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Oregon Appellate Ct - July 6, 2017

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by: Sara Werboff • July 9, 2017 • no comments

Scientific Evidence – Officer’s Conclusion that Defendant Passed or Failed Field Sobriety Test is Scientific Testimony Requiring Adequate Foundation

In this DUII case, the court concludes that the trial court erred when it admitted an officer’s testimony that defendant “failed” a field sobriety test (FST) without requiring the state to lay a foundation for scientific evidence. At defendant’s trial, the officer testified that he observed four out of eight clues on the walk and turn test, and that was a failing score.

The court reviews the Brown/O’Key standards and explains that officers may become practical experts in recognizing the signs of intoxication, but that testimony which draws its convincing force from some principle of science must meet the heightened standard for scientific evidence. The court explains that when an officer testifies as to his or her observations of a defendant’s performance during the walk and turn or one-leg stand test, the jury would not perceive those observations as scientific. However, the conclusion that a defendant passed or failed such a test draws its convincing force from an external scoring rubric, and is not a mere expression of the officer’s opinion that a defendant is impaired. Here, the jury would understand the propositions behind an officer’s testimony that a defendant passed or failed a standardized FST to be scientific. Thus, here, the state was required to lay an adequate foundation for admissibility as scientific evidence and the error was not harmless.

Chief Judge Hadlock dissents, arguing that nothing in the officer’s testimony would have conveyed to the jury that it was a scientific conclusion, as opposed to part of the officer’s observations that defendant was impaired.

State v. Beltran-Chavez, 286 Or App 590 (2017) (Duncan, P.J.) (Hadlock, C.J., dissenting)

Expert Testimony – Trial Court Erroneously Excluded General Testimony on False Memory – Offer of Proof was Sufficient for Review

The court concludes that the trial court erred when it excluded generalized testimony from Dr. Daniel Reisberg concerning false memory. Defendant was charged with sexually abusing C. Defendant’s theory of the case was that he touched C’s leg to wake her, but that C’s mother, who did not like defendant, implanted a false memory of sexual abuse. Defendant sought to call Dr. Reisberg, an expert in memory, to testify. During the offer of proof, Dr. Reisberg first testified to the phenomenon of false memory. Then, Dr. Reisberg turned to the application of those principles in this case. In ruling on Dr. Reisberg’s testimony, the trial court explicitly divided the offer of proof into two sections – generalized information and specific application. The trial court ultimately ruled that Dr. Reisberg’s testimony was inadmissible in its entirety, but ruled that the generalized information would not be helpful to the jury.

On appeal, the state does not dispute that the generalized testimony would have been admissible, but argues that defendant’s offer of proof was proffered and rejected in its entirety, and under the rule set forth in Pumpelly v. Reeves, 273 Or 808 (1975), it is not error for the trial court to reject an offer that contains both admissible and inadmissible matter. The court rejects the state’s argument, and holds that under these circumstances, where the trial court expressly divided the offer of proof as first general and then specific testimony, the Pumpelly rule does not apply. The court then concludes that Dr. Reisberg’s generalized testimony was admissible because it was not a direct comment on C’s credibility and that excluding that testimony prejudiced defendant because other testimony concerning the creation of false memory (elicited on cross from a CARES evaluator) would not have had the same weight had it come from an expert in memory.

State v. Dye, 286 Or App 626 (2017) (Duncan, J.)

Sentencing – Under ORS 137.717, Court Lacked Authority to Impose Multiple Downward Departure Sentences but Court had Discretion to Choose Which Count to Depart

Defendant pleaded guilty to five counts of aggravated theft. The first count triggered the application of ORS 137.717 for the purpose of sentencing defendant on the remaining counts. On the second count, the trial court entered a downward departure sentence to probation, and imposed the statutory presumptive incarceration sentence on each remaining count.

The court first rejects the state’s argument that defendant’s case is unreviewable under ORS 138.222. The court then concludes that, contrary to defendant’s request, ORS 137.717 precludes the trial court from entering a downward departure sentence on each count. The court explains that ORS 137.717 prevents a defendant from receiving a downward departure under that statute if he or she has “previously received” one. A sentence is “previously received” for purposes of ORS 137.717(6)(b) if it is imposed on a conviction that qualifies as a “previous conviction” for the purposes of the same statute. Finally, the court explains that nothing in the statute limits the trial court’s discretion to impose the downward departure on whichever count it chooses; it is not required to impose the departure at the first opportunity.

