Oregon Appellate Ct - February 3, 2016

by: Aalvarez • February 11, 2016 • no comments

UUW-Possession with Intent to Use—Holding a Gun Coupled With Angry Statements is Sufficient to Prove Intent to Fire the Gun

The state is not required to prove that the defendant used a weapon in a prosecution for UUW. Rather, all the state is required to prove is that the defendant carried or possessed the weapon with the intent to use it against another. Here, the defendant was arrested after he called 911 to complain about a low flying plane that had been repeatedly flying over his property. During the call, he told police that he was sitting on the porch with his gun and that if no one was going to do anything about the low flying plane, “I’ll do it myself.” When police arrived at his home, they found him on the porch with a gun, where he admitted to having serious thoughts about shooting the plane and admitted to holding up a shot gun shell to the plane “to send the pilot a message.”

Although a rational trier of fact “certainly….could make a different finding,” the court held that the defendant’s statements, coupled with his possession of the gun, were sufficient evidence viewed in the light most favorable to the state to support a finding that the defendant possessed the gun with the intent to use it against the plane. Affirmed State v. McAuliffe, 276 Or. App. 259 (2016)

Merger-Plain Error-Unlawful Possession of Multiple Guns in One House Merge into One Conviction

If a defendant is found guilty of multiple counts of Felon in Possession of a Firearm based on the same conduct and the conduct violates “only one statutory provision,” then the guilty counts merge unless the violations are separated by a sufficient pause, because the victim of Felon in Possession of a Firearm is the public.

Here, the defendant was found guilty of two counts of Felon in Possession of a Firearm. Both counts were based on ORS 166.270(1), there was only one victim, (the public) and his possession was a continuing crime because the record showed that he came into possession of the firearms at the same time. Thus, the trial court erred by failing to merge the guilty verdicts on both counts and the Court of Appeals exercises its discretion to correct the unpreserved error. State v. Ferguson 276 Or. App. 267 (2016)

Knowingly Allowing an Acquaintance to Store Guns in Your Home is Sufficient Evidence of Constructive Possession

The court did not err in denying the defendant’s MJOA in a Felon in Possession of a Firearm case where the defendant knowingly allowed an acquaintance to store firearms in his home for a week while the acquaintance was out of town. Here, the defendant, a convicted felon, allowed an acquaintance to store two guns at his home in areas that were readily accessible to the defendant. Because the acquaintance entrusted the guns to the defendant and left them in his custody, the state presented sufficient evidence for a rational fact finder to infer that the defendant had the ability to exercise control or dominion over the firearms. Affirmed. State v. Ferguson 276 Or. App. 267 (2016)

Dependency - Failure to Present Sufficient Evidence to Justify Jurisdiction - No Evidence of Harm to Child

DHS conceded and the Court of Appeals agreed that the following facts did not support jurisdiction in a juvenile dependency case:

• Evidence that Mother had used occasionally marijuana and methamphetamine in the months leading up to the hearing where there was no showing that her drug use impaired her ability to raise her child.
• Evidence that the child’s Father was verbally abusive to Mother and Child’s grandfather where there was no evidence that the child had been subjected to verbal abuse, to physical abuse or psychological damage as a result of the father’s actions.

DHS v. A.W. 276 Or. App. 276 (2016)

Former Speedy Trial Statute—19 Month Delay in a DUII Case is Unreasonable

Under former ORS 135.747, a 19 month delay between the charging date and the defendant’s eventual trial for DUII was unreasonable because:

• Only 34 of the 586 days of delay were consented to by the defendant;
• 30 days of delay were caused by the state’s failure to provide discovery;
• 96 days of delay were caused by the prosecutor’s choice to take a non-refundable vacation after the case had already been delayed by 16 months and fail to provide a replacement who could be ready for trial on the scheduled trial day; and
• The remaining 426 days of delay were caused by lack of judicial resources and an overcrowded docket.

