Oregon Appellate Ct - Jan. 27, 2016

by: Abassos • January 27, 2016 • no comments

Assault IV - "Substantial Pain" Can Be Inferred From Observed Injuries and Circumstantial Evidence

The state's evidence was sufficient to pass muster at MJOA on an Assault IV, despite the absence of the victim or any witness who was able to describe the effect of the victim's injuries:

The record includes photographs of the victim’s injuries and corroborating testimony from witnesses that the injuries looked like they were recently inflicted. Those photographs show bright red scratches and facial swelling that a rational juror could conclude were consistent with the victim’s statements to the 9-1-1 dispatcher that defendant “push[ed]” her in the car and “wouldn’t let [her] go.” A rational juror could infer from the evidence, including the 9-1-1 call, the descriptions of the victim’s condition and demeanor by the two witnesses, and the photographs of the victim’s injuries, that the victim physically struggled against defendant and that he scratched and punched her face, or that her face collided with a hard surface in the car during the struggle.

Based on the injuries and the contextual information, a reasonable juror could infer that the injuries involved considerable pain that was more than fleeting. State v Guzman, 276 Or App 208 (2016).

Manslaughter - "Extreme Indifference to the Value of Human Life" Is More Than a Lack of Concern for Social and Legal Responsibility The following instruction for "extreme indifference to the value of human life" in a DUII manslaughter case was legally incorrect and requires reversal:

Conduct manifesting extreme indifference to the value of human life displays indifference or a lack of concern for social or legal responsibility. Extreme indifference describes a heightened degree of blameworthiness in the circumstances of Defendant’s conduct. It does not create an additional culpable mental state. In determining whether the Defendant’s conduct manifested an extreme indifference to the value of human life, you should consider all the circumstances which reflect on her concern or lack of concern for her social and legal responsibilities

Such an instruction allowed the jury to convict if it found that defendant had a lack of concern for social and legal responsibility. But such a standard is arguably less than recklessness:

A finding that defendant acted recklessly is not the same as a finding that defendant acted recklessly and acted with extreme indifference to the value of human life. A person can commit a gross error in judgment without being indifferent to the consequences of that error. The instruction, as given, blurs that distinction.

Not only must the instruction be clear that extreme indifference is more blameworthy than mere recklessness, it must also specifically relate to whether the defendant cared about the death of another human being. Here, the instruction would allow the jury to find extreme indifference based on a general lack of social concern, rather than a specific indifference toward whether a person lives or dies. State v Downing, 276 Or App 98 (2016).

The Corpus Delecti Rule - Inner Thigh Bruises and Scratches Are Sufficient to Corroborate a Confession to Touching the Victim's Vagina

Defendant's confession to touching the victim's vagina (Sex Abuse I) was sufficiently corroborated by:

• Victim and medical testimony of bruises and scratches on the victim's inner thighs as if someone was touching the victim's thighs and groin in an aggressive manner.
• Pictures of the injuries
• Victim's testimony that she woke up in a strange home, saw defendant on top of her and felt something in her vagina.

The standard for corroboration of evidence at motion for judgment of acquittal is whether, in the light most favorable to the state, there is some other proof that the crime occurred. Here, the jury found defendant not guilty of rape. However, the analysis of whether a confession is sufficiently corroborated is purely one of the sufficiency of the state's evidence. Thus, the court need not reconcile the jury's conclusion that defendant did not commit rape with whether the confession was sufficiently corroborated. Here, a jury could have found the elements of Sexual Abuse I proved beyond a reasonable doubt. Thus, the trial court did not err by denying defendant's MJOA. State v Moreno, 276 Or App 102 (2016).

Attenuation - Implied Consent Can Break the Chain Between an Article I, Sec. 12 Violation and Consent to a Breath Test

Defendant's consent to take a breath test was sufficiently attenuated from the officer's post-invocation questioning where:

• The violation itself was not flagrant. The officer asked the standard DUII interview questions as part of the breath test protocol. And the officer did not press defendant when he chose not to answer a question. The information given in response to the questioning was properly suppressed. But the violation was less flagrant than other similar cases.
• A thorough implied consent process broke the causal chain
• The consent was prompted by legally obtained evidence, not the illegally obtained statements

Thus, despite the fact that defendant remained in custody, "considering all the circumstances" defendant's decision to consent to the breath test was not a product of the prior Article I, Sec. 12 violation. State v Swan, 276 Or App 192 (2016).

PCR - A Dismissal For Failure to State a Claim is Not Appealable

ORS 138.525(3) is clear that a petition for post-conviction relief that fail to state a claim is meritless and that a dismissal on such a basis is not appealable. Ware v Hall, 342 Or 444 (2007), does not stand for a contrary proposition because the court did not address section 3 of ORS 138.525. Dillard v Premo, 276 Or App 65 (2016).