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Oregon Appellate Ct - July 19, 2017

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by: Sara Werboff • July 23, 2017 • no comments

Defendant Waived Right to Counsel – Defendant’s Demurrer Should Have Been Allowed

Defendant was charged with various crimes in three separate cases. In the first case, defendant was charged with promoting prostitution, compelling prostitution, assault, robbery, and witness tampering (Measure 11 case). In the second case, defendant was charged with compelling and promoting prostitution (prostitution case). And in the third case, defendant was charged with witness tampering (witness tampering case). Defendant convicted following a trial on the witness tampering case and was represented by counsel.

Defendant was not represented by counsel on the other cases, and argued to the court that he did not knowingly or intentionally waive his right to counsel. The court concludes that due to defendant’s extensive experience with the criminal justice system, he was aware of the disadvantages of proceeding to trial without counsel. Further, the court concludes, defendant intentionally waived his right to counsel through misconduct. Defendant engaged in repeated misconduct by threatening his defense counsel, defendant was warned that if he continued to engage in misconduct, he would be not be appointed another lawyer and would have to represent himself, and finally, defendant was afforded an opportunity to explain to the trial court why he could not cooperate with his lawyers. The court also concludes that the trial court did not abuse its discretion by refusing to appoint counsel before the sentencing proceeding in defendant’s case.

The court concludes, however, that defendant’s demurrer should have been allowed in the Measure 11 case, because the state did not allege a basis for joinder, and the error was not harmless because evidence from the improperly joined counts would have necessarily been admissible in a trial on the other counts. It is not implausible in this case that all of the evidence would have been presented to prove the counts, or that the trial court would not have excluded the evidence under OEC 403.

State v. Clardy, 286 Or App 745 (2017) (Tookey, J.)


Indictments – Demurrer Should Have Been Allowed Because No Basis for Joinder Was Alleged

The court reverses defendant’s convictions for compelling prostitution, felon in possession of a firearm and unlawful use of a firearm. Defendant convinced his girlfriend, C, to engage in prostitution. Defendant also would become angry with C when she accused him of contact with other women, and threatened her with a firearm on two occasions. The state charged defendant in a single indictment with seventeen counts of various crimes, eventually dismissing all but four of those counts. Defendant demurred to the indictment, contending that the state failed to allege a basis for joinder, and the trial court denied the demurrer.

The court concludes that the demurrer should have been allowed because the state did not allege a basis for joinder and the facts, as alleged, did not demonstrate that the compelling prostitution counts and the firearms counts were part of a common scheme or plan. The court then concludes that the error was not harmless because it was not apparent that the evidence of the prostitution activities would have been admissible in a firearms trial.

Judge Edmonds concurs and argues that the majority’s harmless error argument is mistaken. Instead, the harmless error analysis is unnecessary and contrary to Article VII (Amended, section 3. First, the harmless error analysis applies only to trial errors, and a demurrer is a pretrial matter. Second, had the demurrer been properly allowed, there would be no trial. “This, because no verdict should have been rendered at all, the only logical conclusion that the error in disallowing the demurrer affected the verdict.”

State v. Marks, 286 Or App 775 (2017) (Tookey, J.) (Edmonds, J., concurring)


Sufficient Evidence that Defendant Went to Premises Where Minors Regularly Congregate

The court holds that the evidence was sufficient to show that defendant, a designated predatory sex offender, was present in a location where children regularly congregate. Defendant, who was homeless, went to the YMCA seven times to use the shower facility. On six of those occasions, he arrived before the daycare started. The court concludes that there was sufficient evidence to show that children regularly used the YMCA facility, they were not confined to self-contained areas of the facility, and the YMCA in general qualified as a place where children regularly congregate.

State v. Holsclaw, 286 Or App 790 (2017) (Garrett, J.)


Evidence – In Fraud Case, Evidence that Defendant Made Payments to Victims Was Improperly Excluded

The court reverses defendant’s conviction holding that evidence that defendant made payments to the people he allegedly defrauded was improperly excluded. The court also rejects defendant’s statute of limitations challenge as unpreserved. Defendant was a financial advisor who convinced several customers to invest in a dubious real estate venture. After the financial crisis in 2008, the venture failed. Defendant continued to make some payments to some of the investors from his own funds. On appeal, defendant argued that under the proper definition of theft, the crime had occurred more than three years before the commencement of the prosecution. The court concludes this argument is unpreserved.

Defendant then argued that he should have been permitted to introduce evidence that he continued to make payments to the investors himself after the venture failed. The court agrees, holding that the error in excluding that evidence was not harmless because it could have shown that defendant had no intent to defraud the investors, a central factual issue in the case.

State v. Gray, 286 Or App 799 (2017) (DeHoog, J.)


Search and Seizure – Officer Reasonably Concluded that Entry to Defendant’s Property was Necessary to Render Emergency Aid to Cattle

The court upholds the denial of defendant’s motion to suppress evidence of animal neglect. A rancher called the police to report that defendant’s cattle looked like they were starving. Police contacted defendant, who was out of town, and defendant told police that another person was supposed to be taking care of the cattle. Police contacted that person and learned what defendant told them was not true. And, the rancher called back and said the cattle were near death. Under those circumstances, the court concludes, the officers reasonably believed they needed to enter defendant’s property to render emergency aid to the cattle. Defendant’s argument that the emergency aid exception should not apply to animals is unpreserved.

State v. Hershey, 286 Or App 824 (2017) (Duncan, J.)