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Oregon Appellate Ct - June 28, 2017

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by: Sara Werboff • June 30, 2017 • no comments

Trial Court Properly Denied Demurrer as Untimely – Trial Court Properly Imposed Compensatory Fine

Defendant was charged with various sexual offenses involving the same victim as well as encouraging child sex abuse. Defendant brought a demurrer the week before trial and the trial court denied it as untimely and also that the charges were part of a common scheme or plan. On appeal, defendant argued that the trial court did not base its denial on the motion being untimely, but the court disagrees and finds that in the court’s discretion it was permitted to deny the demurrer.

The trial court imposed a $5000 compensatory fine for a victim of the encouraging child sexual abuse charges, who presented evidence that she continues to suffer trauma as a result of her images being shared on the internet. Defendant challenged the compensatory fine on the basis of causation. The court concludes that there was sufficient evidence that defendant’s actions directly contributed to the victim’s injury. Additionally, the court rejects defendant’s argument that there was no proof of damages to support the $5000 fine. The court notes that it need not prove the specific amount of a compensatory fine award as economic damages.

State v. Adams, 286 Or App 376 (2017) (Armstrong, P.J.)


Evidence Sufficient to Support Conviction for Initiating False Report

The court upholds defendant’s conviction for initiating a false report, concluding that her actions were sufficient to establish that she “initiated” a report. Defendant had been involved in an earlier car accident. A police officer came upon defendant and the other driver as they were exchanging information and left. Later, defendant’s husband flagged down a different police officer and falsely told him that their car had just been involved in a hit and run. Defendant supplied false details about the other car. The officer conferred with the first officer and they then interrogated defendant who admitted that the hit and run was false. On appeal, defendant argued that she only provided false information to the officer and did not initiate the report. The court concludes that because defendant participated with her husband in making the report, they were acting in concert and simultaneously to initiate a false report.

State v. Velasquez, 286 Or App 400 (2017) (Sercombe, P.J.)


Juvenile Dependency – Mother’s Admission Was Sufficient to Support Jurisdiction

The court upholds the juvenile court’s judgment taking jurisdiction of mother’s child. DHS brought a dependency petition alleging three different grounds. Mother stipulated to a modified version of one ground and DHS dismissed the other grounds. Specifically, mother stipulated that her physical and mental health “interfere with her ability to parent in the safest way possible and create risks that are unacceptable to mother.” The juvenile court entered a jurisdiction judgment based on that stipulation. On appeal, the state contends that mother’s appeal is barred because she stipulated to the entry of judgment. The court rejects that argument because mother did not stipulate to entry of judgment, rather, she stipulated to an allegation in the petition. The court further finds that the allegation is sufficient to support a basis for jurisdiction.

DHS v. L.S.H., 286 Or App 477 (2017) (Lagesen, J.)


Per Curiam - Post-Conviction Relief – Remanding for Reconsideration of Poston Issue

The court vacates and remands an order denying petitioner post-conviction relief on the basis that his trial counsel was ineffective for failing to demur to an indictment that did not allege a basis of joinder. The post-conviction court concluded that the demurrer would be denied because there was no requirement for the state to allege the basis of joinder in the indictment. In light of Poston, the post-conviction court’s decision was erroneous

Pittsley v. Nooth, 286 Or App 516 (2017) (per curiam)


Per Curiam – Civil Commitment – Insufficient Evidence to Support Commitment

The court accepts the state’s concession that the evidence was legally insufficient to support appellant’s involuntary commitment on the basis that he was unable to provide for his basic needs.

State v. C.A.S., 286 Or App 518 (2017) (per curiam)


Per Curiam - Juvenile Dependency – Court Erred in Appointed Guardian Ad Litem for Mother

The court reverses a jurisdictional judgment based on statements made by mother’s guardian ad litem, concluding that the trial court erred in appointing a guardian ad litem for mother in the first place. DHS conceded that there was insufficient evidence to support the appointment.

DHS v. M.M.N., 286 Or App 520 (2017) (per curiam)


Per Curiam - Appeal and Review – Defendant May Not Appeal from Guilty Plea

The court dismisses defendant’s appeal from a judgment of conviction for a misdemeanor following revocation of diversion. Under ORS 138.040, defendant may not appeal conviction obtained after a guilty plea.

State v. Hill, 286 Or App 523 (2017) (per curiam)