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Oregon Appellate Ct - Dec 7, 2016

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by: Sara Werboff • December 9, 2016 • no comments


Appeal and Review - Court Lacked Jurisdiction to Consider Defendant's Appeal from Restitution Order Following a No-Contest Plea

The court concludes that it lacks jurisdiction to consider defendant's appeal challenging the restitution award in her case. Defendant pleaded no contest to failure to perform the duties of a driver. Defendant sought to challenge a trial court ruling during a restitution hearing. The court concludes that under ORS 138.050 it does not have jurisdiction to consider a procedural error when the sentence does not exceed the maximum allowed by law and defendant makes no claim that the procedural flaw prevented the court from determining upon appellate review whether the sentence exceeds the maximum.

State v. Sercus, 282 Or App 633 (2016) (Armstrong, P.J.)


Jury Instructions - Hindering Prosecution Instruction that Included All Subsections When Only One was Alleged was Harmless Error

The court concludes that the trial court erred when it instructed the jury that it could find defendant guilty of hindering prosecution if defendant did any of the acts described in ORS 162.325(1)(a) to (f) when the state alleged only that defendant "harbored or concealed" a fugitive. However, the court further concludes that the error was harmless. Defendant was convicted of hindering prosecution after revealing that his son, who escaped from a juvenile detention facility, had been staying at his home. The state alleged only that defendant harbored or concealed his son and both parties presented evidence and argument relevant to only that theory of hindering prosecution. The trial court instructed the jury with the uniform instruction for hindering prosecution, which included all other available theories. That was error because it expanded the scope of liability to a set of acts beyond the specific act alleged in the indictment, in violation of Article VII (Amended) section 5. However, because the record lacked any evidence from which a jury could have found defendant guilty under any other theory of liability for hindering prosecution, the error was harmless.

State v. Burk, 282 Or App 638 (2016) (Sercombe, P.J.)


Court Dismisses State's Appeal of Second-Look Hearing As Moot in Light of PCR Judgment

The court dismisses as moot the state's appeal from a post-judgment order granted defendant conditional release pursuant to a second-look hearing. The case is moot because, while this appeal was pending, defendant was granted post-conviction relief on three of his convictions, and the post-conviction court entered a general judgment vacating defendant's convictions for aggravated murder and intentional murder, leaving only a conviction for felony murder. Because the state's argument in this appeal is that the second-look provisions do not apply to defendant's sentence for aggravated murder, the fact that that conviction is now vacated renders the state's complaint moot.

State v. Walraven, 282 Or App 649 (2016) (Egan, J.)


Trial Court had Jurisdiction to Consider Defendant's Motion for DNA Testing

The court concludes that the trial court erroneously believed that it lacked jurisdiction to consider defendant's motion for DNA testing and appointment of counsel for that purpose. Defendant was convicted in 1997 of numerous person felonies. In 2005, defendant filed a motion with the trial court requesting DNA testing and appointment of counsel. The trial court denied the motion, stating that because defendant had been found guilty and sentenced to the DOC, the trial court no longer had jurisdiction to take action on defendant's requests. In 2013, the legislature passed SB 42, codified as ORS 138.697, which permitted a defendant to appeal from a denial of DNA testing. The court explains that under ORS 138.690, the circuit court in which the judgment of conviction was entered has jurisdiction to consider a defendant's motion for DNA testing, and, under ORS 138.694, the trial court has jurisdiction to consider a defendant's motion for appointment of counsel.

State v. Mendoza, 282 Or App 656 (2016) (Tookey, J.)


Search and Seizure - Officer Lacked Objectively Reasonable Concern for Officer Safety

The court concludes that, assuming without deciding that an officer had reasonable suspicion to extend a traffic stop of defendant, he nonetheless lacked an objectively reasonable concern for officer safety, and a patdown of defendant was therefore unlawful. Police stopped defendant for not wearing a seatbelt, and, in the course of that encounter, subjectively developed reasonable suspicion that defendant possessed drugs. Defendant was extremely nervous, and the officer believed he might "run or fight." Defendant's eyes were bloodshot and he was fidgeting, and the officer observed defendant reach under the seat between his legs when he was first stopped. The officer noted bulges in defendant's front pockets. However, defendant was cooperative throughout the encounter and, aside from that one initial movement, kept his hands in the officer's view for the duration of the encounter. The officer decided to conduct a dog sniff of defendant's car and ordered defendant out of the car. The officer then patted down defendant, finding methamphetamine.

