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Oregon Appellate Ct - March 22, 2017

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by: Sara Werboff • March 24, 2017 • no comments

Post-Conviction Relief - No Appeal from Dismissal as Meritless Petition

The court dismisses petitioner’s appeal from the post-conviction court’s dismissal of his post-conviction relief petition. The PCR court dismissed the petition on several grounds, including that the petition was “meritless,” in that it failed to state a claim for relief. A dismissal as “meritless” is not appealable. Here, the court concludes that, even though the PCR court provided additional reasons for dismissing the petition, it also dismissed the entire petition as meritless and therefore, petitioner could not appeal.

Corona v. Amsberry, 284 Or App 414 (2017) (Hadlock, C.J.)

Search and Seizure - Police Lacked Reasonable Suspicion - Record Not Sufficient to Address State's Alternative Basis

The court concludes that the trial court erred in denying defendant’s motion to suppress evidence on the grounds that police had reasonable suspicion that defendant and his companions were committing second-degree criminal trespass. The court also rejects the state’s argument that the officers did not stop defendant because the record is inadequate to determine that in the first instance. Police from a gang enforcement team went to a nightclub known to be a high crime location. The club employees asked the police to check whether people were loitering in the parking lot. The parking lot was open to the public, however, there were signs that only club customers could use it. An officer observed defendant and his companions standing by a car with open doors and an open trunk for about 10 minutes without going to or coming from the club entrance. The team, six officers, approached the men with flashlights and an officer called out to the men in a loud voice. When the men did not respond, the police ordered the out from behind the car. The police discovered guns and drugs.

The trial court concluded that police had reasonable suspicion that the men were criminally trespassing in the parking lot. The court disagrees and concludes that the men were seized without reasonable suspicion. The lot was open to the public and the men were there during business hours. Although defendant’s conduct might be consistent with trespassing, it was also consistent with innocent conduct. The court also rejects the state’s alternative basis for affirmance – that the men were not stopped. That is because the trial court did not resolve factual issues that would be necessary to determine whether the officers stopped defendant.

State v. Washington, 284 Or App 454 (2017) (Sercombe, P.J.)

Fines and Fees - Trial Court Improperly Imposed Compensatory Fine

The court reverses a $3,000 compensatory fine payable to the victim for tattoo removal. Defendant had a sexual relationship with the victim when she was under 16 years of age. The victim became pregnant and gave birth to their son. Defendant took the victim to someone’s home to get a tattoo of defendant’s name on her neck because defendant wanted her to prove that she was serious about their relationship. Defendant threatened to withhold support from their son if she did not get the tattoo. Defendant ultimately pleaded guilty to one count of third-degree rape occurring on or between January 1 and April 3, 2012. The trial court imposed the compensatory fine so that the victim could get the tattoo removed. A compensatory fine is authorized only when the injury for which is compensates is one for which there is a remedy by civil action. Here, the state failed to advance a valid theory of civil liability under which the victim could recover the costs of tattoo removal in a civil action. The tattoo was not a direct result of defendant’s criminal activities, and the record is legally insufficient to show that the cost of the tattoo removal was a reasonably foreseeable consequence of defendant having sexual intercourse with the victim.

State v. Alonso, 284 Or App 512 (2017) (Tookey, J.)

Juvenile Dependency - Affirming Jurisdiction over Child Due to Domestic Violence in the Home

The court affirms the judgment assuming jurisdiction over father’s child, D. The juvenile court took jurisdiction following a domestic violence incident between father and mother, and father and child’s teenaged half-sister. D was asleep through the incident. The juvenile court took jurisdiction on three bases, that mother placed D under threat of harm by exposing him to domestic violence, that mother failed to engage in services, and that father exposed D to domestic violence. The court concludes that the juvenile court’s findings that D was at a risk of harm due to domestic violence in the home were supported by the evidence. Father also challenged the juvenile court’s conclusion that mother’s refusal to engage in services supported jurisdiction, arguing that mother was not required to engage in services before the court took jurisdiction. The court concludes that argument is unpreserved. Finally, father argued that the court improperly admitted hearsay from D that his mother and father fight a lot. The court concludes that any error admitting the hearsay was harmless because it was cumulative of other evidence.

DHS v. C.M., 284 Or App 521 (2017) (DeHoog, J.)

Search and Seizure - Search Warrant Affidavit Established Probable Cause for Search of RV

In this state’s appeal, the court reverses the trial court’s order granting in part defendant’s motion to suppress. Police searched defendant’s RV for evidence of drug manufacturing pursuant to a search warrant. Below, defendant successfully argued that the warrant affidavit did not establish probable cause to search the RV, because defendant owned two RVs and did not specify which RV he kept marijuana in. The court concludes that the affidavit, when read in a commonsense manner, established probable cause to search defendant’s RV, because there was evidence that defendant possessed marijuana in his RV, that defendant was manufacturing marijuana, that defendant lived in that particular RV, and that evidence of manufacturing would be found in the RV where defendant lived.

State v. Klingler, 284 Or App 534 (2017) (Shorr, J.)

Per Curiam - Search and Seizure - Search Under Automobile Exception Justified

In these cases, the court, relying on its recent ruling in State v. Bliss, 283 Or App 833 (2017), rejects the defendants’ arguments that, because police stopped them for traffic violations, they did not encounter their vehicles in connection with a crime for purposes of relying on the automobile exception. Under Bliss, the automobile exception applies when police stop a car for a traffic violation and subsequently develop probable cause to search the car for contraband.

State v. Tharp, 284 Or App 546 (2017) (per curiam)

State v. Harvey, 284 Or App 548 (2017) (per curiam)

Per Curiam - Court Erred in Imposing Fine on Merged Count

The court concludes that the trial court plainly erred in imposing a fine on a merged count and remands for entry of judgment imposing a reduced fine.

State v. Cuenca-Juarez, 284 Or App 551 (2017) (per curiam)

Per Curiam - Civil Commitment Court Plainly Erred in Failing to Advise of Right to Subpoena

The court accepts the state’s concession that the civil commitment court plainly erred when it failed to advise appellant of his right to subpoena witnesses, and exercises its discretion to correct the error.

State v. S.A.M. 284 Or App 553 (2017) (per curiam)