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Oregon Appellate Ct - June 14, 2017

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by: Sara Werboff • June 19, 2017 • no comments


Evidence was Insufficient to Convict Defendant of Reckless Endangerment

The court concludes that defendant was entitled to an acquittal of reckless endangerment. Defendant was subject to a no-contact order with his wife and children. Defendant took his two-year-old child, C, from his wife’s friend’s house after the child had been injured by the friend’s dog. The wife called police to report a possible kidnapping. Police found defendant walking slowing with C. Police spoke to defendant in a “soothing” voice and eventually convinced defendant to give C to police. Unbeknownst to defendant, police were carrying tasers, but had positioned the tasers so that defendant could not see them. The trial court convicted defendant of reckless endangerment because he put C in a situation where there was a substantial risk of physical injury by the police. The court concludes that there was no evidence that defendant was aware of the risk to C and consciously disregarded it. Defendant was generally compliant with the police and was not aware of police doing anything to escalate the situation.

State v. Cook, 286 Or App 113 (2017) (Hadlock, C.J.)


Post-Conviction Relief – Petitioner’s Successive Petition Did Not Fall Within Escape Clause

The court concludes that petitioner’s successive petition, raising challenges to the constitutionality of his sentences, was procedurally barred. The court recently considered identical issues in other cases involving petitioners who committed aggravated murder as juveniles. First, petitioner’s claims that his sentence was vertically disproportionate and unconstitutional under Miller v. Alabama had been raised in his earlier petition. Additionally, petitioner’s claims that his post-conviction counsel was ineffective have been foreclosed by earlier decisions.

White v. Premo, 286 Or App 123 (2017) (Duncan, P.J.)


Evidence – Record Did Not Reveal that Trial Court Conducted OEC 403 Balancing and Limited Remand Required

The court concludes that the trial court erred when it admitted three portions of defendant’s interrogation without making a record demonstrating that it had engaged in OEC 403 balancing. Defendant was charged with sexual abuse of the victim, his daughter. The victim also accused her uncle of sexually abusing her. During his interrogation, defendant was asked about the accusations against the uncle and said, in essence, that there was no proof of those accusations and he did not believe his daughter. Before trial, defendant moved to exclude those portions of the interview, arguing alternatively that they were irrelevant or the prejudicial effect outweighed the probative value. The trial court admitted them and did not explain its reasoning. On appeal, the court explains that the record does not reveal that the trial court engaged in balancing as requested and the error was not harmless. Accordingly, the court remands for the trial court to conduct balancing.

Chief Judge Hadlock concurs and explains that in light of the Oregon Supreme Court’s recent decision in State v. Hightower, the Court of Appeals case law that does not require the record to affirmatively reflect the exercise of discretion may be incorrect.

Presiding Judge Armstrong dissents, explaining that he believes the record reflects that the trial court conducted balancing, and he would reach the underlying merits and conclude that the evidence was improperly admitted because it was more prejudicial than probative.

State v. Garcia-Rocio, 286 Or App 136 (2017) (Egan, J.) (Hadlock, C.J., concurring) (Armstrong, J., dissenting)


Failure to Appear - Sufficient Evidence that Defendant was Released from Custody – Failure to Redact Misdemeanor Charges from Release Agreement was Harmless Error

The court concludes that evidence was sufficient to convict defendant of failure to appear. Defendant was booked and released following her arraignment on menacing and harassment charges. She executed a release agreement at that time. She thereafter failed to appear. Defendant argued that she was not released from custody or a correctional facility. The court disagrees, explaining that defendant was constructively in custody when she went through the booking process.

Defendant also argued that the trial court erred when it admitted an unredacted version of the release agreement at trial, containing her misdemeanor charges, after defendant made a judicial admission that she was facing misdemeanor charges. The court concludes that if there was any error, it was harmless as the names of the charges were not pertinent to a central issue in the case and the state did not try to use the charges as propensity evidence.

State v. McColly, 286 Or App 168 (2017) (Egan, J.)


Search and Seizure – State Proved Exigent Circumstances Justified Warrantless Entry into Home

In this DUII case, the court concludes that the state met its burden of establishing that exigent circumstances justified the warrantless entry into defendant’s home. Police went to defendant’s home to investigate a report of her erratic driving. At defendant’s door, police developed probable cause to believe that defendant had driven while intoxicated. They entered into her apartment, read her Miranda warnings, and had her perform field sobriety tests. Defendant moved to suppress. At the hearing, an officer explained that it would take about five hours to obtain a warrant. Defendant sought to supplement the record with information about telephonic warrants but the trial court would not do so, because “we don’t do telephonic warrants in Washington County.” On appeal, defendant argued that the state did not meet its burden to show an actual exigency when it did not include information about how long it would take to get a telephonic warrant. The court explains that the state was not required to present that evidence. Although the court does explain that it is “troubling” that Washington County has declined to adopt telephonic warrant procedures, it is confined to deciding the case based on the evidence that the state presented regarding the length of time it takes to obtain a traditional warrant.

State v. Gerety. 286 Or App 175 (2017) (Egan, J.)


Evidence was Sufficient to Convict Defendant of Failure to Perform Duties of Driver

The court concludes that evidence was sufficient to conclude that defendant failed to perform the duties of a driver. Defendant was charged with failure to perform the duties of a driver as a violation. She moved to dismiss arguing that there was insufficient evidence as a matter of law that she committed the offense. Defendant collided with her friend’s car. They did not exchange any identifying information at the scene. Later, her friend’s mother contacted defendant and asked for her parents’ insurance information. Defendant refused to provide it. The court concludes that the failure to perform duties of a driver statute requires the driver to “give” information at the scene, and therefore defendant committed the offense when she failed to affirmatively provide the vehicle registration number to her friend at the scene of the accident.