State v. Watkins-McKenzie, 286 Or App 569 (2017) (Lagesen, J.)

Search and Seizure – Officer’s Belief that Defendant Possessed Drugs was Not Objectively Reasonable

The court concludes that police extended a seizure of defendant without reasonable suspicion when it changed the nature of the investigation from theft to drug possession. Defendant does not dispute that police had reasonable suspicion to investigate whether defendant was trying to steal gas from a gas station. During that encounter, the officer came to believe that defendant was under the influence of intoxicants and began investigating him for drug possession. The state sought to justify the shift by noting that the stop occurred in a “known thoroughfare for drug users, drug deals”; defendant was nervous; the officer found defendant’s explanations suspicious; defendant was rummaging around the cab of his truck; and defendant appeared to be on methamphetamine. The court concludes that those factors individually and collectively did not amount to objectively reasonable suspicion that defendant possessed drugs.

State v. Davis, 286 Or App 528 (2017) (Ortega, P.J.)

Attorney Fees – Defendant’s General Statement that He May Be Able to Work Insufficient to Support Attorney Fee Award

The court concludes that the trial court plainly erred in imposing $1,858 in attorney fees. Defendant was sentenced to 72 months’ imprisonment. The trial court engaged in a colloquy with defendant about whether he intended to work when he was released from prison, and defendant said yes. The trial court imposed the attorney fees. On appeal, defendant contends that the trial court plainly erred in imposing attorney fees on that record, because there is no indication that defendant will be able to pay when he is released. The court agrees, explaining that the trial court’s inquiry does not allow a “nonspeculative, objective assessment of defendant’s present or future capacity to pay fees.” The inquiry did not elicit any information about defendant’s education, sources of income, or earning potential.

State v. Mendoza, 286 Or App 548 (2017) (Ortega, P.J.)

Search and Seizure – Traffic Stop Was Valid under Vehicle Code

The court rejects defendant’s argument that he did not violate ORS 811.505, which requires a driver “emerging from an alley, building, private road, or driveway in a business or residence district” to stop “before driving onto the sidewalk or sidewalk area.” Defendant was observed failing to stop after emerging from a parking lot without stopping before driving onto the sidewalk. An officer stopped him for violating ORS 811.505 and later discovered that his license was suspended. Defendant drove out of the parking lot through the marked entrance and exit portion, apparently intended for driving, rather than parking. The parties disputed whether defendant had emerged from a “driveway.” The court concludes that the portion of the parking lot from which defendant emerged was a “driveway” and he was required to stop. The officer had probable cause to stop defendant.

State v. Jones, 286 Or App 562 (2017) (Lagesen, J.)

Juvenile Dependency – Court Violated Interstate Compact by Appointing Guardian in California

DHS and child, K, appeal from a juvenile court order where the court sua sponte set aside a termination judgment and made K’s maternal grandfather, who resided in California, her durable guardian when grandfather had not been approved by that state as a placement resource. The parties first argued that the juvenile court lacked authority to set aside the termination judgment, but the court concludes that that argument is unpreserved. The parties then argue that the juvenile court erred in changing K’s permanency plan to a durable guardianship and appointing grandfather as guardian notwithstanding California’s refusal to accept that placement under the interstate compact (ICPC). Grandfather argues that the ICPC applies only to foster care placements and his placement is not because he would not be accepting ongoing agency funding and be subject to ongoing supervision. The court disagrees, explaining that grandfather’s construction of the ICPC is inconsistent with its purpose, and that the drafters did not intend to limit foster care to situations where the placed child would receive public funding. Because the juvenile court’s order had the effect of placing K in California without that state’s approval, it was error.

DHS v. A.B., 286 Or App 578 (2017) (Garrett, J.)

Sentencing – Trial Court Plainly Violated 200 Percent Rule for Consecutive Sentences

The court remands for resentencing when the trial court imposed a total incarceration term for consecutive sentences that exceeded 200 percent of the maximum presumptive term for the primary offense. Defendant pleaded guilty to seven drug offenses. The trial court sentenced defendant to 65 months on Count 1, 36 months on Count 4 (to be served consecutively to Count 1) and 36 months on Count 5 (to be served consecutively to Count 4), for a total of 137 months in prison. Defendant’s primary offense was Count 1, and defendant was a 10H, which carries a presumptive sentence of 61-65 months. Therefore, the total consecutive incarceration terms for crimes arising out of the same criminal episode as Count 1 could not exceed 130 months.

