Oregon Appellate Ct - July 27, 2016

by: Aalvarez@mpdlaw.com • July 28, 2016 • no comments

Vouching – Cooperation Agreement with the State

In a UUW and Assault case, any error that arose from a prosecutor eliciting testimony from a witness about “his cooperation agreement with the state,” and specifically that the cooperation agreement required him to give “truthful testimony as given to law enforcement,” was harmless because the context of the claimed error is an assertion that because the state essentially vouched for the statements that the witness made to police, the jury would be more likely to believe those statements as opposed to trial testimony. This supposes that the trial testimony and the statements to police were materially different. The statements were not materially different, therefore, the “vouching” would not have affected the jury verdict.

State v. James, 279 Or. App. 612 (2016)

Plain Error – UUW and Felon in Possession of a Firearm

It was not plain error (beyond dispute) that verdicts of UUW with a Firearm and Felon in Possession of a Firearm should merge into a single conviction because there is a plausible argument that each contained an element that the other did not.

State v. James, 279 Or. App. 612 (2016)

ORS 144.228(1)(c) and OAR 255-38-005(4) - “Reasonable Cause” – “Delegative Term”

ORS 144.228(1)(c) and OAR 255-38-005(4) allow a prisoner previously sentenced as a dangerous offender to request a parole hearing prior to the date set by the parole board if he or she can show that “there is reasonable cause to believe that the dangerous condition is in remission…” Here, the prisoner filed such a request and it was denied by the board, who failed to interpret the specific meaning of “reasonable cause.” On appeal, the Court of Appeals holds that the term “reasonable cause” is a delegative term that authorizes the parole board to exercise its discretion to fulfill the general legislative policy in the statute. However, because the board has not interpreted this term in this or any other case and has not defined the term through rule making, the board failed to exercise the discretion granted to it by the legislature. Thus, the case must be remanded to the parole board to exercise that discretion.

Nulph v. Board of Parole, 279 Or. App. 652 (2016

Williams Requires 403 Balancing

In a prosecution for child sex abuse, the trial court erred in failing to perform 403-balancing of prior bad acts offered by the state to prove the defendant’s propensity for abusing children. Under Williams, that balancing is now required. Reversed and remanded

State v. Holt, 279 Or. App. 663 (2016)

Juvenile Dependency – Proper Standard for a Motion to Dismiss

When examining a motion to dismiss dependency jurisdiction, the juvenile court must determine: (1) whether the jurisdictional bases pose a current threat of serious loss or injury to the ward and (2) whether that threat is reasonably likely to be realized. Futher, when a parent seeks to dismiss the juvenile court jurisdiction at the time when the permanency plan is something other than reunification, the proponents of jurisdiction may invoke a presumption that jurisdictional bases continue to make it unsafe for the child to return home. If that presumption occurs, a parent seeking the dismissal bears the burden of proving that the jurisdictional bases no longer pose a current threat.

Here, parents in a juvenile dependency case moved to dismiss jurisdiction over their child, T, arguing that the bases for jurisdiction, although not remediated, no longer posed a risk to the child, because T’s Aunt was available to mitigate any risk to T. The trial court denied the motion, determining that the evidence about Aunt was not relevant to the legal question presented by the motion to dismiss. Because the juvenile court failed to consider that evidence, which would have been relevant in proving that the jurisdictional bases no longer pose a current threat, the Court of Appeals vacates the judgment, remanding the case to the juvenile court to reconsider the issue under the proper legal standard.

DHS v. T.L., 279 Or. App. 673 (2016)

Search and Seizure – Search Warrant – Theft of a UTV

Under Article I, section 9, an search warrant affidavit provided probable cause to search the defendant’s residence for evidence of a theft where:

• A green UTV was stolen from the victim and 11 days later, the defendant was stopped driving a Green UTV of the same make and model as the victim’s, with the instrumentation and safety stickers in the same place where they were on the victim’s UTV.
• The UTV defendant was driving was stripped of parts and did not have an identification number; although the defendant claimed that he “built it himself,” this contradicted the officer’s opinion that the UTV was factory built, and supported the officer’s suspicion that the defendant had altered the appearance of the UTV in order to avoid detection.
• Lastly, the defendant had an extensive criminal history, including multiple arrests and convictions for UUV and Theft.

