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Oregon Appellate Ct - June 15, 2016

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by: Aalvarez • June 15, 2016 • no comments

Stop by An Out of State Officer - Unlawful Under Article I, Section 9

A Washington State Trooper did not have jurisdiction to stop defendant in Oregon for traffic infractions that occurred in Washington and thus was not exercising his lawful authority as a Washington State Trooper. Because the stop went beyond his jurisdiction and lawful authority, the stop violated Article I, section 9 and was just as unreasonable as a traffic stop made without probable cause. As such, the evidence resulting from the traffic stop should have been suppressed.

Judge Hadlock dissents, contending that the analysis should have hinged on whether or not the trooper’s actions would have violated Article I, section 9 if they had been performed by Oregon law enforcement. Under that test, the officer’s actions would have been lawful. State v. Keller, 278 Or. App. 760 (2016)

Vouching – Plain Error Review

An officer’s vouching and the trial court’s failure to strike the testimony sua sponte did not qualify for plain error review because it was possible that the defendant made a conscious decision not to object to the witnesses’ testimony, as evidenced by the fact that defense counsel asked the officer to confirm his vouching testimony on cross examination and because the case did not turn on whether the victim was telling the truth when she spoke to the officer who later vouched for her. State v. Vage, 278 Or. App. 771 (2016)

Imposition of Attorney’s Fees Where No Evidence of Ability to Pay

The trial court plainly erred in imposing attorney’s fees where there was no evidence of defendant’s ability to pay them. “Contrary to the state’s assertions, the record does not support a reasonable inference that defendant was employable or that he had worked in the recent past. Although there was some testimony that he had sought work through the temporary employment agency, the court had no information about whether defendant was actually able to secure employment through that agency, how frequently he was able to work, or how much he earned.” State v. Vage, 278 Or. App. 771 (2016)

Statements Were Voluntary Where Defendant Repeatedly Acknowledged That He Understood His Miranda Rights Before Speaking

A defendant’s statements were voluntary under Article I, section 12 where he repeatedly acknowledged that he understood his Miranda rights before speaking to the officers. Further, although the defendant argued on appeal that his statements were also involuntary as the result of a promise of leniency, that error was unpreserved. State v. Wolfgang, 278 Or. App. 781 (2016)

Sentencing – Two Beatings 10-15 Minutes Apart – Consecutive Sentences

The trial court did not err in imposing partially consecutive sentences on First Degree Assault and Murder charges where the trial court found that two separate beatings, the latter of which killed the victim, that took place 10-15 minutes apart were part of separate criminal episodes. The trial court found that the defendant’s conduct was not “continuous and uninterrupted” because the defendant had enough time in between the crimes to do other things (in this case, go to his living quarters and play with his cats) and then to “reflect, reform a state of mind and intent,” before he returned to the scene to administer the second assault. As such, the trial court’s finding was supported by evidence in the record and is sufficient to support the imposition of partially consecutive sentences. State v. Wolfgang, 278 Or. App. 781 (2016)

Sentencing – Merger – Attempted Murder and Murder

Defendant’s two convictions for Attempted Murder of the same victim did not merge because the solicitations were of two different individuals and were performed weeks apart. Thus, the defendant engaged in separate and distinct criminal acts resulting in multiple convictions of the same offense.

Further, the defendant’s convictions for attempted aggravated murder did not merge with his conviction for intentional murder because the defendant “formulated and executed different plans when he attempted to hire someone else to murder the victim, as opposed to when, months later, he killed her himself.” In doing so, the defendant “did not engage in the same course of conduct when he committed the inchoate offenses and the substantive offense under ORS 161.485(3).” State v. Huddleston, 278 Or. App. 803 (2016)

Per Curiam Reversal – No Basis for Finding of a Sentence Enhancement Fact

The state concedes, and the Court of Appeals accepts that concession, that the trial court erred in imposing a departure sentence based on a sentence enhancement fact that was not plead in the indictment or identified in a written notice to the defendant. State v. Teeters, 278 Or. App. 812 (2016)

Attorney’s Fees – Plain Error in Imposing

Per curiam reversal of the trial court’s imposition of court appointed attorney’s fees where there was no evidence of defendant’s ability to pay. State v. McCormack

Civil Commitment – Basic Needs

Per curiam reversal of a civil commitment where there was insufficient evidence to prove that the AMIP was unable to meet his basic needs. State v. T.W.

Dependency – “Rational Relationship”

Per curiam reversal of an order requiring the father in a dependency case to undergo a psychological evaluation where the basis for jurisdiction was father’s substance abuse. There was no rational relationship between father’s substance abuse and the state’s request for a psychological evaluation to warrant the court’s order. State v. D.W.W.