Oregon Appellate Ct - July 20, 2016

by: Aalvarez@mpdlaw.com • July 21, 2016 • no comments

Mere Failure to Show Up After Being Subpoenaed – Insufficient to Make a Witness Unavailable Under the Confrontation Clause

The trial court erred in admitting a recording of a 911 call from the named victim’s daughter after she failed to show up as a witness. The mere fact that she, a reluctant witness, had been subpoenaed but not shown up for trial was legally insufficient to establish unavailability for the purposes of satisfying Article I, section 11’s confrontation clause, which requires that out of court statements of a declarant who is not a witness at trial may only be offered if they are adequately reliable and if the declarant is unavailable to testify as a witness. Leading up to the trial, the state only made minimal efforts, like trying non-working phone numbers, to contact the witness, notwithstanding the fact that she was the state’s most important witnesses and the prosecutor’s knowledge that she would be reluctant to testify. Those efforts were insufficient to satisfy Oregon’s confrontation clause. Reversed.

State v. Harris, 279 Or. App. 446 (2016)

Evidence of a Restraining Order – Relevant in a DUII Trial to Contradict Defendant’s Timeline

The trial court did not err in admitting evidence pertaining to a restraining order and assaultive conduct by the defendant against his girlfriend in a DUII trial. The evidence was relevant under OEC 401 to contradict the defendant’s timeline events and his testimony regarding his relationship with the victim, which he made a part of his timeline in explaining why he was not guilty of driving under the influence when he testified in his own defense. Moreover, the evidence was admissible under OEC 403. The court determined that the disputed evidence had bearing on defendant’s theory of the case and that the prejudice of admitting the evidence was minimal, because the jury had already heard much about the contentious relationship between defendant and his girlfriend from defendant’s own testimony. Affirmed.

State v. Grubb, 279 Or. App. 458 (2016)

PCR – IAC – Erroneous Jury Instructions – Attempted Second Degree Assault

The defendant received ineffective assistance of counsel where his trial counsel failed to ensure that the jury was correctly instructed on the elements of attempted second degree assault. The core of the defendant’s defense was that he acted recklessly when he drove his car towards the victim, not intentionally. Had counsel properly requested the uniform instruction, the jury would have been informed intentionally was the required mental state. Instead, the jury was erroneously informed that in order to convict the defendant, it had to find that he “knowingly caused physical injury to,” the victim. Thus, the instructions informed the jury that the defendant had to have committed a completed assault, despite the fact that there was no evidence or argument that the defendant injured the victim. Therefore, the defendant was prejudiced by counsel’s error because the guilty verdict suggests that the jury must have revised the instruction in some way, since there was no evidence of a completed assault, to convict petitioner of attempted assault in the second degree.

Everett v. Premo, 279 Or. App. 470 (2016)

Article I, Section 9 – Abandonment of Containers Found in a Stolen Truck

Under Article I, section 9, the defendant abandoned containers later found in the stolen truck he was driving when he fled from the vehicle and left them behind. The defendant left the containers in a stolen tuck – a location where the defendant would have no “lawful authority to retrieve them.” Moreover, he made no attempt to take the containers with him when he fled, and did nothing else to signal to the police that he intended to maintain control of the objects found in the truck. In contrast, by running away from the truck while shouting “Yahoo!”, the defendant indicated that he intended to “escape the situation by traveling light, unencumbered by whatever property he had with him in the stolen truck.”

State v. Stubblefield, 279 Or. App. 483 (2016)

Prior Uncharged Conduct – Identity Evidence – Distinctive Clothes and Weapons

Evidence of a prior uncharged robbery was admissible as “identity” evidence in a prosecution for other robberies based on the following facts:  Evidence from the uncharged robbery, demonstrated that the robber wore a highly unusual coat, which was similar to the coat worn in the second and third robberies.  In the uncharged robbery, the masked robber used an old fashioned black powder revolver, like the one used in the charged robberies  In the uncharged robbery, the robber escaped using a bicycle, just like the robber in one of the charged robberies.

That uniquely styled coat, distinguishable mask and old fashioned gun “earmarked the crimes with a very high probability as the work of the same person.” Moreover, video evidence of the uncharged robbery demonstrates that it actually was committed and evidence of the defendant’s DNA found on the robber’s baseball cap was sufficient proof that defendant committed that robbery. The DNA evidence tended to establish that the defendant was the person who committed the uncharged robbery, making it likely that he was also the person who committed the charged robberies while wearing the distinctive clothes that were used during the uncharged robbery and using the same type of weapon.

State v. Stubblefield, 279 Or. App. 483 (2016)

Initiating a False Report – MJOA

A defendant was not entitled to an MJOA on the charge of Initiating a False Report where, after being admonished by police that if he made a false statement the defendant would be arrested for initiating a false report, he (falsely) told the police that he only drove away from the scene of a car accident because the other person involved had pulled a firearm on him, thus accused the other person of a crime. In doing so, a fact finder could find that defendant knew if he made further statements accused the other person of a crime, those statements would be treated by officers as initiating a report of that crime. Moreover, a reasonable juror could also find that the defendant, knowing that the additional statements would be treated by officers as a report of a crime, continued making them and thereby initiated a false report. Affirmed.

State v. Branch, 279 Or. App. 492 (2016)

OEC 401- Relevant Evidence – Evidence Depicting Defendant’s Version of the Attack

Computer images generated by an expert designed to show that defendant’s version of the attack was physically possible were relevant under OEC 401 in a murder/manslaughter case where the defendant claimed self-defense and should have been admitted. Although the images were generated using a computer program with the anatomical limits turned off, the defense offered those images to show that the program was actually more restrictive with the anatomical limitations turned off and to rehabilitate the credibility of the expert witness who offered the images. Moreover, the refusal to admit the exhibits was not harmless error, because the photos were central to the defendant’s defense. The evidence went “to the heart of defendant’s theory by tending to rebut the state’s argument that defendant’s account was implausible and his expert was unreliable.”

State v. Hudson, 279 Or. App. 443 (2016)

Failure to Perform the Duties of a Driver – Witness False In Part Instruction

In a prosecution for Failure to Perform the Duties of a Driver, there were sufficient inconsistencies in the evidence to justify the “Witness False In Part” instruction where the defendant testified that he did not see any damage to the vehicle in question, and other witnesses testified that the damage was plainly visible from 10-15 feet away.

“Even if the jury could have inferred that defendant truly did not see the damage to the other car, the jury alternatively could have inferred that defendant’s testimony was false when measured against the other witnesses’ testimony about observing the damage. Moreover, the jury could find that the testimony was consciously false, given its significance to the charged offense.”

State v. Sharinghouse, 279 Or. App. 593 (2016)

Attorney’s Fees

Per curiam reversals of the imposition of court appointed attorney’s fees: State v. Johnson , State v. Zolotoff, and State v. Vega-Arrieta

Civil Commitments

Per curiam reversals of civil commitments: State v. M.L.C. and State v. J.N.

Waiver of Counsel

Per curiam reversal where there was insufficient evidence of the defendant’s waiver of counsel. State v. Roland