In light of those facts, “the issuing magistrate could reasonably conclude from the affidavit as a whole, and the reasonable inferences drawn therefrom, that the UTV in defendant’s possession probably was the victim’s stolen UTV.”

State v. Newsted, 279 Or. App. 701 (2016)

Appeal from a Juvenile Dependency Judgment Dismissed as Moot

A mother’s appeal from the judgment of a juvenile court assuming jurisdiction over her four-year old child was moot where the juvenile court dismissed jurisdiction and terminated the wardship pending appeal because there was no “probable adverse consequence” to mother from the underlying judgment. Mother’s concern that the “founded” disposition would have an adverse affect should she have a future interaction with DHS was mere speculation. Moreover, although the factual bases underlying the original judgment of jurisdiction (that mother physically abused her daughter and engaged in erratic behavior) could be somewhat stigmatizing, given the general confidentiality of juvenile court and DHS records, the possibility of social stigma is miminal.

DHS v. L.E., 279 Or. App. 712 (2016)

DUII – Right to Counsel During a Breath Test

In a DUII case, officers denied defendant the right to counsel before he consented to a breath test by remaining in the room while defendant spoke to the receptionist for an attorney. The receptionist, although not an attorney, was the means through which defendant could confidentially communicate with, and obtain legal advice from, an attorney. The officers’ presence is presumed to have a chilling effect on the defendant’s exercise of his right to counsel and the state did not overcome that presumption in this case. Therefore, the breath test that followed the conversation must be suppressed .

State v. Green, 279 Or. App. 716 (2016)

Manslaughter – MJOA

There was sufficient evidence for a manslaughter case to survive MJOA where:

• Defendant had the opportunity to cause the victim’s death because he was the last person to see her alive
• He had easy access from his trailer to the location where the victim’s body was discovered, 80 feet away from his trailer.
• He had the physical ability to drag the victim to the field and had access to duct tape, which was used to wrap the victim’s body.
• Defendant told investigators he had romantic interest in the victim
• The victim was stabbed, and it was undisputed that defendant had access to numerous knives and was a knife freak
• Defendant gave inconsistent statements to the police, and based on those inconsistent statements, a rational factfinder could infer that defendant lied.

Judges Ortega, Duncan, Egan, and Sercombe join in a dissenting opinion, noting that “[t]he inferences of guilt available from the undisputed evidence and the disputed evidence taken in the light most favorable to the state does not dispel reasonable doubt that defendant caused the victim’s death; indeed, much of that same evidence could equally be used to support a theory that any number of unknown persons could have caused the victim’s death.”

According to the dissenting opinion, the evidence, even when viewed in the light most favorable to the state and making reasonable inferences “fails to provide a reasonable jury with a sufficient basis to conclude, without speculation, that defendant caused the victim’s death beyond a reasonable doubt.”

State v. Simmons, 279 Or. App. 756 (2016)

Search and Seizure – Warrants – Particularity Standard As it Applies to Computers

In a murder by abuse case, a warrant authorizing the seizure and forensic examination of defendant’s home computers was impermissibly overbroad because, although the officer’s affidavit established probable cause to search the computers with respect to internet searches during the 15 minute period preceding the 911 call made in the case, and arguably the entire day in question, nothing in the affidavit established probable cause that a “temporally unlimited examination of the contents of defendants’ computers, including of files and functions unrelated to internet searches and e-mails, would yield other evidence of the events of June 12, 2011, or of any other crime.”

In examining the particularity standard under Article I, section 9 as it applies to computers and other digital technology, the Court of Appeals explained:

"[F]or purposes of the constitutional particularity requirement, personal electronic devices are more akin to the “place” to be searched than to the “thing” to be seized and examined. Concomitantly, that requires that the search of that “place” be limited to the “thing(s)”—the digital data—for which there is probable cause to search.”

Here, because the warrant allowed for a “temporally unlimited examination of the contents of defendants’ computers” the warrant was overbroad and the resulting evidence that was discovered should have been suppressed.

State v. Mansor, 279 Or. App. 778 (2016)

Attorney’s Fees – Per Curiam Reversal

Per curiam reversal of the imposition of attorney’s fees with no finding of ability to pay State v. Shepherd, 279 Or. App. 804 (2016)

Civil Commitment – Per Curiam Reversal

Reversal of a civil commitment where the state concedes there was insufficient evidence to support the commitment. State v. M.E., 279 Or. App. 806 (2016)