282 Or App 896 (2016) (Wilson, S.J.)

Per Curiam - Post-Conviction Relief - Judgment Did Not Comply with Datt v. Hill

The court reverses for entry of a judgment that clearly states a legal basis for the denial of petitioner's post-conviction relief claim.

Jensen v. Premo, 282 Or App 905 (2016) (per curiam)

Per Curiam - Merger - State Concedes Convictions for Third-Degree Assault and Fourth-Degree Assault Should Merge

The court accepts the state's concession that the trial court erred in not merging the guilty verdicts for third-degree and fourth-degree assault into a single conviction for third-degree assault.

State v. Davidson, 282 Or App 907 (2016) (per curiam)

Per Curiam - State Could Not Obtain Conviction for Uncharged Misconduct

The court concludes that the state's argument during closing that the jury could convict defendant for another incident than the one it charged was error. Defendant was indicted for second-degree sex abuse and convicted of third-degree sex abuse. The victim testified to one incident in which defendant penetrated her vagina with his fingers. The state introduced text messages between defendant in the victim where defendant stated that only "a finger went down there." Defendant testified and explained that he was referring to a different incident when he touched the victim over her clothing in a elevator.

The state then requested a lesser-included offense instruction based on defendant's evidence that he touched the victim over her clothes during a separate incident. The state then argued during closing that the jury could find defendant guilty of third-degree sex abuse for the "elevator incident." The state concedes that as a matter of procedural due process, the trial court erred in permitting the state to obtain a conviction based on an uncharged incident and the court accepts the state's concession.

State v. Cross, 282 Or App 910 (2016) (per curiam)

Per Curiam - Reversing Attorney Fee Award

The court concludes that the trial court erred in imposing court-appointed attorney fees when the record was silent as to defendant's ability to pay fees.

State v. Miles-Langston, 282 Or App 913 (2016) (per curiam)

Per Curiam - Trial Court Erred in Imposing Fees It Had Not Announced on the Record During Sentencing

The court reverses a portion of a judgment imposing a $200 fine and $100 bench probation fee when the trial court did not announce that it was imposing those costs during sentencing. The bench probation fee was further improper because defendant was not sentenced to bench probation.

State v. Hurst, 282 Or App 915 (2016) (per curiam)

Per Curiam - Trial Court Erred in Directing Court Clerk to Set Up Fee Payment Schedule

The court concludes that the trial court erred in including in the judgment a directive to the court clerk to set up a fee payment schedule pursuant to ORS 161.675. When, as here, a defendant is sentenced to a term of incarceration, the trial court must find that the defendant has assets to pay all or part of the fines in the case before requiring defendant to repay the financial obligations. Because the trial court did not make such a finding, the term in the judgment was erroneous.

State v. Martinez, 282 Or App 917 (2016) (per curiam)