Oregon Appellate Ct - June 2, 2016

by: Aalvarez • June 8, 2016 • no comments

Encouraging Child Sex Abuse - Hearsay Statements – Harmless Error

In a prosecution for encouraging child sex abuse, it was harmless error for the trial court to admit hearsay statements by the defendant’s wife that tended to show that he had sole access to the computer containing incriminating evidence at issue in the case because:

• The defendant had readily elicited other similar hearsay statements himself;
• There was non-hearsay evidence already admitted that supported the idea that the defendant had sole access to the computer at issue; and
• Multiple other statements were introduced in which the defendant appeared to take responsibility for the crime

Further, the Court of Appeals refuses to consider defendant’s claim that the court erroneously admitted other bad act evidence because those claims were unpreserved.State v. Chandler, 278 Or. App. 537 (2016)

Article I, section 12 – Neither Equivocal or Unequivocal Invocation of Right to Silence – “I don’t have nothing to say”

The defendant's statement that “I don’t have nothing to say” during a police interrogation was neither an unequivocal nor equivocal assertion of his right to be free from self-incrimination because a reasonable officer would not have understood that statement to constitute an unequivocal or equivocal invocation, but rather, an explanation that he had no response to being confronted with incriminating photographs from his cell phone.

The court explained that: “[G]iven that defendant was visibly “taken aback” that the detectives had possession of incriminating photographs whose existence he had just spent an hour denying, and that he twice indicated to the detectives that he was not “thinking,” a reasonable officer would have understood his statement, “I don’t have nothing to say,” in those circumstances as a statement that he could not explain the presence of the photographs, not as a statement that he no longer wanted to talk to the detectives.”

State v. Rose, 278 Or. App. 551 (2016)

Prior False Accusations – Child Sex Abuse

The trial court did not error in excluding evidence of the victim’s prior accusations against her step brother because there was insufficient evidence that the victim had recanted those accusations, and to the extent that there was a question about the truth of the accusations, the trial court properly exercised its discretion in excluding them because the probative value of admitting the accusations was substantially outweighed by the risk of prejudice. However, the court did plainly err in requiring the defendant to pay attorneys fee's. Portion of judgment requiring defendant to pay attorney fees reversed; otherwise affirmed. State v. Rose, 278 Or. App. 551 (2016)

Not Plain Error to Impose Attorney’s Fees

It was not plain error for the court to impose attorney’s fees where the record contained evidence that the defendant had a long employment history, including evidence that he was consistently employed and had owned his own business. Further, the record also showed that defendant had an “educational background,” no debt, and always had money to make ends meet. Thus, the record was sufficient to permit a non-speculative inference that after being released from prison, the defendant may be able to pay the fees imposed in this case. State v. Hernandez-Camacho, 278 Or. App. 565 (2016)

Warrantless Entry into Defendant’s Home Not Justified Where No Evidence Presented on How Long it Would Have Taken to Obtain a Warrant

The trial court did not err in granting the defendant’s motion to suppress evidence of his intoxication after police entered into his home without a warrant because the state failed to prove how much time it would have taken to obtain a warrant to search the defendant’s home. Because the state failed to show how long it would have taken the officer to obtain a warrant, there was no way for the court to determine that obtaining a warrant would have been unreasonable and that a delay of that length would have resulted in the loss of all evidentiary value for the defendant’s drawn blood. State v. Hermanson, 278 Or. App. 570 (2016)

ORS 813.131(2013) – Certification Required to Request a Urine Test

An officer was properly certified to request a urine test after suspecting that the defendant was driving under the influence even though ORS 813.131 (2013), the governing statute at the time, required that the officer be certified by the Board of Public Safety Standards and Training and the officer was only certified by the Department of Public Safety Standards and Training. This was because the legislature had impliedly amended the statute in 1997 to require that officers requesting such tests be only certified by the DPSST. Hanson v. DMV, 278 Or. App. 599 (2016)

Two Different Permanency Plans for the Same Children

The juvenile court erred in changing a permanency plan to adoption while in a separate dependency case involving the same three children, keeping the permanency plan for reunification. By changing each child’s plan from return to parent to adoption in one case, while keeping the plan for reunification in another case, the court’s action’s resulted in the children being subjected to two different permanency plans at the same time. The juvenile code does not contemplate that a child, and decisions about the child’s welfare will be split into separate cases. Rather, the code contemplates that the court will take jurisdiction of the child and make all decisions about the child based on the totality of the circumstances. Thus, the court erred by subjecting the children to two different permanency plans simultaneously. DHS v. M.J.H, 278 Or. App. 607 (2016)

Attorney’s Fees – Plain Error in Imposing

The Court of Appeals reverses the imposition of attorney’s fees as plain error in two Washington County cases. State v. Rinehart and State v. Anthony

Per Curiam Reversal – Failure to Register as a Sex Offender

The state concedes, and the Court of Appeals accepts that concession, that the trial court erred in denying the defendant’s MJOA where the state failed to prove that the defendant acquired new residence after he left his former residence. State v. Williams, 278 Or. App. 620 (2016)