Oregon Appellate Ct - June 8, 2016

by: Aalvarez • June 9, 2016 • no comments

Failing to Obey a Police Officer – Not Similar Enough to a Criminal Prosecution to Require Additional Constitutional Protections

A prosecution for Failing to Obey a Police Officer, a traffic violation, is not sufficiently similar enough to a criminal prosecution as to require the constitutional protections a person is entitled to when prosecuted for a crime under the five factor test set forth in Brown v. Multnomah County because: (1) the traffic infraction does not have any characteristics that would be associated with a criminal offense; (2) the nature of the maximum penalty (a $360 fine) is relatively small and suggests that the offense should not be classified as a crime; (3) there are no collateral consequences associated with the traffic offense of failing to obey a police officer; (4) the offense carries with it no stigmatizing or condemnatory significance; and (5) the defendant was not subject to criminal pre-trial procedures for this offense, although he was subject to criminal pre-trial procedures for a different offense, before the prosecutor chose to dismiss that charge and re-charge the defendant with a traffic infraction. State v. Whitten, 278 Or. App. 627 (2016)

Interfering with a Peace Officer – Activities that Constitute Resisting Arrest Are Excluded from the IPO Statute

A person cannot be convicted of IPO when she is engaging in activity that would constitute resisting arrest. Here, the defendant was charged with IPO, among other counts, including resisting arrest. It became clear at trial that the state had charged her with IPO and resisting arrest based on the same conduct. The defendant moved for a judgment of acquittal as to the IPO count, arguing that under ORS 162.247, which states that IPO “does not apply in situations in which the person is engaging in * * * activity that would constitute resisting arrested under ORS 162.315,” the defendant could not be convicted for IPO, because the conduct constituting IPO was also alleged to be resisting arrest. The trial court denied the motion and the count was submitted to the jury, which convicted the defendant. The Court of Appeals agreed with the defendant, holding that the legislature meant what it said when it excluded resisting arrest from the IPO statute, explaining:

“In keeping with that legislative history, we conclude that the state cannot charge a defendant with both resisting arrest and IPO based on the same conduct. The state cannot “double up” on the charges. Instead, it must choose which crime to charge. If the state’s theory is that the defendant’s conduct constitutes resisting arrest, it cannot add an IPO count based on the same conduct. That is, it cannot proceed on a theory that a person is guilty of IPO because the person resisted arrest, either their own or someone else’s. Therefore, in a case like this one, where the state charges a defendant with resisting another person’s arrest, the state cannot also charge the defendant with IPO based on the same conduct. To do so would essentially be charging the defendant with both resisting arrest and not resisting arrest based on the same conduct.”

Special congratulations to Chris O’Connor who was the trial attorney in this case and who has been battling against this ridiculous charging practice for some time. Go Chris!

State v. Garcia, 278 Or. App. 639 (2016)

Denial of Request for Substitute Counsel – Not An Abuse of Discretion

The trial court did not abuse its discretion in refusing to appoint substitute counsel for the defendant where the record revealed that none of the complaints that the defendant cited as his basis for requesting substitute counsel were legitimate. Although the defendant repeatedly complained that his attorney had not met with him, the record showed that defendant and his attorney were in regular communication by telephone and letter. Likewise, the defendant complained that the attorney’s investigator had not met with him, but the trial court specifically concluded that the investigator had. Lastly, although the defendant claimed that his attorney had failed to reach out to exculpatory witnesses, those statements were also inconsistent with other claims the defendant had made about his attorney’s investigatory progress. Given that record, the trial court’s decision to refuse to appoint substitute counsel was not an abuse of discretion. State v. Vierra, 278 Or. App. 656 (2016)

Sentencing – Plain Error in Sentencing the Defendant More than the Maximum Allowed by Law

The trial court plainly erred in imposing three years of post-prison supervision for a UUV conviction because the sentencing guidelines only permit the judge to order one year of post-prison supervision. Likewise, the trial court also plainly erred in imposing a 30 month prison sentence followed by 36 months in post-prison supervision because that exceeds the statutory maximum possible sentence of five years. State v. Vierra, 278 Or. App. 656 (2016)

Disorderly Conduct – Screaming Obscenities 30 Feet Away From Someone

The trial court erred in denying the defendant’s MJOA in a disorderly conduct prosecution where the evidence showed that the defendant:

• Was standing approximately 30 feet away from the named victim
• Yelling incoherent obscenities
• Unfastening his pants and reaching as though he was about to expose his genitals

