Oregon Appellate Ct - March 15, 2017
Indictments - Any Error in Amending Indictment was Harmless
The court concludes that any error in amending the indictment on the morning of trial to change burglary with intent to commit assault to burglary with intent to commit coercion was harmless. Before trial, the prosecutor asked the trial court to amend the indictment, contending that she had presented the grand jury with burglary with intent to commit coercion but, due to a scrivener’s error, the indictment incorrectly stated burglary with intent to commit assault. Defendant objected that this was a material amendment to the indictment, however, defendant declined the trial court’s offer of a set-over and said he was prepared to proceed with trial. The court does not decide whether the trial court’s amendment was a material change because, under the unique circumstances of this case, any error was harmless because defendant was not prejudiced by the amendment and because the correct charge had been submitted to the grand jury.
State v. Garcia, 284 Or App 357 (2017) (Devore, J.)
FAPA Orders - Insufficient Evidence that Respondent Threatened Harm to Petitioner
The court concludes that there was legally insufficient evidence to uphold petitioner’s FAPA restraining order against her estranged husband, respondent. Four years before obtaining the order, respondent threw a phone at petitioner. A few weeks prior to obtaining the order, respondent got into an argument with petitioner and their daughter, where he said to daughter she “should be shot” for driving her children around after drinking. After that incident, respondent and petitioner stopped living together but respondent returned a few times, said he would “get” petitioner and daughter, and then left. After the restraining order was in place, respondent sent petitioner blank texts, which she interpreted as threatening, and screamed at her in a grocery store. The court concludes that the record lacks evidence that respondent presented a credible threat to petitioner’s safety. Respondent’s comments could not reasonably be interpreted as a threat of harm and the evidence suggested that respondent wanted less contact with petitioner, not more.
J.V.-B. v. Burns, 284 Or App 366 (2017) (Garrett, J.)
Post-Conviction Relief - Appellate Counsel was Not Ineffective for Failing to Raise Claim
The court rejects petitioner’s argument that his appellate counsel was ineffective for failing to raise a challenge to the jury trial waiver in his direct appeal. Petitioner was charged with second-degree rape and then later charged with witness tampering. Before he was indicted for witness tampering, petitioner signed a written jury trial waiver for the rape charges. But the waiver was filed 10 days after the witness tampering case was consolidated with the rape case. Before trial, the trial court confirmed with the parties and petitioner directly that he intended to waive jury on both cases, however the waiver itself only referenced the rape case. On direct appeal, appellate counsel filed a Balfour brief raising no issues. Petitioner argued that appellate counsel should have raised the jury trial waiver issue as plain error. The court concludes that a reasonable appellate attorney could have concluded that the error was not plain or that petitioner had invited the error by expressly agreeing to incorporate the witness tampering charges into his earlier jury waiver.
Harbert v. Franke, 284 Or App 374 (2017) (Flynn, J.)
Civil Commitment - Evidence Sufficient to Find that Appellant Continued to Be a Danger to Herself
The court concludes that there was sufficient evidence for the trial court to conclude that appellant continues to suffer from a mental disorder that makes her a danger to herself. Appellant was initially civilly committed following an incident where her hallucinations, delusions, disorganized thinking, and impulsive behavior caused her to run into traffic, where she was injured. The trial court continued her commitment after her doctor’s presented evidence that appellant still suffered from those symptoms and would still run and scream, albeit in the controlled environment of the hospital. The court concludes that there was sufficient evidence for the trial court to infer that appellant’s pattern of impulsively running without regard for her surroundings created a highly probable risk of harm.
State v. V.T., 284 Or App 383 (2017) (Flynn, J.)
Post-Conviction Relief - Trial Counsel Not Ineffective for Failing to Argue for Application of Shift-to-I Rule
The court rejects petitioner’s claim of ineffective assistance of counsel premised on counsel’s purported failure to argue that the trial court should have applied the “shift-to-I” rule in imposing consecutive sentences. The court concludes that the post-conviction court correctly ruled that the shift-to-I rule did not apply to petitioner’s convictions. Petitioner was convicted of delivery of methamphetamine, delivery of heroin, and felon in possession of a firearm. Petitioner argued that counsel should have argued for application of the shift-to-I rule because his conduct was part of one criminal episode, running a drug dealing enterprise. The court rejects that argument, finding the record sufficient to conclude that petitioner’s conduct was not part of the same criminal episode, and therefore trial counsel was not ineffective for failing to argue otherwise.
Welsh v. Taylor, 284 Or App 387 (2017) (DeHoog, J.)
Sentencing - Trial Court Erred in Imposing Consecutive Sentences for Robbery and UUV
The court concludes that the trial court erred in imposing consecutive sentences for first-degree robbery and UUV because the UUV was incidental to the robbery. Defendant pulled a knife on the victim to get his car keys and then took his car. Defendant pleaded guilty to robbery and UUV and the trial court imposed consecutive sentences. The court concludes that ORS 137.123(5), in the absence of explicit evidence of multiple intents, precludes the imposition of consecutive sentences where the same act, undertaken to achieve the same end, concurrently violated two criminal statutes. In those circumstances, the two offenses are so inextricably intertwined that the consecutively sentenced offense is necessarily incidental to the more serious crime and cannot be deemed an indication of the defendant’s willingness to commit more than one criminal offense. Here, by obtaining the victim’s keys through the use of a dangerous weapon, defendant concurrently committed two crimes. Defendant could not have committed the robbery without committing the UUV, and the trial court erred in imposing consecutive sentences.
State v. Byam, 284 Or App 402 (2017) (Haselton, S.J.)