Oregon Appellate Ct - February 18, 2016

by: Aalvarez • February 18, 2016 • no comments

Permanency - Substance Abuse and Lack of Legal Custody Insufficient Grounds for Jurisdiction

DHS concedes, and the court accepts that allegations that mother had substance abuse issues and that father, who resided outside of Oregon, did not have legal custody of the children, were insufficient allegations to justify jurisdiction and that the juvenile court erred by failing to grant father’s motion to dismiss jurisdiction. However, the court refuses to consider father’s motion to dismiss amended petitions for jurisidiction based on other allegations, because those petitions had not been considered by the juvenile court, yet. Permanency judgments based on original petitions reversed. DHS v. Z.E.W., 276 Or. App. 463 (2016)

A First Degree Robbery Indictment Necessarily Alleges the Crime of Third Degree Robbery

When a defendant is convicted of Second Degree Robbery and the conviction is reversed, it is appropriate to remand the case for entry of judgment of conviction on Third Degree Robbery, instead. Here, in State v. Pittman, 275 Or. App. 518 (2015), the Court of Appeals previously reversed the defendant’s conviction for Second Degree Robbery without remanding for conviction of a lesser offense, because it found that Second Degree Robbery was not a lesser included of First Degree Robbery as alleged in the indictment. Both parties petitioned for reconsideration, contending that the proper disposition was for defendant’s conviction to be reversed and remanded for an entry of judgment of conviction for Third Degree Robbery. The Court of Appeals agrees, noting that First Degree Robbery is predicated on Third Degree Robbery and since the defendant was charged with First Degree Robbery, Third Degree Robbery was necessarily alleged in the indictment. State v. Pittman, 276 Or. App. 491 (2016)

Weaving in Own Lane and Touching Fog Line is Sufficient to Provide Reasonable Suspicion of DUII

An officer’s observations of a vehicle touching the fog line and weaving within a lane, combined with the knowledge that such driving behavior may constitute impaired driving, gave an officer reasonable suspicion that the defendant was driving under the influence of intoxicants. In this case, an officer stopped the defendant after he observed him weaving in his lane and touching the fog line. The officer believed he had reasonable suspicion to stop the defendant for driving under the influence of intoxicants. After pulling the defendant over, the officer smelled marijuana, which eventually lead to the discovery of four pounds of marijuana. The defendant moved to suppress the evidence and the trial court denied the motion. On appeal, the court affirms the trial court’s decision, noting that it has previously concluded “on several occasions—that a police officer’s observation of a vehicle weaving in its own lane provides a sufficient basis to reasonably believe that the driver of the vehicle is operating the vehicle under the influence and to stop the vehicle for further investigation.” Affirmed. State v. Shupe, 276 Or. App. 496 (2016)

Evidence of a Lawful Marijuana Business in Washington is Not Relevant in a Prosecution for Delivery in Oregon

Evidence that a defendant, while stopped in Oregon, intended to deliver marijuana found in his possession to Washington is not relevant in a prosecution for Delivery of Marijuana in Oregon because the crime of delivery only requires possession with intent to deliver, not actual delivery. Thus, evidence that a defendant intended to deliver the marijuana to the state of Washington does not legalize his possession with the intent to deliver while in Oregon, because the crime of delivery was committed the moment he possessed the marijuana with the intent to deliver it.

Here, the defendant was found in possession of four pounds of marijuana after being stopped for a traffic violation in Oregon. At trial, the defendant sought to introduce evidence that he had a legal marijuana buisiness in Washington and the state filed a motion in limine to exclude such evidence as irrelevant, which the trial court granted. On appeal, the defendant contends that the evidence was relevant, because it proved that he intended to deliver the marijuana in Washington, not in Oregon. The court affirms the trial court’s ruling, noting that the crime of delivery only requires possession with the intent to deliver. Here, the defendant possessed the marijuana in Oregon with the requisite intent while still within the state of Oregon. The fact that the defendant intended to ultimately complete the delivery in Washington is irrelevant, because he still possessed the marijuana and formed the requisite culpable mental state while still in Oregon. Affirmed. State v. Shupe, 276 Or. App. 496 (2016)

Merger - Possession and Delivery of a Controlled Substance

Reaffirming its opinion in State v. Sargent, 110 Or. App. 94 (1991), where the court held that it is possible to commit the crime of delivery without ever having possession of the controlled substance, the Court of Appeals affirms the trial court’s refusal to merge the defendant’s conviction for Delivery and Possession of the same controlled substance, because it is possible to commit the offense of delivery without having any dominion or control over the substance to be transferred. Affirmed. State v. Shupe, 276 Or. App. 496 (2016)

OEC 803(18a)(b)-State Not Necessarily Required to Provide New Notice of Hearsay Statement Particulars on Retrial

When the state provides adequate notice to the defense of hearsay statements they intend to offer under OEC 803(18)(a)(b) and the case gets reversed and remanded for a new trial for other reasons, the state is not required to provide a duplicate notice to the defense prior to the second trial. Here, the defendant was originally charged with multiple counts of child sex abuse in May, 2007. Prior to that trial, the prosecution provided adequate notice under OEC 803(18a)(b) of certain hearsay statements of the victim it intended to offer. The defendant was tried and convicted, but the convictions were ultimately reversed due to other reasons. During his retrial, the defendant contended that he was entitled to a new notice of the hearsay statements under OEC 803(18a)(b), or at the least, a duplicate notice of the statements the state intended to proffer. The trial court disagreed and the defendant was convicted. On appeal, the court affirms the trial court’s ruling, noting that “nothing that happened in the first appeal called into question the May 2007 notice, or would have suggested to the parties that the notice on file was no longer effective to communicate the state’s intent with respect to the victim’s hearsay statements.”

However, the court made clear that it does “not hold that a party’s notice under OEC 803(18a)(b) before a first trial categorically is sufficient to provide notice that that party intends to introduce hearsay statements at any subsequent retrial.” Further, the court stated that “[t]here may be cases in which the circumstances between a first trial and a later retrial are such that an original notice will not operate to “make[] known to the adverse party the proponent’s intention to offer the statement and the particulars of the statement no later than 15 days before trial,” and a party that has not given new notice will, as a consequence, be precluded from introducing hearsay statements that the party desires to introduce.” Affirmed. State v. Kelly, 276 Or. App. 507 (2016)

Nonthreatening but Unwanted Contacts with No Previous History of Violence Or Threats Are Insufficient to Justify an SPO

There is insufficient evidence for an SPO where the unwanted contacts are nonthreatening and where the petitioner is unable to provide evidence of any previous history of threats or violence. Here, the petitioner and the respondent were in a romantic relationship for three years, after which the petitioner asked the respondent to cease contact with her. After the breakup, the respondent continued to engage in contact with the petitioner, including regularly showing up at a Starbucks she frequented, joining the gym she used to go to, and sending her flowers. Although the petitioner testified that none of the contacts were threatening, she was afraid of the respondent because of the respondent’s continued efforts to contact her and what she knew respondent was “capable of.” Although the court acknowledged that seemingly non-threatening contacts can form the basis for an objective fear for a person’s safety when coupled with a history of threats or violence, here there was no such history to make the petitioner’s fear objectively reasonable for the purposes of ORS 30.866. Reversed. J.D.K. v. W.T.F., 276 Or. App. 533 (2016)

Attorney Fees May Not Be Imposed Where the Record is Silent As to the Defendant's Ability to Pay

The imposition of attorney’s fees is unlawful where, as the record was here, the record is silent on the defendant’s ability to pay. Portion requiring the defendant to pay attorney fees reversed. State v. Housego, 276 Or. App. 550 (2016)