Although unsettling, none of the conduct supported the inference that the defendant’s conduct was “immediately likely” to produce his use of physical force as required by State v. Atwood. The defendant was unarmed and remained standing at a distance from the victim, while taking no steps towards her or indicating in any other manner that he was going to close the distance between them. Because the evidence was insufficient to prove that the defendant’s conduct was immediately likely to produce physical force, his MJOA on the disorderly conduct charge should have been granted. State v. Wade, 278 Or. App. 669 (2016)

Merger – Attempted Aggravated Murder with a Firearm and Attempted Murder with a Firearm

The trial court erred in failing to merge the defendant’s convictions for attempted murder with a firearm and attempted aggravated murder with a firearm because attempted murder does not require proof of any element that attempted aggravated murder does not. Although unpreserved, the Court of Appeals found the error to be plain and exercised its discretion to correct the error and remand for resentencing. State v. Newmann 278 Or. App. 675 (2016)

PCR – IAC – Standard for Ineffective Counsel

The post-conviction court erred in denying petitioner's claim for relief based on ineffective assistance of counsel by applying the wrong standard to judge counsel's behavior. The IAC claim was based on counsel's failure to present mitigation evidence at petitioner's sentencing, which the court reluctantly denied on the grounds that petitioner had not shown he would have received a different sentence. The Court of Appeals reverses the post-conviction court, noting that the standard does not require that the post-conviction court find that the defendant would have received a different sentence but for counsel’s errors. Rather, it only requires that a petitioner show a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different."

Maxfield v. Nooth, 278 Or. App. 684 (2016)

Counseling Records in a Child Sex Abuse Case Were Subject to In Camera Review

The trial court erred in denying the defendant’s request for an in camera review of the named victim’s counseling records in a child sex abuse case because he demonstrated that such a review “might yield” evidence subject to disclosure by showing that there was a reasonable basis to believe that the victim’s counseling records contained exculpatory evidence related to the abuse.

“First, defendant demonstrated that E started counseling soon after defendant’s arrest and E’s interview with the Amani Center. That makes it reasonable to think that E discussed the abuse in her counseling sessions, and that her statements might be contained in her counseling records. Second, defendant demonstrated that during the Amani Center interview E had made equivocal statements about whether the abuse had, in fact, occurred. That makes it reasonable to think that her counseling records might contain evidence of similar equivocal—and thus exculpatory—statements regarding the abuse. As a result, defendant demonstrated that an in camera inspection might yield evidence subject to disclosure under Hansen and ORS 419B.040. The trial court erred in concluding otherwise.” Vacated and remanded for the trial court to conduct the requested in camera review and, depending on the outcome of that review, to either reinstate the judgment or to determine whether defendant is entitled to a new trial. State v. Lammi, 278 Or. App. 690 (2016)

Isolated Incident of Aggressive Behavior Insufficient Basis for a Restraining Order

The trial court erred in granting a restraining order under FAPA because there was insufficient evidence that the petitioner was in imminent danger of further abuse. Although petitioner presented evidence of one incident where the respondent’s behavior could be considered erratic, aggressive, and angry, there was no evidence presented that this kind of behavior occurred prior to or after the isolated incident. Further, there was no evidence presented by the petitioner that suggested that respondent was going to follow through with any of the verbal threats made during the isolated incident. Issuance of restraining order reversed. GMP v. Patton, 278 Or. App. 720 (2016)

Permanency Plan - Court Must Consider More Than Just the Most Recent Few Months of Reunification Efforts Before Determining DHS Made Reasonable Efforts

The juvenile court erred in changing the permanency plan from reunification to adoption by considering only the most recent few months of reunification efforts by DHS in determining whether or not DHS made reasonable efforts to reunite parent to child, as opposed to the entire period of time through which DHS should have been making efforts to reunite mother with child. “Given that the children’s lack of relationship with mother was among the adjudicated circumstances that endangered them, four months of efforts to rebuild the relationship was not enough to compensate for six months of failure to allow contact or even prepare the children for contact with their mother.” Reversed. [DHS v. S.S., 278 Or. App. 725 (2016)

Civil Commitment – Basic Needs

The trial court erred in ruling that an AMIP, a man found confused and loitering in the Portland Airport, was unable to meet his basic needs because although there was evidence that the AMIP was making “highly impulsive, very poor decisions,” and had no family or friends who could assist him in the immediate future, he had financial resources from which he could purchase food and shelter. Further, despite his bipolar diagnosis, there was no evidence that he was confused about the need to seek food and shelter, nor was there any evidence that he had ever spent nights outside or failed to eat. Reversed. State v. F.H., 278 Or. App. 739 (2016)

TPR - Per Curiam Reversal

Per curiam reversal of the trial court's termination of father's parental rights. DHS v. J.V.G.