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Oregon Appellate Ct - Dec 29, 2016

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by: Sara Werboff • January 2, 2017 • no comments

"Past Sexual Behavior" Under OEC 412 is Behavior Other Than the Underlying Allegations

The court concludes that the trial court did not err in excluding, under OEC 412, evidence of a victim's sexual behavior towards other men on the night that she was sexually assaulted by defendant. OEC 412 excludes evidence of a victim's "past sexual behavior" unless defendant makes certain showings. Here, the issue is whether the victim's conduct the night of the offense is "past sexual behavior." Noting that OEC 412 defines past sexual behavior as "sexual behavior other than the sexual behavior with respect to which [the sex offense] is alleged." The dispositive question is whether the sexual behavior is part of or separate from the sexual acts underlying the offense. Because the victim's sexual acts with other men was "collateral sexual activity not part of or associated with the later events involving defendant" the trial court did not err in excluding it.

State v. Alcantar, 283 Or App 114 (2016) (Hadlock, C.J.)

DUII - A Person in a Motorized Wheelchair in a Crosswalk is a Pedestrian and Not a Driver

The court concludes that defendant - who was intoxicated while operating his motorized wheelchair in a crosswalk - was entitled to a judgment of acquittal for DUII. The court agrees with defendant that at the time he was operating his wheelchair in a crosswalk, he was a pedestrian, not a driver subject to the vehicle code. The court acknowledges that the state's argument, that defendant's motorized wheelchair is a vehicle, is not without some merit. The vehicle expressly treats motorized vehicles as bicycles when they are operated in a bicycle lane or path. Accordingly, a person in a motorized wheelchair may be subject to DUII when operating in a bike lane. However, the vehicle code treats persons in wheelchairs as pedestrians for most other purposes and a person cannot be simultaneously a pedestrian and a driver. Therefore, when a person in a motorized wheelchair is traveling as a pedestrian in a crosswalk, he is not subject to DUII.

State v. Greene, 283 Or App 120 (2016) (Armstrong, P.J.)

DNA Testing - Remand Required When Trial Court Denied Petition for Appointed Counsel on Improper Basis

The court concludes that the trial court denied defendant's request for court-appointed counsel to pursue DNA testing on the erroneous belief that defendant was seeking appointed counsel for an untimely direct appeal. Because the trial court did not evaluate the petition's merits, remand is required. Defendant was convicted in 2000. In 2013, defendant sought court-appointed counsel for DNA testing and filed the necessary motions. The petition's for appointment of counsel's caption referenced ORS 138.500, but underneath he referred to SB 42, the DNA testing bill. The trial court denied the petition, noting that defendant's appeal was complete in 2008. The court notes that the substance of a motion controls over the contents of the caption, and even though defendant referenced the wrong statute, the rest of the motion was clear.

State v. Alegre, 283 Or App 127 (2016) (Ortega, P.J.)

Traffic Violations - Court Did Not Abuse Discretion in Limiting Defendant's Evidence in Traffic Proceeding

In this traffic case, the court concludes that the trial court did not abuse its discretion in ruling against defendant without allowing him to finish his evidentiary presentation. Defendant was cited for two violations, speeding and failing to have operating trailer lights. Defendant took his case to trial and spent a significant amount of time cross-examining the citing officer about radar technology. The trial court warned defendant that he was not using his time well and that the evidence he was discussing was not relevant to whether the state proved that defendant was speeding. Defendant than testified for several minutes, again focusing on the speeding citation. The trial court stopped defendant's testimony, noting that he had used three times the ordinary allotment for a traffic trial. Defendant objected because he did not have time to discuss the lighting issue. The court concludes that it is apparent from the record that the trial court gave defendant ample time to present his evidence and arguments, and defendant instead decided to focus on evidence and arguments that the trial court warned him were not helpful.

State v. Landon, 283 Or App 131 (2016) (Ortega, P.J.)

Juvenile Dependency - Juvenile Court did Not Make "Child-Centered" Determination in Changing Permanency Plan

The court concludes that the juvenile court did not conduct the statutorily required "child-centered" determination when it changed a child, M's, permanency plan from guardianship to adoption. Mother is incarcerated. While incarcerated, mother has engaged in services to address her drug addiction. Mother, and grandmother, also developed a bond with M, and M's foster parent encouraged and facilitated that relationship. The juvenile court changed the permanency plan to adoption stating that there was no compelling reason that filing a termination of parental rights petition, and freeing M for adoption, was not in the child's best interest. The juvenile court noted that M had been under the court's jurisdiction for a long time and that adoption is the legislatively preferred plan. The court reverses the permanency judgment, agreeing with mother that the juvenile court did not consider the best interests of the child. The court notes that the juvenile court's ruling suggested that when parents cause the circumstances leading to jurisdiction, the desire to preserve a relationship with the child does not qualify as a compelling reason not to change the plan to adoption. The court explains that this logic is flawed because the juvenile court is required to consider whether preserving the relationship is in the best interest of the child. Here, the juvenile court failed to consider what would be in M's best interests.

DHS v. S.S., 283 Or App 136 (2016) (Ortega, P.J.)