State v. Carrillo, 286 Or App 642 (2017) (Duncan, J.)

Inmate Litigation – Trial Court Did Not Err in Revoking the Waiver of Plaintiff’s Filing Fees

Plaintiff, an inmate, challenges the dismissal of his case after he failed to pay a filing fee. The trial court initially had waived the fee, but then vacated the order after determining that plaintiff had previously commenced more than three prior actions that had been dismissed as frivolous, or failed to state a claim. The defendants, state actors, conceded that vacating the order waiving the filing fee was error because there were appeals pending on those cases but the court does not accept the concession. The court explains that under federal law the dismissal counts even if the dismissal is being appealed, and the parties did not present sufficient argument to explain why the law in Oregon, which is based on the federal counterpart, would be different.

Woodroffe v. State of Oregon, 286 Or App 645 (2017) (Duncan, J.)

Interference with Peace Officer – On Reconsideration Reversing Conviction Because Defendant was Engaged in Passive Resistance

The state and defendant jointly moved for reconsideration in this case in light of State v. McNally, 361 Or 314 (2017), contending that defendant’s conviction for interference with a peace officer (IPO) should be reversed. The court agrees and reverses defendant’s conviction. An officer stopped defendant for traffic violations and ordered her to provide her identification. Defendant, calmly and politely, refused, asked the officer for his name and badge number, told him that she was recording the encounter, and asked him questions that she had written on a piece of paper. Defendant was charged with IPO for failing to obey a lawful order, and at trial, moved for a judgment of acquittal arguing that she was engaged in passive resistance.

In McNally, decided after the court’s initial decision in this case, the Oregon Supreme Court explained that passive resistance refers to noncooperation with a lawful order that does not involve violence or active measures, regardless of the motivation for the noncooperation. The parties agree that defendant’s conduct constituted passive resistance.

State v. Washington, 286 Or App 650 (2017) (Duncan, J.)

Self-Representation – Trial Court Erred in Failing to Allow Defendant to Represent Himself

The court concludes that the trial court erroneously failed to allow defendant to represent himself when defendant repeatedly requested to do so pretrial. The state argued that defendant’s claim is unpreserved because the trial court never expressly ruled on defendant’s request. The court rejects that argument. Defendant’s requests to waive counsel and represent himself were unambiguous, and the trial court failed to engage in the required inquiry. By disregarding defendant’s requests, the trial court necessarily precluded defendant from representing himself at trial.

State v. Ortega, 286 Or App 673 (2017) (Haselton, S.J.)

Per Curiam – Merger – Sex Abuse and Sodomy Verdicts Based on Same Acts but Different Theories Should Merge

The court accepts the state’s concession that defendant’s guilty verdicts for two counts of first-degree sodomy and two counts of first-degree sexual abuse should merge into a single conviction of first-degree sodomy and a single-conviction of first-degree sexual abuse. The counts were based on the same acts but different theories (forcible compulsion and physical helplessness). The court concludes that the trial court plainly erred and exercises its discretion to correct the error because defendant’s criminal record misstates the nature and extent of his conduct.

State v. Bonilla-Vergara, 286 Or App 676 (2017) (per curiam)

Per Curiam – Merger – Individual Thefts Should Merge into Aggravated Theft

The court accepts the state’s concession that defendant’s guilty verdicts for individual thefts should merge into the guilty verdict for aggravated theft. The trial court could not impose separate convictions for individual thefts that had been aggregated to support an additional, greater, theft conviction. Similarly, defendant’s guilty verdicts for first-degree theft of individual firearms should have merged into the guilty verdict for first-degree theft of property when that property included the listed firearms.

State v. Chappell, 286 Or App 679 (2017) (per curiam)

Per Curiam – Civil Commitment – Appellant’s Shackling Argument is Unpreserved

The court affirms appellant’s civil commitment, concluding that appellant’s argument that she was improperly shackled at her civil commitment trial was not adequately preserved. A general objection to shackling is insufficient to preserve arguments that the trial court improperly deferred to another person’s assessment of the need for restraints, and failed to make a record of its reasons for requiring restraints.

State v. K.C., 286 Or App 682 (2017) (per curiam)