The denial of the defendant’s motion to dismiss for lack of speedy trial is reversed. State v. Barnes, 276 Or. App. 296 (2016)

Miranda--Invocation of Counsel is Equivocal if Reasonably Interpreted in Multiple Ways

Under Article I, section 12, a defendant’s invocation of counsel is equivocal if reasonably interpreted in multiple ways. Here, the defendant was being investigated for a murder involving a firearm. After being read his Miranda rights multiple times, he was interviewed by police who questioned him about the murder. During the interview, the defendant made the following statements:

• “If you can put a gun in my hand then please go ahead and do so. If not, then we should probably contact my lawyer."
• “I have a * * * lawyer on my other cases so she might as well deal with this too. I am telling you, if you got a gun and you can put it in my hand, well then let’s do so. If you don’t then, get my lawyer up here so I can get the hell out of here because this doesn’t work for me.”

The interview continued, no lawyer was provided, and inculpatory statements were made that the trial court refused to suppress. On appeal, the Court affirms the trial court in finding that the invocations of counsel were equivocal because “an officer could have reasonably interpreted defendant’s statements in several other ways [than an unequivocal invocation of counsel]." For example, the officer could have considered the statements as invocations of counsel or the statement could have meant that "if the police could tie defendant to the shooting…then defendant could understand his purpose in continuing to talk to police.”

Because the statements were subject to multiple interpretations, they were not unequivocal invocations of counsel. Affirmed. State v. Brown, 276 Or. App. 308 (2016)

The Court Will Decline to Examine a Federal Issue When No Distinct Analysis Provided

The defendant filed a motion to suppress statements made to police based on a violation of Article I, section 12 and the Fifth Amendment of the United States Constitution. The motion was denied and the defendant appealed. After rejecting his claim under Article I, section 12, the court refused to consider his Fifth Amendment claim, explaining that: “He does not provide an argument as to how case law applying that federal standard results in a distinct analysis or a more favorable result.” Affirmed. State v. Brown, 276 Or. App. 308 (2016)

Officer Safety - Pat Down Not Justified on a Reasonable Suspicion of Serious Physical Injury

A pat down of a defendant after he is stopped for jaywalking with another person present is not justified on officer safety concerns based on the following facts:

• (1) that the encounter felt “not normal” to the officer
• (2) that the defendant had jaywalked;
• (3) that defendant wore baggy clothes and carried a backpack;
• (4) that defendant seemed a “little” uncomfortable and agitated;
• (5) that defendant did not make eye contact with the officer;
• (6) that defendant kept making eye contact with his acquaintance
• (7) that defendant and his acquaintance “stood there” looking at, or toward, the officer; and
• (8) that the location where the officer stopped defendant was near a motel where the officer, in the past, had recovered drugs and weapons.

Denial of the defendant’s motion to suppress is reversed. State v. Thomas, 276 Or. App. 334 (2016)

Joinder - Two or More Acts Connected Together - Marijuana Possession and Assault IV in the Same Vehicle

Offenses constitute “two or more acts connected together” under ORS 132.560(1)(b)(C) and may be joined for trial when the offenses are sufficiently connected in time and space and contain overlapping evidence. Here, the defendant was charged with Possession and Delivery of Marijuana as well as Assault IV and Harassment. The charges arose out of an incident where the defendant attacked his girlfriend in her mother's car. When the car was searched for evidence of the assault, defendant’s backpack full of marijuana was discovered. The state moved to join the charges and the trial court allowed it, holding that the charges were “two or more acts connected together” sufficient for joinder under ORS 132.560(1)(b)(C). On appeal, the Court of Appeals affirms the trial court, noting that the assault and marijuana charges were connected in time and space (by the virtue of happening in the same car at the same time), were materially linked (because evidence of the assault and evidence of the marijuana charges were discovered during the same search), and because there was substantial overlapping proof between the charges. Affirmed. State v. Dewhitt, 276 Or. App. 373 (2016)

Severance-Substantial Prejudice - No Prejudice Where Defendant Can Limit the Most Damaging Result of the Joinder

A defendant’s right to testify is not substantially prejudiced as to require charges to be severed where the defendant is in control of the most potentially damaging result of the joinder. Here, defendant was charged with Possession of Marijuana/Delivery of Marijuana and Assault IV and Harassment. He moved to sever the charges based on substantial prejudice, arguing that the evidence in both charges would not otherwise be mutually admissible and because if he chose to testify, evidence of prior domestic violence charges would be admissible under OEC 609 with respect to the domestic violence counts, but not the marijuana charges. The Court of Appeals affirms the denial of the defendant’s motion for severance, noting that “if defendant chose to testify, he was free to limit the scope of his testimony on direct examination so as to avoid opening the door to cross examination concerning matters he did not want to discuss.” Affirmed. State v. Dewhitt, 276 Or. App. 373 (2016)

