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Oregon Appellate Ct - June 1, 2017

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by: Sara Werboff • June 2, 2017 • no comments

Charging Instruments – Upholding on Reconsideration Earlier Opinion Requiring State to Allege Basis of Joinder

The court allows the state’s petition for reconsideration but adheres to its earlier opinion. In its original opinion, the court explained that ORS 132.560 specifies the grounds for joinder and ORS 135.630(2) allows for a demurrer if the indictment fails to allege the basis for joinder on its face. The court rejects all of the state’s arguments for reconsidering its earlier ruling. First, the state contended that the court misunderstood State v. Huennekens, 245 Or 150 (1966), in which the Supreme Court held that charges were adequately joined when the indictment alleged that they were part of the same act or transaction. The state contended that Huennekens established that such an allegation was sufficient to establish joinder, but not necessary. The court responds simply that the state ignores what the statute requires. The state next argued that the court improperly understood the federal rule that Oregon relied on when it amended the joinder rule in 1989, but the court explains that the state’s argument is inaccurate. Finally, the state argues that the court improperly determined the extent to which defendant was prejudiced, because the record at trial indicated that the charges could properly have been joined. The court explains that the prejudice occurred in proceeding to trial on improperly joined charges.

State v. Poston, 285 Or App 750 (2017) (Armstrong, P.J.)

DUII – Trial Court Did Not Err in Instructing the Jury on Alternative Theories of DUII

The court rejects defendant’s argument that the trial court erred in instructing the jury that it could find defendant guilty of DUII if it found that she had driven under the influence of intoxicants, the influence of controlled substances, or a combination of the two, when the state alleged that defendant committed DUII by driving under the influence of intoxicants and a controlled substance. Defendant contended that ORS 813.010(1)(a),(b), and (c), set forth different ways of committing DUII and each were essential elements of the offense. The court concludes that they are not elements, but are alternative factual theories of proving the element of intoxication. The court further concludes that ORS 813.010(2), which requires the state to allege controlled substances if proceeding under that theory, does not change that rule.

State v. Leachman, 285 Or App 756 (2017) (Armstrong, P.J.)

Evidence – Admission of Judgment of Conviction Over Defendant’s Stipulation was Prejudicial

The court reverses defendant’s convictions, including felon in possession of a firearm, concluding that the trial court erred in admitting an earlier conviction for delivery of methamphetamine to establish that defendant had a prior felony conviction when defendant agreed to stipulate to the felony. Defendant contended that introducing the name of the felony for which he was convicted would be unduly prejudicial. The court agrees, explaining that the nature of the felony conviction had no probative value in this case, when defendant offered to stipulate to the existence of the felony conviction. Additionally, the name of defendant’s conviction was prejudicial.

State v. Parker, 285 Or App 777 (2017) (Tookey, J.)

Evidence – Portion of Transcript Admissible on Alternative Hearsay Exception

The court concludes that a portion of a transcript where the complainant mentioned past abuse was inadmissible as a past recollection recorded, but was admissible under the state’s proffered alternative basis for affirmance, as a business record. Defendant was convicted of raping the complainant. The rape occurred in 1994 or 1995 when the complainant was five years old. At trial, defendant contended that the complainant had a false memory and confused the abuse with other abuse by her step-father. To rebut that defense, the state sought to introduce a portion of a transcript made in 2002, when police were investigating complainant’s step-father, where complainant said that she had been abused by a babysitter. Two detectives, Delehant and Clinton, interviewed complainant, but Delehant recorded the interview and reviewed the transcript. Only Clinton was available to testify at trial and he did not recall the disclosure. The state introduced the transcript.

On appeal, the state conceded that the transcript did not qualify as a past recollection recorded because Delehant was the one who adopted the statement and he was not a witness at the trial. The past recollection must have been adopted by the witness when the recording was fresh in the memory of the witness. The court accepted the state’s concession. The state argued, however, that the transcript was admissible as a business record. The court agrees, and explains that it exercises its discretion to affirm on an alternative basis because the record was sufficient to establish a foundation for the admission of the business record, and the record would not have developed differently had the state raised that exception below. Clinton testified to the regular practice of preparing interview transcripts.

State v. Edmonds, 285 Or App 855 (2017) (Linder, S.J.)

Per Curiam – Reversing “Mandatory State Amt” but Upholding Imposition of Attorney Fees

The court concludes that the trial court erred in imposing $60 “Mandatory State Amt” for each of his convictions because there was no statute that authorized that cost. The court further concludes that the trial court did not plainly err in imposing attorney fees when there was evidence in the record to support a nonspeculative inference that defendant had the ability to pay a $1,000 attorney fee. Defendant was employed, owned a home, and was only sentenced to 10 days of jail.

State v. Vincent, 285 Or App 869 (2017) (per curiam)

Per Curiam – Reversing Imposition of DUII Conviction Fee

The court reverses the imposition of $255 “DUII conviction fees” in defendant’s trespass case. Defendant was not convicted of DUII and the trial court erred in imposing those amounts.

State v. Brown, 285 Or App 872 (2017) (per curiam)

Per Curiam – Reversal for Lack of Written Jury Waiver

The court reverses because defendant was convicted following a bench trial and the record contained no written jury waiver as required by Article I, section 11.

State v. Nichols, 285 Or App 874 (2017) (per curiam)

Per Curiam – Trial Court Imposed Unlawful Post-Prison Supervision Sentence

The court remands for resentencing. The trial court imposed 60 months of imprisonment followed by 60 months of post-prison supervision “minus time actually served pursuant to ORS 144.103” for defendant’s coercion conviction. The state conceded that ORS 144.103 does not apply to coercion convictions and that the post-prison supervision term was unlawfully indeterminate and excessive on its face. The court agrees with the concession and orders remand for resentencing.

State v. Chapman, 285 Or App 876 (2017) (per curiam)

Per Curiam – Trial Court Plainly Erred in Imposing Attorney Fees

The court reverses the imposition of $624 in attorney fees, concluding that the trial court plainly erred in imposing those fees in the absence of any evidence of defendant’s ability to pay. The error was grave in light of defendant’s prison sentence and the amount of fees ordered.

State v. Sanders, 285 Or App 878 (2017) (per curiam)

Per Curiam – Trial Court Plainly Erred in Imposing Extradition Fees

The court reverses the imposition of $2,030 in extradition fees, concluding that the trial court plainly erred in imposing those fees in the absence of any evidence of defendant’s ability to pay. The error was grave in light of defendant’s substantial prison sentence and the amount of the costs ordered.

State v. Velasquez-Orozco, 285 Or App 881 (2017) (per curiam)

Per Curiam – Civil Commitment – Insufficient Evidence to Support Finding of Dangerousness

The court accepts the state’s concession that there was insufficient evidence to find that appellant was dangerous to others.

State v. L.L.P., 285 Or App 884 (2017) (per curiam)