The court concludes that the officer's observations, individually or in combination, did not objectively suggest that defendant posed an immediate threat of serious physical injury. Defendant's conduct, such as the furtive movement or his nervousness, was not accompanied by any other conduct that would indicate that defendant posed a risk. Instead, defendant was cooperative with the officer and obeyed all of his commands. Additionally, defendant's pocket bulges did not create an objectively reasonable belief that defendant had a weapon, much less that defendant would use the weapon against the officer. And, although the officer may have felt more vulnerable with defendant out of the vehicle, that fact too did not create an objectively reasonable belief that defendant was dangerous.

State v. Davis, 282 Or App 660 (2016) (Schorr, J.)


Hand Restraint During Trial was Harmless Error - Mills Reversal Not Required Because Venue was Comprehensively Litigated

The court affirms defendant's convictions for multiple counts of aggravated theft. In a bench trial, defendant acknowledged that he had taken money from his girlfriend's elderly mother, but raised legal defenses, including that the state could not prove venue. On the morning of trial, defendant appeared in leg and hand restraints. After an objection, the deputy agreed to release defendant's writing hand so he could communicate with his lawyer. Defendant again objected, but the trial court deferred to the deputies. The court holds that the record does not substantiate the requisite justification for the hand restraint because there was no evidence that defendant posed an immediate or serious risk of committing dangerous or disruptive behavior. However, the court concludes that the error was harmless. Although the restraint was visible to the fact finder, because there were no factual disputes as to whether defendant had committed the underlying conduct, there was no impingement on the presumption of innocence. The restraint did not limit defendant's ability to testify, he did so at length. And defendant was able to communicate freely with counsel.

The defense at trial was largely focused on venue. Defendant contends that because he trial predated Mills, and because he made an MJOA on the basis of venue, the court should reverse and remand. However, the court concludes that defendant comprehensively litigated the venue issue below, and, in any event, defendant admitted to facts that would establish venue. Therefore, reversal was not warranted.

State v. McCright, 282 Or App 692 (2016) (Haselton, S.J.)


Per Curiam - Fines and Fees - Trial Court Erred in Imposing $60 "Mandatory State Amt"

The court reverses the trial court's order that defendant pay a $60 "Mandatory State Amt" because it lacked statutory authority to impose it.

State v. Daggett, 282 Or App 715 (2016) (per curiam)


Per Curiam - State Concedes the Trial Court Erred in Denying Defendant's Suppression Motion

The state concedes that the trial court erred in denying his motion to suppress and, accordingly, defendant was entitled to a reversal in both his trial and his probation revocation proceedings.

State v. Wilson, 282 Or App 717 (2016) (per curiam)


Per Curiam - Legally Insufficient Evidence of Physical Injury

Where the state presented no evidence that defendant caused the complainant a diminishment in the ability to use a body part or a disruption in the normal functioning of a bodily organ, there was insufficient evidence that defendant caused a physical injury for the purposes of fourth-degree assault.

State v. Grant, 282 Or App 719 (2016) (per curiam)


Per Curiam - Civil Commitment - Evidence Was Legally Insufficient

The court accepts the state's concession that the evidence was legally insufficient to support the trial court's determination that appellant was a danger to himself or others and not able to provide for his basic needs.

State v. A.J.E., 282 Or App 721 (2016) (per curiam)


Per Curiam - Civil Commitment - Plain Error Not to Inform Appellant of His Rights

The court concludes that the trial court plainly erred when it failed to inform appellant of his rights under ORS 426.100(1) and exercises its discretion to correct the error.

State v. L.M.H., 282 Or App 723 (2016) (per curiam)


Per Curiam - Juvenile Dependency - Appeal is Moot

Because the juvenile court, in a subsequent order, set aside the guardianship order that mother's appeals from, the appeal is now moot. The court dismisses the appeal.

DHS v. P.M.M., 282 Or App 725 (2016) (per curiam)


Per Curiam - Civil Commitment - Reversal Because Appellant Held for More Than Five Days Without Hearing

The court reverses a civil commitment order because appellant was held for longer than five judicial days without a hearing. Appellant's hearing occurred six days after he was detained. Appellant moved to dismiss as a result, but the trial court denied it, finding that there was good cause for the delay because the trial court's docket was crowded. Although there is a good cause exception to the five-day rule, it is available only when requested by certain parties and only to allow preparation for the hearing.

State v. W.B.R., 282 Or App 727 (2016) (per curiam)