Fines and Fees - Restitution Award Proper for Victim's Attorney Fees but Not for Costs of CARES Evaluation

The court concludes that the trial court erred in requiring defendant to pay the costs of a forensic evaluation in a sex abuse case, but did not err when it ordered defendant to pay restitution for attorney fees incurred by the victim's family. Defendant was convicted of multiple sex crimes arising out of a relationship with the 15-year-old victim. After the victim disclosed the relationship to her family, her father retained an attorney to advise them throughout the criminal prosecution. The victim also underwent an evaluation at CARES. After defendant was convicted at trial, the state requested restitution to the victim for the attorney fees, and to the Criminal Injuries Compensation Account for the CARES evaluation. The court notes that the Oregon Supreme Court's decision in State v. Ramos, 358 Or 581 (2016), permits the attorney fees in this case. Defendant did not argue that the fees were not reasonably foreseeable as a result of his criminal conduct or that they were unreasonable or unnecessary. However, the court explains that the CARES evaluation, although arguably having a medical purpose, is primarily an investigative cost and investigative costs are not recoverable in restitution. Because there was no evidence that the victim or her family had to pay any costs associated with the CARES evaluation, there was legally insufficient evidence to give rise to a theory of civil liability where the CARES costs could be recoverable from defendant.

State v. Herfurth, 283 Or App 149 (2016) (Duncan, P.J.)

Evidence - Johns Test Not Required for Motive Evidence - State Failed to Establish that Prior Act was Relevant Under OES 404(3)

The court concludes that evidence of a threat defendant made to his wife years before the assault for which he was convicted was not relevant or admissible under OEC 404(3) for a valid nonpropensity purpose. Defendant was charged with assault following an altercation with his wife. Defendant contended that her injuries were accidental. During his trial, the state introduced evidence that years before, defendant had threatened to take his wife out into the woods and kill her. The court analyzes whether the evidence was relevant under OES 404(3) because the state did not argue that it was admissible propensity evidence under OES 404(4).

First, the court rejects defendant argument that the state was required to satisfy the Johns test. The court reviews recent case law and explains that the state only needs to meet the Johns test when it relies on a doctrine of changes theory of relevance. Here, the state sought to introduce defendant's prior threat to show motive. The state contended that the threat evidence demonstrated that defendant felt hostility towards his wife a few years before the assault and the jury could infer that the hostility continued to the day of the assault to provide a reason for defendant to intentionally injure her. The court rejects that argument because there was no substantial connecting link between the two events. A trial court must evaluate a past act to determine, first, what motive the prior act demonstrates, and second, whether the circumstances of the charged crime support an inference that the same motive is at work. Here, the record lacks the information necessary to determine whether the same hostility was at work in both incidents.

State v. Wright, 283 Or App 160 (2016) (Duncan, P.J.)

Post-Conviction Relief - Petitioner was Prejudiced by Trial Counsel's Failure to Provide Timely Notice of Alibi

The court reverses the PCR court's judgment denying the petition on the grounds that petitioner failed to establish prejudice after proving that trial counsel was ineffective for failing to provide notice of an alibi witness. Petitioner was convicted of several child pornography offenses. The court agrees with the PCR court that trial counsel failed to exercise reasonable skill, as the trial court ruled that petitioner was precluded by trial counsel's failure to provide timely alibi notice from presenting evidence from two witnesses who would have testified that petitioner was not home when the pornography was downloaded. But the court disagrees with the PCR court's conclusion that there was "sufficient other evidence" of petitioner's guilt that trial counsel's failure did not prejudice petitioner.

The court explains that trial counsel's failure did prejudice petitioner because the "analytical question" is not whether the state presented sufficient evidence that petitioner did download the pornography but whether the exculpatory evidence that petitioner was unable to produce "could have affected the jury's perception of the evidence in the case." The alibi evidence "directly undercuts the inference that the state sought to have the jury make," that petitioner alone downloaded the images, and it strengthened the inference that the defense wanted the jury to make, that someone else downloaded the images. Because the missing alibi evidence could have tended to affect the jury's consideration of the case, petitioner proved prejudice.

Denton v. Nooth, 283 Or App 179 (2016) (Duncan, P.J.)

Sentencing - Merger Required Because Acts Not Separated by "Sufficient Pause"

The court remands for resentencing after concluding that the trial court record does not contain evidence that would allow a nonspeculative inference that each of defendant's crimes was separated by a sufficient pause to allow the trial court to enter multiple convictions. Defendant touched the victim on her breasts and her vagina while they were alone in defendant's bedroom and was charged with two counts of sex abuse. The court agrees with defendant that there was insufficient evidence of a "sufficient pause" because the acts occurred during a single encounter and there was no evidence of the duration of time that elapsed between the two touching incidents.

State v. Avila, 283 Or App 262 (2016) (Garrett, J.)

Per Curiam - Civil Commitment - Dismissal Required When Hearing was Untimely

The court concludes that the trial court was required to dismiss the civil commitment proceedings against appellant because the hearing was not held within five judicial days after he was taken in for involuntary treatment.

State v. E.R., 283 Or App 282 (2016) (per curiam)

Per Curiam - Affirming Probation Revocation Sentence Imposed Pursuant to Stipulation in Plea Agreement

The court concludes that the sentence imposed on revocation of probation pursuant to a stipulation that defendant made in his plea agreement was unreviewable under ORS 138.222(2)(d).

State v. Keeler, 283 Or App 284 (2016) (per curiam)