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Oregon Appellate Ct - March 1, 2017

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by: Sara Werboff • March 4, 2017 • no comments

Post-Conviction Relief - Petitioner Did Not Create an Issue of Fact with Respect to Prejudice

The court concludes that petitioner failed to present sufficient evidence to create a genuine dispute regarding whether he was prejudiced by trial counsel's failure to object to an expert's sexual abuse diagnosis. Petitioner was convicted of first-degree sodomy against his son. At trial, a pediatrician from CARES testified that there were no physical signs of abuse, but that, based on the child's statements, the expert reached a medical diagnosis of highly concerning for sexual abuse. Trial counsel did not object to that testimony. On post-conviction, the state argued that at the time of petitioner's trial, before Southard, it was not error for the trial court to admit an abuse diagnosis. In response, petitioner introduced an affidavit from his appellate counsel that attested that appellate attorneys were raising the issue if it was preserved. Appellate counsel also stated that, although the Supreme Court's interest in the case could not be predicted, trial counsel's failure to raise the issue had a tendency to affect the case because the Supreme Court did eventually take up the issue.

The court determines that petitioner did not present enough evidence to support his contention that the Supreme Court might have taken his case on review. Instead, petitioner showed "nothing more than a mere possibility" that the Supreme Court would have taken his case. Therefore, petitioner did not present a basis for the post-conviction court to find that trial counsel's failure tended to affect the outcome of his case.

Jackson v. Franke, 284 Or App 1 (2017) (Hadlock, C.J.)

Civil Commitment - Evidence was Sufficient to Support Finding that Appellant was a Danger to Others

The court concludes that there was legally sufficient evidence to support the trial court's finding that appellant was a danger to others. Appellant, who is 18 years old and schizophrenic, was hospitalized after an incident where he yelled at and shoved his grandmother. Appellant had previously been hospitalized for his "temper." Leading up to the incident, appellant stopped taking his medication and became increasingly aggressive and paranoid. The trial court found that given appellant's past behavior, and his unwillingness to take his medication, made appellant a danger to his grandmother if released from the hospital. The court concludes those findings are supported. Additionally, appellant testified that he had not pushed his grandmother, and the court finds that that shows appellant has not come to terms with his behavior and would be unlikely to prevent it in the future. Judge Egan dissented, arguing that the evidence was not sufficient to find that appellant was a danger to others.

State v. J.T.C., 284 Or App 38 (2017) (Hadlock, C.J.) (Egan, J., dissenting)

Post-Conviction Relief - State Committed Brady Violation with Respect to Two Witnesses

The court rejects the majority of petitioner's Brady claims, but accepts the state's concession that it committed Brady violations when it failed to disclose impeachment evidence for two of its witnesses. Because the Brady violation only had a tendency to affect petitioner's aggravated murder conviction, the court grants relief on that basis. Petitioner was convicted of various crimes, including aggravated murder, for killing a man, Salmu. At petitioner's trial, several witnesses testified that petitioner confessed to killing Salmu. Petitioner told a few of these witnesses that he killed Salmu because he learned that Salmu was a child molester. However, according to two witnesses, Little and Morris, petitioner told them he killed Salmu to prevent Salmu from getting petitioner in trouble on post-prison supervision. That testimony was significant to the state's theory of aggravated murder.

The court concludes that even if the state did not disclose relevant impeachment evidence with respect to the state's witnesses, for most witnesses, petitioner was not prejudiced by that error either because the witnesses were significantly impeached or because the evidence they presented was merely cumulative of other, stronger evidence of guilt. The court also rejects petitioner's claims, under Napue, that the state knowingly introduced false testimony. However, with respect to Little and Morris, the state concedes error, because the impeachment evidence that was withheld was significant and those witnesses provided the only evidence in support of aggravation.

Tiner v. Premo, 284 Or App 59 (2017) (Armstrong, P.J.)

Search and Seizure - Defendant Did Not Consent to a Search of His Residence

The court concludes that defendant did not consent to a search of his residence. Ten to 12 members of the Lane County Special Response Team (SRT) executed a search warrant on defendant's uncle's residence. The SRT pulled into the driveway in armored vehicles and were carrying AR-15s. Using a loudspeaker, the SRT ordered all the occupants out and then handcuffed them. Defendant resided in an outbuilding with his dogs. As the SRT was securing the property, they heard defendant's dogs barking in the outbuilding. The police asked who owned the dogs, and defendant said he did. They then asked defendant to let the dogs out so they could search the outbuilding, or otherwise they would let the dogs out themselves so they could search. After defendant let his dogs out, but before the SRT went in to search, he told the officer's "have at it, it's all yours." The officers found guns in the outbuilding, and because defendant was a felon, he was later arrested and charged. The court concludes that defendant did not consent to a search but merely acquiesced to police authority. The officer's request made it seem as if a search was inevitable. Additionally, because of the SRT's methods, there was a coercive atmosphere under which defendant acquiesced.

