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Oregon Appellate Ct - Jan 11, 2017

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by: Sara Werboff • January 13, 2017 • no comments

UUV - Overruling Prior Case Interpreting Scope of Unauthorized Use of a Vehicle under ORS 164.135(1)(a) as "Plainly Wrong"

In this case, the court concludes that State v. Cox, 96 Or App 473 (1989), which interpreted ORS 164.135(1)(a) to include circumstances where a defendant uses a vehicle with permission but exceeds to spatial/geographic scope of that agreement, was "plainly wrong" and that defendant was entitled to a judgment of acquittal. Defendant had permission to use a van belonging to Farm Fresh Foods to sell meat door-to-door. Defendant was authorized to use the van to pick up a co-worker, conduct meat sales, and return the van that evening. Defendant did not do those things, and the van was later found abandoned and undamaged five days later with a bunch of spoiled meat inside. Defendant was charged with UUV under ORS 164.135(1)(a) - that defendant takes, operates, exercises control over, rides in or otherwise uses another's vehicle without the consent of the owner. At trial defendant argued that the state at most, established that defendant violated ORS 164.135(1)(c) - that defendant had custody of the vehicle under an agreement with the owner, was required to return the vehicle at a specific time, and grossly deviated from that agreement.

In Cox, the court upheld a conviction for UUV under ORS 164.135(1)(a) when the defendant used a car he was allowed to use within Eugene city limits to drive to Portland. The court notes that Cox did not address circumstances where a defendant temporally exceeds the scope of an agreement, only when the defendant geographically or spatially exceeded the scope of the agreement. With respect to temporal excesses, ORS 164.135(1)(c) controls. Here, in addition to evidence that defendant exceeded the temporal scope of the agreement, the state presented evidence that defendant exceeded the scope of the agreement in other ways, such as failing to pick up his coworker and leaving the van abandoned in another town. In other words, defendant could be found criminally liable for violating ORS 164.135(1)(a) under the construction set forth in Cox.

However, the court concludes that Cox is "plainly wrong." The court notes that Cox failed to consider the statute's context - including provisions (b) and (c) that refer explicitly to UUV by grossly deviating from an agreement - and in so doing, failed to appreciate an ambiguity in section (a). Section (a) can be interpreted as an "omnibus proscription of all unauthorized use" or it could be interpreted as "unauthorized use in circumstances in which the owner never consented' to the defendant's use of the vehicle. The court reviews the legislative history and context in detail and concludes that section (a) does not include circumstances where a defendant has an agreement with the vehicle's owner and deviates from that agreement. Accordingly, Cox meets the rigorous standard of being "plainly wrong." Defendant is entitled to an acquittal because the state did not charge him for the temporal deviation under ORS 164.135(1)(c) and the other deviations were not actionable at all under ORS 164.135.

State v. Civil, 283 Or App 395 (2017) (Haselton, S.J.)

Appeal and Review - Declining to Exercise Discretion to Review for Plain Error when Error Could Have Been Fixed in the Trial Court

The court rejects defendant's claim that the trial court entered a judgment that entered two separate convictions for stalking. Below, the trial court agreed that the two counts merged. The prosecutor prepared a judgment that indicated that Count 5 should merge with Count 4. Defense counsel and the trial court reviewed the judgment before it was entered and the trial court indicated that if the judgment was erroneous, it would enter an amended judgment. Assuming without expressly deciding that the judgment was erroneous, the court declines to exercise its discretion to review the error. Defense counsel had an opportunity to review and object to the judgment, either at the time it was entered or afterwards. Additionally, the trial court register does not reflect that a separate conviction was ever entered. And finally, the court admonishes that these kinds of errors can be corrected in the trial court "in a way that would consume less time and resources from the parties and the courts", via a motion to modify or correct the judgment under ORS 138.083, because the error in this case was clerical. The court, in a footnote, makes a pitch for trial courts to use the Uniform Criminal Judgment to avoid such confusion in future cases.