Choice of Evils—Medical Marijuana Defense—Insufficient Evidence that Defendant's Marijuana Possession Was Necessary as to Justify Defense

The trial court did not in err in preventing the defendant from putting on a choice of evils defense to a marijuana possession charge where there was no evidence that the defendant attempted to comply with the OMMA prior to possessing the marijuana and thus no evidence that his unlawful possession was “necessary” as to justify a choice of evils instruction. Here, the defendant claimed he had no choice but to use marijuana to treat back pain, but the evidence showed that he failed to exhaust options to obtain a medical marijuana card (by failing to go to a doctor for the requisite three visits) and failing to exhaust other treatment options (like physical therapy or visiting an urgent care clinic to attempt to obtain other treatment options), even though the defendant had insurance at the time and could readily access health care facilities. Affirmed. State v. Dewhitt, 276 Or. App. 373 (2016)

Improper Joinder - Demurrer - Unpreserved

The Court of Appeals refused to consider the trial courts denial of a demurrer on appeal where the argument made at the trial court (that the indictment should be dismissed for failing to establish the joinder requirements under ORS 132.560(1)) was materially different than his argument on appeal (that the state was required and failed to alleged the legal basis for joinder in the indictment). Affirmed. State v. Strouse, 276 Or. App. 392 (2016)

Joinder - Marijuana Possession and Theft of Firearms Where Evidence of Both was Discovered in One Search

The trial court did not err in finding that charges of Marijuana Possession, Theft of Firearms, and Tampering with Evidence, that all took place on separate days, constituted two or more acts joined together under ORS 132.560(1)(b)(C), as to justify joinder.

Here, the defendant was charged with:

• Theft of firearms and an Xbox from a home on December 1st
• Possession of Marijuana in relation to a search that took place at the defendant’s home on December 6th, which also turned up a backpack containing an Xbox and a cell phone containing text messages that related to the burglarly of the firearms;
• Tampering/Concealing evidence on December 12, where the defendant, along with accomplices, attempted to remove his fingerprints from the firearms at issue and wound up dumping them in a ditch.

The Court of Appeals upheld the joinder and found that the offenses were materially linked based on the totality of the following circumstances:

• Significant evidence linking the two sets of offenses were discovered in the same search
• Evidence of the tampering with firearms supported the state's theory that the defendant’s rationale to avoid prosecution for the defendant’s December 1st burglary “snow balled” as the result of the December 6th search; and
• Because both sets of offenses were discovered during the same search, many of the same witnesses, including defendant’s associates and law enforcement officials who constituted the search were needed to testify about both the marijuana and the burglary charges.

Affirmed. State v. Strouse, 276 Or. App. 392 (2016)

Severance - Substantial Prejudice - No Substantial Prejudice Where Defendant Does Not Explain How Evidence Will Harm His Case

In order to prove that the defendant will suffer “substantial prejudice” in the context of a motion to sever, the defendant must do more than insist that evidence of one charge would not ordinarily be admissible in a prosecution for the other charge and that such evidence will negatively impact the jury. Here, the defendant moved to sever charges involving theft of firearms and possession of marijuana by arguing that he was substantially prejudiced by their joinder because evidence of the two charges would not be mutually admissible in separate trials and because the seriousness of the firearm charges would prejudice the jury in considering the marijuana charges. Because the defendant failed to relate those generalized arguments specifically to the facts of the case and because he did not explain why other measures short of severance (like specialized jury instructions) would fail to cure the prejudice he identified, he failed to make the requisite showing of substantial prejudice in order to justify severance of the charges. Affirmed. State v. Strouse, 276 Or. App. 392 (2016)

Attorney’s Fees - Plain Error in Imposing When the State Puts on No Evidence of the Defendant’s Ability to Pay

The trial court plainly erred in imposing attorney’s fees where the state put on no evidence of the defendant’s ability to pay. Order requiring the defendant to pay attorneys fees reversed. State v. Gonzalez-Cristin, 276 Or. App. 406 (2016)