State v. Watts, 284 Or App 146 (2017) (Tookey, J.)

Sufficiency of Evidence - Reconsideration - Acknowledging Factual Mistake but Adhering to Original Opinion

On reconsideration, the court adheres to its original decision as modified but corrects a misstatement of fact. Specifically, defendant moved for reconsideration contending that when the court upheld the trial court's denial of a judgment of acquittal on a second count of first-degree rape, it improperly construed the victim's testimony to conclude she was referring to penetration by defendant's penis when she was actually referring to penetration by defendant's hands. The court acknowledges this mistake but concludes that there was sufficient other evidence in the record to support the conclusion that there were two rapes.

State v. Valdez, 284 Or App 153 (2017) (Tookey, J.)

Sentencing - Trial Court has Authority Under ORS 137.750 to Find Defendant Ineligible for a Reduction in Sentence

The court rejects defendant's argument that the trial court lacked authority to deny defendant eligibility for a "reduction in sentence" under ORS 137.750(1). Defendant did not challenge the sufficiency of the trial court's findings that there were substantial and compelling reasons to deny him eligibility for any form of temporary leave from custody, work release, or program of conditional or supervised release. But, defendant argued that the trial court's authority only extends to those programs, and it does not have authority to preclude any "reduction in sentence." Defendant's argument is premised on the structure of ORS 137.750(1) which provides that the trial court shall find the defendant eligible, "unless the court finds * * * substantial and compelling reasons to order that the defendant not be considered for such leave, release or program." The court concludes that the doctrine of the last antecedent applies and by using "such" in the unless clause, the legislature intended to refer to "reduction in sentence" as well as to the other forms of "leave, release, or program." Further, the court points to case law that implicitly rejects defendant's argument that the trial court lacks authority to find a defendant ineligible for a reduction in sentence.

State v. Berger, 284 Or App 156 (2017) (Tookey, J.)

Juvenile Dependency - Record Legally Sufficient to Support Juvenile Court Jurisdiction

The court rejects parents' challenge to the juvenile court's denial of their motion to dismiss jurisdiction. The juvenile court took jurisdiction over child on the grounds that both parents have limited cognitive abilities that interfere with their ability to safely parent. Parents both made progress in a parenting program, and argued that the underlying basis of jurisdiction was no longer present. The court concludes that there was evidence that parents' cognitive impairments persist. Further there was evidence that parents' cognitive limitations interfered with their ability to recognize hazardous situations for their toddler-aged child. Finally, there was evidence that parents will not seek parenting assistance unless required to do so by DHS.

DHS v. A.F., 284 Or App 162 (2017) (Flynn, J.)

Post-Conviction Relief - PCR Court Erred in Granting Summary Judgment for State

The court reverses the post-conviction court's grant of summary judgment on two alternative grounds, concluding that the first basis was incorrect as a matter of law and that petitioner presented sufficient evidence to create a material issue of fact on the second basis. Petitioner was originally tried in 2004 for committing several offenses jointly with five co-defendants. The trial court, without objection, gave the "natural and probable consequences" accomplice liability jury instruction that was later disapproved in Lopez-Minjarez. Lopez-Minjarez was decided about two years after petitioner initiated this PCR action. Petitioner then filed an amended petition, contending that trial counsel was ineffective for failing to object to the jury instruction.

The state moved for summary judgment and the post-conviction court granted that motion. On appeal, the court concludes that the post-conviction erred when it concluded that petitioner was required to proffer evidence that all reasonable defense attorneys were objecting to the jury instruction in 2004. That is because petitioner presented evidence that the state of the law in 2004 indicated that an objection to the jury instruction would have had merit and that trial counsel's failure to do so was unreasonable. The court further concludes that the post-conviction court erred in concluding that petitioner presented insufficient evidence of prejudice to create an issue of fact.

Lizarraga-Regalado v. Premo, 284 Or App 176 (2017) (Haselton, S.J.)

Per Curiam - Sex Abuse Guilty Verdicts Merged

The court accepts the state's concession that the trial court erred when it failed to merge defendant's two guilty verdicts for first-degree sex abuse.

State v. Vandeberg, 284 Or App 190 (2017) (per curiam)

Per Curiam - Insufficient Evidence of Witness Tampering

The court accepts the state's concession that there was insufficient evidence to convict defendant of witness tampering.

State v. Horn, 284 Or App 192 (2017) (per curiam)

Per Curiam - Sex Abuse Guilty Verdicts Merged

The court concludes that defendant's guilty verdicts for three counts of first-degree sex abuse should merge because they were part of the same conduct or criminal episode and they were not separated by a sufficient pause.

State v. Williams, 284 Or App 194 (2017) (per curiam)