Oregon Appellate Ct - March 23, 2016
by: Aalvarez and Cmaloney • March 23, 2016 • no comments
Disorderly Conduct II - Conduct Primarily Characterized as Speech - Knocking on a Door
Evidence that a defendant knocked loudly on a person’s door while pretending to be a police officer is insufficient to justify a disorderly conduct conviction, because knocking on someone’s door is a common method of gaining attention and thus primarily speech, not conduct. A person commits the crime of disorderly conduct in the second degree by engaging in “fighting or in violent, tumultuous, or threatening behavior.” That section of the statute, ORS 166.025(1)(a), applies only to physical acts of aggression, not to actual or symbolic constitutionally protected speech. Here, the defendant banged on an apartment door, saying in a loud, deep voice, “Police. Open up.” Defendant repeated the statement a few times and then said "Police. Open up or we'll break the door down. We have guns." On that basis, the defendant was tried and convicted of disorderly conduct. On appeal, the Court of Appeals holds that defendant's physical conduct, knocking on an apartment door, is a common method of gaining someone's attention to communicate a demand for entry. Accordingly, defendant's conduct was primarily speech and not proscribed by ORS 166.025(1)(a). Therefore, the trial court erred in denying defendant's motion for judgment of acquittal. Reversed. State v. Richardson, 277 Or App 112 (2016).
Dependency - Evidence of Past Substance Abuse and Mental Illness Insufficient Basis for Jurisdiction
Evidence of father’s past substance abuse and evidence that father suffers from a serious mental illness that is untied to any risk of harm to a child is insufficient for a juvenile court to take jurisdiction over a child.
Here, the juvenile court took jurisdiction over father’s child based on the following grounds: • A year prior to the hearing, father was in a co-dependant relationship with the child’s mother and was willing to share his prescription pain pills to further her addiction • Father attempted to commit suicide a year prior to the hearing, based on allegations (later determined to be unfounded) that he had sexually abused one of his step daughters • Father had PTSD caused by his military service.
On appeal, the Court of Appeals reverses the juvenile court’s jurisdictional ruling and finds that the evidence presented at the hearing was insufficient to prove that father posed a current risk of harm to his son. First, father’s substance abuse issues were too remote in time to prove that his past substance abuse posed a current risk of harm to the child. At the time of the hearing, father and mother had been separated for a year and living apart, making the risk that father would begin sharing his prescription pills with mother extremely low. Further, the father’s attempted suicide via prescription pills took place over a year before the hearing and no other evidence, apart from the single episode, was presented suggesting father currently suffered from addiction.
Moreover, although father did suffer from a serious mental illness (PTSD), apart from his suicide attempt (which was too remote in time to justify jurisdiction) there was no evidence presented of any symptoms of the disorder that could have posed a risk of harm to child. Reversed. DHS v. M.M., 277 Or. App. 120 (2016)
Probation Revocation Where Prior Post-Prison Supervision Sanction Already Imposed for Same Conduct
ORS 137.593(3), does not prohibit trial courts from revoking probation based on a probation violation for one crime even where the defendant has already completed a structured, intermediate sanction for a violation of post-prison supervision for a different crime, based on the same conduct.
Here, the defendant plead guilty to one count of burglary and one count of theft and was sentenced to three years of probation on each conviction. Later, the defendant violated his probation and as a result, the court continued probation on the burglary conviction but revoked it for the theft conviction, imposing a sanction of 60 days jail followed by 12 months post prison supervision. A few months later, the defendant’s supervising officer alleged that he had violated the conditions of his post-prison supervision on the theft conviction by failing to contact his probation officer and failing to notify the officer of his change of address. The defendant’s post-prison supervising officer sanctioned him to three days in jail on the theft count as the result of those violations. Shortly thereafter, the trial court revoked the defendant’s probation on the burglary conviction based on the same conduct and sentenced him to 17 months in prison.
On appeal, the defendant argued that ORS 137.593(3) prevented the trial court from revoking his probation for the same conduct that he was previously sanctioned on post-prison supervision for. The Court of Appeals disagrees. ORS 137.593(3), prohibits a sentencing judge from causing “a probationer to be brought before the court for a hearing and revoke probation or impose other or additional sanctions after the probationer has completed a structured, intermediate sanction imposed by the Department of Corrections or a county community corrections agency pursuant to rules adopted under ORS 137.595.”
First, the Court of Appeals noted that the statute, on its face, “applies to different sanctions for a single probation violation and not to different sanctions for a probation violation for one crime and a post-prison supervision violation for another crime.” Further, when examining ORS 137.595, the statute that ORS 137.593(3) refers to, that statute plainly refers to rules on probation violation sanctions, again illustrating that ORS 137.595 prohibits duplicative sanctions for a single probation violation, not for a probation violation and a post-prison supervision violation for another crime. Affirmed. State v. Richards, 277 Or. App. 128 (2016)
