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Oregon Appellate Ct - June 21, 2017

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by: Sara Werboff • June 26, 2017 • no comments

Search and Seizure – Consent to Search was Voluntary – Defendant was Not Seized

The court concludes that the trial court did not err when it denied defendant’s motion to suppress evidence and rejects defendant’s arguments that her consent was coerced and, alternatively, that her consent was the product of an unlawful seizure. Defendant was a passenger in a vehicle where police were primarily investigating another passenger who had given a false name. An officer asked defendant for identification and defendant volunteered that she was on parole. The officer called defendant’s parole officer out of defendant’s earshot. The parole officer told the officer that she believed defendant was using drugs again. The officer then asked defendant for consent to search and she agreed.

The court first rejects defendant’s argument that her consent was coerced because the officer implicitly conveyed that it was directed by her parole officer. The court notes that there is a factual dispute as to whether the officer ever conveyed to defendant that he had spoken to the parole officer, and the court presumes that the officer did not convey that information to defendant before requesting her consent. However, even if he had, the court concludes that defendant’s consent was not coerced under the totality of circumstances. The court next rejects defendant’s alternative argument that defendant was unlawfully seized, and concludes that defendant, a passenger in the vehicle who was not the principle subject of any investigation, was not seized.

State v. Stevens, 286 Or App 306 (2017) (Ortega, P.J.)


Sufficiency of Evidence - Record was Insufficient to Present Substantial Pain Theory of Assault to Jury

The court concludes that the record lacked sufficient evidence that the complainant, in a fourth-degree assault case, suffered substantial pain and the trial court erred in allowing that theory of guilt to go to the jury. Defendant and complainant were domestic partners and defendant was charged with assault after an incident where he pushed and shoved her, and grabbed her by the neck. The state’s proof of substantial pain came from the officer who responded, the complainant said, in essence, that she did not suffer from substantial pain. Photographs showed some scratches around her neck. Below, defendant moved for a judgment of acquittal on the substantial pain prong of physical injury, but not impairment of a physical condition. The trial court denied the motion and both theories went to the jury. On appeal, the state argued that an MJOA was the incorrect procedure to raise the issue. The court does not expressly decide that issue, instead holding that the record below is sufficient for it to review whether there was sufficient evidence to present substantial pain to the jury. Here, because the state failed to adduce any evidence of the quality or duration of the complainant’s pain, the evidence was insufficient to conclude that her pain was substantial.

State v. Long, 286 Or App 334 (2017) (Garrett, J.)