State v. Chesnut, 283 Or App 347 (2017) (Duncan, P.J.)

Termination of Parental Rights - DHS Met Burden of Proof under Indian Child Welfare Act (ICWA)

On de novo review, the court affirms the termination of parents' parental rights applying the heightened standards under ICWA. Under ICWA, DHS must prove that it made active efforts to provide remedial services and rehabilitative programs to prevent the breakup of the Indian family and that parents' continued custody of their child is likely to result in serious emotional or physical damage to this child. Those determinations must be supported by evidence beyond a reasonable doubt, including testimony of a qualified expert witness who possesses special knowledge of social and cultural aspects of Indian life.

The court concludes that DHS made active efforts. The court rejects father's argument that "active efforts" require efforts that are current up to the termination trial because the statute imposes no fixed time periods during which services must be provided. Here, DHS engaged in considerable efforts starting from before the child's birth and provided an "extensive array" of services to address parents' mental health and parenting issues. Those efforts were not successful. Parents, although they made a little progress, continue to suffer from mental health conditions that prevented them from learning the parenting skills they needed to care for their child. Additionally, the evidence establishes that reintegration into parents' home is improbable within a reasonable time, therefore continued custody with the parents is likely to result in serious emotional or physical damage to the child. The termination of parental rights is in the best interest of the child.

DHS v. M.L.M., 283 Or App 353 (2017) (Flynn, J.)

Juvenile Dependency - Juvenile Court Must Determine That There Are No Compelling Circumstances to Forego a Change in Permanency Plan

The court concludes that before changing a child's permanency plan from reunification to adoption, under ORS 419B.498(2), the juvenile court is required to determine whether no compelling reasons exist to forgo that change. The court further concludes that in this case, the juvenile court erroneously concluded that compelling reasons were not present and reverses the permanency plan. On appeal, the parents challenge the juvenile court's finding that they had made insufficient progress in remediating the bases for juvenile court jurisdiction. They also assigned error to the juvenile court's determination that no compelling reasons existed to defer the filing of a termination of parental rights petition. DHS contended, with respect to that claim, that any error with respect to the compelling reasons determination would not be reversible because that determination relates to when a petition for termination must be filed and not whether the permanency plan should change from reunification to adoption.

In determining whether the plan should change to adoption, the juvenile court determines whether DHS made reasonable efforts and then whether parents have made sufficient progress. After making those findings, the juvenile court must the determine whether one of the compelling reasons for determining that filing a termination petition would not be in the best interests of the child, under ORS 419B.498(2) exist, such as a parent successfully participating in services that will make it possible for the child to safely return home within a reasonable time, or another plan better suits the child's needs. In this case, both parents were making progress but had not made sufficient progress by the time of the hearing. The court upholds the juvenile court's factual findings with respect to parents' lack of progress.

The court then concludes that the juvenile court must make the compelling reasons determination in order to change the permanency plan to adoption, and rejects DHS's argument that that determination relates solely to the timing of the termination petition. Here, the evidence did not support the juvenile court's finding that compelling circumstances were not present. There was no evidence that mother's continued participation in services would not make her a minimally adequate parent eventually and that the child's stay in foster care would be unacceptably long. Accordingly, the court reverses.

DHS v. S.J.M., 283 Or App 367 (2017) (DeHoog, J.)

Per Curiam - Juvenile Dependency - No Evidence that Mother Continued to Have Domestically Violent Relationships

The court reverses and remands for an entry of judgment in this juvenile dependency case because DHS failed to prove one of the grounds of jurisdiction (although it proved other bases). Specifically, DHS alleged that the child was endangered because domestic violence in mother's home created a harmful environment. The evidence, however, established that mother's violent relationship had ended long before the dependency hearing and there was no evidence that mother continued to engage in domestically violent relationships.

DHS v. S.P.R., 283 Or App 419 (2017) (per curiam)