Oregon Appellate Ct - June 29, 2016
by: Amanda Alvarez Thibeault • June 30, 2016 • no comments
Evidence of a Plan to Steal Marijuana and Sell It – Not Relevant as Plan or Intent Evidence in Separate Delivery Charge
Evidence of defendant’s plan to steal an acquaintance’s marijuana and sell it in California was not physically similar enough to the charged act (Delivery of Marijuana) to be admissible to prove the defendant’s intent. The theory of the charged act was that defendant was one of several people who were collectively growing more marijuana than permitted under Oregon law in order to sell portions of it. The theory of the additional bad act was that defendant stole marijuana grown by another person and was planning on selling it in California. Because the state presented no evidence that the charged conduct involved theft, the charged act and the additional bad act were of such a different nature as to prohibit the admission of the act to prove the charged conduct.
Further, the additional bad act was also not admissible to prove the defendant’s plan to sell marijuana. Plan evidence is required to have more similarities than intent evidence. Because the evidence was not similar enough to qualify as intent evidence, it was necessarily insufficient to qualify as plan evidence. State v. Hudman, 279 Or. App. 180 (2016)
Not A Stop – Asking for Name and Whether Person Possesses Anything Illegal
A youth was not stopped when, after receiving consent from the person renting the house to conduct a sweep of the house, an officer asked the youth, who he encountered in a bedroom in the home, for his name and whether he had anything illegal in his possession. The officer’s mere request for identification and question about whether youth possessed anything illegal was not a sufficient show of authority to convert the encounter into a stop. State v. K.A.M, 279 Or. App. 191 (2016)
Prior Theft Conviction – Inadmissible to Prove Lack of Mistake and Plan
The trial court erred in admitting evidence of a prior theft of books to prove lack of mistake and plan in a prosecution for a theft of books based on defendant’s failure to return library books, whereas the prior theft was based on the defendant taking books from a book sale without paying for them. “That defendant had stolen books in the past by taking them from a book sale without permission is not similar enough to support an inference that defendant did not accidentally fail to return the library books that he took without permission.” Although the trial court erred in admitting the evidence, the error was harmless in light of the other, unchallenged, prior bad act evidence admitted at trial.
Additionally, the trial court plainly erred in imposing attorney’s fees without evidence of a defendant’s ability to pay. State v. Davis, 279 Or. App. 223 (2016)
MJOA - Proper Remedy When Defendant Charged with IPO Based On Conduct Constituting Resisting Arrest
A defendant cannot be charged with Interfering with a Peace Officer for conduct that would constitute resisting another’s arrest. Further, the defendant may challenge the state’s unlawful charging decision in the form of an MJOA “[a]t least when, as here, the state expressly elects, on the day of trial to base an IPO charge on a defendant having resisted the arrest of another person, the IPO charge is improper and may be challenged through an MJOA.” State v. Kountz, 279 Or. App. 262 (2016)
Error to Admit Other Bad Acts Without 403 Balancing
In a prosecution for child sex abuse, the trial court erred in admitting evidence of uncharged sexual conduct with the same victim without engaging in 403 balancing as requested by the defendant and thus required by Williams. State v. Altabef, 279 Or. App. 268 (2016)
A Court May Not Revoke A Defendant’s Probation for A Condition Not Imposed by a Judge
The trial court plainly erred in revoking defendant’s probation based on her consumption of alcohol because the “no-alcohol” condition was not ordered by a judge at the time of sentencing, but rather added by defendant’s probation officer subsequent to sentencing. Although defendant’s judgment stated that defendant must abide by the direction of her probation officer, and her probation officer had in fact told her not to consume alcohol, such a condition was an improper basis to revoke her probation because conditions of probation must be imposed by the sentencing court. Permitting a probation officer to impose additional probation conditions could undermine a defendant’s rights to appeal those conditions. Given the error concerning the alcohol condition, the Court of Appeals reverses the judgment, remanding to the trial court for reconsideration in light of the other four potential basis for revocation. State v. Rivera-Waddle, 279 Or. App. 274 (2016)
PCR – Claim for Relief Barred Under ORS 138.510
Petitioner’s claim for post-conviction relief was time bared under ORS 138.510(3) because he failed to raise the claim for relief within two years after the entry of judgment. Further, his claim does not fall within the exception to that statute because his claim reasonably could have been raised within the two years. Petitioner’s claim, that he did not possess or control the images on his computer’s hard drive, was open to debate and his petition was in a position to raise that claim. “His post-conviction claim—that the proper interpretation of those statutory terms barred his conviction for encouraging child sexual abuse – was based on familiar legal concepts; including, generally, statutory construction, and, specifically, what it means to possess or control prohibited items.” Affirmed. Hardin v. Popoff, 279 Or. App. 290 (2016)
Kidnapping – Secretly Confined – Hotel Room Where Defendant Threatened Victim if She Left
There was sufficient evidence to convict defendant of kidnapping on the grounds that he “secretly confined” a victim a place where she was “not likely to be found” where, during an attack on the victim in a hotel room, the defendant actively concealed the victim whenever third parties came to the defendant’s motel room during the attack. Although third parties might have located the victim, either accidentally or through searching, the circumstances also indicated that the defendant actively prevented third parties who might have aided the victim in finding her. Additionally, the defendant held the victim against her will and without phone contact with the outside world for most of the night and into the morning. Thus, there was sufficient evidence to convict the defendant of kidnapping. State v. Vaughan-France, 279 Or. App. 305 (2016)
For Cause Challenge to a Juror – Not an Abuse of Discretion to Deny
It was not an abuse of discretion for a judge to fail to remove a juror for cause in a kidnapping case who had initially stated that she had been “terrorized a lot and it just brings up a lot of emotions,” and that although she could probably follow the court’s orders she didn’t think she could be fair. In response to the judge’s later question about whether she could be fair she said, “I don’t know…I’m still working on it.” Although the juror made concerning statements about her ability to be fair initially, she later vacillated and finally concluded that she could try and be fair by putting her feelings aside. Thus, although the initial comments about the juror’s ability to be fair were concerning, her later backing down from those comments leads the Court of Appeals to uphold the trial court’s decision not to strike her. State v. Vaughan-France, 279 Or. App. 305 (2016)
Sentencing – Arrest Warrant With Nothing More is Not a Substantial Reason for Departure Sentence
The state concedes, and the trial court accepts that concession, that the mere fact that the defendant had a warrant out for his arrest in another state is insufficient to justify an upward departure sentence. State v. Vaughan-France, 279 Or. App. 305 (2016)
Expungement of Certain Sex Crimes under ORS 137.225(8)(b)
A defendant seeking expungement for a rape in the third degree conviction under ORS 137.225(8)(b) (the statute allowing for expungement of certain sex crimes) may not have his conviction expunged when he has two convictions within the past 10 years. Here, the defendant plead guilty to two counts of rape in the third degree. Three years later, he petitioned to have his convictions expunged. On appeal, the Court of Appeals affirms the trial court’s denial of his request for expungement, explaining that because he had two convictions within the past 10 years, he was not eligible for expungement at this time.
State v. Jensen, 279 Or. App. 323 (2016)
Per Curiam Reversal - Attorney's Fees
Per curiam reversal of an imposition of attorney’s fees where no evidence of a defendant’s ability to pay. State v. Peterson, 279 Or. App. 330 (2016)
