Oregon Appellate Ct - March 16, 2016
by: Aalvarez and Cmaloney • March 16, 2016 • no comments
Post Conviction Relief - A Judgment That Incorporates by Reference the Court's Oral Findings Must Be Noted on the Judgment
A post conviction judgment can satisfy the statutory requirement of ORS 138.640(1), to "clearly state the grounds on which the cause was determined," by incorporating by reference oral findings that the court made on the record at the post-conviction trial. In Asbill v. Angelozzi, the Court of Appeals held that a post-conviction judgment that included a handwritten notation that the court's findings and conclusions were "made on the record" satisfied the requirements of ORS 138.640(1) as construed by Datt v. Hill. Unlike Asbill, the judgment form in this case did not include any reference to the court's oral findings and therefore did not incorporate those findings. Reversed and remanded for entry of judgment that is Datt compliant. Himebaugh v. Taylor, 277 Or App 18 (2016)
Juvenile Dependency - A Concluding Decision on Jurisdiction Can Be Inferred From the Title and Text of a Document
For purposes of appealing a juvenile court judgment finding that a child is within the jurisdiction of the court, there must be a "concluding decision" by the court reflected in a judgment document as required by ORS 18.005(8). In this case, the Department of Human Services (DHS) and child argued that the father's appeal challenging the court's decision to take jurisdiction over child must be dismissed because the court's decision to take jurisdiction was not made in the form of an appealable judgment. The judgment at issue was contained in a document labeled by the juvenile court as a jurisdictional judgment. Additionally, the body of the document explicitly incorporated an earlier court order that referenced jurisdictional findings. The Court of Appeals held that this was a "concluding decision" on jurisdiction and therefore review of the father's jurisdictional challenge was appropriate. DHS conceded that the allegations found proven by the juvenile court were insufficient to support jurisdiction over child. The Court of Appeals accepted DHS's concession and reversed the jurisdictional judgment. Dept. of Human Services v. B.P., 277 Or App 23 (2016)
Dependency - Reunification Efforts - Parent’s Failure to Sign ROI’s
In a dependency proceeding, a parent’s initial failure to sign releases of information does not excuse DHS from making reasonable efforts to reunite parent with child. Here, DHS removed child from father’s home on January 2nd and filed for jurisdiction. A DHS caseworker met with father to explain reunification services available to father. At that time, father refused services and did not sign any releases of information, though no evidence in the record illustrated how DHS explained the need for releases to father. In April, the court found jurisdiction was warranted. Two days before the dispositional hearing in May, father contacted DHS for a referral and signed releases of information. At the hearing, father claimed, and DHS did not disagree, that DHS did not provide him with a referral for services until the day of the dispositional hearing. Although the court expressed concern about DHS’ actions, the court ultimately found that DHS made referrals to anger management, counseling, and intensive family services, that father did not participate in those efforts, and continued jurisdiction. Father appealed.
On appeal, the Court of Appeals finds that there is no evidence to support the juvenile court’s finding that DHS made referrals to the services listed in the judgment. The juvenile court’s comments about DHS’ lack of efforts to provide father with services weigh heavily against its own final judgment. Further, the only evidence in the record that tends to support the court’s finding of services was DHS’ testimony that she informed father about services on January 2nd, which is still insufficient to find that father received all the referrals specifically in the judgment. Moreover, the Court finds that DHS’ reunification efforts were not reasonable. Although father was initially uncooperative by refusing to sign releases of information, DHS did not make any subsequent attempts to provide or even to offer father services, nor did DHS explain whether and how the necessity of a release of information was communicated to father. Lastly, DHS never explained why it was precluded from making a referral without a release of information from harmful. The juvenile court’s errors were not harmless. Reversed and remanded. DHS v. R.W., 277 Or. App. 37 (2016)
Sodomy I - Jury Instructions - Forcible Compulsion
It is plain error to fail to instruct a jury that in order to convict a defendant of first-degree sodomy via forcible compulsion that the jury had to find that the defendant knowingly subjected the victim to forcible compulsion. Here, the defendant was charged with, among other things, first-degree sodomy based on allegations that he forcibly subjected his wife to anal sex after she already told her husband that she did not want to have sex with him. The defendant’s defense was that the incident never occurred, that is, he said that the incidents of forced sex as described by the victim never happened. When the court provided jury instructions to the jury, it failed to instruct the jury that the defendant had to knowingly subject the victim to forcible compulsion in order to be convicted. Defendant did not take any exceptions to that instruction, was convicted, and appealed.