State v. Turudic, 286 Or App 184 (2017) (Egan, J.)


Sentencing – Merger Required for Identity Theft and Fraudulent Use of a Credit Card

The court concludes that the trial court erred when it failed to merge the guilty verdicts for identity theft and fraudulent use of a credit card into a single conviction for identity theft. The court explains that when a statute, such as identity theft, contains alternative forms of a single crime, the court looks to the way that the crime is charged. Here, the state alleged that defendant committed identity theft when she, with intent to deceive or defraud, possessed or uttered the personal identification (a credit card) of another. The court recognizes that fraudulent use of a credit card does contain an element that identity theft does not, namely, that the person use a credit card for the purposes of obtaining property or services. So a person can commit identity theft without committing fraudulent use of a credit card. However, the court explains, a person cannot commit fraudulent use of a credit card without committing the identity theft as alleged in this case.

State v. Haddon, 286 Or App 191 (2017) (DeVore, J.)


Right to Counsel – Defendant’s Article I, Section 11, Rights Were Violated by Cellmate Interrogation

The court concludes that defendant’s Article I, section 11, right to counsel was violated when, while in jail awaiting charges for which he was represented, a cellmate informant recorded conversations in which defendant discussed both new crimes and his pending charges. The case was sent back to the court following the Oregon Supreme Court’s decision in State v. Prieto-Rubio, 359 Or 16 (2016). Based on that case, the court concludes that a questioner would have reasonably foreseen that interrogating defendant about the uncharged offenses would elicit incriminating evidence regarding the charged offenses because of the substantial amount of overlapping evidence. The state further argued that this case is distinguishable from Prieto-Rubio and that only the statements concerning the crimes for which defendant was represented need be suppressed. The court rejects that argument and concludes that suppression of any evidence discovered as a result of the interrogation is required. Finally, the court concludes that the improperly admitted evidence affected the verdicts for some of defendant’s crimes but not others, and reverses only to those crimes for which the error was harmful.

State v. Savinskiy, 286 Or App 232 (2017) (Shorr, J.)


Court Cannot Review Exclusion of Expert Testimony Due to Insufficient Offer of Proof

The court concludes that it is unable to determine whether the trial court erred in excluding expert testimony due to an insufficient offer of proof. Defendant sought to call a reserve police officer to provide both scientific testimony and specialized knowledge in support of his self-defense claim. Defendant put forward an offer of proof on the scientific evidence. With regard to the specialized knowledge, defendant asked the expert whether he would provide the same opinion stripped of references to scientific evidence. On appeal, defendant assigned error only to the exclusion of the non-scientific expert testimony. The court explains that although the expert explained that he could provide the same testimony without the scientific evidence, he did not in fact provide an offer of proof as to that testimony. Therefore the offer of proof failed to adequately identify the substance of the evidence that defendant asserted was improperly excluded.

State v. Khoshnaw, 286 Or App 246 (2017) (Shorr, J.)


Search and Seizure – Defendant was Stopped without Reasonable Suspicion

The court concludes that police unlawfully stopped defendant without reasonable suspicion and he was entitled to suppression of evidence discovered as a result of the stop. A convenience store employee called police after observing a crying, intoxicated woman arguing with a man, defendant, in a van. The pair left in the van. Police learned that the van was registered to the woman and went to her address. When they arrived, the pair was sitting in the van in the woman’s driveway, defendant was sitting in the driver’s seat and the woman was in the passenger seat resting her head on defendant’s chest. The officer could smell alcohol emanating from the van. The officer asked defendant for his ID, called in that information, and also asked to speak with the woman. The officer positioned himself behind the van when he spoke with the woman. The officer learned that defendant’s license was suspended, and then later developed probable cause to arrest defendant for DUII.

The court concludes that defendant was stopped in light of the location of the stop (the woman’s private residence), the time of the stop (late at night), the investigatory focus of the stop (possible domestic violence), and the officer’s physical positioning (behind the van). The court also concludes that the state failed to preserve its alternative argument that the officer had reasonable suspicion supporting the stop.

Judge DeVore dissents, disagreeing that the facts noted by the court amounted to a stop.

State v. Newton, 286 Or App 274 (2017) (Flynn, J.) (DeVore, J., dissenting)


Per Curiam - Attorney Fees – Trial Court Plainly Erred in Imposing Fees

The court reverses the imposition of $322 in attorney fees after the state concedes that the trial court plainly erred in imposing them. The court exercises its discretion to correct the error because the amount was substantial in light of defendant’s circumstances.

State v. Johnson, 286 Or App 297 (2017) (per curiam)


Per Curiam - Civil Commitment – Dismissal Warranted When Appellant Held for More Than Five Days Without Hearing

The court accepts the state’s concession that appellant was entitled to a dismissal when she was held more than five judicial days without a hearing.

State v. R.G.-R., 286 Or App 299 (2017) (per curiam)


Per Curiam - Habeas Corpus – Plaintiff Not Precluded from Re-Raising Claims

The court accepts the state’s concession that plaintiff was not precluded from asserting the same claims in a 2015 petition for habeas corpus that he asserted in a 2013 petition for habeas corpus, when that earlier petition was dismissed without prejudice.

Smith v. Premo, 286 Or App 301 (2017) (per curiam)