On appeal, the Court of Appeals agrees with that the defendant, that in light of cases like Nelson and Gray, which held that “forcible compulsion” was an element of the crime that required the state prove that defendant acted with the requisite mental state with respect to that element, that the trial court plainly erred by refusing to instruct the jury that defendant had to act “knowingly” with respect to forcible compulsion. However, the Court of Appeals finds that given the defendant’s defense, that the error was harmless. In order to find that the victim was subjected to forcible compulsion, the jury must have credited the victim’s testimony that the defendant pushed her face down onto the bed and forced himself upon her. Thus, the defendant’s testimony that the incident never occurred did not provide a basis from which the jury could find that the defendant subjected her to forcible compulsion, but did not do so knowingly. Thus, the error was harmless. State v. Belen, 277 Or. App. 47 (2016)
Attorney’s fees - Plain Error in Imposing Where No Evidence of Ability to Pay
Evidence that the defendant had worked sometime in the past is insufficient to support the imposition of $8,000 in attorney’s fees. Here, the defendant was convicted of a variety of sexual offenses and sentenced to 202 months in prison. As part of his sentence, he was ordered to pay $8,000 in attorney’s fees. On appeal, the Court of Appeals finds that the trial court plainly erred in imposing the $8,000 in attorney’s fees, since there was no evidence at the time of sentencing that defendant was or may be able to pay them. Order imposing attorney’s fees reversed. State v. Belen, 277 Or. App. 47 (2016)
Parole Board Decisions - Public Meetings Law
This case involves the use of what is referred to as the “file pass” procedure often utilized in parole decisions. In connection with the parole process, the board often orders a psychological evaluation of the inmate. When deciding whether to order a second evaluation, the board employs what is referred to as the file-pass procedure. Under that procedure, a staff member identifies a form and specific issue that the board needs to decide and the form and the inmate’s file are passed around to other board members who comment on the form. Ultimately, those comments and the file are returned to a staff person who memorializes the decision reflected in the board members comments. This decision is not open to the public.
Here, the plaintiff (the offender subject to the parole board’s decisions) filed a complaint alleging that the board utilized the file pass procedure to decide whether to order additional psychological evaluations. At the trial court level, he contended that this private process did not comport with the requirements of the Public Meetings Law (requiring that all meetings of the governing body of a public body shall be open to the public). The trial court dismissed his complaint and the plaintiff appealed.
On appeal, the Court of Appeals affirms the trial court, noting that a “meeting” under the Public Meetings Law amounts to a contemporaneous gathering of the board. The file-pass process does not fit that definition because it is merely a serial consideration of a file. Further, the Court of Appeals rejects the plaintiff’s claim that the board engages in impermissible private deliberations because the legislature has specifically made clear that the parole board can deliberate in private. See ORS 192.690(1). Affirmed. Rivas v. Board of Parole, 277 Or. App. 76 (2016)
Accomplice Testimony Corroboration - Attempted Murder and Conspiracy to Commit Murder
Evidence of defendant’s behavior before, during, and after an attempted murder is sufficient to corroborate accomplice testimony against the defendant. Here, the defendant was charged with attempted murder and conspiracy to commit murder based on accusations that she was a participant in a plot to murder the victim, her child’s ex-husband and father of her grandson, because she believed he was abusing her grandson. The state alleged that the defendant’s role was to lure the victim into a garage by telling him that he could not come in through the front door, because she was shampooing the rugs in the home. Once inside the garage, the victim was shot by the defendant’s husband, though ultimately not killed. Much of the incriminating testimony came from another accomplice, Fritz. Fritz testified about a conversation that occurred immediately after the botched shooting, wherein he heard the defendant tell her husband that “this can be fixed” and “we will work it out.” In addition to the accomplice’s testimony, the following evidence was also presented:
- The victim’s testimony regarding the defendant’s actions, including her specific request that the victim enter through the garage
- Inconsistent statements by the defendant to police about the events on the day of the shooting
- Oddly mundane communications to her daughter and friends less than hour after a shooting at her home
- Police observations that the rugs and shampoo machine she claimed to use were dry mere hours after she purported to have been cleaning.
At trial, the defendant moved for a judgment of acquittal, arguing that the only evidence put forth of an agreement between the parties came from the accomplice, and that given the accomplice’s testimony (which contained multiple inconsistencies) that there was insufficient evidence to convict the defendant. The trial court denied the MJOA and the defendant was convicted. On appeal, the Court of Appeals affirms the trial court. Although the court agreed with the defendant that the testimony of an accomplice alone is generally insufficient grounds on which to base a conviction, here there was sufficient corroborating evidence admitted through other parties on which the jury could have convicted the defendant. Affirmed. State v. Reger, 277 Or. App. 81 (2016)
Search and Seizure - Warrants and the Particularity Requirement
Defendant was charged with attempted murder and conspiracy to commit murder. Part of the accusations against the defendant included the allegation that she lied about shampooing carpets found in her living room in order to lure the victim into her garage, where her husband would shoot him. After the shooting, police obtained a warrant to search the defendant’s home for, among other things: “fibers,” “DNA evidence,” “blood or blood spatter evidence,” and “hair/trace evidence.” In the course of the search, officers examined the entryway rugs and the rug shampoo device. Police felt that they were all-dry and took the rugs into evidence. The defendant filed a motion to suppress evidence related to the rug cleaning, on the basis that the warrant did not meet the particularity requirement. The trial court denied the motion, the defendant was convicted, and appealed.
On appeal, the Court of Appeals affirms the trial court’s finding that the warrant was sufficiently particular:
“It was reasonable to infer that the rugs and shampooer could have been a source of the types of evidence listed in the warrant. The warrant stated that the police could search a particular place—defendant’s home— for specific kinds of evidence—fibers, DNA, blood or blood splatter, hair, and other trace evidence—in connection with the officers’ probable cause to believe that defendant committed first-degree assault, attempted murder, and conspiracy to commit those crimes…[B]ecause the warrant limited police to search for particular types of evidence at a particular location in connection with a specific set of alleged crimes, it was sufficiently particular.” State v. Reger, 277 Or. App. 81 (2016)
Failure to Warn a Defendant of the Consequences of Refusing to Perform FST's Results in Exclusion of the Refusal
Failure to warn a defendant of the consequences of refusing to perform field sobriety tests renders a subsequent refusal to perform them inadmissible in a DUII prosecution. Here, the defendant was asked to perform the HGN test during a traffic stop. He was not told of the consequences of refusing to perform the test as required by ORS 813.135 (requiring that persons “shall be informed” of the consequences of refusing to perform the tests). Under ORS 813.136, if a person “refuses or fails to submit field sobriety tests as required by ORS 813.135, evidence of the person’s refusal or failure to submit is admissible” in his or her subsequent criminal trial. At trial, the defendant contended his refusal was inadmissible because the officer failed to perform the duties required by ORS 813.135. The trial court disagreed and admitted the defendant’s refusal to perform the field sobriety tests. The defendant was convicted and appealed.
On appeal, the Court of Appeals holds that an officer’s failure to perform the duties required under ORS 813.135 renders the defendant’s refusal to perform them inadmissible at trial. Although ORS 136.432 prevents a court from excluding “relevant and otherwise admissible evidence on the grounds that it was obtained in violation of any statutory provision,” after analyzing the text, context, and legislative history of ORS 136.432, the Court of Appeals interprets ORS 136.432 as “preventing judicially created rules of exclusion developed to remedy the effects of statutory violations,” not as getting rid of “legislatively imposed limitations on admissibility.” “Thus, if the legislature manifested its intention to impose a foundational requirement or exclude particular evidence, the courts have to give effect to that intention, notwithstanding ORS 136.432.”
Relying on language previously considered dicta in State v. Trenary, (“ORS 813.135 and ORS 813.136 contain an implied exclusionary clause. The statutes imply that, if the driver refuses the tests and no information concerning the consequences of refusing was given, evidence of refusal is not admissible.”), the Court of Appeals holds that in crafting ORS 813.135 and ORS 813.136, that the legislature intended to “include and implement a legislative determination that a driver’s refusal to perform FST’s is not admissible,” unless that person was properly advised of the consequences. Reversed and remanded. State v. Eskie, 277 Or. App. 93 (2016)
Post-Conviction Relief- Failure to Properly Enter a Judgment - Per Curiam
The state concedes and the appellate court accepts that concession that the trial court failed to enter a judgment denying the petitioner post-conviction relief in the form required by ORS 138.640(1). Reversed and remanded for entry of judgment including the findings required by ORS 138.640(1). Lagunas-Garcia v. Taylor
Criminal History Scoring - Out of State Conviction- Colorado's Assault Statute
The state concedes that the trial court erred in using the defendant’s prior Colorado convictions for assault to calculate his criminal history score and the appellate court accepts that concession. Here, the state argued that the defendant’s criminal history contained two person class A misdemeanors based on the defendant’s convictions in Colorado for assault. However, the Colorado assault statute allows for convictions based on the defendant causing “mental impairment,” as well as impairment of physical condition or substantial pain, whereas the Oregon assault statute only allows for convictions based on impairment of physical condition or substantial pain. Thus, a person could be convicted of assault in Colorado without having committed the elements of assault under Oregon law. As such, the court should not have elevated the defendant’s criminal history score based on the Colorado convictions. Reversed and remanded for re-sentencing. State v. R-Robinson, 277 Or. App. 107 (2016)
Civil Commitment - Per Curiam Reversal - Failure to Provide for Basic Needs
The state concedes and the appellate court accepts that there was insufficient evidence to support a trial court’s finding that the defendant, because of a mental disorder, was unable to provide for his basic needs. Reversed. State v. B.P.C, 277 Or. App. 110, (2016)
